{"prompt": "How does this Federal Court of Appeal of Canada decision affect immigration jurisprudence?\n\nBell Canada v. Adwokat Court (s) Database Federal Court of Appeal Decisions Date 2023-05-18 Neutral citation 2023 FCA 106 File numbers A-285-21 Decision Content Date: 20230518 Docket: A-285-21 Citation: 2023 FCA 106 CORAM: BOIVIN J.A. GLEASON J.A. GOYETTE J.A. BETWEEN: BELL CANADA, BELL EXPRESSVU LIMITED PARTNERSHIP, BELL MEDIA INC., GROUPE TVA INC., VIDÉOTRON LTD., ROGERS COMMUNICATIONS CANADA INC. and ROGERS MEDIA INC. Appellants and ERIC ADWOKAT and RED RHINO ENTERTAINMENT INC. Respondents Heard at Toronto, Ontario, on February 7, 2023. Judgment delivered at Ottawa, Ontario, on May 18, 2023. REASONS FOR JUDGMENT BY: GLEASON J.A. CONCURRED IN BY: BOIVIN J.A. DISSENTING REASONS BY: GOYETTE J.A. Date: 20230518 Docket: A-285-21 Citation: 2023 FCA 106 CORAM: BOIVIN J.A. GLEASON J.A. GOYETTE J.A. BETWEEN: BELL CANADA, BELL EXPRESSVU LIMITED PARTNERSHIP, BELL MEDIA INC., GROUPE TVA INC., VIDÉOTRON LTD., ROGERS COMMUNICATIONS CANADA INC. and ROGERS MEDIA INC. Appellants and ERIC ADWOKAT and RED RHINO ENTERTAINMENT INC. Respondents REASONS FOR JUDGMENT GLEASON J.A. [1] We have before us two matters: a motion by the appellants to adduce additional evidence and an appeal from the sentence for contempt imposed by the Federal Court in Bell Canada v. Red Rhino Entertainment Inc., 2021 FC 895, [2021] F.C.J. No. 1050 (QL) (per Norris J.). In their appeal, the appellants seek to have this Court increase the fine imposed by the Federal Court. [2] In the judgment under appeal, the Federal Court sentenced the respondents to a fine of $40,000.00, for which they were jointly and severally liable, for violations of an interlocutory injunction that prohibited the sale of devices that the appellants claim were used to breach their copyright in television programs they broadcast. [3] For the reasons that follow, I would dismiss both the motion and the appeal, with costs. I. The Motion to Adduce Additional Evidence [4] As concerns the motion, the test for allowing fresh evidence on appeal is well settled and requires the party seeking to file such evidence to establish that the evidence: (1) could not have been adduced at trial with the exercise of due diligence; (2) is relevant in that it bears on a decisive or potentially decisive issue on appeal; (3) is credible in that it is reasonably capable of belief; and (4) is such that, if believed, could reasonably have affected the result in the court below. An appellate court maintains a residual discretion to admit new evidence on appeal where these criteria are not met. However, such discretion should be exercised sparingly and only in the clearest of cases where the interests of justice so require (Coady v. Canada (Royal Mounted Police), 2019 FCA 102, 304 A.C.W.S. (3d) 869 at para. 3 and cases cited therein). [5] The first of the foregoing criteria, as noted by the majority of the Supreme Court of Canada recently in Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1 [Barendregt] at paragraph 36 “… focuses on the conduct of the party seeking to adduce the evidence. It requires litigants to take all reasonable steps to present their best case at trial. This ensures finality and order in the judicial process [citations omitted]”. [6] Here, the fresh evidence that the appellants seek to tender could have been adduced before the Federal Court had they been more diligent in their quest for it. The key components of the fresh evidence are the banking records for the two bank accounts of the respondent, Red Rhino Entertainment Inc. (Red Rhino), which suggest that, once the respondent was aware of the Federal Court’s injunction, Red Rhino may well have made sales in violation of the injunction that generated gross revenues equal to at least $600,000.00. Although the appellants wrote several times to the trustee in bankruptcy of the respondent to request production of the bank statements of Red Rhino, they took no other steps to obtain them. [7] It was open to the appellants to have obtained the banking records of Red Rhino via proceedings that were available under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the BIA). More specifically, the appellants could have sought an order to examine Mr. Adwokat, the sole director of Red Rhino, under subsection 163(2) of the BIA or could have sought production from the T.D. Bank, where the accounts were held, if they had obtained an order under section 38 of the BIA. Indeed, the trustee in bankruptcy of the respondents told the appellants that, in his opinion, one of these alternative avenues was more likely to be successful. [8] In addition, Mr. Adwokat filed an affidavit on the sentencing motion. He could have been cross-examined about his and Red Rhino’s assets and earnings and could have been asked to produce all relevant banking records during the cross-examination. If necessary, an adjournment could have been sought to facilitate production or to seek an order requiring it. However, the appellants pursued none of these avenues. [9] It rather appears that the appellants perhaps made a tactical choice to refrain from making further efforts to seek the banking records for Red Rhino, as the respondents submit. In this regard, the appellants argued during the sentencing hearing that the respondents’ failure to disclose the banking records to the trustee in bankruptcy was an aggravating factor, meriting a more severe sentence. [10] The appellants, accordingly, have failed to meet the test for acceptance of the fresh evidence because they have failed to establish the first of the prerequisites for its admission since they were not duly diligent in its pursuit. [11] In the circumstances, I am not convinced that this is an appropriate case to exercise our exceptional discretion to admit the fresh evidence that the appellants seek to tender. As noted at paragraphs 70-72 of Barendregt, it is only in rare and exceptional circumstances, where the interests of justice so require, that an appellate court should exercise its discretion to admit evidence that could have been tendered in the court below if the party seeking to adduce it had been duly diligent. In my view, there are no rare and exceptional circumstances in this case that would warrant the exercise of discretion. [12] I would accordingly dismiss the appellants’ motion, with costs. II. The Appeal [13] Turning to the merits of the appeal, contrary to what the appellants contend, I see no error that would permit this Court to intervene to vary the penalty imposed by the Federal Court. [14] In Simon v. Bacon St-Onge, 2023 CAF 1, [2023] A.C.F. n° 17 (QL) [Simon], this Court recently outlined the bounds of permissible appellate review of penalties for contempt, noting that the principles from the criminal sentencing context are applicable and thus that great deference is to be accorded to a sentencing judge. Hence, an appellate court cannot intervene simply because it might have imposed a different penalty or might have weighed the relevant factors differently. Instead, absent an extricable error of law, intervention is only warranted where an appellate court is convinced that the penalty is demonstrably unfit or clearly unreasonable (Simon at paras. 6-12). [15] In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 , the majority of the Supreme Court of Canada underscored at paragraph 12 that, “… if appellate courts intervene without deference to vary sentences that they consider too lenient or too harsh, their interventions could undermine the credibility of the system and the authority of trial courts.” Thus, appellate courts must be deferential in cases such as the present. [16] Here, I am of the view that the Federal Court applied the correct principles in determining the appropriate penalty. [17] Contrary to what the appellants submit, I am not convinced that the Federal Court needed to say more about the need for general deterrence or inappropriately disregarded this factor, particularly in light of the relatively little evidence tendered by the appellants regarding the claimed need to more severely penalize contemptuous behaviour similar to that of the respondents due to the alleged propensity for such behaviour. On this point, there was little evidence beyond the situation of Mr. Wesley, who breached the same injunction (Bell Canada v. Wesley (d.b.a. MtlFreeTV.com), 2016 CF 1379 [Wesley]), and general statements in the affidavits tendered by the appellants regarding the claimed need for more severe penalties for contemptuous conduct like that of the respondents. [18] Indeed, in making this submission, the appellants conflate to a certain extent the purposes of penalties for contempt with the civil remedy of damages available for copyright infringement. The purpose of a sentence for contempt is to foster compliance with court orders by sanctioning those who flout them (Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 30, Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612 at para. 35). Civil damages for copyright infringement, on the other hand, seek to compensate plaintiffs whose copyright is infringed and to more generally dissuade infringement. Much of the appellants’ evidence spoke to the alleged prevalence of copyright infringement as opposed to the alleged frequency of breach of court injunctions. [19] Nor is the penalty imposed by the Federal Court so disproportionate that it cannot stand when the evidence that was before that Court is considered. [20] The Federal Court knew only that the respondents were operating on a commercial basis, had a bricks and mortar office, and had offered for sale and presumably sold the infringing products at several trade and home shows, flea markets, over the internet and through their bricks and mortar location. The Federal Court also had evidence of the lifestyle enjoyed by Mr. Adwokat, which included stays in expensive hotels and first class air travel. However, the Federal Court had no concrete information as to the actual magnitude of Red Rhino’s sales made in violation of the injunction. [21] The Federal Court found that the respondents were carrying on a more sophisticated and commercial operation than Mr. Wesley (who was sentenced to fines of $15,000.00 and $30,000.00 for two successive instances of contempt of the same injunction in Wesley, above, and Bell Canada v. Wesley (d.b.a. MtlFreeTV.com), 2018 FC 861). [22] The Federal Court noted the differences between the two cases, and found that the more commercial and sophisticated nature of the respondents’ operations weighed in favour of a more severe penalty but that the two successive findings of contempt in Mr. Wesley’s case were more serious. Weighing this as well as the penalties imposed in other cases, the Federal Court fined the respondents $40,000.00. [23] In my view, when one considers the evidence that was before the Federal Court, the penalty it selected cannot be said to be so disproportionate as to be unfit. [24] I note in this regard that the range of penalties imposed by the Federal Court in many previous and subsequent cases for acts of contempt for breach of an injunction issued to protect a plaintiff’s intellectual property rights range, in 2023 dollars, from a little over $1,500.00 to approximately $190,000.00. The latter sum was imposed in Apotex Inc. v. Merck & Co. Inc., 2003 FCA 234, 227 D.L.R. (4th) 106, on a large, corporate defendant who earned several million dollars in breach of a judgment. The majority of fines levied by the Federal Court are at the lower end of the range. Cases where sentences were imposed in somewhat similar circumstances to those in the case at bar are summarized in the Appendix A to these reasons, along with cases from the Ontario courts, which have imposed prison sentences for somewhat similar acts of contempt. [25] Before this Court, the appellants no longer seek a penalty of imprisonment and rather seek to have this Court vary the fine imposed, to increase it by $200,000.00. [26] In my view, this is uncalled for because the $40,000.00 fine leveled in the case at bar is not clearly disproportionate with those levied in other cases when one considers the facts that were before the Federal Court in the instant case. [27] That said, had the additional evidence that the appellants seek to adduce on appeal been before the Federal Court, I am of the view that a stiffer penalty may well have been appropriate and might have included a period of incarceration or a much greater fine. In the absence of such evidence, though, I believe there is no basis to interfere with the Federal Court’s Order. [28] Before closing, I wish to comment on the Dissenting Reasons of my colleague, Justice Goyette, which I have read in draft. [29] I cannot agree with her proposed disposition because it fundamentally misconceives the role and authority of this Court. I do not see how we could increase the costs award made by the Federal Court, when that award was not appealed and the appellants did not seek to vary it, or award imprisonment, when that was not ever at issue before us. While the case law from the Ontario courts was discussed before us, the appellants no longer sought imprisonment and there was never any question or discussion of the possibility that this Court might impose a term of imprisonment on Mr. Adwokat. [30] The disposition proposed by Justice Goyette would accordingly fundamentally violate the respondents’ procedural fairness rights. The Dissenting Reasons would result in the respondents finding themselves subject to a much increased costs award, and in the case of Mr. Adwokat, to imprisonment, when the possibility of these remedies being awarded by this Court was never in issue before us. [31] A court cannot raise a new legal issue in its decision that was not raised by either party or by necessary implication or seek to award remedies that were not requested without first raising the issue with the parties and giving them the right to make submissions: R. v. Mian, 2014 SCC 54, 377 D.L.R. (4th) 385 at paras. 41, 54; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, 384 D.L.R. (4th) 1 at para. 26; Adamson v. Canada (Human Rights Commission), 2015 FCA 153, 255 A.C.W.S. (3d) 956 at para. 89; CSX Transportation, Inc. v. ABB Inc., 2022 FCA 96, [2022] F.C.J. No. 870; Vidéotron Ltée c. Technologies Konek Inc., 2023 CAF 92, [2023] A.C.F. no 576). [32] Thus, this Court cannot, on its own motion, award the remedies my colleague seeks to impose. [33] I also am of the view that the Dissenting Reasons fail to understand the role of an appellate Court and the limits of its authority to intervene in factual matters. [34] We are not tasked with drawing inferences, which is the sole province of a trial court. Nor can we set aside factual determinations made by the Federal Court simply because we would have reached a different conclusion. The decision of the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235 [Housen], at paragraphs 19 to 35 makes it clear that factual inferences made – or not made – by a trial court cannot be interfered with in the absence of a palpable and overriding factual error. [35] There is no such error in the Federal Court’s refusal to draw the inference of continued contemptuous behaviour by the respondents in the case at bar. There was no evidence before the Federal Court directly establishing that the respondents were involved with what my colleague terms copycat companies. In the absence of such evidence, the Federal Court’s decision to decline to infer continued contemptuous behaviour by the respondents is not a palpable and overriding error. [36] As this Court noted in Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157 [Mahjoub], declining to draw an inference, absent a logical error or disregard of the evidence, is not a palpable error. The following conclusion reached at paragraphs 79-80 of Mahjoub applies equally to the case at bar: In this Court, Mr. Mahjoub frequently invites this Court to reassess and reweigh the evidence before the Federal Court and to substitute its fact-finding and exercises of discretion for that of the Federal Court …. Sometimes he asks this Court to draw factual inferences the Federal Court declined to draw …, to find more prejudice on the facts than the Federal Court was willing to find …, to assume the Federal Court disregarded evidence that it did not mention …, to allege the Federal Court misconceived evidence in order to encourage this Court to substitute its own factual finding for that of the Federal Court, … and to challenge credibility findings… The invitations must be declined. They tempt us to travel down a road the law forbids to us. Unless we see legal error, the only road we can travel is one in the direction of palpable and overriding error. [emphasis added] [37] In the case at bar, the Federal Court carefully considered the evidence adduced by the appellants demonstrating the alleged connection between the copycat companies and the respondents. The Federal Court evaluated this evidence in light of its assessment of the credibility of Mr. Adwokat and acknowledged doubts as to Mr. Adwokat’s credibility, but found that continued contempt had not been established on a balance of probabilities (Federal Court Reasons at paras. 47-50). [38] In my view, it is particularly significant that the Federal Court evaluated the evidence relied on by Justice Goyette against an apology given by Mr. Adwokat, acknowledging that his conduct was wrongful. The Federal Court noted, “Mr. Adwokat reiterated this apology in his testimony before me on March 10, 2021. He added that he also apologized for making it difficult for the plaintiffs to serve him with documents in connection with this matter” at paragraph 45. The Federal Court then found that, despite some doubts as to Mr. Adwokat’s credibility, “I accept as sincere his statement that he now recognizes the error of his ways, that he has not engaged in conduct contrary to the injunction since November 2019, and that he will not do so in the future” (Federal Court Reasons at para. 50). The Federal Court thus determined that this expression of remorse should be accorded some weight, even in light of some possible connection with copycat companies. [39] The Dissenting Reasons suggest overturning the Federal Court’s appreciation and weighing of these elements of the evidence. The Dissenting Reasons do not demonstrate the deference that is due from an appellate court to a trial court, nor do the Dissenting Reasons acknowledge the privileged position of the Federal Court in hearing viva voce testimony. Instead, the Dissenting Reasons imagine this Court to be in an equally good position relative to the Federal Court to appreciate this case’s extensive evidentiary record and recalibrate the weight given to the various elements of the record to draw an inference the Federal Court declined to draw. This seems to me to be directly contrary to the teachings of Housen at paragraphs 10-14, which emphasize the relatively disadvantaged position of appellate courts when it comes to making findings of fact, which animates the standard of palpable and overriding error. [40] For these reasons, I find that the “error” identified by the Dissenting Reasons cannot be properly characterized by this Court as an error at all, much less as one of a palpable and overriding nature. As put succinctly by the majority of the Supreme Court in Salomon v. Matte-Thompson, 2019 SCC 14 at paragraph 33, “[t]he fact that an alternative factual finding could be reached based on a different ascription of weight does not mean that a palpable and overriding error has been made.” [41] We therefore cannot draw the inference the Federal Court refused to draw. Without this inference, one cannot say that the sentence imposed by the Federal Court was clearly disproportionate. III. Proposed Disposition [42] Thus, I would dismiss this appeal and the motion, both with costs. [43] The respondents may serve and file costs submissions of no more than ten pages, within ten days of the date of these Reasons, and the appellants may file responding submissions of equal length within ten days of receipt of the respondents’ submissions. The respondents may file a reply to the appellants’ responding submissions, of no more than three pages, within five days of receipt of the appellants’ responding submissions. “Mary J.L. Gleason” J.A. “I agree. Richard Boivin J.A.” GOYETTE J.A. (Dissenting Reasons) [44] I reach a different result from my colleagues. [45] Appellate courts can modify a sentence when: (1) the sentencing judge made an error in principle, i.e. an error in law, a failure to consider a relevant factor, or an erroneous consideration of a factor, and this error had an impact on the sentence; or (2) the sentence is demonstrably unfit. (R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424 [Friesen] at para. 26.) [46] In this case, the sentence of the Federal Court must be modified. [47] The primary purpose of imposing sanctions for civil contempt is to ensure compliance with court orders: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79 at paras. 31, 41; Canadian Standards Association v. P.S. Knight Co. Ltd., 2021 FC 1346 [P.S. Knight] at para. 15. To this end, specific and general deterrence are key factors to consider, especially in content piracy matters: Apotex Inc. v. Merck & Co. Inc., 2003 FCA 234 [Merck] at paras. 85-89, leave to appeal refused, [2003] S.C.C.A. No. 366 (S.C.C.); Dish Network LLC et al. v. Gill et al. (27 April 2018), Hamilton CV-13-40368 (Ont. S.C.) [Dish Network] at pp. 3, 16-17; Trans-High Corporation v. Hightimes Smokeshop and Gifts Inc., 2015 FC 919 at para. 25; Louis Vuitton S.A. v. Tokyo-Do Enterprises Inc., 28 A.C.W.S. (3d) 321, 37 C.P.R. (3d) 8 (F.C.T.D.) at paras. 23-24; DIRECTV Inc. v. Boudreau, 2005 CarswellOnt 7026 (Ont. S.C.) [DIRECTV] at para. 7, varied in [2006] O.J. No. 1583, 2006 CarswellOnt 2391 (Ont. C.A.); Echostar Communications Corporation v. Rodgers, 2010 ONSC 2164 at paras. 60-63. [48] Specific and general deterrence will ensure that the contemnor and others who would be tempted to commit contempt do not form the view that court orders can be defied without consequences: Merck at para. 89; Bell Canada et al. v. Vincent Wesley DBA MtlFreeTV.com (28 August 2018), Ottawa T-759-16, Doc. 395 (F.C.) at para. 31; 9038-3746 Quebec Inc. v. Microsoft Corporation, 2010 FCA 151 at paras. 18-19, leave to appeal dismissed, Carmelo Cerrelli v. Microsoft Corporation, 2010 CanLII 77120 (S.C.C.). [49] In the case at bar, I find that the Federal Court either failed to apply the principle of deterrence or did not have, in law, the correct understanding of deterrence. This had an impact on the sentence. Otherwise, given the deplorable aggravating circumstances before it, a much more significant sentence would have been imposed on Mr. Eric Adwokat — the directing mind of Red Rhino Entertainment Inc. (Red Rhino). The Federal Court’s fine of $40,000 is demonstrably unfit. [50] This error of law and demonstrably unfit sentence allow this Court to perform its own sentencing analysis to determine a fit sentence that relies on the Federal Court’s findings of fact to the extent that they are not affected by an error in principle: Friesen at paras. 26-28; Federal Courts Act, R.S.C. 1985, c. F-7, para. 52(b)(i). [51] The respondents’ conduct was evasive, defiant, and egregious. They continued to act in contempt even after the Federal Court found them guilty. In these circumstances, a fine is meaningless. The only fit sentence is incarceration: Dish Network; DIRECTV. I. The Respondents’ Conduct Was Evasive, Defiant, and Egregious [52] This is a case of evasive, defiant, and egregious conduct. To use the words of the Federal Court, the respondents’ conduct fell at the high end of the scale of objective gravity and moral blameworthiness: Bell Canada v. Red Rhino Entertainment Inc., 2021 FC 895 [Sentencing Decision] at paras. 25, 32. I note: The respondents built their business around an illegal activity: the configuring, marketing and selling of devices (set-top boxes) and subscriptions to IPTV services that provide unauthorized access to the appellants’ live and on-demand television programming: Bell Canada v. Red Rhino Entertainment Inc., 2019 FC 1460 [Contempt Decision] at paras. 8, 28, 47; In June 2016, the Federal Court issued an interlocutory injunction to refrain from the activities carried on by the respondents: Contempt Decision at paras. 5, 71; Motivated by financial gain, the respondents wilfully chose to evade the injunction through a large-scale, sophisticated operation that lent an unwarranted and misleading air of legitimacy to an illegal activity: Sentencing Decision at paras. 28-29. The Red Rhino set-top boxes, retailed between $350 and $499, were sold with the assistance of some 16 salespersons through at least two brick-and-mortar locations, at least two websites, at least three third-party distributors, and at sales booths at numerous high-traffic commercial events in some 32 North American cities (the “shows”) to which Mr. Adwokat and the salespersons flew “chilling in first class”: see Screen Capture of Mr. Eric Adwokat’s Facebook Page, Appeal Book, vol. 4, TX-145, Exhibit NS-1, at 1293; and They did so in plain view for at least 32 months: Contempt Decision at paras. 28, 68. [53] In addition, the respondents made a concerted effort to thwart the appellants’ ability to enforce their legal rights and protect their legitimate economic interests, namely, by: Evading service of Court documents more than 30 times over a period of 28 months: Contempt Decision at para. 68; Sentencing Decision at para. 34; see Affidavits of Attempted Service, Appeal Book, vol. 5, TX-162 to TX-165, at 1739 to 1753, and TX-169 to TX-174, at 1777 to 1814; At the eleventh hour of the contempt hearing, filing notices of intention to make a proposal under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the BIA) in “ill-conceived attempts to frustrate the exercise of the [Federal] Court’s duty to ensure that its orders are respected”: Contempt Decision at para. 68 in fine; Arranging to deprive the victims of their contemptuous activities from claiming compensatory damages by showing $201 of assets in their names and not a dollar in a bank account: Statement of Affairs of Red Rhino, Appeal Book, vol. 7, Exhibit AM-27, at 2338-2351; Red Rhino’s Income Tax Assessments, Appeal Book, vol. 7, Exhibit AM-30, at 2362-2382; and Constantly lying to the Federal Court: Contempt Decision at paras. 51, 57, 64; Sentencing Decision at paras. 32, 35-37, 46, 47, 50, 65, 67. II. The Respondents Continued to Act in Contempt [54] In addition to the evasive, defiant, and egregious conduct described above, the only logical inference from the circumstantial evidence before the Federal Court, which the Court failed to draw, is that contempt was continuing at the time of the sentencing hearing. I therefore disagree with the conclusion that contempt has been purged. [55] Shortly after having been found guilty of contempt, Mr. Adwokat left the country. He attended the sentencing hearing in March 2021 from Costa Rica where he had been living for a year: Sentencing Decision at para. 65; Cross-examination of Mr. Eric Adwokat, Appeal Book, vol. 11, at 3926, lines 10-18, and at 3930 to 3939. In parallel, between June 2019 and mid-2020, copycat companies of Red Rhino appeared — that is, companies selling the same products through quasi-identical websites and using the same marketing strategy. Access to Red Rhino’s website is automatically redirected to one of the copycat companies’ websites, and two of these copycats accept Red Rhino credentials. With one exception (Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1887, at paras. 110-111, referring to Exhibit AM-58, at 2707-2730), these copycat companies are incorporated outside of Canada, share the same phone number, and obfuscate the identity of their operators to the public. The one copycat company incorporated in Canada is, by an “inexplicable coincidence”, owned by a friend of Mr. Adwokat’s brother and operates in Costa Rica through a subsidiary: Sentencing Decision at paras. 47-48; see generally Appendix B. [56] The Federal Court found a connection between these copycat companies and the respondents: Sentencing Decision at paras. 47-49. The Court also found that Mr. Adwokat lied by denying the connection: Sentencing Decision at para. 47 in fine. However, because it did not know “on a balance of probabilities what exactly that connection is”, the Federal Court ruled that that there was “no evidence that [Mr. Adwokat] engaged in any offending conduct since [the contempt decision]”: Sentencing Decision at paras. 47, 49. I disagree. [57] From the moment that there is evidence of (1) companies pursuing Red Rhino’s activities beyond the contempt decision, and (2) a connection between such companies and Mr. Adwokat, I fail to see what else is needed to conclude that the contemptuous activities are continuing: see Appendix C. This is particularly true when the person who can best provide additional information about the connection, Mr. Adwokat, is lying about the connection: Sentencing Decision at para. 47 in fine; see Barendregt v. Grebliunas, 2022 SCC 22 [Barendregt] at para. 60. Thus, by failing to draw the proper inference from the evidence, the Federal Court made a palpable error in fact which led it to disregard continuous contempt — an aggravating factor. This palpable error is inextricably linked to the Federal Court’s failure to apply the principle of deterrence. As a result, this Court does not owe deference to the Federal Court’s finding regarding continuous contempt: Friesen at para. 28; R. v. Makokis, 2020 ABCA 330 at para. 15 in fine; R. v. Batstone, 2022 BCCA 171 at para. 49; R. v. Stevic, 2022 BCCA 45 at para. 11; R. v. R.O., 2023 BCCA 65 at para. 35. Continuous contempt demonstrates a callous disregard for court orders and weighs heavily towards incarceration: Dish Network at pp. 2, 14; Telewizja Polsat S.A. v. Radiopol Inc., 2006 FC 137 at para. 42 [Polsat]; P.S. Knight at paras. 19(ix), 20. III. The Principle of Restraint Cannot Apply [58] Despite the principle of restraint in the use of incarceration (Criminal Code, R.S.C. 1985, c. C-46, paras. 718.2(d) and (e); Clayton Ruby, Sentencing 10th ed. (Toronto: LexisNexis, 2020) at para. 13.9; R. v. Sharma, 2022 SCC 39 at para. 60; Tremaine v. Canada (Human Rights Commission), 2014 FCA 192 [Tremaine] at para. 36), the analysis above shows that the elements supporting a sentence of incarceration are present: DIRECTV; Dish Network. In all likelihood, incarceration would have been imposed by the Ontario courts on Mr. Adwokat had this matter been adjudicated by these courts: Dish Network at p. 14; DIRECTV. Federal courts, including our Court, have been much more lenient. In civil contempt cases involving copyright matters, I am only aware of three Federal court cases that ordered incarceration, but only if certain conditions were not met: Lari v. Canadian Copyright Licensing Agency, 2007 FCA 127 [Lari]; P.S. Knight; Polsat. This conflict in approach between these courts should no longer continue. The Federal Court should not be a safe haven for persons in contempt. [59] A fine is not an appropriate alternative when a contemnor’s conduct, in addition to being egregious, evasive, and continuous, hinders a court’s ability to determine a fine that achieves deterrence: Borer v. Nelson, 2020 ONSC 4259 at para. 22; Majormaki Holdings LLP v. Wong, 2009 BCCA 349 at paras. 8, 25; Cellupica v. Di Giulio, 2011 ONSC 1715 at paras. 15, 41, 48. “Hindrance” aptly describes the respondents’ conduct. They chose not to produce any financial information to the Federal Court: Sentencing Decision at para. 64 in fine. Despite the appellants’ numerous requests, the respondents did not comply with their obligation under paragraph 158(b) of the BIA to provide the trustee in bankruptcy, and by the same token the appellants, with the books and records relating to their property or affairs: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1868 and 1869, at paras. 74-76; E-mail Exchanges Between Appellants’ Counsel and Trustee in Bankruptcy, Appeal Book, vol. 7, Exhibit AM-28, at 2352. [60] Against this refusal to provide financial information, Mr. Adwokat sent a clear message on social media and to whoever observed the respondents’ activities that their business was highly profitable, that money was no object to them: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1867-1868, at paras. 70-71; Mr. Adwokat’s Trips Posted on Facebook, Appeal Book, vol. 7, Exhibit AM-25, at 2325-2332; Mr. Adwokat’s Use of Vehicles Posted on Facebook, Appeal Book, vol. 7, Exhibit AM-26, at 2333-2336. [61] The appellants, through affidavits of numerous investigators supported by hundreds of exhibits, tendered all the evidence that they could access to show the magnitude of the respondents’ contemptuous activities and the lavish lifestyle that these activities provided to Mr. Adwokat. Yet, this evidence does not allow for the determination of a fine that would achieve deterrence. This determination requires financial information that is held exclusively by the respondents, but they chose not to provide it. [62] Given the respondents’ choice to not produce the required financial information, their deplorable conduct, and continuous contempt, I find that the only fit sentence to deter and drive home that Canadian courts enforce their orders is a sentence of incarceration for Mr. Adwokat. [63] While the evidence does not allow for the determination of a fine that would achieve deterrence, it is clear that the $40,000 fine imposed by the Federal Court is demonstrably unfit. Indeed, this amount seems to be close to the sales that the respondents would make at a commercial event in one day: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1868, at paras. 57-59; Photos of Red Rhino’s Sales Force, Appeal Book, vol. 7, Exhibit AM-20, at 2282-2298; Photos of Containers Filled With Red Rhino Set-top Boxes, Appeal Book, vol. 7, Exhibit AM-21, at 2299-2301; Statement of Events Describing Purchase of Red Rhino Set-top Box, Appeal Book, vol. 3, TX-130, at 1097-1109. [64] In other words, a $40,000 is a “mere licence fee, which other [individuals and] corporations, in contemplation of similar activity, can simply budget for”: Merck at para. 89. IV. Jurisdiction to Order Incarceration [65] Before this Court, the appellants seek “further and other relief as […] this Honourable Court may consider just”: Appellants’ Notice of Appeal, at para. 4; see Canada (Human Rights Commission) v. Saddle Lake Cree Nation, 2018 FCA 228 at paras. 41-42. After applying the principles of sentencing afresh to the facts, the sentence that I consider just is incarceration: Friesen at para. 27; Tremaine at para. 19. [66] I acknowledge that the appellants no longer ask for incarceration on appeal. However, the sentence of incarceration remains a remedy sought in their Notice of Ex Parte Motion (see Appeal Book, vol. 1, at 207, at para. 2b)) which this Court must pronounce on since it must now make the judgment the Federal Court should have made: Federal Courts Act, para. 52(b)(i). And while sentencing is for this Court to decide in light of the parties’ submissions, it is also in the public interest and in defence of orders of the Federal Court. In other words, the public nature of civil contempt requires me to order a sentence that transcends the interests of the parties: Droit de la famille — 21819, 2021 QCCA 759 [Droit de la famille] at para. 56; Vidéotron Ltée. v. Industries Microlec Produits Électroniques Inc., [1992] S.C.J. No. 79, [1992] 2 S.C.R. 1065 at p. 1076; Business Development Bank of Canada v. Cavalon Inc., 2017 ONCA 663 at para. 79, application for leave to appeal dismissed, Robyrt Regan v. Business Development Bank of Canada, 2018 CanLII 71041 (S.C.C.). As well, the parties had the opportunity to adduce evidence and thoroughly debated the issues relating to the appellants’ original request for incarceration. Thus, procedural fairness has been respected: Droit de la famille at para. 57; Brégaint c. Daoust, 2016 QCCA 721 at paras. 27-28. V. Motion to Adduce New Evidence Is Not Necessary [67] As a result of the conclusion above, there is no need for me to take a position on the appellants’ motion to adduce new evidence. How many more cat-and-mouse games do we need to play? In these circumstances, I would dismiss the motion — it is unnecessary: Barendregt at para. 29, citing Palmer v. The Queen, 106 D.L.R. (3d) 212, [1980] 1 S.C.R. 759 at 775. VI. Imposition of Costs [68] As for costs, the appellants incurred $690,620.51 (excluding tax) in legal fees plus $39,423.12 in disbursements relating to the contempt proceedings: Sentencing Decision at para. 73. Before the Federal Court, they did not seek solicitor-client costs even though it is customary to claim such costs in civil contempt cases: Sentencing Decision at para. 74; see Lari at para. 38 and cases cited therein. Rather, they claimed a partial indemnity of an all-inclusive lump amount of $400,000: Sentencing Decision at para. 73. I see no reason why the appellants should not have been entitled to their costs at that amount. [69] The Federal Court imposed costs of $35,000: Sentencing Decision at para. 79. This amount does not even cover the appellants’ disbursements for which the respondents’ conduct was largely responsible (Dreco Energy Services Ltd. v. Wenzel, 2005 ABCA 185 at para. 11), e.g. by evading legal service more than 30 times. I agree with the Federal Court that costs should not be a disincentive for a person of limited means to defend oneself against contempt charges: Sentencing Decision at paras. 75-76. However, the respondents are not persons of limited means. Moreover, imposing low costs on contemnors in a situation similar to the present will tell victims, especially copyright owners of limited means (e.g. new technology start-ups), to not bother protecting their legal rights and assisting the Federal Court in enforcing its orders: see Lari at para. 38 and cases cited therein. VII. Proposed Disposition [70] I would allow the appeal, set aside the judgment of the Federal Court dated September 1, 2021 in file T-759-16, and in making the judgment that the Federal Court should have made, grant in part the custodial sentence sought by the appellants in their motion for civil contempt by issuing a Warrant of Committal for Mr. Eric Adwokat who shall be arrested and incarcerated for a period of fifteen (15) days, to be served continuously: see Federal Courts Act, para. 52(b)(i); see Notice of Ex Parte Motion, Appeal Book, vol. 1, at 207, at para. 2b); Sentencing Decision at para. 3. [71] Given that I set aside the sentencing judgment, any award of costs included in that judgment should also be set aside. Therefore, I would grant the appellants their costs in the Federal Court in the amount of $400,000 and costs in this Court in the amount of $50,000: Federal Courts Rules, SOR/98-106, Rule 400(1); Federal Courts Act, para. 52(b)(i); Eli Lilly Canada Inc. v. Novopharm Limited, 2010 FCA 219 at para. 13d. “Nathalie Goyette” J.A. APPENDIX A Decision Context Sentence Federal Baxter Travenol Laboratories of Canada Ltd v. Cutter (Can.) Ltd., [1987] F.C.J. No. 205, 3 A.C.W.S. (3d) 326 After a patent infringement case that ordered an injunction, Defendant failed to deliver up infringing goods (blood bags) and sold them at a value of $1 million $50,000 2023 value: $114, 850.75 Louis Vuitton S.A. v. Tokyo-Do Enterprises Inc. (1990), 37 C.P.R. (3d) 8, 28 A.C.W.S. (3d) 321 (FCTD) Sold luxury brand products (bags) in violation of order restraining trademark infringement $5,000 2023 value: $10,032.59 Canada (Attorney General) v. de l’Isle, [1994] F.C.J. No. 955, 56 CPR (3d) 371 (FCA) Violated permanent injunction by continuing to commit offences contrary to Food and Drugs Act i.e. publishing a drug directory (for alternative medicine) 3 months imprisonment for individual $50,000 for corporation 2023 value: $89,372.82 Manufacturers Life Insurance Co. v. Guaranteed Estate Bond Corp., [2000] F.C.J. No. 172, [2000] A.C.F. No 172 (FCTD) Continued to infringe trademarks by selling insurance products and related financial services $5,000 2023 value: $8,229.95 Lyons Partnership, L.P. v. MacGregor, [2000] F.C.J. No. 341, 186 F.T.R. 241 (FCTD) Dressed up as Barney at a performance, despite injunction to not do so (copyright infringement), and had material in breach of injunction $3,000 2023 value: $4,937.97 Desnoes & Geddes Ltd. v. Hart Breweries Ltd., [2002] F.C.J. No. 869, 2002 FCT 632 Company infringed registered trademarks by distributing and selling alcoholic beverages with certain words and designs The individual aided and abetted company $2,000 for individual 2023 value: $3,153.69 $4,000 for corporation 2023 value: $6,307.38 Apotex Inc. v. Merck & Co. Inc., 2003 FCA 234, 227 D.L.R. (4th) 106 Sale of a drug in contravention of a finding made in reasons for judgment before the judgment was issued and entered, with sales equal to $9,000,000.00 $125,000 2023 value: $188,602.94 Chum Ltd. v. Stempowicz, 2004 FC 611, [2004] F.C.J. No. 732 Defendant is in contempt for continuing to sell and service equipment and devices allowing access to DIRECTV $25,000 2023 value: $37,245.89 Brilliant Trading Inc. v. Wong, 2005 FC 1214, 42 C.P.R. (4th) 215 Defendants failed to obey order to cease using, advertising, marketing, or selling wares associated with plaintiff’s trademark $10,000 2023 value: $14,615.38 Telewizja Polsat S.A. v. Radiopol Inc., 2006 FC 137, [2006] F.C.J. No. 257 Decoded encrypted subscription programming without authorization $10,000 and 6 months imprisonment (no prison if takes down the website in 5 days) for individual 2023 value: $14,223.66 $25,000 for corporation 2023 value: $35,559.15 Dursol-Fabrik Otto Durst GmbH Co. v. Dursol North America Inc., 2006 FC 1115, 151 A.C.W.S. (3d) 585 Breached prohibition orders to market, sell, and deliver up metal polish and other wares $20,000 for individual and corporation, jointly and severally 2023 value: $28,447.32 Canadian Copyright Licensing Agency v. U-Compute, 2007 FCA 127, 156 A.C.W.S. (3d) 1064 Third time breach of Anton Piller order to refrain from unauthorized copying and selling of textbooks; also did not allow access to business premises for inspection 6 months imprisonment, suspended if obeys permanent injunctions and performs 400 hours of community service Bell Canada v. Wesley dba MtlFreeTV.com, 2016 CF 1379 Breached interlocutory injunction by continuing to sell set-top boxes that facilitated unauthorized access to copyrighted content $15,000 2023 value: $18,205.84 Bell Canada v. Vincent Wesley dba MtlFreeTV.com, 2018 FC 861 Breached interlocutory injunction by continuing to sell set-top boxes that facilitated unauthorized access to copyrighted content for the second time $30,000 2023 value: $35,056.95 Canadian Standards Association v. P.S. Knight Co. Ltd., 2021 FC 1346, 193 C.P.R. (4th) 236 Charged with three counts of contempt for disobeying terms of a judgment issued in a copyright infringement proceeding (para 6), i.e. selling copyrighted materials and failing to deliver up materials (para 11) $100,000 and imprisonment of individual respondent for 6 months suspended if purges contempt in 10 days 2023 value: $111,360.35 Ontario DIRECTV Inc. v. Boudreau, [2006] O.J. No. 1583, 2006 CarswellOnt 2391 (Ont. C.A.) Breached injunction by operating satellite piracy business and order to attend sentencing hearing Imprisonment of 3 months Dish Network L.L.C. v. Ramkissoon, 2010 ONSC 5205, 194 A.C.W.S. (3d) 463 Husband and wife in contempt of two Anton Piller orders in the context of very serious satellite pirating theft Imprisonment of 4 months for one individual and 2 months for another individual Dish Network L.L.C. v. Gill, unreported reasons dated April 27, 2018, docket CV-13-40368 (Ont. S.C.) Breached permanent injunction by advertising piracy technology and illegal subscriptions, sold one illegal device to access encrypted satellite TV, and assisted third parties to operate the single device sold (p. 1) Imprisonment of 4 months Dish Network L.L.C. et al. v. Butt et al., 2022 ONSC 1710 In contempt for streaming TV and movie content under “Shava TV”, which belonged to Dish Network, by selling set-top boxes Conditional discharge subject to probation of 2 years less a day Note: 2023 values were calculated using the Bank of Canada Inflation Calculator at https://www.bankofcanada.ca/rates/related/inflation-calculator. This tool uses the monthly consumer price index information from 1914 o the present. APPENDIX B Evidence that the Respondents Continued to Act in Contempt Through Copycat Companies B.1 Copycat companies of Red Rhino appeared: Warranty Services Ltd: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1877, at para. 92; Similarities between Red Rhino’s website and Warranty Services Ltd.’s website, Appeal Book, vol. 7, Exhibit AM-41, at 2485-2490; New Pay Group LLC: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1879, at paras. 96-97; Similarities Between Red Rhino’s Website and New Pay Group LLC’s Website, Appeal Book, vol. 7, Exhibits AM-44.1 to 44.12, at 2504 to 2528; Lime Juice Box: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1882, at paras. 104-107, referring to Similarities Between Red Rhino’s Website and Lime Juice Box Websites, Appeal Book, Exhibit AM-53, at 2701-2707. B.2 Access to Red Rhino’s website is automatically redirected to one of the copycat companies’ websites, and two of these copycats accept Red Rhino credentials: Warranty Services Ltd: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1875 at paras. 88-89, and 1878 at para. 93, referring to Printouts of Access to Website of Warranty Services Ltd. Using Red Rhino Credentials, Appeal Book, vol. 7, Exhibits AM-42.1 to AM-42.5, at 2491 to 2501; New Pay Group LLC: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1880, at para. 98, referring to Printouts of Access to Website of New Pay Group LLC Using Red Rhino Credentials, Appeal Book, vol. 7, Exhibits AM-45.1 to AM 45.5, at 2529 to 2539. B.3 Copycat companies are incorporated outside of Canada: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1879 at para. 95, 1881 at para. 97, and 1880 at para. 100, referring to Exhibit AM-47, vol. 7, at 2540; see also Exhibits AM-40.1 at 2459 to AM-40.9 at 2477. B.4 Copycat companies share the same phone number: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1881, at paras. 101-102, referring to Exhibit AM-40.1, vol. 7, at 2459-2461, Exhibit AM-44.1, vol. 7, at 2504-2506, and Exhibit AM-48, vol. 7, at 2572-2573. B.5 Copycat companies obfuscate the identity of their operators to the public: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1878 at para. 94 (referring to Exhibit AM-43, Appeal Book, vol. 7, at 2503), 1881 at para. 99, and 1886 at para. 108 (referring to Exhibits AM-54 to 56, Appeal Book, at 2708-2714). B.6 Another copycat company operates in Costa Rica: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1887-1888, at paras. 111-115, referring to Exhibits AM-59 to 62 of Appeal Book, at 2731-2967; see: Lime Juice Box Costa Rica Facebook Page, Appeal Book, Exhibit AM-62, at 2966. APPENDIX C Evidence of Companies Pursuing Red Rhino’s Activities Beyond the Contempt Decision November 21, 2019: Access to Red Rhino Warranty’s website was automatically redirected to Warranty Services Ltd.’s website: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1875, at para. 89, citing Appeal Book, vol. 7, Exhibit AM-38, at 2455; see also Whois Record for Warranty Services, Appeal Book, vol. 7, Exhibit AM-43, at 2503; January 2, 2020: Lime Juice Box Costa Rica Facebook Page created, with latest activity on July 1, 2020, and still online as of December 15, 2020: Appeal Book, Exhibit AM-62, at 2965; March 23, 2020: Lime Juice Box websites created: Anthony J. Martin Investigation Report, Appeal Book, Exhibit AM-63, at 2972; see also Exhibits AM-54 to AM-56, at 2709, 2712, and 2714, and online as of July 8, 2020: Exhibits AM-57.1 to AM-57.3, at 2715-2726; March 26, 2020: Lime Juice Box USA was incorporated: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1888, at para. 114, citing Appeal Book, Exhibit AM-61, at 2962; June 16, 2020: Access to Warranty Services Ltd.’s website, New Pay Group LLC’s website, and Lime Juice Box’s websites is possible: Affidavit of Jason Vallée Buchanan, Appeal Book, vol. 9, at 2975-2980, at paras. 2-6, citing Exhibits JFV-1.1 to JFV-4.15, at 2982 to 3127; July 10, 2020: Access to Warranty Services Ltd.’s website and New Pay Group LLC’s website was possible using Red Rhino credentials: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1878, at paras. 93, 98, citing Appeal Book, vol. 7, Exhibits AM-42.1 to 42.2, at 2492 and 2494, and Exhibits AM-45.1 to 45.2 , at 2530 and 2532; December 12, 2020: Mr. Adwokat was still the sole director of Red Rhino: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1875, at para. 87, citing Corporation Profile Report for Red Rhino, Appeal Book, vol. 7, Exhibit AM-37, at 2451. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-285-21 STYLE OF CAUSE: BELL CANADA ET AL. v. ERIC ADWOKAT ET AL. PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: February 7, 2023 REASONS FOR JUDGMENT BY: GLEASON J.A. CONCURRED IN BY: BOIVIN J.A. DISSENTING REASONS BY: GOYETTE J.A. DATED: may 18, 2023 APPEARANCES: François Guay Guillaume Lavoie Ste-Marie Etienne Lacroix-Couillard For The Appellants Brian N. Radnoff David Z. Seifer For The Respondents SOLICITORS OF RECORD: Smart & Biggar LLP Montréal, Quebec For The Appellants Dickinson Wright LLP Toronto, Ontario For The Respondents", "response": "## Analysis of Court Decision: Bell Canada v. Adwokat\n\n### Key Issues\nce and thoroughly debated the issues relating to the appellants’ original request for incarceration. Thus, procedural fairness has been respected: Droit de la famille at para. 57;\n\n### Standard of Review\nBell Canada v. Adwokat Court (s) Database Federal Court of Appeal Decisions Date 2023-05-18 Neutral citation 2023 FCA 106 File numbers A-285-21 Decision Content Date: 20230518 Docket: A-285-21 Citation: 2023 FCA 106 CORAM: BOIVIN J.A. GLEASON J.A. GOYETTE J.A. BETWEEN: BELL CANADA, BELL EXPRESSVU LIMITED PARTNERSHIP, BELL MEDIA INC., GROUPE TVA INC., VIDÉOTRON LTD., ROGERS COMMUNICATIONS CANADA INC. and ROGERS MEDIA INC. Appellants and ERIC ADWOKAT and RED RHINO ENTERTAINMENT INC. Respondents Heard at Toronto, Ontario, on February 7, 2023. Judgment delivered at Ottawa, Ontario, on May 18, 2023. REASONS FOR JUDGMENT BY: GLEASON J.A. CONCURRED IN BY: BOIVIN J.A. DISSENTING REASONS BY: GOYETTE J.A. Date: 20230518 Docket: A-285-21 Citation: 2023 FCA 106 CORAM: BOIVIN J.A. GLEASON J.A. GOYETTE J.A. BETWEEN: BELL CANADA, BELL EXPRESSVU LIMITED PARTNERSHIP, BELL MEDIA INC., GROUPE TVA INC., VIDÉOTRON LTD., ROGERS COMMUNICATIONS CANADA INC. and ROGERS MEDIA INC. Appellants and ERIC ADWOKAT and RED RHINO ENTERTAINMENT INC. Respondents REASONS FOR JUDGMENT GLEASON J.A. [1] We have before us two matters: a motion by the appellants to adduce additional evidence and an appeal from the sentence for contempt imposed by the Federal Court in Bell Canada v. Red Rhino Entertainment Inc., 2021 FC 895, [2021] F.C.J. No. 1050 (QL) (per Norris J.). In their appeal, the appellants seek to have this Court increase the fine imposed by the Federal Court. [2] In the judgment under appeal, the Federal Court sentenced the respondents to a fine of $40,000.00, for which they were jointly and severally liable, for violations of an interlocutory injunction that prohibited the sale of devices that the appellants claim were used to breach their copyright in television programs they broadcast. [3] For the reasons that follow, I would dismiss both the motion and the appeal, with costs. I. The Motion to Adduce Additional Evidence [4] As concerns the motion, the test for allowing fresh evidence on appeal is well settled and requires the party seeking to file such evidence to establish that the evidence: (1) could not have been adduced at trial with the exercise of due diligence; (2) is relevant in that it bears on a decisive or potentially decisive issue on appeal; (3) is credible in that it is reasonably capable of belief; and (4) is such that, if believed, could reasonably have affected the result in the court below. An appellate court maintains a residual discretion to admit new evidence on appeal where these criteria are not met. However, such discretion should be exercised sparingly and only in the clearest of cases where the interests of justice so require (Coady v. Canada (Royal Mounted Police), 2019 FCA 102, 304 A.C.W.S. (3d) 869 at para. 3 and cases cited therein). [5] The first of the foregoing criteria, as noted by the majority of the Supreme Court of Canada recently in Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1 [Barendregt] at paragraph 36 “… focuses on the conduct of the party seeking to adduce the evidence. It requires litigants to take all reasonable steps to present their best case at trial. This ensures finality and order in the judicial process [citations omitted]”. [6] Here, the fresh evidence that the appellants seek to tender could have been adduced before the Federal Court had they been more diligent in their quest for it. The key components of the fresh evidence are the banking records for the two bank accounts of the respondent, Red Rhino Entertainment Inc. (Red Rhino), which suggest that, once the respondent was aware of the Federal Court’s injunction, Red Rhino may well have made sales in violation of the injunction that generated gross revenues equal to at least $600,000.00. Although the appellants wrote several times to the trustee in bankruptcy of the respondent to request production of the bank statements of Red Rhino, they took no other steps to obtain them. [7] It was open to the appellants to have obtained the banking records of Red Rhino via proceedings that were available under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the BIA). More specifically, the appellants could have sought an order to examine Mr. Adwokat, the sole director of Red Rhino, under subsection 163(2) of the BIA or could have sought production from the T.D. Bank, where the accounts were held, if they had obtained an order under section 38 of the BIA. Indeed, the trustee in bankruptcy of the respondents told the appellants that, in his opinion, one of these alternative avenues was more likely to be successful. [8] In addition, Mr. Adwokat filed an affidavit on the sentencing motion. He could have been cross-examined about his and Red Rhino’s assets and earnings and could have been asked to produce all relevant banking records during the cross-examination. If necessary, an adjournment could have been sought to facilitate production or to seek an order requiring it. However, the appellants pursued none of these avenues. [9] It rather appears that the appellants perhaps made a tactical choice to refrain from making further efforts to seek the banking records for Red Rhino, as the respondents submit. In this regard, the appellants argued during the sentencing hearing that the respondents’ failure to disclose the banking records to the trustee in bankruptcy was an aggravating factor, meriting a more severe sentence. [10] The appellants, accordingly, have failed to meet the test for acceptance of the fresh evidence because they have failed to establish the first of the prerequisites for its admission since they were not duly diligent in its pursuit. [11] In the circumstances, I am not convinced that this is an appropriate case to exercise our exceptional discretion to admit the fresh evidence that the appellants seek to tender. As noted at paragraphs 70-72 of Barendregt, it is only in rare and exceptional circumstances, where the interests of justice so require, that an appellate court should exercise its discretion to admit evidence that could have been tendered in the court below if the party seeking to adduce it had been duly diligent. In my view, there are no rare and exceptional circumstances in this case that would warrant the exercise of discretion. [12] I would accordingly dismiss the appellants’ motion, with costs. II. The Appeal [13] Turning to the merits of the appeal, contrary to what the appellants contend, I see no error that would permit this Court to intervene to vary the penalty imposed by the Federal Court. [14] In Simon v. Bacon St-Onge, 2023 CAF 1, [2023] A.C.F. n° 17 (QL) [Simon], this Court recently outlined the bounds of permissible appellate review of penalties for contempt, noting that the principles from the criminal sentencing context are applicable and thus that great deference is to be accorded to a sentencing judge. Hence, an appellate court cannot intervene simply because it might have imposed a different penalty or might have weighed the relevant factors differently. Instead, absent an extricable error of law, intervention is only warranted where an appellate court is convinced that the penalty is demonstrably unfit or clearly unreasonable (Simon at paras. 6-12). [15] In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 , the majority of the Supreme Court of Canada underscored at paragraph 12 that, “… if appellate courts intervene without deference to vary sentences that they consider too lenient or too harsh, their interventions could undermine the credibility of the system and the authority of trial courts.” Thus, appellate courts must be deferential in cases such as the present. [16] Here, I am of the view that the Federal Court applied the correct principles in determining the appropriate penalty. [17] Contrary to what the appellants submit, I am not convinced that the Federal Court needed to say more about the need for general deterrence or inappropriately disregarded this factor, particularly in light of the relatively little evidence tendered by the appellants regarding the claimed need to more severely penalize contemptuous behaviour similar to that of the respondents due to the alleged propensity for such behaviour. On this point, there was little evidence beyond the situation of Mr. Wesley, who breached the same injunction (Bell Canada v. Wesley (d.b.a. MtlFreeTV.com), 2016 CF 1379 [Wesley]), and general statements in the affidavits tendered by the appellants regarding the claimed need for more severe penalties for contemptuous conduct like that of the respondents. [18] Indeed, in making this submission, the appellants conflate to a certain extent the purposes of penalties for contempt with the civil remedy of damages available for copyright infringement. The purpose of a sentence for contempt is to foster compliance with court orders by sanctioning those who flout them (Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 30, Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612 at para. 35). Civil damages for copyright infringement, on the other hand, seek to compensate plaintiffs whose copyright is infringed and to more generally dissuade infringement. Much of the appellants’ evidence spoke to the alleged prevalence of copyright infringement as opposed to the alleged frequency of breach of court injunctions. [19] Nor is the penalty imposed by the Federal Court so disproportionate that it cannot stand when the evidence that was before that Court is considered. [20] The Federal Court knew only that the respondents were operating on a commercial basis, had a bricks and mortar office, and had offered for sale and presumably sold the infringing products at several trade and home shows, flea markets, over the internet and through their bricks and mortar location. The Federal Court also had evidence of the lifestyle enjoyed by Mr. Adwokat, which included stays in expensive hotels and first class air travel. However, the Federal Court had no concrete information as to the actual magnitude of Red Rhino’s sales made in violation of the injunction. [21] The Federal Court found that the respondents were carrying on a more sophisticated and commercial operation than Mr. Wesley (who was sentenced to fines of $15,000.00 and $30,000.00 for two successive instances of contempt of the same injunction in Wesley, above, and Bell Canada v. Wesley (d.b.a. MtlFreeTV.com), 2018 FC 861). [22] The Federal Court noted the differences between the two cases, and found that the more commercial and sophisticated nature of the respondents’ operations weighed in favour of a more severe penalty but that the two successive findings of contempt in Mr. Wesley’s case were more serious. Weighing this as well as the penalties imposed in other cases, the Federal Court fined the respondents $40,000.00. [23] In my view, when one considers the evidence that was before the Federal Court, the penalty it selected cannot be said to be so disproportionate as to be unfit. [24] I note in this regard that the range of penalties imposed by the Federal Court in many previous and subsequent cases for acts of contempt for breach of an injunction issued to protect a plaintiff’s intellectual property rights range, in 2023 dollars, from a little over $1,500.00 to approximately $190,000.00. The latter sum was imposed in Apotex Inc. v. Merck & Co. Inc., 2003 FCA 234, 227 D.L.R. (4th) 106, on a large, corporate defendant who earned several million dollars in breach of a judgment. The majority of fines levied by the Federal Court are at the lower end of the range. Cases where sentences were imposed in somewhat similar circumstances to those in the case at bar are summarized in the Appendix A to these reasons, along with cases from the Ontario courts, which have imposed prison sentences for somewhat similar acts of contempt. [25] Before this Court, the appellants no longer seek a penalty of imprisonment and rather seek to have this Court vary the fine imposed, to increase it by $200,000.00. [26] In my view, this is uncalled for because the $40,000.00 fine leveled in the case at bar is not clearly disproportionate with those levied in other cases when one considers the facts that were before the Federal Court in the instant case. [27] That said, had the additional evidence that the appellants seek to adduce on appeal been before the Federal Court, I am of the view that a stiffer penalty may well have been appropriate and might have included a period of incarceration or a much greater fine. In the absence of such evidence, though, I believe there is no basis to interfere with the Federal Court’s Order. [28] Before closing, I wish to comment on the Dissenting Reasons of my colleague, Justice Goyette, which I have read in draft. [29] I cannot agree with her proposed disposition because it fundamentally misconceives the role and authority of this Court. I do not see how we could increase the costs award made by the Federal Court, when that award was not appealed and the appellants did not seek to vary it, or award imprisonment, when that was not ever at issue before us. While the case law from the Ontario courts was discussed before us, the appellants no longer sought imprisonment and there was never any question or discussion of the possibility that this Court might impose a term of imprisonment on Mr. Adwokat. [30] The disposition proposed by Justice Goyette would accordingly fundamentally violate the respondents’ procedural fairness rights. The Dissenting Reasons would result in the respondents finding themselves subject to a much increased costs award, and in the case of Mr. Adwokat, to imprisonment, when the possibility of these remedies being awarded by this Court was never in issue before us. [31] A court cannot raise a new legal issue in its decision that was not raised by either party or by necessary implication or seek to award remedies that were not requested without first raising the issue with the parties and giving them the right to make submissions: R. v. Mian, 2014 SCC 54, 377 D.L.R. (4th) 385 at paras. 41, 54; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, 384 D.L.R. (4th) 1 at para. 26; Adamson v. Canada (Human Rights Commission), 2015 FCA 153, 255 A.C.W.S. (3d) 956 at para. 89; CSX Transportation, Inc. v. ABB Inc., 2022 FCA 96, [2022] F.C.J. No. 870; Vidéotron Ltée c. Technologies Konek Inc., 2023 CAF 92, [2023] A.C.F. no 576). [32] Thus, this Court cannot, on its own motion, award the remedies my colleague seeks to impose. [33] I also am of the view that the Dissenting Reasons fail to understand the role of an appellate Court and the limits of its authority to intervene in factual matters. [34] We are not tasked with drawing inferences, which is the sole province of a trial court. Nor can we set aside factual determinations made by the Federal Court simply because we would have reached a different conclusion. The decision of the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235 [Housen], at paragraphs 19 to 35 makes it clear that factual inferences made – or not made – by a trial court cannot be interfered with in the absence of a palpable and overriding factual error. [35] There is no such error in the Federal Court’s refusal to draw the inference of continued contemptuous behaviour by the respondents in the case at bar. There was no evidence before the Federal Court directly establishing that the respondents were involved with what my colleague terms copycat companies. In the absence of such evidence, the Federal Court’s decision to decline to infer continued contemptuous behaviour by the respondents is not a palpable and overriding error. [36] As this Court noted in Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157 [Mahjoub], declining to draw an inference, absent a logical error or disregard of the evidence, is not a palpable error. The following conclusion reached at paragraphs 79-80 of Mahjoub applies equally to the case at bar: In this Court, Mr. Mahjoub frequently invites this Court to reassess and reweigh the evidence before the Federal Court and to substitute its fact-finding and exercises of discretion for that of the Federal Court …. Sometimes he asks this Court to draw factual inferences the Federal Court declined to draw …, to find more prejudice on the facts than the Federal Court was willing to find …, to assume the Federal Court disregarded evidence that it did not mention …, to allege the Federal Court misconceived evidence in order to encourage this Court to substitute its own factual finding for that of the Federal Court, … and to challenge credibility findings… The invitations must be declined. They tempt us to travel down a road the law forbids to us. Unless we see legal error, the only road we can travel is one in the direction of palpable and overriding error. [emphasis added] [37] In the case at bar, the Federal Court carefully considered the evidence adduced by the appellants demonstrating the alleged connection between the copycat companies and the respondents. The Federal Court evaluated this evidence in light of its assessment of the credibility of Mr. Adwokat and acknowledged doubts as to Mr. Adwokat’s credibility, but found that continued contempt had not been established on a balance of probabilities (Federal Court Reasons at paras. 47-50). [38] In my view, it is particularly significant that the Federal Court evaluated the evidence relied on by Justice Goyette against an apology given by Mr. Adwokat, acknowledging that his conduct was wrongful. The Federal Court noted, “Mr. Adwokat reiterated this apology in his testimony before me on March 10, 2021. He added that he also apologized for making it difficult for the plaintiffs to serve him with documents in connection with this matter” at paragraph 45. The Federal Court then found that, despite some doubts as to Mr. Adwokat’s credibility, “I accept as sincere his statement that he now recognizes the error of his ways, that he has not engaged in conduct contrary to the injunction since November 2019, and that he will not do so in the future” (Federal Court Reasons at para. 50). The Federal Court thus determined that this expression of remorse should be accorded some weight, even in light of some possible connection with copycat companies. [39] The Dissenting Reasons suggest overturning the Federal Court’s appreciation and weighing of these elements of the evidence. The Dissenting Reasons do not demonstrate the deference that is due from an appellate court to a trial court, nor do the Dissenting Reasons acknowledge the privileged position of the Federal Court in hearing viva voce testimony. Instead, the Dissenting Reasons imagine this Court to be in an equally good position relative to the Federal Court to appreciate this case’s extensive evidentiary record and recalibrate the weight given to the various elements of the record to draw an inference the Federal Court declined to draw. This seems to me to be directly contrary to the teachings of Housen at paragraphs 10-14, which emphasize the relatively disadvantaged position of appellate courts when it comes to making findings of fact, which animates the standard of palpable and overriding error. [40] For these reasons, I find that the “error” identified by the Dissenting Reasons cannot be properly characterized by this Court as an error at all, much less as one of a palpable and overriding nature. As put succinctly by the majority of the Supreme Court in Salomon v. Matte-Thompson, 2019 SCC 14 at paragraph 33, “[t]he fact that an alternative factual finding could be reached based on a different ascription of weight does not mean that a palpable and overriding error has been made.” [41] We therefore cannot draw the inference the Federal Court refused to draw. Without this inference, one cannot say that the sentence imposed by the Federal Court was clearly disproportionate. III. Proposed Disposition [42] Thus, I would dismiss this appeal and the motion, both with costs. [43] The respondents may serve and file costs submissions of no more than ten pages, within ten days of the date of these Reasons, and the appellants may file responding submissions of equal length within ten days of receipt of the respondents’ submissions. The respondents may file a reply to the appellants’ responding submissions, of no more than three pages, within five days of receipt of the appellants’ responding submissions. “Mary J.L. Gleason” J.A. “I agree. Richard Boivin J.A.” GOYETTE J.A. (Dissenting Reasons) [44] I reach a different result from my colleagues. [45] Appellate courts can modify a sentence when: (1) the sentencing judge made an error in principle, i.e. an error in law, a failure to consider a relevant factor, or an erroneous consideration of a factor, and this error had an impact on the sentence; or (2) the sentence is demonstrably unfit. (R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424 [Friesen] at para. 26.) [46] In this case, the sentence of the Federal Court must be modified. [47] The primary purpose of imposing sanctions for civil contempt is to ensure compliance with court orders: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79 at paras. 31, 41; Canadian Standards Association v. P.S. Knight Co. Ltd., 2021 FC 1346 [P.S. Knight] at para. 15. To this end, specific and general deterrence are key factors to consider, especially in content piracy matters: Apotex Inc. v. Merck & Co. Inc., 2003 FCA 234 [Merck] at paras. 85-89, leave to appeal refused, [2003] S.C.C.A. No. 366 (S.C.C.); Dish Network LLC et al. v. Gill et al. (27 April 2018), Hamilton CV-13-40368 (Ont. S.C.) [Dish Network] at pp. 3, 16-17; Trans-High Corporation v. Hightimes Smokeshop and Gifts Inc., 2015 FC 919 at para. 25; Louis Vuitton S.A. v. Tokyo-Do Enterprises Inc., 28 A.C.W.S. (3d) 321, 37 C.P.R. (3d) 8 (F.C.T.D.) at paras. 23-24; DIRECTV Inc. v. Boudreau, 2005 CarswellOnt 7026 (Ont. S.C.) [DIRECTV] at para. 7, varied in [2006] O.J. No. 1583, 2006 CarswellOnt 2391 (Ont. C.A.); Echostar Communications Corporation v. Rodgers, 2010 ONSC 2164 at paras. 60-63. [48] Specific and general deterrence will ensure that the contemnor and others who would be tempted to commit contempt do not form the view that court orders can be defied without consequences: Merck at para. 89; Bell Canada et al. v. Vincent Wesley DBA MtlFreeTV.com (28 August 2018), Ottawa T-759-16, Doc. 395 (F.C.) at para. 31; 9038-3746 Quebec Inc. v. Microsoft Corporation, 2010 FCA 151 at paras. 18-19, leave to appeal dismissed, Carmelo Cerrelli v. Microsoft Corporation, 2010 CanLII 77120 (S.C.C.). [49] In the case at bar, I find that the Federal Court either failed to apply the principle of deterrence or did not have, in law, the correct understanding of deterrence. This had an impact on the sentence. Otherwise, given the deplorable aggravating circumstances before it, a much more significant sentence would have been imposed on Mr. Eric Adwokat — the directing mind of Red Rhino Entertainment Inc. (Red Rhino). The Federal Court’s fine of $40,000 is demonstrably unfit. [50] This error of law and demonstrably unfit sentence allow this Court to perform its own sentencing analysis to determine a fit sentence that relies on the Federal Court’s findings of fact to the extent that they are not affected by an error in principle: Friesen at paras. 26-28; Federal Courts Act, R.S.C. 1985, c. F-7, para. 52(b)(i). [51] The respondents’ conduct was evasive, defiant, and egregious. They continued to act in contempt even after the Federal Court found them guilty. In these circumstances, a fine is meaningless. The only fit sentence is incarceration: Dish Network; DIRECTV. I. The Respondents’ Conduct Was Evasive, Defiant, and Egregious [52] This is a case of evasive, defiant, and egregious conduct. To use the words of the Federal Court, the respondents’ conduct fell at the high end of the scale of objective gravity and moral blameworthiness: Bell Canada v. Red Rhino Entertainment Inc., 2021 FC 895 [Sentencing Decision] at paras. 25, 32. I note: The respondents built their business around an illegal activity: the configuring, marketing and selling of devices (set-top boxes) and subscriptions to IPTV services that provide unauthorized access to the appellants’ live and on-demand television programming: Bell Canada v. Red Rhino Entertainment Inc., 2019 FC 1460 [Contempt Decision] at paras. 8, 28, 47; In June 2016, the Federal Court issued an interlocutory injunction to refrain from the activities carried on by the respondents: Contempt Decision at paras. 5, 71; Motivated by financial gain, the respondents wilfully chose to evade the injunction through a large-scale, sophisticated operation that lent an unwarranted and misleading air of legitimacy to an illegal activity: Sentencing Decision at paras. 28-29. The Red Rhino set-top boxes, retailed between $350 and $499, were sold with the assistance of some 16 salespersons through at least two brick-and-mortar locations, at least two websites, at least three third-party distributors, and at sales booths at numerous high-traffic commercial events in some 32 North American cities (the “shows”) to which Mr. Adwokat and the salespersons flew “chilling in first class”: see Screen Capture of Mr. Eric Adwokat’s Facebook Page, Appeal Book, vol. 4, TX-145, Exhibit NS-1, at 1293; and They did so in plain view for at least 32 months: Contempt Decision at paras. 28, 68. [53] In addition, the respondents made a concerted effort to thwart the appellants’ ability to enforce their legal rights and protect their legitimate economic interests, namely, by: Evading service of Court documents more than 30 times over a period of 28 months: Contempt Decision at para. 68; Sentencing Decision at para. 34; see Affidavits of Attempted Service, Appeal Book, vol. 5, TX-162 to TX-165, at 1739 to 1753, and TX-169 to TX-174, at 1777 to 1814; At the eleventh hour of the contempt hearing, filing notices of intention to make a proposal under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the BIA) in “ill-conceived attempts to frustrate the exercise of the [Federal] Court’s duty to ensure that its orders are respected”: Contempt Decision at para. 68 in fine; Arranging to deprive the victims of their contemptuous activities from claiming compensatory damages by showing $201 of assets in their names and not a dollar in a bank account: Statement of Affairs of Red Rhino, Appeal Book, vol. 7, Exhibit AM-27, at 2338-2351; Red Rhino’s Income Tax Assessments, Appeal Book, vol. 7, Exhibit AM-30, at 2362-2382; and Constantly lying to the Federal Court: Contempt Decision at paras. 51, 57, 64; Sentencing Decision at paras. 32, 35-37, 46, 47, 50, 65, 67. II. The Respondents Continued to Act in Contempt [54] In addition to the evasive, defiant, and egregious conduct described above, the only logical inference from the circumstantial evidence before the Federal Court, which the Court failed to draw, is that contempt was continuing at the time of the sentencing hearing. I therefore disagree with the conclusion that contempt has been purged. [55] Shortly after having been found guilty of contempt, Mr. Adwokat left the country. He attended the sentencing hearing in March 2021 from Costa Rica where he had been living for a year: Sentencing Decision at para. 65; Cross-examination of Mr. Eric Adwokat, Appeal Book, vol. 11, at 3926, lines 10-18, and at 3930 to 3939. In parallel, between June 2019 and mid-2020, copycat companies of Red Rhino appeared — that is, companies selling the same products through quasi-identical websites and using the same marketing strategy. Access to Red Rhino’s website is automatically redirected to one of the copycat companies’ websites, and two of these copycats accept Red Rhino credentials. With one exception (Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1887, at paras. 110-111, referring to Exhibit AM-58, at 2707-2730), these copycat companies are incorporated outside of Canada, share the same phone number, and obfuscate the identity of their operators to the public. The one copycat company incorporated in Canada is, by an “inexplicable coincidence”, owned by a friend of Mr. Adwokat’s brother and operates in Costa Rica through a subsidiary: Sentencing Decision at paras. 47-48; see generally Appendix B. [56] The Federal Court found a connection between these copycat companies and the respondents: Sentencing Decision at paras. 47-49. The Court also found that Mr. Adwokat lied by denying the connection: Sentencing Decision at para. 47 in fine. However, because it did not know “on a balance of probabilities what exactly that connection is”, the Federal Court ruled that that there was “no evidence that [Mr. Adwokat] engaged in any offending conduct since [the contempt decision]”: Sentencing Decision at paras. 47, 49. I disagree. [57] From the moment that there is evidence of (1) companies pursuing Red Rhino’s activities beyond the contempt decision, and (2) a connection between such companies and Mr. Adwokat, I fail to see what else is needed to conclude that the contemptuous activities are continuing: see Appendix C. This is particularly true when the person who can best provide additional information about the connection, Mr. Adwokat, is lying about the connection: Sentencing Decision at para. 47 in fine; see Barendregt v. Grebliunas, 2022 SCC 22 [Barendregt] at para. 60. Thus, by failing to draw the proper inference from the evidence, the Federal Court made a palpable error in fact which led it to disregard continuous contempt — an aggravating factor. This palpable error is inextricably linked to the Federal Court’s failure to apply the principle of deterrence. As a result, this Court does not owe deference to the Federal Court’s finding regarding continuous contempt: Friesen at para. 28; R. v. Makokis, 2020 ABCA 330 at para. 15 in fine; R. v. Batstone, 2022 BCCA 171 at para. 49; R. v. Stevic, 2022 BCCA 45 at para. 11; R. v. R.O., 2023 BCCA 65 at para. 35. Continuous contempt demonstrates a callous disregard for court orders and weighs heavily towards incarceration: Dish Network at pp. 2, 14; Telewizja Polsat S.A. v. Radiopol Inc., 2006 FC 137 at para. 42 [Polsat]; P.S. Knight at paras. 19(ix), 20. III. The Principle of Restraint Cannot Apply [58] Despite the principle of restraint in the use of incarceration (Criminal Code, R.S.C. 1985, c. C-46, paras. 718.2(d) and (e); Clayton Ruby, Sentencing 10th ed. (Toronto: LexisNexis, 2020) at para. 13.9; R. v. Sharma, 2022 SCC 39 at para. 60; Tremaine v. Canada (Human Rights Commission), 2014 FCA 192 [Tremaine] at para. 36), the analysis above shows that the elements supporting a sentence of incarceration are present: DIRECTV; Dish Network. In all likelihood, incarceration would have been imposed by the Ontario courts on Mr. Adwokat had this matter been adjudicated by these courts: Dish Network at p. 14; DIRECTV. Federal courts, including our Court, have been much more lenient. In civil contempt cases involving copyright matters, I am only aware of three Federal court cases that ordered incarceration, but only if certain conditions were not met: Lari v. Canadian Copyright Licensing Agency, 2007 FCA 127 [Lari]; P.S. Knight; Polsat. This conflict in approach between these courts should no longer continue. The Federal Court should not be a safe haven for persons in contempt. [59] A fine is not an appropriate alternative when a contemnor’s conduct, in addition to being egregious, evasive, and continuous, hinders a court’s ability to determine a fine that achieves deterrence: Borer v. Nelson, 2020 ONSC 4259 at para. 22; Majormaki Holdings LLP v. Wong, 2009 BCCA 349 at paras. 8, 25; Cellupica v. Di Giulio, 2011 ONSC 1715 at paras. 15, 41, 48. “Hindrance” aptly describes the respondents’ conduct. They chose not to produce any financial information to the Federal Court: Sentencing Decision at para. 64 in fine. Despite the appellants’ numerous requests, the respondents did not comply with their obligation under paragraph 158(b) of the BIA to provide the trustee in bankruptcy, and by the same token the appellants, with the books and records relating to their property or affairs: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1868 and 1869, at paras. 74-76; E-mail Exchanges Between Appellants’ Counsel and Trustee in Bankruptcy, Appeal Book, vol. 7, Exhibit AM-28, at 2352. [60] Against this refusal to provide financial information, Mr. Adwokat sent a clear message on social media and to whoever observed the respondents’ activities that their business was highly profitable, that money was no object to them: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1867-1868, at paras. 70-71; Mr. Adwokat’s Trips Posted on Facebook, Appeal Book, vol. 7, Exhibit AM-25, at 2325-2332; Mr. Adwokat’s Use of Vehicles Posted on Facebook, Appeal Book, vol. 7, Exhibit AM-26, at 2333-2336. [61] The appellants, through affidavits of numerous investigators supported by hundreds of exhibits, tendered all the evidence that they could access to show the magnitude of the respondents’ contemptuous activities and the lavish lifestyle that these activities provided to Mr. Adwokat. Yet, this evidence does not allow for the determination of a fine that would achieve deterrence. This determination requires financial information that is held exclusively by the respondents, but they chose not to provide it. [62] Given the respondents’ choice to not produce the required financial information, their deplorable conduct, and continuous contempt, I find that the only fit sentence to deter and drive home that Canadian courts enforce their orders is a sentence of incarceration for Mr. Adwokat. [63] While the evidence does not allow for the determination of a fine that would achieve deterrence, it is clear that the $40,000 fine imposed by the Federal Court is demonstrably unfit. Indeed, this amount seems to be close to the sales that the respondents would make at a commercial event in one day: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1868, at paras. 57-59; Photos of Red Rhino’s Sales Force, Appeal Book, vol. 7, Exhibit AM-20, at 2282-2298; Photos of Containers Filled With Red Rhino Set-top Boxes, Appeal Book, vol. 7, Exhibit AM-21, at 2299-2301; Statement of Events Describing Purchase of Red Rhino Set-top Box, Appeal Book, vol. 3, TX-130, at 1097-1109. [64] In other words, a $40,000 is a “mere licence fee, which other [individuals and] corporations, in contemplation of similar activity, can simply budget for”: Merck at para. 89. IV. Jurisdiction to Order Incarceration [65] Before this Court, the appellants seek “further and other relief as […] this Honourable Court may consider just”: Appellants’ Notice of Appeal, at para. 4; see Canada (Human Rights Commission) v. Saddle Lake Cree Nation, 2018 FCA 228 at paras. 41-42. After applying the principles of sentencing afresh to the facts, the sentence that I consider just is incarceration: Friesen at para. 27; Tremaine at para. 19. [66] I acknowledge that the appellants no longer ask for incarceration on appeal. However, the sentence of incarceration remains a remedy sought in their Notice of Ex Parte Motion (see Appeal Book, vol. 1, at 207, at para. 2b)) which this Court must pronounce on since it must now make the judgment the Federal Court should have made: Federal Courts Act, para. 52(b)(i). And while sentencing is for this Court to decide in light of the parties’ submissions, it is also in the public interest and in defence of orders of the Federal Court. In other words, the public nature of civil contempt requires me to order a sentence that transcends the interests of the parties: Droit de la famille — 21819, 2021 QCCA 759 [Droit de la famille] at para. 56; Vidéotron Ltée. v. Industries Microlec Produits Électroniques Inc., [1992] S.C.J. No. 79, [1992] 2 S.C.R. 1065 at p. 1076; Business Development Bank of Canada v. Cavalon Inc., 2017 ONCA 663 at para. 79, application for leave to appeal dismissed, Robyrt Regan v. Business Development Bank of Canada, 2018 CanLII 71041 (S.C.C.). As well, the parties had the opportunity to adduce evidence and thoroughly debated the issues relating to the appellants’ original request for incarceration. Thus, procedural fairness has been respected: Droit de la famille at para. 57; Brégaint c. Daoust, 2016 QCCA 721 at paras. 27-28. V. Motion to Adduce New Evidence Is Not Necessary [67] As a result of the conclusion above, there is no need for me to take a position on the appellants’ motion to adduce new evidence. How many more cat-and-mouse games do we need to play? In these circumstances, I would dismiss the motion — it is unnecessary: Barendregt at para. 29, citing Palmer v. The Queen, 106 D.L.R. (3d) 212, [1980] 1 S.C.R. 759 at 775. VI. Imposition of Costs [68] As for costs, the appellants incurred $690,620.51 (excluding tax) in legal fees plus $39,423.12 in disbursements relating to the contempt proceedings: Sentencing Decision at para. 73. Before the Federal Court, they did not seek solicitor-client costs even though it is customary to claim such costs in civil contempt cases: Sentencing Decision at para. 74; see Lari at para. 38 and cases cited therein. Rather, they claimed a partial indemnity of an all-inclusive lump amount of $400,000: Sentencing Decision at para. 73. I see no reason why the appellants should not have been entitled to their costs at that amount. [69] The Federal Court imposed costs of $35,000: Sentencing Decision at para. 79. This amount does not even cover the appellants’ disbursements for which the respondents’ conduct was largely responsible (Dreco Energy Services Ltd. v. Wenzel, 2005 ABCA 185 at para. 11), e.g. by evading legal service more than 30 times. I agree with the Federal Court that costs should not be a disincentive for a person of limited means to defend oneself against contempt charges: Sentencing Decision at paras. 75-76. However, the respondents are not persons of limited means. Moreover, imposing low costs on contemnors in a situation similar to the present will tell victims, especially copyright owners of limited means (e.g. new technology start-ups), to not bother protecting their legal rights and assisting the Federal Court in enforcing its orders: see Lari at para. 38 and cases cited therein. VII. Proposed Disposition [70] I would allow the appeal, set aside the judgment of the Federal Court dated September 1, 2021 in file T-759-16, and in making the judgment that the Federal Court should have made, grant in part the custodial sentence sought by the appellants in their motion for civil contempt by issuing a Warrant of Committal for Mr. Eric Adwokat who shall be arrested and incarcerated for a period of fifteen (15) days, to be served continuously: see Federal Courts Act, para. 52(b)(i); see Notice of Ex Parte Motion, Appeal Book, vol. 1, at 207, at para. 2b); Sentencing Decision at para. 3. [71] Given that I set aside the sentencing judgment, any award of costs included in that judgment should also be set aside. Therefore, I would grant the appellants their costs in the Federal Court in the amount of $400,000 and costs in this Court in the amount of $50,000: Federal Courts Rules, SOR/98-106, Rule 400(1); Federal Courts Act, para. 52(b)(i); Eli Lilly Canada Inc. v. Novopharm Limited, 2010 FCA 219 at para. 13d. “Nathalie Goyette” J.A. APPENDIX A Decision Context Sentence Federal Baxter Travenol Laboratories of Canada Ltd v. Cutter (Can.) Ltd., [1987] F.C.J. No. 205, 3 A.C.W.S. (3d) 326 After a patent infringement case that ordered an injunction, Defendant failed to deliver up infringing goods (blood bags) and sold them at a value of $1 million $50,000 2023 value: $114, 850.75 Louis Vuitton S.A. v. Tokyo-Do Enterprises Inc. (1990), 37 C.P.R. (3d) 8, 28 A.C.W.S. (3d) 321 (FCTD) Sold luxury brand products (bags) in violation of order restraining trademark infringement $5,000 2023 value: $10,032.59 Canada (Attorney General) v. de l’Isle, [1994] F.C.J. No. 955, 56 CPR (3d) 371 (FCA) Violated permanent injunction by continuing to commit offences contrary to Food and Drugs Act i.e. publishing a drug directory (for alternative medicine) 3 months imprisonment for individual $50,000 for corporation 2023 value: $89,372.82 Manufacturers Life Insurance Co. v. Guaranteed Estate Bond Corp., [2000] F.C.J. No. 172, [2000] A.C.F. No 172 (FCTD) Continued to infringe trademarks by selling insurance products and related financial services $5,000 2023 value: $8,229.95 Lyons Partnership, L.P. v. MacGregor, [2000] F.C.J. No. 341, 186 F.T.R. 241 (FCTD) Dressed up as Barney at a performance, despite injunction to not do so (copyright infringement), and had material in breach of injunction $3,000 2023 value: $4,937.97 Desnoes & Geddes Ltd. v. Hart Breweries Ltd., [2002] F.C.J. No. 869, 2002 FCT 632 Company infringed registered trademarks by distributing and selling alcoholic beverages with certain words and designs The individual aided and abetted company $2,000 for individual 2023 value: $3,153.69 $4,000 for corporation 2023 value: $6,307.38 Apotex Inc. v. Merck & Co. Inc., 2003 FCA 234, 227 D.L.R. (4th) 106 Sale of a drug in contravention of a finding made in reasons for judgment before the judgment was issued and entered, with sales equal to $9,000,000.00 $125,000 2023 value: $188,602.94 Chum Ltd. v. Stempowicz, 2004 FC 611, [2004] F.C.J. No. 732 Defendant is in contempt for continuing to sell and service equipment and devices allowing access to DIRECTV $25,000 2023 value: $37,245.89 Brilliant Trading Inc. v. Wong, 2005 FC 1214, 42 C.P.R. (4th) 215 Defendants failed to obey order to cease using, advertising, marketing, or selling wares associated with plaintiff’s trademark $10,000 2023 value: $14,615.38 Telewizja Polsat S.A. v. Radiopol Inc., 2006 FC 137, [2006] F.C.J. No. 257 Decoded encrypted subscription programming without authorization $10,000 and 6 months imprisonment (no prison if takes down the website in 5 days) for individual 2023 value: $14,223.66 $25,000 for corporation 2023 value: $35,559.15 Dursol-Fabrik Otto Durst GmbH Co. v. Dursol North America Inc., 2006 FC 1115, 151 A.C.W.S. (3d) 585 Breached prohibition orders to market, sell, and deliver up metal polish and other wares $20,000 for individual and corporation, jointly and severally 2023 value: $28,447.32 Canadian Copyright Licensing Agency v. U-Compute, 2007 FCA 127, 156 A.C.W.S. (3d) 1064 Third time breach of Anton Piller order to refrain from unauthorized copying and selling of textbooks; also did not allow access to business premises for inspection 6 months imprisonment, suspended if obeys permanent injunctions and performs 400 hours of community service Bell Canada v. Wesley dba MtlFreeTV.com, 2016 CF 1379 Breached interlocutory injunction by continuing to sell set-top boxes that facilitated unauthorized access to copyrighted content $15,000 2023 value: $18,205.84 Bell Canada v. Vincent Wesley dba MtlFreeTV.com, 2018 FC 861 Breached interlocutory injunction by continuing to sell set-top boxes that facilitated unauthorized access to copyrighted content for the second time $30,000 2023 value: $35,056.95 Canadian Standards Association v. P.S. Knight Co. Ltd., 2021 FC 1346, 193 C.P.R. (4th) 236 Charged with three counts of contempt for disobeying terms of a judgment issued in a copyright infringement proceeding (para 6), i.e. selling copyrighted materials and failing to deliver up materials (para 11) $100,000 and imprisonment of individual respondent for 6 months suspended if purges contempt in 10 days 2023 value: $111,360.35 Ontario DIRECTV Inc. v. Boudreau, [2006] O.J. No. 1583, 2006 CarswellOnt 2391 (Ont. C.A.) Breached injunction by operating satellite piracy business and order to attend sentencing hearing Imprisonment of 3 months Dish Network L.L.C. v. Ramkissoon, 2010 ONSC 5205, 194 A.C.W.S. (3d) 463 Husband and wife in contempt of two Anton Piller orders in the context of very serious satellite pirating theft Imprisonment of 4 months for one individual and 2 months for another individual Dish Network L.L.C. v. Gill, unreported reasons dated April 27, 2018, docket CV-13-40368 (Ont. S.C.) Breached permanent injunction by advertising piracy technology and illegal subscriptions, sold one illegal device to access encrypted satellite TV, and assisted third parties to operate the single device sold (p. 1) Imprisonment of 4 months Dish Network L.L.C. et al. v. Butt et al., 2022 ONSC 1710 In contempt for streaming TV and movie content under “Shava TV”, which belonged to Dish Network, by selling set-top boxes Conditional discharge subject to probation of 2 years less a day Note: 2023 values were calculated using the Bank of Canada Inflation Calculator at https://www.bankofcanada.ca/rates/related/inflation-calculator. This tool uses the monthly consumer price index information from 1914 o the present. APPENDIX B Evidence that the Respondents Continued to Act in Contempt Through Copycat Companies B.1 Copycat companies of Red Rhino appeared: Warranty Services Ltd: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1877, at para. 92; Similarities between Red Rhino’s website and Warranty Services Ltd.’s website, Appeal Book, vol. 7, Exhibit AM-41, at 2485-2490; New Pay Group LLC: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1879, at paras. 96-97; Similarities Between Red Rhino’s Website and New Pay Group LLC’s Website, Appeal Book, vol. 7, Exhibits AM-44.1 to 44.12, at 2504 to 2528; Lime Juice Box: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1882, at paras. 104-107, referring to Similarities Between Red Rhino’s Website and Lime Juice Box Websites, Appeal Book, Exhibit AM-53, at 2701-2707. B.2 Access to Red Rhino’s website is automatically redirected to one of the copycat companies’ websites, and two of these copycats accept Red Rhino credentials: Warranty Services Ltd: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1875 at paras. 88-89, and 1878 at para. 93, referring to Printouts of Access to Website of Warranty Services Ltd. Using Red Rhino Credentials, Appeal Book, vol. 7, Exhibits AM-42.1 to AM-42.5, at 2491 to 2501; New Pay Group LLC: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1880, at para. 98, referring to Printouts of Access to Website of New Pay Group LLC Using Red Rhino Credentials, Appeal Book, vol. 7, Exhibits AM-45.1 to AM 45.5, at 2529 to 2539. B.3 Copycat companies are incorporated outside of Canada: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1879 at para. 95, 1881 at para. 97, and 1880 at para. 100, referring to Exhibit AM-47, vol. 7, at 2540; see also Exhibits AM-40.1 at 2459 to AM-40.9 at 2477. B.4 Copycat companies share the same phone number: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1881, at paras. 101-102, referring to Exhibit AM-40.1, vol. 7, at 2459-2461, Exhibit AM-44.1, vol. 7, at 2504-2506, and Exhibit AM-48, vol. 7, at 2572-2573. B.5 Copycat companies obfuscate the identity of their operators to the public: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1878 at para. 94 (referring to Exhibit AM-43, Appeal Book, vol. 7, at 2503), 1881 at para. 99, and 1886 at para. 108 (referring to Exhibits AM-54 to 56, Appeal Book, at 2708-2714). B.6 Another copycat company operates in Costa Rica: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1887-1888, at paras. 111-115, referring to Exhibits AM-59 to 62 of Appeal Book, at 2731-2967; see: Lime Juice Box Costa Rica Facebook Page, Appeal Book, Exhibit AM-62, at 2966. APPENDIX C Evidence of Companies Pursuing Red Rhino’s Activities Beyond the Contempt Decision November 21, 2019: Access to Red Rhino Warranty’s website was automatically redirected to Warranty Services Ltd.’s website: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1875, at para. 89, citing Appeal Book, vol. 7, Exhibit AM-38, at 2455; see also Whois Record for Warranty Services, Appeal Book, vol. 7, Exhibit AM-43, at 2503; January 2, 2020: Lime Juice Box Costa Rica Facebook Page created, with latest activity on July 1, 2020, and still online as of December 15, 2020: Appeal Book, Exhibit AM-62, at 2965; March 23, 2020: Lime Juice Box websites created: Anthony J. Martin Investigation Report, Appeal Book, Exhibit AM-63, at 2972; see also Exhibits AM-54 to AM-56, at 2709, 2712, and 2714, and online as of July 8, 2020: Exhibits AM-57.1 to AM-57.3, at 2715-2726; March 26, 2020: Lime Juice Box USA was incorporated: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1888, at para. 114, citing Appeal Book, Exhibit AM-61, at 2962; June 16, 2020: Access to Warranty Services Ltd.’s website, New Pay Group LLC’s website, and Lime Juice Box’s websites is possible: Affidavit of Jason Vallée Buchanan, Appeal Book, vol. 9, at 2975-2980, at paras. 2-6, citing Exhibits JFV-1.1 to JFV-4.15, at 2982 to 3127; July 10, 2020: Access to Warranty Services Ltd.’s website and New Pay Group LLC’s website was possible using Red Rhino credentials: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1878, at paras. 93, 98, citing Appeal Book, vol. 7, Exhibits AM-42.1 to 42.2, at 2492 and 2494, and Exhibits AM-45.1 to 45.2 , at 2530 and 2532; December 12, 2020: Mr. Adwokat was still the sole director of Red Rhino: Affidavit of Anthony J. Martin, Appeal Book, vol. 6, at 1875, at para. 87, citing Corporation Profile Report for Red Rhino, Appeal Book, vol. 7, Exhibit AM-37, at 2451. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-285-21 STYLE OF CAUSE: BELL CANADA ET AL. v. ERIC ADWOKAT ET AL. PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: February 7, 2023 REASONS FOR JUDGMENT BY: GLEASON J.A. CONCURRED IN BY: BOIVIN J.A. DISSENTING REASONS BY: GOYETTE J.A. DATED: may 18, 2023 APPEARANCES: François Guay Guillaume Lavoie Ste-Marie Etienne Lacroix-Couillard For The Appellants Brian N. Radnoff David Z. Seifer For The Respondents SOLICITORS OF RECORD: Smart & Biggar LLP Montréal, Quebec For The Appellants Dickinson Wright LLP Toronto, Ontario For The Respondents\n\n### Legal Analysis\nThe court's analysis focuses on: to perform its own sentencing analysis to determine a fit sentence that relies on the Federal Court’s findings of fact to the extent that they are not affected by an error in principle: Friesen at paras. 26-28; Federal Courts Act, R.S.C. 1985, c. F-7, para. 52(b)(i). [51] The respondents’ conduct was evasive, defiant, and egregi\n\n### Precedential Value\nAs a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation."}
{"prompt": "What administrative law principles are applied in this Federal Court of Canada decision?\n\nBhuchung v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2023-07-25 Neutral citation 2023 FC 1009 File numbers IMM-9385-21 Decision Content Date: 20230725 Docket: IMM-9385-21 Citation: 2023 FC 1009 Ottawa, Ontario, July 25, 2023 PRESENT: Mr. Justice Norris BETWEEN: XXX BHUCHUNG Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I. OVERVIEW [1] In May 2006, the applicant made a claim for refugee protection in Canada. The applicant identified himself as Bhuchung, a citizen of Tibet (China) who was born in Dhingri, Tibet, on July 1, 1967. He sought protection on the basis of his fear of persecution in China because of his Buddhist faith and his support for a free Tibet. On February 23, 2007, the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada determined that the applicant is a Convention refugee and accepted his claim for protection. [2] In May 2019, the Minister of Public Safety and Emergency Preparedness filed an application with the RPD under section 109 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) to vacate the decision allowing the applicant’s claim for refugee protection. The Minister alleged that the applicant is in fact Nanang (or Nawang) Chhokle Sherpa, a citizen of Nepal who was born in Kathmandu, Nepal, on June 24, 1975. The Minister contended that the decision allowing the claim for refugee protection should be vacated because the applicant obtained it by misrepresenting or withholding material facts relating to a relevant matter – namely, by identifying himself as Bhuchung, a citizen of Tibet (China), when in fact his true identity is Nanang (or Nawang) Chhokle Sherpa, a citizen of Nepal. [3] In a decision dated November 25, 2021, the RPD allowed the Minister’s application, deemed the applicant’s claim for refugee protection to be rejected, and nullified the February 23, 2007, decision of the RPD. [4] The applicant now applies for judicial review of this decision under subsection 72(1) of the IRPA. He contends that the decision should be set aside and the matter remitted for redetermination because the RPD breached the requirements of procedural fairness by refusing to accept the documentary evidence he submitted in response to the Minister’s application to vacate. On the other hand, the Minister submits that the RPD did consider the applicant’s evidence and reasonably determined on the whole of the record that the misrepresentation allegation had been established. [5] As I will explain in the reasons that follow, I agree with the applicant that, in determining whether the Minister had established the alleged misrepresentation, the RPD found that new evidence tendered by the applicant to establish his identity was inadmissible. I also agree with the applicant that this determination is based on an erroneous application of the principles governing the evidence that may be considered on an application to vacate. This reviewable error both undermines the reasonableness of the decision as a whole and effectively deprived the applicant of a meaningful opportunity to answer the Minister’s case, something he was entitled to as a matter of procedural fairness. This application for judicial review will, therefore, be allowed and the matter will be remitted for redetermination. II. BACKGROUND A. The Applicant’s Claim for Refugee Protection [6] When he sought refugee protection in 2006, the applicant identified himself in his Personal Information Form (PIF) as Bhuchung, a citizen of Tibet (China) who was born in Dhingri, Tibet, on July 1, 1967. According to his PIF narrative, the applicant left Tibet in 1993 because of the oppressive conditions there and went to Nepal. (At his RPD hearing, the applicant stated that in fact he had left Tibet by foot in late 1990 and arrived in Nepal in early 1991. He attributed the discrepancy with the information in his PIF to a translation error.) The applicant stated that he then lived and worked in Nepal without status. He travelled regularly to India, where he has family, including a wife and children. Since he travelled overland between the two countries, he was able to do so without proper identification. The applicant explained to the RPD that if he ran into any difficulties, he would simply bribe the border guards. Eventually the applicant came to fear that conditions for Tibetans in Nepal were deteriorating and decided to leave permanently. He left Nepal for Canada on April 26, 2006, arriving here the next day. [7] The applicant did not claim refugee protection on arrival; rather, he made an inland claim on May 12, 2006. [8] The applicant stated in his PIF that he travelled to Canada using a false Nepalese passport in the name of Sonam Lama. As originally submitted in June 2006, the applicant’s narrative stated: “My father had purchased a false Nepalese passport so that I could travel to the United States. I returned the document to the agent who made the document.” In December 2006, the applicant submitted a corrected version of the narrative in which, among other things, these two sentences were crossed out. At his RPD hearing, the applicant testified that in fact he had purchased the passport himself when he decided to leave Nepal. He also denied ever intending to travel to the United States. Once again, the applicant attributed the erroneous information in his narrative to translation errors. [9] The applicant testified that he produced the false Nepalese passport in the name of Sonam Lama when he arrived in Canada at Pearson International Airport in Toronto. He assumed he must have had a visa because otherwise he would not have been permitted to enter the country. The applicant denied having any document that would allow him to return to Nepal. According to the applicant, the only document he had showing his true identity was the Green Book he had obtained in Nepal. (A Green Book is an identity document issued by the Central Tibetan Administration to Tibetans in exile that documents their financial contributions to the organization. The applicant testified that he obtained his first Green Book in 1991, shortly after he arrived in Nepal from Tibet.) [10] The applicant took the position before the RPD that, since he did not have any legal status in Nepal, the sole country of reference for his refugee claim was China. [11] As noted above, on February 23, 2007, the RPD determined that the applicant is a Convention refugee. No reasons for the decision were given. B. The Minister’s Application to Vacate [12] Section 109 of the IRPA states: Applications to Vacate Annulation par la Section de la protection des réfugiés Vacation of refugee protection Demande d’annulation 109 (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. 109 (1) La Section de la protection des réfugiés peut, sur demande du ministre, annuler la décision ayant accueilli la demande d’asile résultant, directement ou indirectement, de présentations erronées sur un fait important quant à un objet pertinent, ou de réticence sur ce fait. Rejection of application Rejet de la demande (2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection. (2) Elle peut rejeter la demande si elle estime qu’il reste suffisamment d’éléments de preuve, parmi ceux pris en compte lors de la décision initiale, pour justifier l’asile. Allowance of application Effet de la décision (3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified. (3) La décision portant annulation est assimilée au rejet de la demande d’asile, la décision initiale étant dès lors nulle. [13] The Minister alleged that the applicant is in fact Nawang Chhokle Sherpa, a citizen of Nepal born in Kathmandu on June 24, 1975. [14] To establish this allegation, the Minister provided evidence from the United States Department of State, Bureau of Consular Affairs suggesting that on March 29, 2006, the applicant had been refused a US visitor’s visa for which he had applied under the name Nawang Chhokle Sherpa using a Nepalese passport in this name issued in December 2001. [15] According to the Minister, the applicant had identified himself in the visa application as a teacher at the Porong Pema Chholing Monastery in Kathmandu. It appears that this person was part of a group of individuals who had identified themselves as monks associated with a monastery in Kathmandu who intended to visit the United States beginning on April 5, 2006. Contact telephone numbers in Clark County, Nevada, were provided with the application. The application was refused because the visa officer determined that the “local letter” – presumably a letter purporting to confirm the group’s connection to the local monastery – was fraudulent. [16] The Minister also provided evidence from the United States Department of State, Bureau of Consular Affairs that in June 2008 the applicant was denied a US visa for which he had applied under the name Bhuchung. It appears that US authorities linked this application to the 2006 visa application through a fingerprint match. The Minister relied on this link to establish that it was the applicant who had submitted the 2006 application, shortly before he came to Canada. [17] Finally, the Minister provided evidence from the Canada Border Services Agency (CBSA) that an individual named Nanang Chhokle Sherpa had entered Canada at Pearson International Airport on April 24, 2006, using a Nepalese passport. The Minister alleged that, despite the minor variation in the spelling of the name in the CBSA record compared to the US record, the CBSA record reflected the applicant’s arrival in Canada on the same passport as had been used in the 2006 US visa application and, further, that this confirmed that the applicant had arrived on April 24, 2006, and not on April 27, 2006, as the applicant had maintained in his refugee claim. [18] Relying on this evidence, the Minister’s position was that “it is more likely than not that the Respondent [the present applicant] is in fact Nanang Chhokle Sherpa (alias Nawang Chhokle Sherpa) and that he is genuinely a Nepalese citizen” (Minister’s Written Submissions, para 29). According to the Minister, “at all material times, the Respondent failed to notify the RPD panel of first instance that he was a national of Nepal, and also failed to advance a claim against Nepal” (Minister’s Written Submissions, para 35). The fact that the applicant had admitted to using one Nepalese passport (in the name of Sonam Lama, which he contended was fraudulent) but did not admit to having used another one (in the name of Nanang (or Nawang) Chhokle Sherpa) “suggests that he sought to keep it from the panel for a specific reason, namely that this is his genuine identity, and that he is a Nepalese citizen” (Minister’s Written Submissions, para 31). Thus, according to the Minister, the decision granting the applicant refugee protection should be vacated because the applicant had “obtained refugee protection as a result of directly or indirectly misrepresenting or withholding the material facts of his personal identity and nationality” (Minister’s Written Submissions, para 35). [19] For present purposes, it is important to underscore that the misrepresentation and withholding of material facts alleged by the Minister related to what the Minister maintained was the applicant’s actual personal and national identity and not simply to his failure to disclose his possession and use of the Nepalese passport in the name of Nanang (or Nawang) Chhokle Sherpa. [20] The Minister submitted that, as interpreted in Canada (Public Safety and Emergency Preparedness) v Gunasingam, 2008 FC 181 at para 7, subsection 109(1) of the IRPA has three elements: (a) there must be a misrepresentation or withholding of relevant facts; (b) those facts must relate to a relevant matter; and (c) there must be a causal connection between the misrepresenting or withholding on the one hand and the favourable result on the other. [21] The Minister submitted that all three elements were met here (Minister’s Written Submissions, para 38). First, there had been a misrepresentation or withholding of material facts – namely, the applicant’s actual identity and nationality. Second, those facts relate to a relevant matter: “identity is foundational to every refugee claim and one must advance a claim against all countries of nationality.” Third, there is a causal connection between the misrepresenting or withholding on the one hand and the favourable result on the other: “if identity is not established, the panel is not required to conduct further analysis before making a negative decision; also, failing to advance a claim against all of one’s countries of nationality will be fatal to the refugee claim.” [22] The Minister also submitted that the applicant is not a credible witness and that the misrepresentation “has tainted all information provided at the time of the first determination” (Minister’s Written Submissions, para 39). Consequently, under subsection 109(2), there is no other sufficient evidence considered at the time of the first determination to justify refugee protection. [23] The Minister therefore requested that the application be allowed and the applicant’s Convention refugee status be vacated. C. The Applicant’s Response [24] The RPD heard the Minister’s application on September 7 and October 7, 2021. In his testimony before the RPD, the applicant admitted that, contrary to what he told the RPD at his original hearing, he arrived in Canada on a Nepalese passport under the name Nanang Chhokle Sherpa. The applicant stated that this passport had been in his possession from 2001 until 2006. He admitted that he had also used it when he travelled between Nepal and India to visit family and when he applied for a US visa in 2006. The applicant maintained, however, that it was not a genuine passport, that he is not Nanang Chhokle Sherpa, and that he is not a citizen of Nepal. As he told the RPD at the original hearing, he is Bhuchung, a citizen of China (Tibet). [25] Prior to the hearing before the RPD, the applicant submitted the following documents: (a)A letter dated August 15, 2021, from the Office of the Municipal Executive, Kathmandu Metropolitan City, attesting that Mr. Bhuchung is not a citizen of Nepal; that he was born in Dhingri, Tibet, on July 1, 1967; that “there is no legally citizen named Nawang Chhokle Sherpa (DOB 1975-June-24)”; and that the passport issued under the name Nawang Chhokle Sherpa (No. 880198) “is not genuine and was illegally obtained.” (b)A letter dated August 10, 2021, from a Settlement Officer with the Tibetan Refugee Community Office in Kathmandu certifying that Mr. Bhuchung “was a bona fide Tibetan refugee and resident of Boudha, Kathmandu, Nepal.” (c)A letter dated August 11, 2021, from the Chief Coordinator of the Tibetan Refugee Welfare Office in Kathmandu certifying that Mr. Bhuchung “was a bona fide Tibetan residing at Boudha, Kathmandu, Nepal.”The letter also named the applicant’s parents and provided his Green Book number.The letter bore a photograph of the applicant that the applicant acknowledged at the hearing had been taken recently with his cell phone. (d)A letter dated August 13, 2021, from the Administration Manager of the Canadian Tibetan Association of Ontario stating that Mr. Bhuchung is a bona fide Tibetan.The letter provided the applicant’s Green Book number.The letter also stated that the applicant “takes active part in the various community events and programs and volunteers when ever he can.” (e)A letter dated August 24, 2021, from the Toepa Cultural Society of Ontario stating that Mr. Bhuchung is an active member of the society.The letter also describes ways the applicant has been active with the society.The applicant also provided a photo of himself with a Toepa dance group. (f)Membership cards for the Tibetan Canadian Cultural Centre in the name of Bhuchung Bhuchung bearing the applicant’s photograph. (g)Letters from two long time friends of the applicant in Canada attesting that he (Mr. Bhuchung) is Tibetan. (h)Letters from the Tibetan Reception Center in Kathmandu relating to the applicant’s mother and one of his daughters. [26] As the RPD recognized in its decision, the applicant had “tendered these documents in evidence in support of his Tibetan identity as Bhuchung.” The RPD also noted that these documents “were not presented in evidence before the original RPD panel.” The documents were marked collectively as No. 2 in the Consolidated List of Documents: “Disclosure – Personal Counsel August 30, 2021.” In the decision, the RPD refers to them as Exhibit 2. [27] At the hearing, the Minister’s position regarding this documentary evidence was two-fold. First, since the hearing of an application to vacate under subsection 109 of the IRPA is not a fresh hearing, the applicant was foreclosed from submitting evidence that was not before the original RPD panel. Second, even if this new evidence could be considered, most of the documents are likely fraudulent so their contents are unreliable. The Minister appears to have had concerns with the authenticity of the documents purporting to be from agencies in Nepal in particular. III. DECISION UNDER REVIEW [28] Looking first at the new identity evidence tendered by the applicant (the respondent before the RPD), the RPD states the following (at para 29): The panel finds persuasive the Minister’s submission that the panel’s role in determining an application under s. 109(1) is not to conduct a new hearing into the Respondent’s identity but rather, to re-weigh the evidence used to establish the Respondent’s Tibetan identity by the original RPD panel now that the Minister has evidence of his alternative Nepalese identity. The panel finds, therefore, that the Respondent cannot rely on new evidence of his purported identity to rebut his misrepresentation made before the original RPD panel. [29] Although the RPD member does not say so expressly here, there is no issue that this “new evidence” is the documents the member refers to elsewhere as Exhibit 2. [30] Earlier in the decision, after noting the Minister’s submission that some of the applicant’s new evidence is likely fraudulent and stating that these submissions were “persuasive”, the member stated that she finds “most persuasive” the Minister’s submissions regarding the “relevance and admissibility” of the new evidence “under either s. 109(1) or s. 109(2) of the IRPA” (Reasons for Decision, para 26). In particular, the Minister had contended that “the hearing of a vacation application under s. 109(1) of the IRPA is not a fresh hearing” and that the applicant “is foreclosed from submitting evidence that was not before the original panel” (Reasons for Decision, para 28). As set out above, the RPD agreed with this submission. [31] The RPD then finds, on a balance of probabilities, that the Nepalese passport confirms the applicant’s identity as Nanang Chhokle Sherpa (alias Nawang Chhokle Sherpa). The RPD was satisfied that this is a genuine passport because it had “withstood government scrutiny” when the applicant used it to travel between Nepal and India, when he used it to apply for a US visa in 2006, and when he used it to enter Canada. [32] The RPD next finds that, by not disclosing his true identity and status in his original claim for refugee protection and, instead, identifying himself as Bhuchung, a Tibetan citizen of China, the applicant had misrepresented or withheld material facts relating to relevant matters – namely, identity, country of reference, and his overall credibility. The RPD was also satisfied that there was a causal connection between the misrepresenting or withholding on the one hand and the favourable result on the other. The applicant obtained refugee protection on the basis of his status as a citizen of China/Tibet and his narrative of political and religious persecution as a Buddhist. The RPD finds that the material facts he misrepresented and withheld “are fundamental and call into question the credibility of his identity and his entire account for fearing persecution.” [33] Finally, the RPD finds under subsection 109(2) of the IRPA that it is not the case that the Minister’s application to vacate should nevertheless be rejected because there was other sufficient evidence considered by the original RPD panel to justify refugee protection. The material facts that the applicant misrepresented and withheld “are so fundamental as to call into question his identity and the credibility of his entire account for fearing persecution, such that there cannot be any remaining evidence to justify refugee protection” (Reasons for Decision, para 42). [34] The RPD therefore allows the Minister’s application. As a result, under subsection 109(3) of the IRPA, the applicant’s claim for refugee protection is deemed to be rejected and the decision of the original RPD panel granting refugee protection is nullified. IV. STANDARD OF REVIEW [35] The applicant frames this application for judicial review exclusively in terms of procedural fairness. The respondent, on the other hand, defends the RPD’s decision as reasonable. [36] These issues invoke different standards of review, with questions of procedural fairness being determined on a standard akin to correctness, the ultimate question being whether the applicant knew the case to meet and had a full and fair chance to respond (Canadian Hardwood Plywood and Veneer Association v Canada (Attorney General), 2023 FCA 74 at para 57, citing Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 54 and 56). In the particular circumstances of this case, however, the two issues converge in the Court’s review of the RPD’s finding that the applicant’s new identity evidence is inadmissible. This is because, on the one hand, there is no issue that, if this finding is reasonable, it cannot have resulted in a breach of the requirements of procedural fairness. A full and fair chance to respond to the Minister’s case does not include the right to rely on inadmissible evidence. Nor, on the other hand, is there any issue that, if this finding is unreasonable, there must be a new hearing. It is of no moment whether this is because the finding resulted in a breach of procedural fairness (because it deprived the applicant of a full and fair chance to respond to the Minister’s case) or because this was not a harmless error (because it cannot be said that the outcome of the application to vacate would inevitably have been the same if the evidence had been admitted). Either way, the result on this application for judicial review is the same. [37] The determinative question, then, is whether the RPD’s finding that the applicant’s new identity evidence is inadmissible is unreasonable. [38] A reasonable decision “is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 85). A decision that displays these qualities is entitled to deference from the reviewing court (ibid.). For a decision to be reasonable, a reviewing court “must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that there is a line of analysis within the reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived” (Vavilov at para 102, internal quotation marks and citation omitted). On the other hand, “where reasons are provided but they fail to provide a transparent and intelligible justification [. . .], the decision will be unreasonable” (Vavilov at para 136). [39] The onus is on the applicant to demonstrate that the RPD’s decision is unreasonable. To set aside a decision on this basis, the reviewing court must be satisfied that “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” (Vavilov at para 100). V. ANALYSIS [40] I stated above that the determinative question is whether the RPD’s finding that the applicant’s new identity evidence is inadmissible is unreasonable. This framing of the fundamental issue entails that I do not accept the respondent’s characterization of the RPD’s decision as one in which the member “indeed considered the new evidence provided by the Applicant, but found that it did not establish that he had not committed a misrepresentation or withholding of a material fact” (Respondent’s Further Memorandum of Argument, para 30). [41] As set out above, the RPD held that the applicant “cannot rely on new evidence of his purported identity to rebut his misrepresentation made before the original RPD panel” (Reasons for Decision, para 29). In saying this, the RPD clearly and unequivocally held that the documents referred to collectively as Exhibit 2 are inadmissible and, as such, could not be relied on by the applicant or, by necessary implication, be considered by the RPD. The RPD’s later statement that, in concluding that there had been a misrepresentation or withholding of material facts relating to the applicant’s identity, it had “carefully considered . . . the evidence presented and testimony adduced at the hearing” (Reasons for Decision, para 35) must be read in light of this earlier determination. Although the RPD did comment in passing on the lack of authenticity and reliability of some of the new evidence tendered by the applicant, that was not the basis on which the decision was made. [42] In my view, the RPD’s finding that the applicant’s new evidence of identity is not admissible is based on an erroneous application of the principles governing the evidence that may be relied on in response to an application to vacate under section 109 of the IRPA. To explain why this is so, it is necessary to provide some legislative and jurisprudential background. [43] Prior to the enactment of the IRPA, the vacation of a decision granting Convention refugee protection was dealt with under sections 69.2 and 69.3 of the Immigration Act, RSC 1985, c I-2 (as amended). Broadly speaking, subsection 69.2(2) of the Immigration Act corresponded to what is now subsection 109(1) of the IRPA and subsection 69.3(5) of the Immigration Act corresponded to what is now subsection 109(2) of the IRPA. [44] Subsection 69.3(5) of the Immigration Act stated: The Refugee Division may reject an application under subsection 69.2(2) that is otherwise established if it is of the opinion that, notwithstanding that the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, there was other sufficient evidence on which the determination was or could have been based. [45] The wording of this provision arguably left open the possibility that a party facing an application to vacate a decision granting Convention refugee protection could adduce new evidence to support the determination that they are a Convention refugee. However, in Coomaraswamy v Canada (Minister of Citizenship and Immigration), 2002 FCA 153, the Federal Court of Appeal held that the determination under subsection 69.3(5) of the Immigration Act cannot be based on new evidence (i.e. evidence that was not before the RPD in the first instance). After interpreting the meaning of the text of the provision in both English and French, the Court went on to state the following (at paras 15-16): Any possible doubt about the interpretation of subsection 69.3(5) is resolved by asking what legislative purpose would be served by affording to claimants who succeed in deceiving the Board an opportunity to submit additional evidence in an attempt to prove de novo at the vacation hearing that their claims were genuine. No such opportunity is available to either truthful or deceptive claimants whose claims for refugee status are dismissed. To allow a claimant who succeeded in deceiving the Board a second bite at the cherry by introducing new evidence at the vacation hearing would reward deception and remove an incentive to tell the truth. For these reasons, subsection 69.3(5) should be interpreted as limiting the material that the Board may consider at a vacation hearing to what was before it when it allowed the refugee claim. [46] This principle has now been included expressly in subsection 109(2) of the IRPA, which limits the RPD’s assessment under that provision to the evidence that was considered at the time of the first determination. [47] Coomaraswamy was also clear, however, that this limitation only applied to subsection 69.3(5) of the Immigration Act and not also to the determination under subsection 69.2(2) as to whether there had been misrepresentation. The Court stated (at para 17): Of course, when attempting to establish for the purpose of subsection 69.2(2) that a claimant made misrepresentations at the determination hearing, the Minister may adduce evidence at the vacation hearing that was not before the Board when it decided the refugee claim. Similarly, a claimant may adduce new evidence at the vacation hearing in an attempt to persuade the Board that she did not make the misrepresentations alleged by the Minister. (Emphasis added) [48] That this principle also applies to subsection 109(1) of the IRPA is confirmed by Canada (Public Safety and Emergency Preparedness) v Bafakih, 2022 FCA 18. In this decision, the Court endorsed the view stated in Canada (Minister of Citizenship and Immigration) v Wahab, 2006 FC 1554 at para 29, that the determination under this provision “involves consideration of all the evidence on file, including the new evidence presented by both parties” (Bafakih at para 40). The Court also cited paragraphs 16 and 17 of Coomaraswamy, quoted above. In short, while new evidence is not permitted under subsection 109(2) to uphold the original determination, it is permitted under subsection 109(1) to show that there was no misrepresentation. [49] Viewed against this jurisprudential backdrop, the RPD’s determination that the applicant could not rely on new evidence to establish that he is in fact Bhuchung and Tibetan is unreasonable. (Although the RPD did not have the benefit of Bafakih, this decision simply confirmed already well-established principles.) This is one of those circumstances where “it is quite simply unreasonable for [the] administrative decision maker to fail to apply or interpret a statutory provision in accordance with . . . binding precedent” (Vavilov at para 112). [50] The Minister alleged that the applicant had misrepresented his identity when he sought refugee protection. The applicant denied the allegation and maintained that he had identified himself correctly in the original proceeding before the RPD. To determine under subsection 109(1) of the IRPA whether the Minister had established the alleged misrepresentation, the RPD had to determine who the applicant is. This required a hearing in which all relevant evidence provided by the parties was considered. The RPD therefore erred in finding that its role was not to “conduct a new hearing into the Respondent’s identity but rather, to re-weigh the evidence used to establish the Respondent’s Tibetan identity by the original RPD panel now that the Minister has evidence of his alternative Nepalese identity.” [51] In precluding the applicant from relying on new evidence capable of confirming his identity, the RPD erroneously applied the restrictions applicable to subsection 109(2) of the IRPA to subsection 109(1). The applicant’s new evidence is relevant to his personal and national identity. It was responsive to the Minister’s allegation under subsection 109(1) that he misrepresented his personal and national identity when he identified himself in his original claim as Bhuchung and Tibetan when in fact he is Nanang (or Nawang) Chhokle Sherpa and Nepalese. If, as the applicant originally contended before the RPD, he is Bhuchung and Tibetan (and not Sherpa and Nepalese, as the now Minister alleged), then he did not misrepresent his identity, even if he did not disclose his use of the Nepalese passport. The applicant was entitled to adduce evidence relevant to this question and the RPD was required to consider it. Of course, whether the evidence the applicant adduced was sufficient to answer the Minister’s allegation is a separate question that the RPD did not address. [52] As I have already said, whether the RPD’s erroneous determination is viewed through the lens of reasonableness or the lens of procedural fairness, the result is the same: there must be a new hearing. VI. CONCLUSION [53] For these reasons, the application for judicial review is allowed. The decision of the RPD dated November 25, 2021, is set aside and the matter is remitted for redetermination by a different decision maker. [54] The parties did not propose any serious questions of general importance for certification under paragraph 74(d) of the IRPA. I agree that no question arises. JUDGMENT IN IMM-9385-21 THIS COURT’S JUDGMENT is that The application for judicial review is allowed. The decision of the Refugee Protection Division dated November 25, 2021, is set aside and the matter is remitted for reconsideration by a different decision maker. No question of general importance is stated. “John Norris” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-9385-21 STYLE OF CAUSE: XXX BHUCHUNG v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: TORONTO, Ontario DATE OF HEARING: January 25, 2023 JUDGMENT AND REASONS: NORRIS J. DATED: July 25, 2023 APPEARANCES: Joo Eun Kim For The Applicant James Todd For The Respondent SOLICITORS OF RECORD: Refugee Law Office Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent", "response": "## Analysis of Court Decision: Bhuchung  v. Canada (Citizenship and Immigration)\n\n### Key Issues\nion as reasonable. [36] These issues invoke different standards of review, with questions of procedural fairness being determined on a standard akin to correctness, the ultimate qu\n\n### Standard of Review\nprotection is nullified. IV. STANDARD OF REVIEW [35] The applicant frames this application for judicial review exclusively in terms of procedural fairness. The respondent, on the\n\n### Legal Analysis\nThe court's analysis focuses on: t required to conduct further analysis before making a negative decision; also, failing to advance a claim against all of one’s countries of nationality will be fatal to the refugee claim.” [22] The Minister also submitted that the applicant is not a credible witness and that the misrepresentation “has tainted all information pr\n\n### Precedential Value\nThis Federal Court decision has persuasive value for similar cases before the court and provides guidance to the Immigration and Refugee Board on the proper interpretation of law and procedural requirements. While not binding on other Federal Court judges, it establishes a precedent that will often be followed for consistency."}
{"prompt": "How does this Federal Court of Appeal of Canada decision affect immigration jurisprudence?\n\nShull v. Canada Court (s) Database Federal Court of Appeal Decisions Date 2023-05-17 Neutral citation 2023 FCA 107 File numbers A-33-22 Decision Content Date: 20230517 Docket: A-33-22 Citation: 2023 FCA 107 CORAM: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. BETWEEN: DAVE SHULL Appellant and HIS MAJESTY THE KING Respondent Dealt with in writing without appearance of parties. Judgment delivered at Ottawa, Ontario, on May 17, 2023. REASONS FOR JUDGMENT BY: RENNIE J.A. CONCURRED IN BY: LASKIN J.A. MONAGHAN J.A. Date: 20230517 Docket: A-33-22 Citation: 2023 FCA 107 CORAM: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. BETWEEN: DAVE SHULL Appellant and HIS MAJESTY THE KING Respondent REASONS FOR JUDGMENT RENNIE J.A. [1] The appellant appealed the Minister’s reassessments of his taxation years 2009-2014 to the Tax Court of Canada under that Court’s informal procedure. The appellant moved to strike the respondent’s reply to his amended notice of appeal. In reasons delivered from the bench, the Tax Court dismissed the appellant’s motion (2019-243(IT)I, per D’Arcy J.). The appellant now seeks to appeal to this Court the Tax Court’s order dismissing his motion to strike. However, no appeal to this Court lies from the Tax Court’s order. [2] Subsection 27(1.2) of the Federal Courts Act, R.S.C. 1985, c. F-7 (the Act) is clear: only a final judgment of the Tax Court in informal proceedings may be appealed to this Court. Subsection 2(1) of the Act defines a “final judgment” as “any judgment or other decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding.” The word “proceeding” in this definition refers to the very matter that is before the court, rather than a component of the matter, such as a motion (Ontario Federation of Anglers and Hunters v. Alderville Indian Band, 2014 FCA 145, 461 N.R. 327 at para. 21, leave to appeal to SCC refused, 36035 (12 March 2015) [Alderville]). [3] The order appealed from is not a final judgment. It does not determine any substantive right of either party, nor does it dispose of a “proceeding” as defined by this Court; for these reasons, the order falls outside the scope of subsection 27(1.2) of the Act, and the appeal is outside the scope of this Court’s jurisdiction. To elaborate, the order determines only a collateral, procedural right (the appellant’s right to have portions of the respondent’s pleadings excluded) without determining the substantive right that the underlying appeal seeks to assert (the appellant’s right to have the respondent’s reassessments vacated). Similarly, the motion at issue is not a “proceeding” for the purposes of this appeal, and is instead only a component of the appellant’s appeal from the respondent’s reassessments. [4] This Court has confirmed that an order of the Tax Court with these effects is interlocutory, as opposed to final, in nature (National Benefit Authority Corporation v. Canada, 2022 FCA 17, 2022 D.T.C. 5011 at paras. 10-11, leave to appeal to SCC refused, 40137 (18 August 2022), applying Alderville at paras. 21-24). I add that this Court has also repeatedly characterized orders resulting from motions to strike portions of the Crown’s reply as interlocutory (Heron v. Canada, 2017 FCA 229, 2017 D.T.C. 5130 at para. 1; Tuccaro v. Canada, 2016 FCA 259, 2016 D.T.C. 5117 at paras. 1 and 27; Cameco Corporation v. Canada, 2015 FCA 143, 474 N.R. 333 at para. 1). [5] The timing of the order further supports its characterization as interlocutory. Interlocutory decisions are typically made before the hearing of the matter as part of the resolution of a pre-hearing dispute; they are ordinarily not argued together, or otherwise intertwined, with the hearing on the merits which determines a party’s substantive rights (Sweet Productions Inc. v. Licensing LP International S.À.R.L., 2022 FCA 111, 2022 CarswellNat 2036 (WL Can) at paras. 27-28). The motion in this case was brought before the appeal on the merits in a step entirely separate from any determination of the appellant’s substantive rights. This degree of separation from the appellant’s original appeal simply confirms the conclusion that the order in issue is not a final judgment of the Tax Court. [6] I would therefore dismiss the appeal with costs. “Donald J. Rennie” J.A. “I agree. Laskin J.A.” “I agree. Monaghan J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-33-22 STYLE OF CAUSE: DAVE SHULL v. HIS MAJESTY THE KING DEALT WITH in writing without appearance of the parties. REASONS FOR JUDGMENT BY: RENNIE J.A. CONCURRED IN BY: LASKIN J.A. MONAGHAN J.A. DATED: May 17, 2023 WRITTEN REPESENTATIONS BY: Dave Shull on his own behalf Spencer Landsiedel For The Respondent SOLICITORS OF RECORD: Shalene Curtis-Micallef Deputy Attorney General of Canada For The Respondent", "response": "## Analysis of Court Decision: Shull v. Canada\n\n### Key Issues\n(s) Database Federal Court of Appeal Decisions Date 2023-05-17 Neutral citation 2023 FCA 107 File numbers A-33-22 Decision Content Date: 20230517 Docket: A-33-22 Citation: 2023 FCA\n\n### Standard of Review\nShull v. Canada Court (s) Database Federal Court of Appeal Decisions Date 2023-05-17 Neutral citation 2023 FCA 107 File numbers A-33-22 Decision Content Date: 20230517 Docket: A-33-22 Citation: 2023 FCA 107 CORAM: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. BETWEEN: DAVE SHULL Appellant and HIS MAJESTY THE KING Respondent Dealt with in writing without appearance of parties. Judgment delivered at Ottawa, Ontario, on May 17, 2023. REASONS FOR JUDGMENT BY: RENNIE J.A. CONCURRED IN BY: LASKIN J.A. MONAGHAN J.A. Date: 20230517 Docket: A-33-22 Citation: 2023 FCA 107 CORAM: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. BETWEEN: DAVE SHULL Appellant and HIS MAJESTY THE KING Respondent REASONS FOR JUDGMENT RENNIE J.A. [1] The appellant appealed the Minister’s reassessments of his taxation years 2009-2014 to the Tax Court of Canada under that Court’s informal procedure. The appellant moved to strike the respondent’s reply to his amended notice of appeal. In reasons delivered from the bench, the Tax Court dismissed the appellant’s motion (2019-243(IT)I, per D’Arcy J.). The appellant now seeks to appeal to this Court the Tax Court’s order dismissing his motion to strike. However, no appeal to this Court lies from the Tax Court’s order. [2] Subsection 27(1.2) of the Federal Courts Act, R.S.C. 1985, c. F-7 (the Act) is clear: only a final judgment of the Tax Court in informal proceedings may be appealed to this Court. Subsection 2(1) of the Act defines a “final judgment” as “any judgment or other decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding.” The word “proceeding” in this definition refers to the very matter that is before the court, rather than a component of the matter, such as a motion (Ontario Federation of Anglers and Hunters v. Alderville Indian Band, 2014 FCA 145, 461 N.R. 327 at para. 21, leave to appeal to SCC refused, 36035 (12 March 2015) [Alderville]). [3] The order appealed from is not a final judgment. It does not determine any substantive right of either party, nor does it dispose of a “proceeding” as defined by this Court; for these reasons, the order falls outside the scope of subsection 27(1.2) of the Act, and the appeal is outside the scope of this Court’s jurisdiction. To elaborate, the order determines only a collateral, procedural right (the appellant’s right to have portions of the respondent’s pleadings excluded) without determining the substantive right that the underlying appeal seeks to assert (the appellant’s right to have the respondent’s reassessments vacated). Similarly, the motion at issue is not a “proceeding” for the purposes of this appeal, and is instead only a component of the appellant’s appeal from the respondent’s reassessments. [4] This Court has confirmed that an order of the Tax Court with these effects is interlocutory, as opposed to final, in nature (National Benefit Authority Corporation v. Canada, 2022 FCA 17, 2022 D.T.C. 5011 at paras. 10-11, leave to appeal to SCC refused, 40137 (18 August 2022), applying Alderville at paras. 21-24). I add that this Court has also repeatedly characterized orders resulting from motions to strike portions of the Crown’s reply as interlocutory (Heron v. Canada, 2017 FCA 229, 2017 D.T.C. 5130 at para. 1; Tuccaro v. Canada, 2016 FCA 259, 2016 D.T.C. 5117 at paras. 1 and 27; Cameco Corporation v. Canada, 2015 FCA 143, 474 N.R. 333 at para. 1). [5] The timing of the order further supports its characterization as interlocutory. Interlocutory decisions are typically made before the hearing of the matter as part of the resolution of a pre-hearing dispute; they are ordinarily not argued together, or otherwise intertwined, with the hearing on the merits which determines a party’s substantive rights (Sweet Productions Inc. v. Licensing LP International S.À.R.L., 2022 FCA 111, 2022 CarswellNat 2036 (WL Can) at paras. 27-28). The motion in this case was brought before the appeal on the merits in a step entirely separate from any determination of the appellant’s substantive rights. This degree of separation from the appellant’s original appeal simply confirms the conclusion that the order in issue is not a final judgment of the Tax Court. [6] I would therefore dismiss the appeal with costs. “Donald J. Rennie” J.A. “I agree. Laskin J.A.” “I agree. Monaghan J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-33-22 STYLE OF CAUSE: DAVE SHULL v. HIS MAJESTY THE KING DEALT WITH in writing without appearance of the parties. REASONS FOR JUDGMENT BY: RENNIE J.A. CONCURRED IN BY: LASKIN J.A. MONAGHAN J.A. DATED: May 17, 2023 WRITTEN REPESENTATIONS BY: Dave Shull on his own behalf Spencer Landsiedel For The Respondent SOLICITORS OF RECORD: Shalene Curtis-Micallef Deputy Attorney General of Canada For The Respondent\n\n### Legal Analysis\nThe court's analysis focuses on: al appeal simply confirms the conclusion that the order in issue is not a final judgment of the Tax Court. [6] I would therefore dismiss the appeal with costs. “Donald J. Rennie” J.A. “I agree. Laskin J.A.” “I agree. Monaghan J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-33-22 STYLE OF CAUSE:\n\n### Precedential Value\nAs a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation."}
{"prompt": "Explain how this Refugee Protection Division decision from the Refugee Law Lab Reporter applies international refugee law:\n\n2023 RLLR 117 Citation: 2023 RLLR 117 Tribunal: Refugee Protection Division Date of Decision: November 2, 2023 Panel: Sandeep Chauhan Counsel for the Claimant(s): Heather Cameron Purves Country: USA RPD Number: VC3-06662 Associated RPD Number(s): N/A ATIP Number: A-2024-00593 ATIP Pages: N/A DECISION INTRODUCTION [1] These are the reasons for the decision in the claim of [REDACTED] XXXX (the “claimant”), who is a citizen of United States of America (USA) and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1] [2] In rendering my reasons, I have considered the Chairperson’s Guidelines 9 on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. ALLEGATIONS [3] The following is a brief synopsis of the allegations put forth by the claimant in her Basis of Claim (BOC) form.[2] [4] She fears persecution at the hands of society and the authorities in USA due to her sexual orientation and gender identity. [5] The claimant is a 29-year-old, who was assigned female gender at birth. She never identified with her gender growing up and had an abusive upbringing, being subject to domestic violence. The claimant did not discuss her gender identity and sexual orientation with her parents, and only discussed this with her very close friends in 2017-2018. She prefers to use XXXX as her name, but her mother did not start addressing her as such much later, until recently. The claimant has lived in various states, including Kentucky, Florida, and California, but has not been provided with health supports – both mental and physical due to her gender identity and sexual orientation. She met with an accident in 2015 and has struggled with XXXX XXXX and XXXX XXXX since that time. The claimant has been requesting XXXX XXXX from the US government, but none has been forthcoming. Facing [REDACTED] and the prospect of being homeless, she travelled to Canada on XXXX XXXX, 2022 and sought refugee protection. DETERMINATION [6] I find that the claimant is a Convention refugee as she has established a serious possibility of persecution for the following reasons. ANALYSIS Identity [7] I find that the claimant’s identity as a national of USA is established, on a balance of probabilities, based on a certified copy of her American passport on file.[3] Nexus [8] For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason of one or more of the five grounds: race, religion, nationality, membership in a particular social group or political opinion. The persecution that the claimant fears in this case is because of her gender identity and sexual orientation. I find that she has established nexus to the Convention ground of membership in a particular social group: namely a claimant fearing persecution due to her sexual orientation. As such, her claim is being assessed under section 96 of IRPA and not under section 97. Credibility [9] When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness. (Maldonado [1980] 2.F.C. 302 (C.A.)) In this case, the claimant testified in a detailed manner and explained how the life events unfolded for her in the US. She was quite emotional upon recounting her experiences. [10] Apart from her oral testimony, she has provided corroborating documentary evidence[4] to support her claim. I have no reason to doubt the genuineness of these documents and accept them as genuine. [11] Among other documents, the evidence includes diagnosis of the claimant’s medical problems, her housing dispute with the authorities in the US, and a XXXX XXXX report, which are consistent with her allegations. Therefore, based on the claimant’s straightforward testimony and the corroborating documentary evidence on file, I find her to be a credible witness and accept her allegations to be true on a balance of probabilities, including her subjective fear of returning to the US. Exclusion under Article 1E [12] The claimant got married to a citizen of the United Kingdom (UK) in or around 2015/2016. This raises the issue of exclusion under Article 1E as the claimant could have access to permanent residency in the UK based on spousal sponsorship. I find that this exclusion does not apply as the claimant never lived in the UK. [13] She accompanied her wife to England and lived there for a month in 2017 but did not find the environment suitable for her to relocate their permanently. She separated from her spouse in 2017 as theirs was a long-distance relationship. The claimant has had no communication with her wife since 2021. There was no sponsorship application filed by her wife in the UK for the claimant to move there permanently. [14] As well, objective evidence[5] submitted by the claimant’s counsel elaborates on the conditions under which a spouse of a UK citizen can have access to permanent residency. One of the conditions is that the couple has to have been in a common-law or married relationship for at least two years before the UK citizen can apply for the foreign spouse to reside permanently in the UK. Since the claimant’s relationship with her wife was a long-distance one and they ended up separating after less than two years of marriage, this would make the claimant ineligible for being sponsored as a permanent resident of the UK. [15] Therefore, I am satisfied that as of the date of hearing, the claimant was not a permanent resident of the UK and did not have access to such status in the past in that country. Well-Founded Fear of Persecution and Risk of Harm [16] In order for me to find that the claimant is a Convention refugee, I have to find that the objective evidence establishes that she will face a serious possibility of persecution if removed to the US. I find that the objective evidence supports her subjective fears and establishes a serious possibility of persecution for the claimant if she is forced to return to her country. My reasons are as follows. [17] A report by Human Rights Campaign Foundation states that: Sadly, 2022 has already seen at least 35 transgender people fatally shot or killed by other violent means. We say “at least” because too often these stories go unreported — or misreported. In previous years, the majority of these people were Black and Latinx transgender women. In 2021, the Human Rights Campaign tracked a record number of violent fatal incidents against transgender and gender non-conforming people — with 50 fatalities tracked. These victims, like all of us, are loving partners, parents, family members, friends and community members. They worked, went to school and attended houses of worship. They were real people — people who did not deserve to have their lives taken from them. [6] [18] The claimant has been rendered homeless and lost her employment several times due to discrimination in the workplace, and due to unfair and discriminatory treatment by the authorities. She has not had access to hormone therapy due to her gender identity. On the state of the LGBTQ community, Center for American Progress notes that: This comprehensive study of LGBTQ Americans raises important issues for policymakers and other leaders in American life to consider. With more than one-third of LGBTQ Americans reporting some form of discrimination in their personal and work lives, including more than 6 in 10 transgender Americans, clearly more needs to be done to ensure equal treatment in law and in practice for this community. The U.S. Supreme Court’s decision on June 15, 2020, extending employment protections to LGBTQ workers was a significant victory. However, ongoing discrimination in the workplace, in health care, and in public places needs to be better addressed through comprehensive legislation such as the Equality Act and with targeted resources designed specifically to help this community.[7] [19] In a report titled ‘State Attacks Against LGBTQI+ Rights’, Center for American Progress states that: Across the country, extremist anti-LGBTQI+ and anti-transgender groups are waging a coordinated campaign to restrict LGBTQI+ rights and target transgender youth specifically. According to the Center for American Progress’ partners at the Equality Federation, nearly 400 anti-LGBTQI+ bills were introduced across the country in 2021. In 2022, state legislatures are currently considering approximately 300 anti-LGBTQI+ bills. Unfortunately, legislators in multiple states—such as Alabama, Arizona, Florida, Iowa, Oklahoma, South Dakota, Utah, and others—have already enacted anti-LGBTQI+ bills since the start of 2022. In total, there are currently 14 states with laws categorically banning transgender students from participating in school sports consistent with their gender identity and four have adopted laws or taken executive action to ban or restrict access to medically necessary, best-practice gender-affirming care for transgender youth. These anti-LGBTQI+ attacks endanger the fundamental rights and well-being of LGBTQI+ communities. Not only does the passage of these measures directly harm states’ LGBTQI+ communities, but data also show that just the introduction of these kinds of bills —which are often fueled by hateful and misinformed rhetoric—adversely affects LGBTQI+ communities, especially youth. For example, data from The Trevor Project show that 66 percent of LGBTQ youth, including 85 percent of transgender and/or nonbinary youth, report that recent debates around state laws to restrict the rights of transgender people have negatively affected their mental health. Learn more about the proliferation of anti-LGBTQI+ bills and the 2022 legislative landscape for LGBTQI+ rights here. [8] [20] The objective evidence discussed above establishes that sexual minorities in the US face persecution not only from society but the authorities as well. States in the US are passing laws that infringe upon the rights of transgender persons. The claimant in this case has suffered from such discrimination and unfair treatment, being denied basic health care such as mental health therapy and access to XXXX XXXX. She has lost her employment, home, and left to deal with [REDACTED] on her own, without adequate support from the US authorities because she identifies herself as a non-binary gendered person. [21] Therefore, based on all the evidence before me, I find that the claimant will face a serious possibility of persecution if forced to go back to the US, especially since sexual minorities are persecuted in that country by both state and non-state actors. I find that the claimant’s fears are indeed well-founded. State Protection [22] I find that it would be objectively unreasonable for the claimant to seek the protection of the state of the US authorities in light of her particular circumstances. [23] States are presumed to be capable of protecting their citizens, except in situations where the state is in a state of complete breakdown.[9] However, this is a rebuttable presumption. [24] As discussed above, there are over 300 legislations currently being discussed that discriminate against the LGBTQ+ community. A lot of the states have already passed such legislation. As well, there is violence against anyone identifying as a transgender person. Therefore, given the objective evidence discussed in the preceding paragraphs that shows that states are enacting legislations or have enacted legislation against the LGBTQ+ community, I find that the US authorities are one of the agents of persecution. [25] Therefore, I find that the presumption of state protection has been rebutted in this case. Internal Flight Alternative (IFA) [26] I have analyzed whether a viable internal flight alternative exists for the claimant. [27] On the evidence before me, I find that there is a serious possibility of persecution for her throughout the US. The claimant has lived in several states and the treatment meted out to her as a member of the LGBTQ+ community has been similar. [28] Therefore, based on this reason and the ones similar to those in relation to that of state protection, I am satisfied that the claimant does not have a viable IFA in her home country. CONCLUSION [29] For the foregoing reasons, I find that the claimant is a Convention refugee under section 96 of IRPA. Therefore, I accept her claim. ——— REASONS CONCLUDED ——— [1] Immigration and Refugee Protection Act, S.C. 2001, c. 27. [2] Exhibit 2. [3] Exhibit 1. [4] Exhibit 4. [5] Ibid. [6] Exhibit 3, National Documentation Package, United States, 31 January 2023, tab 6.3: Fatal Violence Against the Transgender and Gender Non-Conforming Community in 2022. Human Rights Campaign Foundation. 2022. [7] Exhibit 3, National Documentation Package, United States, 31 January 2023, tab 6.2: The State of the LGBTQ Community in 2020: A National Public Opinion Study. Center for American Progress. Sharita Gruberg et al. 6 October 2020. [8] Exhibit 3, National Documentation Package, United States, 31 January 2023, tab 6.6: State Attacks Against LGBTQI+ Rights. Center for American Progress. Caroline Medina; Sharita Gruberg. 13 April 2022. [9] Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at 725.", "response": "## Analysis of Refugee Decision: 2023 RLLR 117\n\n### Key Issues\nTQ Americans raises important issues for policymakers and other leaders in American life to consider. With more than one-third of LGBTQ Americans reporting some form of discriminat\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: on for the following reasons. ANALYSIS Identity [7] I find that the claimant’s identity as a national of USA is established, on a balance of probabilities, based on a certified copy of her American passport on file.[3] Nexus [8] For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "What compliance obligations are created by this Federal regulations from the Canadian government?\n\n# Canada Industrial Relations Remuneration Regulations CRC, c 1013 Regulations Respecting the Remuneration and Expenses of Chairmen and Members of Industrial Inquiry Commissions and Conciliation Boards and of Conciliation Commissioners and Mediators Enabling authority: CANADA LABOUR CODE ## Short Title 1 [Repealed, SOR/2010-213, s. 1] ## Remuneration 2 [Repealed, SOR/2010-213, s. 1] 3 [Repealed, SOR/2010-213, s. 1] 4 [Revoked, SOR/90-701, s. 1]", "response": "## Analysis of REGULATIONS-FED: Canada Industrial Relations Remuneration Regulations\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nThese regulations provide specific implementation details for broader legislative frameworks. Practitioners should ensure strict compliance with procedural requirements, timelines, and documentation standards. The regulations must be interpreted consistent with their enabling legislation and may be subject to challenge if they exceed the authority granted by the statute."}
{"prompt": "Analyze this Refugee Protection Division decision from the Refugee Law Lab Reporter and identify key legal issues:\n\n2023 RLLR 110 Citation: 2023 RLLR 110 Tribunal: Refugee Protection Division Date of Decision: March 2, 2023 Panel: Olukunle Ojeleye Counsel for the Claimant(s): Aidan Connor Campbell Country: Peru RPD Number: VC2-10057 Associated RPD Number(s): VC2-10058 ATIP Number: A-2024-00593 ATIP Pages: N/A DECISION [1] MEMBER: This is the decision of the Refugee Protection Division in the claims of [REDACTED] XXXX, the principal claimant, and [REDACTED] XXXX, the minor claimant, who is now known as XXXX (ph), who are citizens of Peru. The date is March 2, 2023. The Panel has considered the testimonies and their evidence in these claims, and is ready to render a decision orally. The RPD heard these claims jointly pursuant to rule 55 of the rules. [REDACTED] XXXX was appointed as the designated representative for the minor child included in the claim, being [REDACTED] XXXX, who is now known as [REDACTED]. [2] Now, reaching his decision in these claims, the Panel reviewed and applied the Chairperson’s guideline 3, child refugee claimants: procedural and evidentiary issues, as well as Guideline line, proceedings before the IRB involving sexual orientation, gender identity and expression, and sex characteristics. The claimant claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. The claimants’ allegations are fully set out in their Basis of Claim forms, as well as their attached narrative. To summarize briefly, the claimants fear harm in Peru due to the sexual orientation of the minor claimant. The minor claimant is a 17-year-old male Peruvian citizen who is transgender, while his mother, the principal claimant, is a 53-year-old Peruvian. [3] The minor claimant was born and assigned the female gender. He grew up as a girl until his secondary school days, when he discovered that he identifies as a male than a female. He began to wish he could escape his female body. He started to exercise to look masculine and to wear clothing that would hide his female features. He became alienated from the girls in school, finding him to be strange. His attempts to have a romantic relationship with the female classmate, XXXX (ph), ended up with him losing his closest friend. When XXXX’s parents found out that she and the minor claimant had been in a relationship, XXXX’s parents began to tell her that the minor claimant is bad influence from whom their daughter should be kept away. As a result, the minor claimant began to experience abuse, insults, and verbal assaults from other students. [4] In 2020, the minor claimant revealed his sexual identity to his parents, who initially felt shocked, but decided to embrace and support him as their only child. Afraid of the harm the minor claimant may face if his sexual identity became widely known, the parents decided that he should leave Peru for safety. The claimants arrived in Canada in XXXX 2022 for the minor claimant to pursue further education, with the principal claimant providing the (inaudible) support. A few months later, they were advised that their fears of returning to Peru could benefit from protection under the refugee process, and they decided to make a claim. Having considered the totality of the evidence, the Panel finds the claimants are Convention refugees pursuant to section 96 of the IRPA, as there exists a serious possibility of persecution should they return to Peru. The Panel finds that the claimants’ personal identities and nationalities as Peruvians have been established on a balance of probabilities by their testimonies as well as the copies of their Peruvian passports in Exhibit 1. [5] The Panel finds the claimants to be credible witnesses. They testified in a forthright manner and their were no material inconsistencies, omissions, or contradictions within their oral testimonies or between their oral testimonies and the other documents before the Panel. The minor claimant testified about when he discovered his sexual identity as well as the challenges he had faced. The principal claimant gave testimony about the persecution and discrimination the minor claimant had faced, as well as the lack of opportunity for him to access the needed therapy for him to be who he is. She testified as to how she and the minor claimant’s father have had to keep his sexual identity secret, not only because of the harm he could face, but also the rejection and the father would face from their relatives and the larger society, who would regard them as failing their parental duties. [6] In assessing the claimants’ credibility, the Panel also considered the documentary evidence provided at Exhibit 4. This included a letter of authorization from (inaudible) XXXX XXXX, the father of the minor claimant, providing consent for him to travel and reside in Canada with he principal claimant, (inaudible) of texts and social media messages between the minor claimant and friends, where he conversed about his sexual identity, saying, ” I do not want to be yelled at anymore,” “I do not want to suffer anymore,” “I am scared,” etcetera. And assessment report and treatment plan from the [REDACTED] XXXX XXXX in Richmond, BC underscoring the minor claimant’s gender identity, as well as the recommended therapy for him and transition, a copy of the [REDACTED] [REDACTED] [REDACTED] [REDACTED] XXXX XXXX. On a review of these documents, the Panel finds no valid reason to doubt the authenticity. The Panel assigns them significant weight as having probative value in substantiating his allegations. [7] Taking into consideration provisions of Guideline 9, proceedings before the IRB involving sexual orientation, gender identity and expression, and sex characteristics, in regards to the fluidity of sexual orientation, the Panel finds that based on the claimants’ words and testimonies the minor claimant has established on a balance of probabilities his profile as transgender and a sexual minority. The Panel finds that the minor claimant’s allegations have a nexus to the Convention ground of membership in a particular social group as a sexual minority, while the principal claimant’s allegations have a nexus to the Convention ground of membership in a particular social group as a family member and carer of a SOGIESC individual. The Panel therefore assessed the claimants pursuant to section 96 of the Act. [8] The principal claimant was asked to explain the risk faced by both claimants if they were to return to Peru. She stated that the family had to hide the sexual identity of the minor claimant to avoid harm in Peru, and that they could not do so for long. She testified that she fears rejection of family members as well as harassment and physical attacks if they were to return to Peru. Given that there are no serious credibility issues with respect to the claimant’s allegations, coupled with the documentary evidence set out below, the Panel finds that the claimants have established that sexual minorities and LGBTIQ2S persons currently face a level of violence, harassment, and discrimination that may result in harm in Peru. [9] Objective evidence indicates that while same-sex relationships are not criminalized in Peru, and that there has been some progress made in recent years to protect the rights of sexual minorities, serious problems do remains. According the NDP 6.1, it states that sex between consenting adults of the same sex are not penalized, but that LGBTIQ2S personals are generally negatively perceived by the conservative Peruvian society. They face discrimination because of their sexual orientation, and they may face acts of violence such as murder, rape, arbitrary arrest, and inhuman and degrading treatment in Peru. NDP 2.1 states that discrimination, harassment, and abuse of transgender individuals like the minor claimant, including by police and other authorities, was a serious problem in Peru. [10] The constitution does include a broad prohibition against discrimination, and individuals in Peru can file legal claimants of discrimination based on sexual orientation. However, there are few national laws that mention sexual orientation as an explicit category for protection, leaving room for interpretations that overlook the rights of sexual minorities. Guideline 9 further underscores the fact that the absence of laws that criminalize or discriminate against LGBTIQ2S individuals in the country does not signify a lack of discrimination in that country, nor does it indicate that state protection is available, and that laws of general application can be selectively applied and enforced against LGBTIQ2S individuals in a discretionary way that may amount to persecution. NDP 2.3 reports that there exists serious discrimination against sexual minorities in Peru, including (inaudible) on the grounds of sexual orientation or sexual identity or gender identity which created barriers to access to rights as healthcare, education, employment, and housing. It was reported that the state did not have effective mechanisms in place to deal with the problems and to protect the LGBTIQ2S population. The same report gave evidence of the societal attitude, where the president reported as being opposed to legalizing same-sex marriage. In a speech on the campaign trail, he said recognition of trans people was an idiosyncrasy that should be thrown in the garbage. He has also expressed opposition to including gender (inaudible) in the school curriculum. NDP 6.4 shows that 56 percent of the LGBTIQ2S population was afraid of expressing their sexual orientation, and 72 percent of these people fear being discriminated against or attacked because of their sexual orientation. [11] The claimants have testified that they are forced to hide the minor claimant’s sexual identity, and would have to conceal his sexual orientation if made to return to Peru. According to Guideline 9, having to hide one’s sexual orientation constitutes a serious interference with fundamental rights that may amount to persecution. The Panel finds that given the evidence of risk of violence and societal discrimination that sexual minorities like the minor claimant face in Peru, these conditions would compel the claimants to conceal the minor claimant’s sexual orientation in an attempt to protect him and the family members’ physical safety. Based on the totality of the evidence, the Panel finds that the claimants have demonstrated an objective basis for their subjective fear of persecution. The Panel finds that based on the minor claimant’s sexual orientation as transgender, and the principal claimant’s position as a mother who is providing emotional and psychological support to her child, considered by the larger society as (inaudible), the claimants face a serious possibility of persecution if they were to return to Peru. [12] The Panel has considered whether state protection would be available to the claimants if they returned to their country, and has concluded that it is not, for the following reasons. The claimants are required to approach the state if protection might be reasonably be forthcoming, or if it is objectively reasonable to have sought protection. However, there is no requirement risk one’s life seeking ineffective protection. According to objective evidence already cited, (inaudible) made by the police to protect sexual minorities, and the educate police officers on anti-discrimination regulations, there is still discrimination of LGBTIQ2S persons by law enforcement and providing protection against risk, and that law enforcement officers have been guilty of abuse against members of sexual minorities. The Panel therefore finds that on a balance of probabilities, the state would be unwilling or unable to provide adequate state production to the claimants if they were to return to Peru. The presumption of state protection is therefore rebutted in these claims. [13] The Panel also considered whether a viable internal flight alternative exists for the claimants in Peru. The Panel finds that the claimants would face a serious possibility of persecution throughout the country. In line with Guideline 9, which applies that an IFA is not viable for an individual if they must conceal their sexual identity in order to live in the suggested location, the Panel finds that there is no viable internal flight alternative for the claimants within their country. Consequently, for the reasons given, and upon consideration of the whole of the evidence, the Refugee Protection Division determines that [REDACTED] XXXX and [REDACTED] XXXX, who is now known as [REDACTED] XXXX, are Convention refugees as defined in section 96 of the Act. Accordingly, the Panel accepts their claims. ——— REASONS CONCLUDED ———", "response": "## Analysis of Refugee Decision: 2023 RLLR 110\n\n### Key Issues\ns: procedural and evidentiary issues, as well as Guideline line, proceedings before the IRB involving sexual orientation, gender identity and expression, and sex characteristics. T\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: it is not, for the following reasons. The claimants are required to approach the state if protection might be reasonably be forthcoming, or if it is objectively reasonable to have sought protection. However, there is no requirement risk one’s life seeking ineffective protection. According to objective evidence already cited, (i\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "Explain how these federal regulations implement immigration legislation:\n\n# Prince George Airport Zoning Regulations CRC, c 103 Regulations Respecting Zoning at Prince George Airport Enabling authority: AERONAUTICS ACT ## Short Title 1 These Regulations may be cited as the Prince George Airport Zoning Regulations. ## Interpretation 2 In these Regulations, *airport* means Prince George Airport, Prince George, in the Province of British Columbia; (aéroport) *airport reference point* means the point described in Part I of the schedule; (point de repère de l’aéroport) *approach surface* means an imaginary inclined plane, the lower end of which is a horizontal line at right angles to the centre line of a strip and passing through a point at the strip end on the centre line of the strip; (surface d’approche) *horizontal surface* means an imaginary horizontal plane located 150 feet above the assigned elevation of the airport reference point or an imaginary plane located 30 feet above the surface of the ground at any given point, whichever is the higher at that given point; (surface horizontale) *Minister* means the Minister of Transport; (ministre) *strip* means a rectangular portion of the landing area of the airport, 1,200 feet in width, on each of the runways designated as 05-23, 18-36 and 14-32, including those runways, especially prepared for the take-off and landing of aircraft in a particular direction; (bande) *transitional surface* means an imaginary inclined plane extending upward and outward from the outer lateral limits of a strip and its approach surface to an intersection with the horizontal surface or other transitional surfaces. (surface de transition) 3 For the purposes of these Regulations, the airport reference point is deemed to be 2,230 feet above sea level. ## Application 4 These Regulations apply to all lands, including public road allowances, adjacent to or in the vicinity of the airport, as more particularly described in Part II of the schedule. ## General 5 No person shall erect or construct, on any land to which these Regulations apply, any building, structure or object or any addition to any existing building, structure or object, the highest point of which will exceed in elevation at the location of the highest point any of the surfaces hereinafter set out that project immediately over and above the surface of the land at that location, namely, (a) a horizontal surface, the outer limits of which may be described as follows: COMMENCING at the Northwest corner of District Lot 2094; THENCE, Easterly along the North boundary of said District Lot 2094 to the Southwest corner of Lot A of Plan 2876; THENCE, Northerly and Westerly along the Westerly boundary of said Lot A of Plan 2876 to the Southerly limit of a road crossing aforesaid Lot A; THENCE, Easterly along the aforesaid Southerly limit to the West boundary of District Lot 955; THENCE, Northerly along the Westerly boundaries of said District Lot 955 and District Lot 6970 to the left bank of the Fraser River; THENCE, following Easterly along said left bank to an intersection with a Southerly production of the West boundary of District Lot 2062; THENCE, Northerly along said Southerly production to the right bank of the Fraser River; THENCE, Easterly along said right bank to the Southeast corner of the Northerly portion of Plan A-1444; THENCE, Northerly and Westerly along the boundary of said Plan A-1444 to the Easterly limit of the P.G.E. Railway right-of-way; THENCE, Northerly and Easterly along the last-mentioned Easterly limit and production thereof, to an intersection with the Westerly boundary of District Lot 2063; THENCE, Northerly along the last-mentioned Westerly boundary to the right bank of the Fraser River; THENCE, Easterly and Southerly along the last-mentioned right bank to an intersection with a Westerly production of the South boundary of District Lot 935; THENCE, Easterly along the said South boundary, and its productions, of District Lot 935 to an intersection with the West boundary of the East half of District Lot 954; THENCE, Southerly along the last-mentioned West boundary to the Northwest corner of the South half of the Northeast quarter of District Lot 954; THENCE, Easterly along the Northern boundary of the aforesaid South half of the Northeast quarter to the East boundary of District Lot 954; THENCE, Southerly along the last-mentioned East boundary and production thereof, to a production Westerly of the North boundary of Lot A, Plan 10697; THENCE, Easterly along the North boundary of the last-mentioned Lot A, and its Westerly production, to the Northeast corner of the last-mentioned Lot A; THENCE, Southerly along the East boundary of the last-mentioned Lot A to the Northerly boundary of District Lot 633; THENCE, Easterly along the said Northerly boundary of said District Lot 633 to the Northwest corner of the Northeast quarter of said District Lot 633; THENCE, Southerly and Easterly along the Westerly and Southerly boundaries of the Northeast quarter of District Lot 633 to the East boundary of District Lot 633; THENCE, Southerly along the said Easterly boundary of District Lot 633 and production thereof, to the Northeast corner of the West half of District Lot 634; THENCE, Southerly along the Easterly boundary of the said West half of District Lot 634 to the South boundary of said District Lot 634; THENCE, Southerly along the East boundaries of District Lots 1547, 1550 and 1550A to the Southeast corner of said District Lot 1550A; THENCE, Westerly along the Southerly boundary of said District Lot 1550A to a Northerly production of the Easterly boundary of the West half of the Northwest quarter of District Lot 1560; THENCE, Southerly along said Northerly production and continuing Southerly and Westerly along said Easterly and Southerly boundaries of said West half of Northwest quarter of District Lot 1560; THENCE, Northerly along the West boundary of West half of Northwest quarter of District Lot 1560 to an Easterly production of the Southerly boundary of Lot 20, Block 2, of District Lot 1561, Plan 934; THENCE, Westerly along the last-mentioned Southerly boundary and continuing Westerly along the Southerly boundaries, Lots 19 and 20 of said Block 2 of District Lot 1561, and production thereof, to the Southeast corner of Lot 10 of Block 1 of District Lot 1561, Plan 934; THENCE, Southerly along the East boundary, and its productions, of Block 4 of District Lot 1561, Plan 934 and Block 2 of District Lot 1569, Plan 942, to the Southeast corner of Lot 10 of last-mentioned Block 2 of District Lot 1569; THENCE, Westerly along the Southerly boundaries and productions thereof, of Lots 9 and 10, Block 2 of District Lot 1569, and Lots 9 and 10 of Block 1 of District Lot 1569, Plan 942, and the North half of the Northeast quarter of District Lot 1568, to Southwest corner of said North half of Northeast quarter of District Lot 1568; THENCE, Northerly along the Westerly boundary of said North half of Northeast quarter of District Lot 1568 to the North boundary of District Lot 1568; THENCE, Westerly along the Northerly boundaries of District Lots 1567 and 1568 to an intersection with the Southerly production of the Westerly boundary of Lot 91 of District Lot 1563, Plan 916; THENCE, Northerly along last-mentioned Southerly production and West boundaries of Lots 88, 89, 90 and 91 of District Lot 1563, Plan 916, to the Northwest corner of said Lot 88; THENCE, Westerly along the Northerly boundaries, and productions thereof of Lots 60, 67, 74 and 81 of District Lot 1563, Plan 916, to an intersection of the Easterly boundary of District Lot 750; THENCE, Northerly and Westerly along the Easterly and Northerly boundaries of said District Lot 750 to the Southwest corner of the East half of the Southwest quarter of District Lot 748; THENCE, Northerly along the West boundary of said East half of Southwest quarter of District Lot 748 to an intersection with the South boundary of Lot 1 of District Lot 748, Plan 11713; THENCE, Westerly and Northerly along the Southerly and Westerly boundaries of said Lot 1 of District Lot 748, Plan 11713 to the Northwest corner of Lot 1 of District Lot 748, Plan 11713; THENCE, Westerly and Northerly along the Southerly and Westerly boundaries of Lot 1 of District Lot 746, Plan 9183 to the Southeast corner of Lot 22 of Block 2 of District Lot 745, Plan 884; THENCE, Westerly along the Southerly boundaries of Lots 15, 16, 17, 18, 19, 20, 21 and 22 of Block 2 of District Lot 745 Plan 884, to the Southwest corner of said Lot 15 of District Lot 745 Plan 884; THENCE, Northerly along the Westerly boundaries, and productions thereof, of Lot 15, Block 2 of District Lot 745, and Lots 15 and 30, Block 1 of District Lot 745, Plan 884, to the Northwest corner of said Lot 15, Block 1 of District Lot 745, to an intersection with the Southerly boundary of District Lot 485; THENCE, Easterly along Southerly boundaries of District Lots 487 and 485 to the Southeast corner of said District Lot 487; THENCE, Northerly along the Easterly boundary of District Lot 487 to the Northeast corner of District Lot 487; THENCE, Easterly and Northerly along the Southerly boundary of District Lot 2157 to the point of commencement, (b) the approach surfaces abutting each end of the strip designated as 14-32 and extending outward therefrom, the dimensions of which approach surfaces are six hundred (600) feet on each side of the centre line of the strip at the strip ends and two thousand (2,000) feet on each side of the projected centre line of the strip at the outer ends, the said outer ends being two hundred (200) feet above the elevation at the strip ends, and measured horizontally ten thousand (10,000) feet from the said strip ends; the approach surfaces abutting each end of the strip designated as 05-23 and extending outward therefrom, the dimensions of which approach surfaces are six hundred (600) feet on each side of the centre line of the strip at the strip ends and six hundred (600) feet on each side of the projected centre line of the strip at the outer ends, the said outer ends being two hundred (200) feet above the elevation at the strip ends and measured horizontally ten thousand (10,000) feet from the said strip ends; and the approach surfaces abutting the end of the strip designated as 18-36 and extending outward therefrom, the dimensions of which approach surfaces are six hundred (600) feet on each side of the centre line of the strip at the strip ends and six hundred (600) feet on each side of the projected centre line of the strip at the outer ends, the said outer ends being two hundred and fifty (250) feet above the elevation at the strip ends, and measured horizontally ten thousand (10,000) feet from the said strip ends, and (c) the several transitional surfaces, each rising at an angle determined on the basis of a ratio of one (1) foot vertically for every seven (7) feet measured horizontally from the outer lateral limits of the strips and their abutting surfaces, as shown on Plan V.003 dated at Ottawa, February 7, 1967, of record in the Department of Transport at Ottawa.", "response": "## Analysis of REGULATIONS-FED: Prince George Airport Zoning Regulations\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nThese regulations provide specific implementation details for broader legislative frameworks. Practitioners should ensure strict compliance with procedural requirements, timelines, and documentation standards. The regulations must be interpreted consistent with their enabling legislation and may be subject to challenge if they exceed the authority granted by the statute."}
{"prompt": "How does this Refugee Appeal Division decision from the Immigration and Refugee Board of Canada impact refugee claimants?\n\nRAD File No. / No de dossier de la SAR : MC1-03928 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Date of decision February 2, 2022 Date de la décision Panel Me Agnès Connat Tribunal Counsel for the person who is the subject of the appeal Dan M. Bohbot Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX, the appellant, is a citizen of Algeria who fears being persecuted in Algeria based on his conversion to Christianity. [2] The Refugee Protection Division (RPD) concluded that the appellant was not credible because of some contradictions and omissions. During the hearing, the RPD rejected two objections from the appellant's counsel. [3] The appellant states that the RPD exhibited bias, that its reasons are insufficiently reasoned and that the analysis of his credibility is incorrect. [4] The determinative issues for the Refugee Appeal Division (RAD) are procedural fairness, bias and credibility. DECISION [5] I dismiss the appeal. The RPD correctly determined that the appellant, [REDACTED] is neither a Convention refugee nor a person in need of protection. NEW EVIDENCE [6] The appellant filed the RPD member's curriculum vitae found online. He states that this new evidence supports his objection and demonstrates the decision-maker's religion, and states that he could not have expected to have to demonstrate the ethnic/religious origins of the member to demonstrate an appearance of bias. He adds that he asked the member to recuse himself from the hearing because he accused the appellant of cheating by reading a text and because the member is allegedly a practising Muslim, [translation] \"even a fundamentalist\".1 The new evidence submitted by the appellant is rejected [7] The RAD may admit new evidence (i) that arose after the rejection of the claim or (ii) that was not reasonably available before the RPD rendered its decision, or (iii) if it was, that the appellants could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.2 New evidence that meets at least one of these requirements must meet the three case law criteria of relevance, credibility and newness.3 [8] The RPD member's curriculum vitae meets the third criterion of subsection 110(4): the appellant could not have known that he would be challenging the member's bias on the basis of his religion. This evidence does not meet the case law criterion of relevance. The case law of the Federal Court and the Federal Court of Appeal is clear.4 The religion of a Board member or their inherent characteristics are not relevant to the analysis of bias: The Board, like a corporation, acts through its members. They are flesh and blood. Mr. XXXX may be a man of religion, an agnostic or an atheist. He may be Sunni Muslim, Shia Muslim, Jewish, Roman Catholic, Orthodox Christian, Protestant, Hindu, Sikh, Buddhist or an adherent of any other number of religions. The Court does not know. It is irrelevant.5 [Emphasis added] [9] As in Chaudhry, the appellant is basing himself on the same religious biases he is hoping to flee. However, is not entitled to \"choose\" the religion, if any, of the member who decides his case. [10] As my colleague Edward C. Robinson writes in a case from 2011: It is desirable and, arguably, necessary that the composition of the tribunal reflect the composition of Canadian society and, in particular, the immigrant community which it has been created to serve. As a result, it is highly likely that members will hear the claims of applicants who are from the same country of origin or the same ethnicity as themselves and it is likely that the members will draw upon their knowledge and experience of the country to enhance their understanding of the applicant's claim. This will not result in a breach of natural or fundamental justice provided the member applies this knowledge or experience to the evidence before it.6 [Emphasis added] The request for an oral hearing is denied [11] The appellant is requesting that I hold an oral hearing. I cannot hold an oral hearing because he did not submit any new admissible evidence.7 STANDARD OF REVIEW [12] My role is to review all the evidence, which includes listening to the hearing and determining whether the RPD's decision is correct.8 [13] The appellant claims that the rule by which he is responsible for specifying the RPD's errors that constitute the grounds for appeal and identifying where said errors are located9 is ultra vires. He explains that these rules limit the RAD's discretionary power, contrary to the law, that they are used only in the context of subsection 111(2) of the Immigration and Refugee Protection Act (IRPA) under which the RAD must assess whether the RPD decision is wrong in fact or in law. He is of the opinion that the RAD may easily hold an oral hearing if he provides a new piece of evidence, that it must not limit itself to conducting a judicial review of the RPD decision, and that it cannot rule on an issue of credibility without an oral hearing. [14] I do not accept these arguments. The Chairperson of the Immigration and Refugee Board of Canada has the power to adopt rules in accordance with section 161 (a.2, c, d) of the IRPA,10 and in any case, the appellant identified and located the RPD's errors, in paragraphs 74 to 147 of his memorandum. [15] In Huruglica,11 the Federal Court of Appeal clearly addresses the RAD's role, in particular at paragraph 103. The Federal Court also pointed out12 that when an appellant fails to raise an issue on appeal before the RAD and the RAD confirms the RPD's decision, that issue should not be before it. In other decisions, the Court ruled that the RAD is not required to address unchallenged findings, but that it may set aside a decision if the RAD did not see a significant error in conducting an independent analysis of the file.13 [16] The RAD has some flexibility. When it reviews an appeal file, it conducts its own analysis of the file in order to decide whether the RPD committed the error alleged by the appellant. It also has the power to raise new questions or overturn the RPD's conclusions, even if they are not challenged. [17] Since the appellant identified the errors committed by the RPD and is challenging its credibility findings, I carried out an independent analysis of the evidence. ANALYSIS The RPD did not exhibit bias or breach procedural fairness [18] The appellant alleges two distinct reasons in support of his allegations of a reasonable apprehension of bias: a) The RPD twice asked to verify that the appellant was not using notes or documents during his testimony; b) The RPD member is Muslim, even a fundamentalist: [Translation] A devout practising Muslim who presides over a hearing for a Muslim convert gives an apprehension of bias for the decision that will be rendered since his religious beliefs may influence his decision. A decision for a decision-maker to render on a religious case should be rendered by someone of another religion or an atheist to avoid any influence of personal beliefs.14 [19] The intrinsic characteristics of a Board member are not relevant to the analysis of a reasonable apprehension of bias. The question is rather to determine would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude that the RPD, consciously or unconsciously, would not decide fairly.15 [20] The appellant states that the RPD was vindictive against his counsel, which justified the refusal of his request for a recusal. [21] The RPD twice asked the appellant16 and his counsel to show that the appellant was not consulting his notes. If the RPD had doubts, it was normal for it to ask to see what is in front of the appellant and to check that the latter does not have notes. This intervention was courteous. It was rather the appellant's counsel who reacted exaggeratedly to the RPD member's request by insinuating that the member was [translation] \"mistrustful.\" [22] The hearing was virtual, over Microsoft Teams. Virtual hearings present new challenges for appellants, counsel, interpreters and the Board. The RPD could not directly ensure that the appellant, in a teleconference, did not have notes, as it could have done if he had testified before it. If the RPD had a doubt and wanted to check what was in front of the appellant, it had no other choice than to ask him to confirm that he did not have notes. It could ask him to show his surroundings. [23] The RPD first asked the appellant whether he was using notes. Its intervention was not excessive, and its behaviour did not raise any reasonable apprehension of bias, nor did it lead to any breach of procedural fairness. I emphasize that counsel's comment during the hearing on the RPD being mistrustful was not useful. [24] The second time the RPD asked to confirm that the appellant did not have notes, counsel asked the RPD to recuse itself. The RPD had no reason to recuse itself. [25] When the RPD asked him what had led him to Christianity, the appellant spontaneously and very fluidly recited a long surah from the Quran. The RPD then asked him whether he was reciting by heart. It explained that it had the impression that he was reading what he recited. The counsel then reacted strongly, saying that the RPD member was very mistrustful, that the appellant had no papers in front of him, that it was the second time that the RPD had attacked his client's credibility, that he was going to accuse him of bias, that it made no sense and that he was going to ask him to recuse himself. The RPD member responded to counsel that he could ask the person for [translation] \"a 360-degree camera view\" if he had the impression that the client was reading something and that he refused to recuse himself.17 Whether or not the member knew the surah does not change my conclusion. This changes nothing from the fact that he believed that the appellant was looking at a paper. [26] Whether the hearing is in person or virtual, a refugee protection claimant must not read their Basis of Claim Form (BOC Form) or their notes during the hearing without obtaining the member's authorization. If the member has doubts, it is logical for the member to ask the person or their counsel for verification. An informed person, having thought the matter through, would not conclude that asking someone twice whether a person is reading their notes during a hearing that lasted more than 2.30 hours is excessive. The person also could not conclude that the RPD would not render a fair decision simply because it verified that the hearing was being held properly.18 The RPD had no reason to recuse itself. Throughout the hearing, it asked its clear questions, repeated them as required and kept an open mind. Counsel's statements at the hearing [27] At the time of making his submissions, the appellant's counsel made inappropriate statements about the member's supposed faith. The appellant reiterated nearly all of these statements in his appeal memorandum to support his allegations of bias. He states that the RPD had a closed mind and focused on religious elements that were much less important than the elements associated with his assault and his freedom of conscience. [28] The counsel explained to the RPD that he believed that the latter's faith had influenced the hearing. He detailed his concerns and made a long argument tainted by preconceptions, made shocking statements about physical aspects of the member, such as his skin colour, or the fact that he wore a beard. He made inappropriate statements on Islam and the Muslims of the world, which he reproduced in his memorandum: [Translation] So that's the problem Mr. Board member, so I have trouble seeing why there would be any doubt that you're a devout practising Muslim, as your appearance seems to suggest, that you could have an appearance of bias because, in fact, you could never accept a person who tells you that they renounced Islam and, additionally, the person tells you that Islam is a false religion and that they converted for example or became an atheist. It's a big problem, because a lot of what we see at the international level, many Muslims, especially practising ones, do not accept any criticism of Islam, do not accept for example someone destroying the Quran or tearing out a page or anything of the sort. Therefore, these people in the world get accused of blasphemy by people who are practising Muslims and that leads me to doubt and that leads me to raise a question.\"19 [29] I did not identify at the hearing or in his reasons any bias from the member with respect to the appellant's faith or his conversion. If there was a doubt about whether the appellant was reading a document while testifying, he could ask him for a verification. Whether or not the RPD knew the surah from the Quran in question does not change my opinion since it was not on this basis that it asked the appellant to confirm that he was not reading a document. [30] Despite what happened at the end of the hearing, I am not of the opinion that this raised an issue of procedural fairness for the appellant since it occurred after the questioning had finished and his counsel was making his representations. An informed person, having thought the matter through, would not conclude that this incident prevented the RPD from rendering a fair decision. The conflict between the member and the counsel [31] On listening to the hearing and reading the appeal memorandum, I note a conflict between the Board member and the counsel. At the hearing, the counsel criticized the member for not having rendered a decision in another of the counsel's files.20 I therefore wondered whether this conflict had generated an appearance of bias from the member. [32] The RPD's questions were respectful, it demonstrated patience and asked the appellant to explain certain omissions or contradictions that it thought it had found between the BOC Form and the appellant's testimony. It asked the appellant questions about his path to Christianity, his practice of the religion in Algeria and the events of XXXX 2017. These are all important elements that are relevant to the analysis of the file of the appellant who alleges that his fear is based on his conversion. The surah from the Quran was recited on the appellant's initiative and not following a question from the RPD about Islam. The appellant is the one who recited this surah when the RPD asked him what had pushed him toward Christianity.21 Since the appellant states that he left Islam to join Christianity, it is logical for the RPD to wonder whether he knew by heart a passage from the holy book of a religion that the appellant chose to abandon. [33] The appellant was questioned by the RPD on its concerns and its conclusions regarding the elements on which it based its decision. It listened to the appellant, repeated questions that were unclear and ensured that he understood the questions. It ensured that it understood the appellant's answers when the interpretation was cut off by sound problems. It proceeded informally and quickly, and took measures that were useful to the proceeding.22 The RPD reviewed the appellant's file with an open mind. The fact that the RPD may have committed errors in analyzing the appellant's credibility does not lead to a breach of procedural fairness. [34] \"What would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude? Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly?\" [35] Not only would an informed person not call into question the member's impartiality at the hearing, but also, they would be impressed by his calm in the circumstances. The inappropriate behaviour and hostile environment were the work of the appellant's counsel and not the RPD. Even though the RPD's decision has errors, I have corrected them and the RPD did not have to recuse itself. Credibility findings [36] The appellant states that the RPD accepted his conversion but did not render a decision on the credible facts. [37] At the beginning of its reasons, the RPD states that the appellant testified openly and spontaneously, but that it noticed a few contradictions and omissions that seriously undermined his credibility. These two statements are contradictory, and the rest of the reasons do not elucidate how the appellant could at the same time testify openly and spontaneously, and not be credible. [38] The RPD did not really conclude on the appellant's path to conversion. It found that the letter from XXXX, a friend of the appellant, contradicts his testimony at the hearing and that this undermines his credibility. However, that is not the case. The letter from XXXX does not contradict his testimony. He testifies that he was present at the appellant's baptism, that he lost contact with the pastor, that brothers and sisters were victims of assault, that the appellant told him that he was assaulted on XXXX XXXX, 2017, after he exited the church, and that his family then learned of his conversion. He confirms that he went to XXXX XXXX and that he did not find the pastor. This error is not determinative since I remedied the RPD's errors. [39] In his BOC Form, the appellant explains that he was a Muslim by birth and that he started to become interested in Christianity in 2015. He explains that for him, Islam is a religion of violence, and Jesus is a religion of peace. He was baptized on XXXX XXXX, 2015, at the XXXX XXXX church, then attended the church in XXXX XXXX. One day, when he was leaving the church, a group of Islamist fanatics attacked the pilgrims leaving the church. He escaped. On XXXX XXXX, 2017, he was offered a ride home upon leaving church. He was attacked and asked if he was Christian. He was struck, and the individuals took him back to the road. He went to the hospital with his father. When he left the hospital, he went to the police to file a complaint. The officers did not help him and told him that there was no place for people like him in Algeria. He never returned to the church. He applied for a visa for France, which would be refused. His father asked him to return to Islam to protect himself. The appellant refused. He travelled to Canada with his father in XXXX 2018. [40] At the hearing, the appellant testified that he began to be interested in Christianity with his friend XXXX in 2014. He specified that, from 2015 to the incident in XXXX 2017, he went to church every Saturday. He stated that he first attended the church in XXXX XXXX, then later the church in XXXX XXXX. Evidence filed by the appellant [41] The appellant states that the RPD does not mention the letter from the appellant's father in its reasons; he challenges the analysis of XXXX letter and criticizes the RPD for not considering all the evidence. I therefore conducted an independent analysis of this evidence. XXXX written testimony [42] XXXX written testimony states that the appellant was baptized on XXXX XXXX, 2015, which is consistent with the BOC Form and the appellant's testimony. He then writes that the appellant did not return to church with him and that, [translation] \"since many of our brothers and sisters were victims of physical and verbal assaults, I also lost contact with [REDACTED] XXXX\". This assertion does not contradict the testimony of the appellant, who explained at the hearing and stated in his BOC Form that he instead went to the church in XXXX XXXX. [43] XXXX then writes that the appellant informed him that he was assaulted in 2017. Since XXXX did not witness these facts, his letter cannot corroborate them. This can merely corroborate the fact that the appellant told him that he was attacked. The rest of the letter states that the appellant tried to reach the pastor in XXXX XXXX, and that no one knows where he is. [44] The appellant has established that he was baptized in 2015. The letter from XXXX corroborates the appellant's testimony and BOC Form that he converted in 2015 and was baptized. Certificate of baptism [45] The appellant states that he wonders about the link between the [translation] \"so-called contradictions\" in the appellant's testimony and the conclusion that the certificate of baptism and the letter from the father have no weight. [46] The appellant is asking me to analyze the probative value of the baptism certificate. I reviewed the document. I note that it is in French, while the official language of Algeria is Arabic and that in Kabylia, Kabyle is spoken. I also note several spelling mistakes such as the French word registre (regsitre) [registry], the name of the city of XXXX (XXXX), the month of December, décembre (décemebre) and especially the word XXXX instead of XXXX in the email address. For these reasons, I cannot confirm that this document is authentic. Despite that, this is insufficient to cast doubt on my finding that the appellant was baptized in 2015, based on his and XXXX testimony. Letter from the appellant's father [47] The appellant is asking me to analyze the probative value of his father's letter. This letter confirms that the appellant was the victim of a violent assault on XXXX XXXX, 2017, by guardians of the Muslim faith in a completely isolated location, that he recounted everything that night to his father, who recommended he go file a complaint with the police, that he did not accept his son's conversion, but that to protect him, he told him to forsake Christianity and attend mosque, that he accompanied him to Canada and told him not to come back. [48] The letter from the appellant's father corroborates what his son told him; namely, that he was attacked once by the guardians of the Muslim faith, that he did not appreciate his son's conversion and that he helped him come to Canada, not hesitating to accompany him there. Medical certificate and surgical report [49] The appellant filed a medical certificate dated XXXX XXXX, 2017, which states that he was examined for [translation] \"blows and injuries further to an assault with weapons\". The certificate does not mention the severity of the injuries. The certificate has weight to establish that the appellant went to the hospital and suffered injuries further to an assault. [50] The appellant filed a surgical report that states that he suffered a [translation] \"[REDACTED] XXXX of the XXXX XXXX\" when he was XXXX years old, on XXXX XXXX, 2001. The document has no probative value or weight to establish that the appellant was injured after the attack in 2017 or the nature of the injuries in question. [51] The RPD faulted the appellant for not having filed a letter from the pastor of the church in XXXX XXXX. It is true that the best evidence to corroborate regular attendance at the [REDACTED] church would have been a letter from the pastor in XXXX XXXX or from a person who attended the church and/or who reportedly knew of the assault. The appellant's explanation that he saw on the television that the church had been closed is adequate to explain the absence of a letter from the pastor, but it does not explain why the appellant did not try to find other testimony. However, I do not draw a negative inference from the absence of a letter from the pastor corroborating the appellant's allegations. [52] The appellant's testimony is consistent with his BOC Form on some aspects of his refugee protection claim. Some documentary evidence corroborates these aspects. The appellant has established that he was baptized in 2015, that he attended church weekly since 2015, that his parents learned of his conversion, that his father did not [translation] \"appreciate\" his conversion, that he was attacked in XXXX 2017, and that he tried to file a complaint. The appellant's path, his knowledge of his new religion, his practice in Algeria and in Canada [53] The appellant asked how his testimony was superficial, and pointed out that he cited passages from the Bible and the life of Jesus, which indicates that the RPD was acting in bad faith. He added that even if he had insufficient knowledge of Christianity, he has a right to his freedom of conscience and asked who decides on the necessary quantity of information to be convinced that Islam is bad or if Christianity is good. He specified that the RPD was not questioning the reasons that justified the appellant no longer believing in Islam. [54] The RPD asked questions at the hearing23 about what attracted the appellant to Christianity. It concluded that he remained very superficial when it asked him what had marked him the most in his new faith, and he limited himself to reiterating the messages of peace and love, that the religion recommends loving one's neighbour, that Jesus said to turn the other cheek or again that he begged that the people who crucified him be forgiven. [55] The RPD could review what motivated the appellant to practise his new religion. His answers to the questions were vague and superficial. He did not really explain why the messages of peace and love in his new religion had reached him. He testified that he had been interested in Christianity since 2014, that his faith pushed him toward Christianity, that what led him to make his decision is that Islam is not a just religion and that Christianity is a religion of justice.24 He also did not explain his spiritual journey. [56] The RPD questioned the appellant about his knowledge of Christianity and about his practice.25 It concluded that it had no reason to doubt the veracity of the ritual and prayer that the appellant talked about, but that his knowledge is superficial and known to the general public, that it is reasonable to expect that he would have more knowledge of his new religion especially since he claimed to have regularly attended church, every XXXX from 2015 to 2017. It added that he was able to recite a specific surah from the Quran and the verse number in Arabic and translated into Kabyle. It was of the opinion that it would therefore be reasonable to expect that in the same manner, he could have more knowledge of his new faith. [57] The appellant states that he joined a religion for which he could be persecuted in Algeria, and yet his testimony on his knowledge of his new religion was vague. Since he has allegedly been a convert since 2015 and attended a church regularly, it is therefore logical to expect that he would know the most basic elements of it in order to assess his credibility. Since he alleges that he went to church weekly for two years, he must be well aware of the practices and principles of his new religion. For example, when the RPD asked him to describe the Saturday activities, the appellant replied that they sang songs, that the pastor would preach the word, and that the word was to follow the religion of peace, to love one's neighbour and to turn the other cheek.26 I consider this information to be vague and known to the general public. [58] While the Federal Court27 instructs that a person who says that he is persecuted because of his religious beliefs must be familiar with the basic information relating to this religious belief, I am of the opinion that the appellant has established that he converted to Christianity in 2015, and that he regularly attended his church in XXXX XXXX until his departure in 2017. In his particular case, his vague answers are insufficient to conclude that he did not convert, especially because of the corroborating evidence filed by the appellant. However, the vague nature of his responses does lead me to conclude that he is not very engaged in practising his Christianity. The harm the appellant faced before his departure from Algeria The attack in XXXX 2017 [59] The appellant states that the XXXX 2017 attack is the most significant event that triggered his departure from Algeria. The RPD questioned him about this event without drawing a conclusion. [60] The appellant's testimony at the hearing on the circumstances of this attack was consistent with his BOC Form. He has established that he was attacked by unknown individuals in XXXX 2017 when he was leaving church in XXXX XXXX. The appellant omitted the threats in his community from his BOC Form [61] The appellant states that the RPD was wrong to find that he omitted stating in his BOC Form that he encountered harassment, threats and insults, and that people would spit on him, after his conversion became known in his community. He states that its analysis is misleading, [translation] \"in order to justify a lack of credibility on a minor point, and then he generalizes the lack of credibility to all of the evidence and testimony\". [62] At the hearing, the appellant stated that he received threats in his community and when he went to university, people would insult him and spit on him.28 He does not mention anything in his BOC Form. [63] The RPD correctly concluded that the omission from his BOC Form that he endured threats in the community undermines the credibility of these allegations. [64] The appellant testified that after he was beaten, when everyone had heard that he had converted, people would spit on him. He does not mention it in his BOC Form. However, this information is important. If such acts of discrimination and hatred took place, they are essential in the analysis of the risk of persecution since they are an ongoing element that allegedly occurred in the community when everyone found out about his conversion. Since he states that he would be subjected to a serious possibility of persecution by reason of his conversion, the RPD must assess all of the acts of harassment or discrimination that occurred and which, cumulatively, can amount to persecution. The appellant had to mention this information at the core of his refugee protection claim in his BOC Form, which he did not do. [65] When refugee protection claimants complete their BOC Forms, they must include everything that is important to their claim; the form clearly indicates this in capital letters. It is risky not to disclose in the initial BOC Form all of the facts and details that are significant to a claim for refugee protection,29 and the appellant must provide a convincing explanation to justify the omissions. [66] In this case, the appellant replied to the RPD that he did not think of that,30 which is not an adequate explanation, especially since he had been represented by counsel at the time of signing his BOC Form, since he did not amend his written account before the hearing, and since he failed to do so at the beginning of the hearing. [67] The threats, acts of discrimination and hatred suffered in his community are an element at the core of the appellant's refugee protection claim since he states that this is what motivated his departure from Algeria after the XXXX 2017 attack. This omission in the BOC Form undermines the appellant's credibility on the fact that he received threats and suffered harassment in his community after his conversion became known to everyone. [68] Contrary to what the appellant asserts, the RPD's conclusion is not misleading. The threats are also not a minor point in his refugee protection claim. The appellant has not established on a balance of probabilities that after the event of XXXX XXXX, 2017, he suffered threats or acts of harassment or discrimination in his community. The appellant has not established that he would be subjected to a serious possibility of persecution [69] The appellant states that the objective evidence in the National Documentation Package (NDP), as well as the abundant documentation that he submitted on the situation of Christians and the situation of Christian converts in Algeria, establishes that he cannot return to his country, that he could not practise his religion freely and could be charged with blasphemy. He states that the most significant event is the attack of XXXX XXXX, 2017, the police reaction and his father's request to return to Islam. [70] I reviewed the appellant's situation in light of the documentary evidence. The facts established by the appellant are the following: [71] The appellant has established that he has been a convert since 2015 and that he was interested in Christianity since 2014. After his baptism in XXXX 2015, he practised in the XXXX XXXX church for two years, going to activities every Saturday. He was attacked once in XXXX 2017 by unknown individuals who criticized him for attending church, when he was leaving the church. He suffered injuries and went to the police station with his father, without his complaint being accepted. After this event, his father and his community learned of his conversion. He lived with his parents until his departure one year later, on XXXX XXXX, 2018. He did not allege any event from XXXX 2017 to XXXX 2018. He travelled to Canada and his father accompanied him. [72] Documentary evidence concerning the general situation prevailing in the refugee protection claimant's country cannot, in and of itself, establish the merit of his refugee protection claim.31 The appellant must demonstrate a credible link between the documentary evidence and his personal situation, which he did not do.32 Algerian Christians [73] Some sources estimate that Algeria has a community of 20,000 to 200,000 Christians, while others estimate 125,000, out of a population of 42.3 million.33 According to Algerian government officials and religious leaders, most of them are foreign immigrants or students. [74] The appellant, like most Algerian Christians, is Protestant. The Christians live primarily in the Algiers region, the Kabyle region of Bejaia, the provinces of XXXX XXXX ([REDACTED]), Annaba, Ouargla and Oran. The appellant's religious practice and churches [75] The evidence reveals that, since 2017, the Algerian government has closed and raided churches, and that the situation has allegedly worsened since 2019, the year during which the government reportedly closed three of the largest Protestant churches in the country. Parishioners protested against these closures and may have been arrested by the authorities.34 [76] The appellant is a Christian convert who is not very engaged in his new religion. Nothing indicates that he could not return to church on Saturday as he did before. He was able to attend church without issues every Saturday for two years (from 2015 to 2017). Despite the closure of some churches since his departure, which represents a restriction for Christians, 12 of the 45 churches of the Église Protestante d'Algérie (EPA) [Association of Protestant Churches of Algeria] are still closed.35 He could therefore attend one of the 33 churches that remain open. Discrimination against Christians in Algeria [77] According to the documentary evidence, Algerian society acts with intolerance and discrimination against Christians.36 According to many sources, they are exposed to neither population movements nor physical assaults and must deal with the societal pressure exerted by other family members. Other sources report that they must overcome administrative obstacles imposed by the Algerian authorities, such as very long delays to obtain biblical names for their children. [78] Overall, the evidence does not allow for the conclusion that just being a Christian in Algeria would expose the appellant to a serious possibility of persecution. Christians in Algeria may face discrimination without the impact of these discriminatory acts being tantamount to persecution.37 They may encounter some obstacles to practising their faith, face discrimination from the government or the general public, but they are not subjected to a serious possibility of persecution from the sole fact of being Christians. For a person to be recognized as a refugee because they would be subjected to a serious possibility of persecution on the grounds of their religion, they must establish that they would suffer serious acts of discrimination, that their fundamental rights are threatened or that the harms suffered are repetitive, ongoing or systematic. [79] The appellant states in his BOC Form that his conversion [translation] \"disturbed his family\". He did not establish any act of discrimination or hatred from his family or his community. He did not allege that his right to work, his right to health care (he was received at the hospital) or any of his other basic rights were restricted. For one year (from XXXX 2017 to XXXX 2018), he continued to live in his community. Even though his father asked him to return to Islam, and though he testified in writing that he did not [translation] \"appreciate\" his son's conversion, the appellant did not allege that his family had committed discriminatory or harassing acts. He continued to live in his father's home and in his community. The fact that his father did not appreciate his conversion is insufficient to establish that, if the appellant were to return to Algeria, he would experience discrimination or persecution from his family or his community. [80] Despite the discrimination that Algerian Christians may suffer, the appellant did not allege any acts of discrimination from his community from 2015 to 2018. He was able to freely practise his religion until XXXX 2017 and lived there for the year between the time his conversion came to light and his departure for Canada. He was baptized in 2015, after having started to attend Christian church in 2014. For three years, he suffered no acts of discrimination or persecution in association with his new faith. He suffered one attack when he was leaving church in 2017 and was injured. This attack alone does not equate to persecution. After this attack, all of his community, as well as his family, learned of his conversion. Despite that, he suffered no acts of discrimination until he left for Canada, although he continued to live with his parents. His father asked him to return to Islam without rejecting him since he continued to house his son and even accompanied him to Canada. [81] In light of the evidence, and contrary to what other Algerian Christian converts like him may experience, the appellant has not established that he suffered situations of intolerance or discrimination in his community. He has not established that he suffered other acts of violence or discrimination before his departure for Canada, although he testified that, after the XXXX 2017 incident, everyone knew that he had converted. He has not established that he would be subjected to a serious possibility of persecution on the sole ground that he is an Algerian Christian convert. The XXXX 2017 attack and the police complaint [82] The appellant suffered a single attack in three years (from 2014 to 2017). The fact that he was attacked once after the service by unknown individuals who claimed to be defenders of the Muslim faith does not allow me to conclude that the appellant experienced discrimination to the point that it could be considered persecution, nor that he experienced events that were sufficiently serious by their nature and repetition for them to constitute a serious violation of a fundamental human right or for that to present a \"sustained or systemic violation of basic human rights\" of the appellant. [83] The appellant was attacked by individuals whom his father described as, [translation] \"guardians of the Muslim faith\" in a completely isolated location.38 This unfortunate event that should not have happened remains an isolated event. Even though the appellant's left arm was injured, his assailants released him. [84] In his BOC Form, the appellant alleges that he explained everything to the police and that instead of helping him, they asked him, [translation] \"what I expected in a Muslim country\" and stated that it was his fault if Muslims had attacked him. I do not believe that a police officer's refusal means that the state could not adequately protect the appellant. [85] According to the report from the British Home Office, the gendarmerie police forces are made up of 330,000 people.39 It is probable that in the whole police force, or military, individuals may display negligent behaviour. According to the documentary evidence, an individual can also file a complaint with the public prosecutor.40 By itself, the refusal by the local police to take his complaint is insufficient to conclude that state protection was not adequate or that it will not be if the appellant were to return to Algeria. Blasphemy and proselytism [86] Although Algeria's constitution allows freedom of conscience and religion, Islam is the state religion. Algerians may practise their religion, but offending or insulting Islam is blasphemous. Blasphemy and proselytism are crimes. [87] The appellant states that he could be charged with blasphemy, because he explained that he decided to leave Islam because it is a religion that promotes violence, whereas Christianity is a religion of peace. Other than this statement, nothing in the evidence indicates to me that if the appellant returned to Algeria, he could be charged with blasphemy. He was baptized in 2015 and practised for two years without incident, except for a single attack by unknown individuals. It is unlikely that he would be charged with blasphemy if he were to return to his community. [88] As for the allegations that he could be charged with proselytism, he clearly testified at the hearing that he never carried out activities to convert people.41 It is unlikely that he would do so if he were to return to Algeria. The appellant has not established that he would be subjected to a serious possibility of persecution on religious grounds if he were to return to Algeria. [89] The appellant has established that he has been a Christian convert since 2015, that he regularly attended church until an attack by unknown [translation] \"fundamentalists\" in XXXX 2017 when he was leaving church. After that date, and before his departure for Canada in XXXX 2018, he has not established that he experienced additional acts of violence or discrimination based on his religion. The documentary evidence does not allow for the conclusion that all Algerian Christian converts are subjected to persecution. If the appellant were to return to Algeria, nothing indicates that he would be unable to practise his faith, that he would be subjected to serious acts of discrimination, that his fundamental rights would be threatened or that he would be subjected to repeated, ongoing or systematic harm. [90] The appellant's risk is a mere possibility and not a serious possibility of persecution. [91] The RPD decision is correct. The appellant has not established that he would be subjected to a serious possibility of persecution on religious grounds if he were to return to Algeria. CONCLUSION [92] I dismiss the appeal and confirm the determination of the RPD that the appellant, XXXX XXXX, is neither a Convention refugee nor a person in need of protection. (signed) Me Agnès Connat Me Agnès Connat February 2, 2022 Date IRB translation Original language: French 1 P-2, Appellant's record, appellant's appeal memorandum, paragraph 76. 2 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, subsection 110(4). 3 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96. 4 Nartey v. Canada (Minister of Employment and Immigration), [1994] FCJ No. 120; Tekyi v. Canada (Minister of Citizenship and Immigration), [1995] FCJ No. 225; Badu v. Canada (Minister of Employment and Immigration), [1994] FCJ No. 5; Mends v. Canada (Minister of Citizenship and Immigration), [1994] FCJ No. 1096; isagaperumal v. Canada (Minister of Citizenship and Immigration), [1994] FCJ No. 1656; Jokhulall v. Canada (Minister of Citizenship and Immigration), [1995] FCJ No. 319; Chaudhry, Mohammad Sadfar v. MCI (FC, No. IMM-4257-04), Harrington, February 8, 2005, 2005 CF 200. 5 Chaudhry v. Canada (Minister of Citizenship and Immigration), 2005 FC 200, paragraph 11. 6 X (Re), 2011 CanLII 99019 (CA IRB). 7 IRPA, S.C. 2001, c. 27, subsection. 110(6). 8 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 9 Refugee Appeal Division Rules, SOR/2012-257, subparagraph 3(3)(g)(i) \"the errors that are the grounds of the appeal; ii) where the errors are located in the written reasons for the Refugee Protection Division's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing.\" 10 IRPA, S.C. 2001, c. 27, subsection 161(1) Subject to the approval of the Governor in Council, and in consultation with the Deputy Chairpersons, the Chairperson may make rules respecting (a) the referral of a claim for refugee protection to the Refugee Protection Division; (a.1) the factors to be taken into account in fixing or changing the date of the hearing referred to in subsection 100(4.1); (a.2) the activities, practice and procedure of each of the Divisions of the Board, including the periods for appeal, other than in respect of appeals of decisions of the Refugee Protection Division, the priority to be given to proceedings, the notice that is required and the period in which notice must be given; b) the conduct of persons in proceedings before the Board, as well as the consequences of, and sanctions for, the breach of those rules; c) the information that may be required and the manner in which, and the time within which, it must be provided with respect to a proceeding before the Board; and d) any other matter considered by the Chairperson to require rules. [Emphasis added] 11 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 12 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraph 103. 13 Xiao v. Canada (Citizenship and Immigration), 2021 FC 386, paragraph 26; and Abdullah v. Canada (Citizenship and Immigration), 2021 FC 76, paragraph 21; Wu v. Canada (Citizenship and Immigration), 2021 FC 475, paragraph 15 (file before the FCA). 14 P-2, Appellant's record, appellant's memorandum, paragraph 98. 15 Committee for Justice and Liberty v. National Energy Board, [1978] 1 SCR 369, \"What would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly?\" 16 Recording of Refugee Protection Division (RPD) hearing held on May 6, 2021, at 00:58:10 and at 01:23:35. 17 Recording of RPD hearing held on May 6, 2021, at 01:23:35. 18 Committee for Justice and Liberty v. National Energy Board, [1978] 1 SCR 369 19 P-2, Appellant's record, appellant's memorandum, paragraph 92. 20 Recording of RPD hearing held on May 6, 2021, starting at 02:02:10. 21 Recording of RPD hearing held on May 6, 2021, at 01:18:43. 22 IRPA, S.C. 2001, c. 27, sections 152.1, 162 and 165. 23 Recording of RPD hearing held on May 6, 2021, at 01:18:43. 24 Recording of RPD hearing held on May 6, 2021, at 01:36:25. 25 Recording of RPD hearing held on May 6, 2021, at 01:28:45. 26 Recording of RPD hearing held on May 6, 2021, at 01:28:45. 27 Bouarif v. Canada (Immigration, Refugees and Citizenship), 2020 FC 49, paragraph 10. 28 Recording of RPD hearing held on May 6, 2021, at 00:35:25. 29 Occilus v. Canada (Citizenship and Immigration), 2020 FC 374, paragraphs 23 to 25. 30 Recording of RPD hearing held on May 6, 2021, at 00:36:27. 31 Hissein v. Canada (Citizenship and Immigration), 2018 FC 698; Alexibich v. Canada (Minister of Citizenship and Immigration), 2002 FCTD 53; Joseph Ithibu v. Canada (Minister of Citizenship and Immigration), 2001 FCTD 288; Morales Alba v. Canada (Citizenship and Immigration), 2007 FC 1116. 32 Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89 (CanLII), [2002] 3 FC 537. 33 SAR-1, National Documentation Package (NDP) on Algeria, April 16, 2021, Tab 12.1: Algeria. International Religious Freedom Report for 2019. United States. Department of State. June 10, 2020. 34 SAR-1, NDP on Algeria, April 16, 2021, Tab 12.2: Algeria. United States Commission on International Religious Freedom 2020 Annual Report. United States. Commission on International Religious Freedom. April 2020. 35 SAR-1, NDP on Algeria, April 16, 2021, Tab 12.2: Algeria. United States Commission on International Religious Freedom 2020 Annual Report. United States. Commission on International Religious Freedom. April 2020. 36 SAR-1, NDP on Algeria, April 16, 2021, Tab 12.3: Situation of individuals who have converted from Islam to Christianity, including treatment by society and authorities; availability of state protection (2014-May 2015). Immigration and Refugee Board of Canada (IRB). June 30, 2015. DZA105210.E. 37 SAR-1, NDP on Algeria, April 16, 2021, Tab 12.3: Situation of individuals who have converted from Islam to Christianity, including treatment by society and authorities; availability of state protection (2014-May 2015). IRB. June 30, 2015. DZA105210.E. 38 SPR-1, RPD record, letter from the appellant's father, page 95. 39 SAR-1, NDP on Algeria, April 16, 2021, Tab 10.3: Country Policy and Information Note. Algeria: Actors of protection. Version 1.0. United Kingdom. Home Office. August 2020. 40 SAR-1, NDP on Algeria, April 16, 2021, Tab 10.3: Country Policy and Information Note. Algeria: Actors of protection. Version 1.0. United Kingdom. Home Office. August 2020. 41 Recording of RPD hearing held on May 6, 2021, at 01:43:50. --------------- ------------------------------------------------------------ --------------- RAD File No. / No de dossier de la SAR : MC1-03928 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français", "response": "## Analysis of Refugee Decision: MC1-03928\n\n### Key Issues\norrect. [4] The determinative issues for the Refugee Appeal Division (RAD) are procedural fairness, bias and credibility. DECISION [5] I dismiss the appeal. The RPD correctly deter\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: ciently reasoned and that the analysis of his credibility is incorrect. [4] The determinative issues for the Refugee Appeal Division (RAD) are procedural fairness, bias and credibility. DECISION [5] I dismiss the appeal. The RPD correctly determined that the appellant, [REDACTED] is neither a Convention refugee nor a person in n\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "Explain the credibility assessment in this Refugee Protection Division decision from the Immigration and Refugee Board of Canada:\n\nRPD File No. / N° de dossier de la SPR: TA6-16995 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXXX XXXXX XXXXX Demandeur(e)(s) d'asile Date(s) of Hearing January 7, 2009 Date(s) de l'audience Place of Hearing TORONTO Lieu de l'audience Date of Decision February 24, 2009 Date de la décision Panel Stephen E. Rudin Tribunal Counsel for the Claimant(s) Vania Campana Barrister and Solicitor Conseil(s) du / de la / des demandeur(e)(s) d'asile Tribunal Officer J. Dalrymple Agent(e) des tribunaux Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre The claimant, XXXXX XXXXX XXXXX, a citizen of the People's Republic of China (China) is claiming refugee protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act. The claimant bases her need for protection on her fear of persecution as a member of a house church practicing Christianity in China. ALLEGATIONS Living in Anhui Province, China, the claimant alleges that saddened by the death of her father, at the suggestion of her friend, XXXXX XXXXX, she first attended the house church on XXXXX, 2004. After she had attended a few meetings, the claimant learned from XXXXX XXXXX that the house church was illegal. The claimant continued to attend until XXXXX 2006 when she came to Canada on a Visitor's Visa. She had planned to remain in Canada for six months. Wanting to help her daughter move into a new property, the claimant extended her stay by applying for and being granted an extension to her Visitor's Visa. In XXXXX 2006, while still in Canada, the claimant learned in a phone call with her sister that the house church she attended was discovered. She also learned that police had visited three times that week wanting to know when the claimant would return to China. The Public Security Bureau (PSB) also left a summons. The claimant also learned that all the members of the church had been arrested in XXXXX 2006. The claimant fears that if she returns to China she will be arrested by the PSB and she applied for refugee protection on XXXXX, 2006. DETERMINATION The panel finds that the claimant has not satisfied the burden of establishing a serious possibility that she would be persecuted if she returned to China. She is neither a Convention refugee nor a person in need of protection for the following reasons. IDENTITY The panel finds the claimant is a citizen of China. Her citizenship is established based on a People's Republic of China Resident Identity Card,1 a People's Republic of China Passport2 and a Household Register Card.3 ANALYSIS The key questions are: was the claimant practicing Christianity as a member of a house church in China; does she continue her practice of Christianity in Canada; and, would she face a serious possibility of being persecuted, arrested or imprisonment by the Chinese authorities if she returned to China. Was the claimant practicing Christianity as a member of a house church in China? The claimant testified that she attended the underground house church in China from XXXXX, 2004 until her departure for Canada in XXXXX 2006. Although there were some questions the claimant did not answer correctly ? How many times is Jesus mentioned by name in the Old Testament and why was Jesus crucified in her testimony, the claimant demonstrated a good knowledge of Christianity. She correctly recited the Lord's Prayer. She was also able to recite the 23rd Psalm and identified it as a passage that Christians turn to in times of trouble. The claimant properly identified two of the sacraments as being baptism and communion, properly testifying that baptism symbolized the washing away of a person's sins and that it preceded communion. She correctly answered that John the Baptist baptized Jesus and that Holy Communion is comprised of two elements, the body and blood of Christ symbolizing the suffering of Jesus. Although not determinative, the claimant had difficulty describing the resurrection, was not aware of the crime that Jesus was accused of that led to his execution and improperly testified that Jesus is mentioned by name numerous times in the Old Testament. The panel finds that, on a balance of probabilities, the claimant did practice Christianity in China. Does the claimant continue her practice of Christianity in Canada? According to letters4 of December 5, 2008 and January 7, 2007 from Reverend XXXXX, the claimant has been a member of XXXXX XXXXX XXXXX since XXXXX, 2006. Reverend XXXXX indicates that the claimant is actively involved in the Sunday Bible Study Class and the Saturday Fellowship. She volunteers in a number of church activities, serving as a member of the XXXXX XXXXX and as a XXXXX XXXXX XXXXX. Reverend XXXXX baptized5 the claimant on XXXXX, 2006. The panel finds that, on a balance of probabilities, the claimant continues her practice of Christianity in Canada. Does the claimant face a serious possibility of being persecuted should she return to China? Documentation6 reveals that treatment of house churches varies regionally. In some parts of the country, unregistered house churches with hundreds of members meet openly with the full knowledge of the local authorities that characterize the meetings as informal gatherings to pray, sing and study the Bible. In other areas, house churches of more than a handful of family members and friends are not permitted. House churches often encounter difficulties when their membership grows, when they arrange to use regular facilities for conducting the specific religious activities, when they forge links with other unregistered or overseas groups, when they attempt to meet in large groups and travel within and outside the country for religious meetings. Meetings of unregistered churches in small cities and rural areas may number in the hundreds. The claimant testified that she lived in Anhui Province. The Annual Report of Persecution by the Government on Christian House Churches within Mainland China January-December 20077 published by the China Aid Society USA in February 2008 reports that during 2007, only 6 people were arrested in Anhui Province. A Missionary was arrested and received administrative detention; the leader of a house church in Zhangchong Township and two other unidentified people were arrested; a leader of a house church was arrested for illegal distribution of Bibles; and, another leader of a house church was arrested for leading many students in Bible study. Other documentation8 reports that the Chinese authorities were holding 70 Protestant leaders of house churches in Anhui Province. With respect to the allegation that the church group was raided and all the members were arrested, the panel preferred the documentary evidence to that of the claimant's evidence. With respect to the documentary evidence9 before the panel, \"getting reliable numbers about the number of Christians in China is notoriously difficult.\" Estimates vary between 40 million to 70 million Protestants, of which only 10 million are registered members of government churches. The panel finds if 6 people in Anhui Province with church leadership roles were arrested in 2007;10 the panel finds that it is not plausible that \"everybody in the church had been arrested\". The claimant testified that the house church she attended had a constant membership that never exceeded 9 people. According to her testimony, the claimant was not aware of any outside affiliations with other underground churches or churches outside of China. She also testified that she would not describe herself in any way as a leader. The panel also finds that on a balance of probabilities the house church would not be raided by the PSB, nor would the claimant be subject to arrest and imprisonment and could return to China to practice her religion. The claimant has been in Canada since XXXXX 2006, and based on the foregoing, the panel finds that the PSB would not continue to search for the claimant if they were ever looking for her in the first place. CONCLUSION The panel recognizes that persecution of Christians does exist in China11 and the panel understands the claimant's fear of persecution. However, in the particular circumstances of this claimant, the documentary evidence does not support that there is a serious possibility that she would be persecuted because of her religious beliefs. The panel places more weight on the documentary evidence than the claimant's testimony as the documentary evidence is gathered from various sources that do not have a personal interest in the outcome of the hearing. In this particular claim, having considered the documentary evidence, the claimant's testimony and submissions, the panel finds that the claimant has failed to satisfy the burden of establishing that there is a serious possibility that the claimant would be persecuted, or that she would be subjected personally to a danger of torture or a risk to her life or a risk of cruel and unusual treatment or punishment by any authority in China. Having considered all the evidence, the panel finds that the claimant is neither a Convention refugee under section 96, nor a person in need of protection within the meaning of section 97(1)(a) or (b) of the Immigration and Refugee Protection Act. The Refugee Protection Division therefore rejects her claim. \"Stephen E. Rudin\" Stephen E. Rudin February 24, 2009 Date REFUGEE PROTECTION DIVISION / RELIGIOUS PRACTICE / FREEDOM OF RELIGION / VISA / VISITOR / RELIGIOUS GROUPS / PROFILE / FEMALE / NEGATIVE / CHINA 1 Exhibit C-3. 2 Exhibit R/A-2, Citizenship and Immigration Canada Information. 3 Exhibit C-3. 4 Exhibit C-3, Letters from Reverend XXXXX XXXXX. 5 Exhibit C-3, Certificate of Baptism. 6 Exhibit R/A-1, National Documentation Package, July 30, 2008, item 12.5, Response to Information Request CHN102492.E and item 12.3, Response to Information Request CHN42768.E. 7 Exhibit R/A-1, National Documentation Package, July 30, 2008, item 12.10, pp. 11. 8 Exhibit C-2, \"Rights Group Reports China Crackdown on Churches\", pp. 1. 9 Exhibit R/A-1, item 2.3, United Kingdom, Home Office, Country of Origin Information Report: China, p. 2.3.61. 10 Exhibit C-1, Personal Information Form Narrative. 11 Exhibit C-2, \"China Launches Nation-Wide Crackdown on House Churches\", pp. 105. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR: TA6-16995 5 RPD.15.7 (October 2007) Disponible en français", "response": "## Analysis of Refugee Decision: TA6-16995\n\n### Key Issues\nister Card.3 ANALYSIS The key questions are: was the claimant practicing Christianity as a member of a house church in China; does she continue her practice of Christianity in Cana\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: d a Household Register Card.3 ANALYSIS The key questions are: was the claimant practicing Christianity as a member of a house church in China; does she continue her practice of Christianity in Canada; and, would she face a serious possibility of being persecuted, arrested or imprisonment by the Chinese authorities if she returne\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "Explain how this Refugee Appeal Division decision from the Immigration and Refugee Board of Canada interprets refugee law:\n\nRAD File / Dossier de la SAR : MC1-04220 MC1-04221 / MC1-04222 / MC1-04223 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] XXXX XXXX Personnes en cause Date of decision January 28, 2022 Date de la décision Panel Harold Shepherd Tribunal Counsel for the persons who are the subject of the appeal Gisela G. Barraza Conseil des personnes en cause Designated representative [REDACTED] XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal. The Principal Appellant (PA), [REDACTED] XXXX, his wife the Associate Appellant (AA), [REDACTED] XXXX, and their children the Minor Appellants (MA), [REDACTED] (age 13) and [REDACTED] (age 6), are citizens of Colombia. [2] The Appellants did not apply to file new evidence, nor did they request an oral hearing before the Refugee Appeal Division (RAD). Background [3] The PA states that he is at risk from the Cartel de la Chatarrización [scrapping Cartel], (hereafter referred to as the Cartel). This is a group which defrauded the government by filing fraudulent documents to obtain money for trucks which were never scrapped. The PA was forced to sell a truck at less than fair market value, and then became the victim of extorsion. In addition, [REDACTED] [REDACTED] XXXX XXXX, and he is [REDACTED] XXXX XXXX. Summary of the Refugee Protection Division (RPD) reasons for decision [4] The RPD rejected the Appellants' claim for the following reasons: i) The Appellants did not establish the identity of the agents of persecution; ii) The PA lacks credibility about having been kidnapped because this was not in the Basis of Claim (BOC) form; iii) The PA provided contradictory testimony about the monthly payments (vacuna); iv) The PA did not show that he had problems with the Cartel; v) The Appellants have an Internal Flight Alternative (IFA) in the cities of Bucaramanga, Cartagena, and Barranquilla; and vi) The other family members of the PA did not have problems because of their name. Grounds of appeal [5] The Appellants submit that the RPD erred for the following reasons: i) The PA mentioned the Cartel in his BOC narrative and in his complaint at Exhibit D-2; ii) The questions asked by the RPD were unclear about the amount of the vacuna; iii) The RPD erred by failing to consider that an IFA assessment presupposes that the person is at risk; iv) The RPD did not justify the conclusion that the Cartel would not have the motivation to find the Appellants; v) The RPD's analysis is erroneous because it rejected all possibility that the agent of harm could be the Cartel; and vi) There is abundant objective documentary evidence to show that major criminal organizations have the resources to find the Appellants. Summary of the Refugee Appeal Division reasons for decision [6] The determinative issues for the appeal are credibility, the objective basis for the risk, and whether the Appellants have an IFA. I find that the RPD did not err in its conclusion that the people who have been extorting money from the PA under threat are not likely associated with the Cartel, or with any other organized criminal group. The risk is local in nature. The RPD considered the totality of the evidence and explained how it arrived at this decision. My independent assessment of the evidence leads me to the same conclusion. The RPD did not err in concluding that the people who have been threatening the Appellants do not likely have the means to track the Appellants to the proposed IFA locations. The RPD correctly assessed the second part of the IFA test and concluded that the Appellants have viable IFAs. DECISION [7] I dismiss the appeal. The RPD was correct in finding that the Appellants are neither Convention refugees nor persons in need of protection.1 ANALYSIS [8] My role is to look at all the evidence and decide if the RPD made the correct decision.2 Did the Appellants establish the identity of the agents of harm? Submissions by the Appellants [9] The RPD concluded that the identity of the agents of harm has not been established for two reasons. First, the evidence does not specifically refer to the Cartel. Second, articles about the Cartel indicate that it colludes in transportation matters, but that it does not target private individuals. Contrary to the RPD's conclusion, the Cartel is mentioned in the complaint to the Office of the Attorney General. Such complaint was drafted by his lawyer and includes all the information which the PA had. He knew that the Cartel was involved and mentioned this in the complaint. [10] The PA's testimony is not contradictory, as alleged by the RPD in paragraph 16 of its reasons for decision. Although the complaint is vague and does not mention the Cartel directly, he implies that it could be responsible. This could have been a strategy on the part of the Appellants' lawyer to protect them. [11] The RPD erred at paragraph 18 by failing to account for paragraphs 2 and 3 of the BOC narrative. He specifically stated that the PA feared the Cartel de la Chatarrización which targeted him with extorsion. The fact that he did not specify how he received the threats is not an omission. Paragraph 2 is a summary of the events which they experience and which led them to leave the country. [12] The RPD states at paragraph 19 and 20 of its reasons and decision that the amended BOC does not mention the Cartel. Paragraph 2 of the BOC provides a summary. Although the PA did not know the names of the people who targeted him, he always knew that they were members of the Cartel. He states at paragraph 9 that he was the victim of this group.3 [13] Although the RPD stated at paragraph 23 that the Cartel does not attack individuals, it indicated at paragraph 22 that it steals money from all Colombians. Although the National Documentation Package (NDP) for Colombia does not mention this Cartel, the uncontradicted evidence corroborates the Appellants' allegations. RAD assessment [14] An editorial in El Espectador journal dated February 16, 2017, indicates that a cartel operates throughout the country which is stealing money from all Colombians.4 It has a monopoly on the transportation of merchandise. About 20 people tied to the Cartel were arrested for defrauding the state. There was an alliance among civil servants (police, secretaries of transport and members of the Ministry), individuals, and trucking leaders who would improperly register licence plate numbers of trucks and falsify documents and stamps from the Ministry of Transport so that garbage trucks, small trucks, dumpsters and buses would be converted into scrap for towing. The scheme netted between 35 and 80 million pesos per vehicle. It is estimated that about 12,000 vehicles were illegally scrapped, and about 600,000 million pesos was defrauded from the government. [15] A February 19, 2017 article indicates that five police officers from the department of Valle del Cauca linked to the \"Cartel de la Chatarrización\" were sent to prison.5 They used false or modified documents to apply to the Ministry of Transport for payment of 40 to 70 million pesos per truck delivered to be scrapped. Some vehicles did not meet the requirements of the government regulation, and some trucks did not even exist. [16] A June 1, 2018 article indicates that the leader of the truckers, Pedro Aguilar, has been behind bars since February 2017.6 Members of his family have also been arrested. Pedro Aguilar is accused of having taken millions of pesos by means of illegal billings to the state for 12,500 trucks which were never scrapped. Private people, police, and officials from the Ministry of Transportation were involved in the fraud. [17] A January 10, 2019 article indicates that Pedro Aguilar was convicted in December 2018 of leading the \"junk cartel\" at a national level which charged the state for trucks which were never scrapped.7 Aguilar, the president of the Colombian Association of Truckers, was sentenced to ten years imprisonment. [18] The RPD states at paragraph 16 of its reasons and decision that the PA did not file a complaint against the Cartel with the police before he did in order to protect himself. The RPD quoted the XXXX 2017 Office of the Attorney General of Colombia report at exhibit D-2 according to which the Cartel has public notoriety. The RPD could not understand why the PA would file a complaint with the police in order not to have problems in his last days in Colombia, but nevertheless identify the name of the Cartel which had targeted him. Counsel is correct that the RPD failed to explain why this is a contradiction. If the RPD was making an adverse plausibility finding, it should have explained the basis for its conclusion. [19] Paragraph 18 of the RPD's reasons and decision concerns the 2008 armed robbery of the PA's Kenworth W900B truck. The panel cited what the PA wrote about the issue in his BOC narrative and concluded that it does not specifically mention that the Cartel was responsible for the theft or the telephone calls which he received at that time. The RPD considered evidence at Exhibit D-3 which indicates that unknown persons were responsible.8 The RPD concluded that the PA had failed to demonstrate that the Cartel was likely responsible for the theft and the telephone calls. The RPD quoted from paragraph 3 of the amended BOC narrative.9 Exhibit D-3 is an April 2008 complaint to the prosecutor concerning the theft of a Kenworth W900B truck by unknown persons.10 Paragraph 2 of the BOC narrative states that the PA fears the Cartel which targeted him and that he was the victim of threats and extorsion. Although paragraph 3 does not specifically mention the Cartel, the context suggests that the PA believes that the Cartel was responsible for the 2008 theft. Despite this mistake, the RPD did not err in its conclusion. The PA told authorities in 2008 that he did not know who stole the truck, and he did not indicate that the Cartel may have been responsible. In addition, his BOC narrative does not explain why and when he formed the opinion that the Cartel was responsible. The RPD did not err in its conclusion on this issue. [20] The RPD noted at paragraphs 19 and 20 that the lawyer's letter at exhibit D-18 and the letter from an acquaintance J.P.11 at exhibit D-19 do not mention the Cartel. Although the PA testified that he had problems with people who identified themselves as belonging to the Cartel, the RPD concluded that the PA did not clearly identify the Cartel when he described his problems in his BOC narrative. He stated at paragraph 4 of the narrative that he received calls from people in 2014 whom he could not identify. At paragraph 6 the PA indicated that he received calls after the sale of his truck from some individuals who said that they were the owners of the truck. He wrote at paragraph 8 that he received calls from different people about payment for the truck. Counsel submits that paragraph 2 introduces the narrative by identifying the Cartel as the agent of harm. Although the PA did not know the names of the people who targeted him, he always believed that they were members of the Cartel. He specified in paragraph 9 that he was a victim of the Cartel. Although counsel is correct that the BOC narrative, when read in its entirety, indicates that the PA attributes all incidents of concern to the Cartel, it does not clearly indicate when he formed this opinion. The RPD is correct that the PA made no mention of this group when he complained to the prosecutor in 2008. Although the letter from the PA's lawyer refers to threats from unknown persons, the complaint to the Office of the Attorney General makes reference to the Cartel.12 The first reference to the Cartel in the supporting evidence is found in the XXXX 2017 complaint to the prosecutor. Although the PA was never able to identify the names of those responsible, he held the Cartel responsible in the XXXX 2017 report and in his BOC narrative. Although the RPD erred in failing to read the entire BOC narrative in context, the fact remains that the totality of the evidence does not support the PA's current opinion that the Cartel was responsible for the 2008 theft and the extorsion which began in 2014. [21] The RPD considered the documentary evidence about the Cartel filed at exhibit D-22 and concluded that the group does not attack individuals. Counsel submits that one article indicates that it steals money from all Colombians. The context in which this sentence is found refers to widespread fraud which cost Colombian taxpayers a lot of money. The Cartel stole money from all Colombians through fraudulently taking public money. It does not support counsel's submission that the Cartel targets individuals. The RPD did not err in its evaluation of the articles about the Cartel. Members of the Truckers' Association including its president, police officers, and some officials in the Ministry of Transportation conspired to defraud the government by filing false documents which alleged that trucks had been scrapped which did not exist, were registered in the name of deceased persons, or were otherwise fraudulent. The Truckers' Association president was arrested, convicted and sentenced to jail. Police officers and government officials have also been charged with participating in the scheme. The RPD is correct that the Cartel was involved in document fraud and the misappropriation of public funds. The documentary evidence does not establish that it was a criminal group which was involved in extorting money from private individuals. [22] The RPD concluded that the PA failed to establish that the people who were extorting money from him before he left Colombia were associated with the Cartel. The documentary evidence does not support the PA's allegation that this group was responsible. Although the PA testified that he was told by the agents of harm that they were members of this Cartel, the RPD did not believe him because this is inconsistent with credible objective evidence, because it is not supported by documentary evidence apart from his statement to the prosecutor the month before he left the country, and because his BOC narrative failed to indicate clearly how he formed the opinion that the Cartel was responsible. Although the RPD erred in some respects in its reasoning, it arrived at the correct conclusion. The PA has failed to establish that the agents of harm are associated with the Cartel. Did the PA provide contradictory testimony about the monthly extorsion payments? Submissions by counsel [23] The 2014 truck sale was made under duress. The interpretation of the Spanish word \"entrega\" as \"gave\" cannot be understood as a voluntary transaction. He clearly explained that the PA did not want to sell the truck and that he received one quarter of its fair market value. The PA's testimony was not contradictory. [24] The RPD explained why the PA did not mention that he was kidnapped for one week because this is a detail which he wanted to talk about at the hearing. He was held while the legal procedures for the sale were completed. Although a kidnapping may be very important in some contexts, this was a case in which it was used to complete a transaction. [25] The RPD engaged in a microscopic evaluation without considering all of the facts. [26] The vacuna is mentioned in the police complaint, contrary to what the RPD wrote in Paragraph 32. He mentioned that he was required by threat to pay fees arising from problems with the documents which transferred ownership of the truck. [27] The RPD drew negative credibility conclusions based on the PA's testimony about how much he had to pay in monthly quotas. Although the PA did not answer directly, the RPD's questions were unclear. The PA explained that the amounts varied in accordance with his salary, and that he was giving approximate figures. The RPD did not ask the PA about the [REDACTED] pesos. As a result, he was not given an opportunity to explain. [28] The RPD decision lacks transparency, intelligibility and justification as required by the Supreme Court in Vavilov decision.13 A reading of the reasons and decision does not permit one to understand how the RPD arrived at its decision to reject the claims when it only concluded that there was no link between the Appellants and the Cartel. RAD assessment [29] Counsel submits that the PA did not contradict himself when he first testified that he was forced to give the truck away, but that he later said that he sold the truck for one quarter fair market value. Use of the term \"gave\" does not denote a voluntary transaction. He testified that he did not want to sell the truck. He did not contradict himself. The RPD did not err in concluding that the PA's testimony was inconsistent. There is a difference between giving something away and selling it for less than fair market value. Although one could use a figure of speech to say that something was given away in the context of a sale below what it was worth, the PA was testifying under oath before an administrative tribunal. In this context, the PA more likely than not provided inconsistent testimony. [30] I find that the RPD did not err in drawing an adverse credibility inference from the fact that the PA did not indicate in his BOC narrative that he had been abducted and held for one week. The RPD correctly concluded that the PA did not provide a reasonable explanation for its absence. Although the PA may have been held while legal procedures for the sale were being conducted, this does not reasonably explain why an important fact which goes to the root of the risk was not mentioned. The Federal Court has held in numerous decisions that all important facts and details must be included in the BOC, and failure to do so may affect the assessment of the person's credibility. Although minor details or collateral information may be added by means of oral testimony, significant facts which go to the core of the claim must be included in the BOC.14 The RPD did not err in concluding that the allegation that the PA was abducted and held by the agents harm for one week is an important fact which goes to the root of the claim and which ought to have been included in the BOC. [31] The RPD also concluded that the PA provided inconsistent testimony about the monthly amounts of the extorsion payments. Although he testified that he paid between [REDACTED] and [REDACTED] pesos, his amended BOC narrative indicates that began making the payments in XXXX 2014 in the amount of [REDACTED] pesos, or sometimes double that amount.15 The RPD did not accept the explanation that he could pay between [REDACTED] and [REDACTED] pesos because his income fluctuated in relationship to his salary which was not fixed. The amount stated in the BOC narrative is well below this, and there is no mention of monthly extortion payments in the complaint to authorities filed in XXXX 2017 at exhibit D-2. Counsel submits that the RPD was wrong because the complaint referred to the monthly quota. Furthermore, the RPD's questions were unclear about this issue. In particular, the RPD did not ask him about the [REDACTED] pesos. [32] I find that counsel is incorrect about the complaint to the prosecutor. The PA stated at paragraph 10 of the BOC that they threatened to attack him and his family if he did not pay them XXXX XXXX pesos.16 He does not say that he made monthly payments. In addition, counsel's submission that the RPD did not ask the PA about the [REDACTED] pesos is incorrect. The RPD told the PA that he wrote at paragraph 6 of his BOC narrative that he made monthly payments of [REDACTED] pesos, and sometimes double. The PA was then asked to explain the difference between this and his testimony that he paid between [REDACTED] and [REDACTED] pesos. Although the RPD asked clear questions, the PA did not provide clear answers.17 The RPD did not err in not accepting the explanation for the inconsistent testimony about how much the extorsion payments were. [33] The RPD correctly made adverse credibility findings. More likely than not, the PA embellished the facts during his testimony to aggravate the risk. A letter from the PA's aunt, C.A., indicates that she witnessed death threats against the Appellants which the PA received by telephone, text and voice messages through WhatsApp. They said that they knew their names and where they lived.18 Although this confirms that the PA has been receiving threats by people who want him to pay money, it does not support the allegation that the Cartel or organized crime is behind the threats. Do the Appellants have an IFA? Submissions by counsel [34] The RPD concluded that the Appellants did not likely have problems with the Cartel de la Chatarrización. As a result, the RPD assessed the IFAs on the premiss that the agent of harm were unidentified. The RPD should have started with the acknowledgment that the Appellants have a well-founded fear of persecution in one region of the country and then determined if the risk extends to the entire country. The RPD committed a mistake by confirming an adverse credibility finding in its IFA analysis. In addition, the RPD should have asked whether the Appellants could safely relocate, given that the PA's family name made him a more vulnerable target. The RPD did not justify its conclusion that the Cartel would not be motivated to locate them in the proposed IFA locations. Future events are not proven, but feared. A fear of persecution justifies protection even if it is less than 50 percent. Rather than consider if the agents of harm have the motivation and ability to hurt them, the RPD should have conducted an overall evaluation of the risk to which the Appellants would be exposed in Colombia. [35] The RPD failed to consider evidence at Exhibit D-19 which collaborates the fear. The RPD never acknowledged the Appellants' allegations in its IFA assessment, and it rejected the possibility that the agent of harm could be the Cartel de la Chatarrización. The documentary evidence shows that the bandas criminales (BACRIM) [criminal bands] have the resources to find the Appellants. They also have the motivation. The United Nations High Commissioner for Refugees guidelines from Colombia are instructive with respect to IFA.19 The RPD relied on general information in the record in a superficial manner. It failed to justify its conclusions in an intelligible way in accordance with the Vavilov decision. RAD assessment [36] To summarize, counsel submits that an IFA assessment presupposes that one is at risk in one's home community. However, the RPD erred by importing its adverse credibility conclusions into its consideration of the IFAs. The RPD failed to justify its conclusion that the Cartel lacks the motivation to track the Appellants throughout the country. The issue is not whether the PA has proven future risk, but rather whether he has a subjective fear which is well-founded, even if it is less than a 50 percent chance of happening. The RPD erred because it failed to conduct a risk assessment in light of all of the evidence. The RPD rejected the possibility that the Cartel was the agent of harm, and it ignored evidence about the ability of organized crime groups (BACRIMs) have the resources need to find the Appellants. The RPD ignored information and wrote a superficial decision which fails to justify its decision in accordance with the principles set out by the Supreme Court of Canada in the Vavilov decision.20 [37] First, the RPD concluded at paragraphs 9 and 10 of its decision that the Appellants' claims have no nexus with the definition of a Convention refugee and that the assessment would be based on subsection 97(1) of the IRPA. When asked to make submissions about this issue at the hearing, counsel submitted that he did not think that there was a nexus between the risk and the Refugee Convention.21 The Appellants' Memorandum does not make submissions about nexus. On the facts of this case, the issue concerns extorsion for pecuniary gain without a link to any of the grounds for protection enumerated in the Refugee Convention. However, because the PA was specifically targeted, this does not concern a generalized risk. As a result, this issue is not whether the Appellants have a well-founded fear of persecution, but rather whether they would more likely than not be killed, tortured, or subjected to cruel or unusual treatment or punishment if they would return to Colombia. [38] The RPD provided clear reasons in support of its conclusion that it is unlikely that the Cartel was responsible for the threats. More likely than not, the threats emanated from individuals who demanded money from the PA after the sale of a truck. There is insufficient evidence to establish that those responsible have any links with the Cartel or with any other organized crime group. [39] Although a PA's former colleague wrote that people who identified themselves as friends asked about the PA in other parts of the country, this does not establish that they are likely associated with the people who were demanding money from the PA. Given the PA's history driving trucks, it would not be unusual for friends or acquaintances to inquire about him. They may have been telling the truth when they said that they were friends of the PA. The RPD did not err when it assessed this evidence in light of the totality of the evidence and it concluded that this statement was insufficient to establish that the PA is being sought throughout the country by agents of harm. [40] The RPD considered risk attributed to the name \"XXXX\" which is [REDACTED] XXXX, including that of [REDACTED] XXXX. The RPD noted that other family members have not experienced problems because of their name. The RPD provided adequate reasons at paragraph 43 to justify its conclusion that the Appellants are not at risk on these grounds. [41] The RPD considered the PA's ability to find work, to find accommodation, to access education and health care, and to access social programmes in support of its conclusion that it would be reasonable for the Appellants to relocate to any of the proposed IFAs in light of their particular circumstances. This analysis was not challenged in the appeal. My independent assessment leads me to conclude that the RPD did not err in its assessment of the second prong of the IFA test.22 [42] The RPD correctly concluded that the Appellants have viable IFAs in Bucaramanga, Cartagena, and Barranquilla. CONCLUSION [43] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to paragraph 111(1)(a) of the IRPA. (signed) Harold Shepherd Harold Shepherd January 28, 2022 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended, at para. 111(1)(a). 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; see also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII), [2019] 2 FCR 597 3 Exhibit RPD-1, RPD Record, Exhibit 2.1, p. 24, para 9. 4 Ibid., Exhibit 4.3, pp. 384-386. 5 Ibid., pp. 389-390. 6 Ibid., pp. 399-401. 7 Ibid., pp. 405-406. 8 Ibid., Exhibit 4.1, p. 458. 9 Exhibit RPD-1, RPD Record, Exhibit 4.1, p. 284. 10 Ibid., p. 238. 11 Personal identifiers have been removed, except where necessary to explain the reasoning of the decision. 12 Ibid., p. 304, para 12. 13 Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII).[Vavilov] 14 Ogaulu v. Canada (Citizenship and Immigration), 2019 FC 547 (CanLII) at para. 18- 20. 15 Exhibit RPD-1, RPD Record, Exhibit 4.1, pp. 284-286. 16 Exhibit RPD-1, RPD Record, Exhibit , p. 230. 17 RPD Hearing audio recording, April 29, 2021, at 02:03:30-02:09:12 (of 03:03:19). 18 Exhibit RPD-1, RPD Record, Exhibit , pp. 364- 365. 19 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package for Colombia, (12 June 2020), item 1.7. 20 Vavilov, supra, endnote 13. 21 RPD Hearing audio recording, April 29, 2021, at 00:17- 00:17:40 (of 00:36:07). 22 Ranganathan v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA), [2001] 2 FC 164. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MC1-04220 MC1-04221 / MC1-04222 / MC1-04223 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français", "response": "## Analysis of Refugee Decision: MC1-04220\n\n### Key Issues\necision [6] The determinative issues for the appeal are credibility, the objective basis for the risk, and whether the Appellants have an IFA. I find that the RPD did not err in it\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: the Appellants; v) The RPD's analysis is erroneous because it rejected all possibility that the agent of harm could be the Cartel; and vi) There is abundant objective documentary evidence to show that major criminal organizations have the resources to find the Appellants. Summary of the Refugee Appeal Division reasons for decis\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "Analyze this Refugee Protection Division decision from the Refugee Law Lab Reporter and identify key legal issues:\n\n2023 RLLR 118 Citation: 2023 RLLR 118 Tribunal: Refugee Protection Division Date of Decision: October 31, 2023 Panel: David Jones Counsel for the Claimant(s): Meryam Haddad Country: Lebanon RPD Number: VC3-06815 Associated RPD Number(s): N/A ATIP Number: A-2024-00593 ATIP Pages: N/A DECISION [1] MEMBER: Okay, so we are now back on the record. So this is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada for the claim of [REDACTED], AKA [REDACTED], AKA [REDACTED], who is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. I have reviewed and applied the Chairperson’s Guideline and proceedings before the IRB involving sexual orientation, gender identity, and expression, and sex characteristics. ALLEGATIONS [2] The claimant fears persecution if she were to return to either Lebanon or Ukraine because of her SOGIESC identity. This is a summary of the claimant’s allegations which are found in the narrative attached to her Basis of Claim form, including her amendments which are found at Exhibit 5. The claimant is a 23-year-old transgender woman. The claimant’s father is Lebanese and her mother is Ukrainian. The claimant was born and raised in Lebanon. [3] The claimant’s narrative describes the societal abuse she faced growing up. In 2017 when the claimant was 17, she came out to her parents. Claimant’s mother’s side of the family who are primarily in Ukraine, have responded with violence to the claimant. Around 2019, the claimant began XXXX XXXX. The claimant was at university at the time, and this was when she first was getting threats from radical Islamic groups in the university. [4] The claimant described facing other abuses from other students. The claimant’s narratives also described discrimination faced by LGBTIQ people in Lebanon when it comes to healthcare and employment. After the full-scale Russian invasion of Ukraine, the claimant used the Canadian Ukrainian Authorization for Emergency Travel Program to come to Canada on XXXX XXXX, 2022. In April of 2023, the claimant applied for refugee protection. DETERMINATION [5] I find that the claimant is a Convention refugee. ANALYSIS Identity [6] The claimant’s identity as a citizen of both Lebanon and Ukraine has been established on a balance of probabilities by the claimant’s testimony and her passports which are found at Exhibit 1. Nexus [7] The claimant’s SOGIESC identity establishes a nexus to a Convention ground for the claimant based on her membership in a particular social group. I do note that in general, the country conditions in Ukraine have significantly changed with the Russian invasion in February 2022. That said, given my determination, I find it unnecessary to consider any other nexus to the Convention grounds for the claimant in Ukraine because of the Russian invasion. Credibility [8] I find that the claimant was credible. In making that finding and relying on the principle that a claimant who affirms to tell the truth creates a presumption of truthfulness unless there are reasons to doubt their truthfulness. In this case, I have no reasons to doubt the claimant’s truthfulness. The claimant provided personal documents which support her claim which are found at Exhibit 4. These documents include photographs of the claimant with her boyfriend and copies of messages between her and her current boyfriend, as well as some earlier messages with an ex-boyfriend. [9] The Exhibit also contains letters of support, including from a XXXX from Montreal and XXXX from Lebanon. There are also copies of the claimant’s prescription for her XXXX XXXX and a copy of the claimant’s XXXX report, showing her [REDACTED]. I have no reason to doubt the genuineness of these documents, and since they relate to the claimant’s SOGIESC identity, I give these documents great weight to support her claim. [10] Given the supporting documents, it was unnecessary to have the claimant testify in detail, and in the claimant’s limited testimony, she responded to questions clearly, and there are no inconsistencies or other concerns. I do note that the claimant was in Canada for almost a year before she applied for refugee protection. That said, I make no negative credibility findings against the claimant for the delay. The claimant had valid status during that time in Canada and explained that she believed the program would make her feel safe, but due to discrimination she faced in Canada, she sought greater protection and applied for refugee protection. [11] I accept the claimant’s explanation for the delay, especially given the status she had in Canada at the time. Given the credibility of the claimant and the documents provided, I find that the claimant has established on a balance of probabilities the facts alleged in her claim, including her SOGIESC identity. [12] Objective basis, Lebanon. The country condition documents supports the claimant’s fears of returning to Lebanon. The US Department of State report found at Item 2.1 in the National Documentation Package for Lebanon which is found at Exhibit 3.1, indicates that significant human rights issues in the country include crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, or intersex persons, as well as the existence and enforcement of laws criminal — criminalising consensual same-sex conduct between adults. [13] NDP Item 6.9 is a 2021 report that also describes criminalisation of individuals with diverse SGOIESC in Lebanon. That report also states that and I quote, “transwomen and persons of feminine gender expression are at a particular risk of police targeting and violence.” Further, a 2014 Response to Information Request at NDP Item 6.4 in — or describes societal views towards SOGIESC individuals in Lebanon. While the report indicates that the conditions are somewhat better in Beirut, it still describes how individuals need to conceal their identity in the city to be safe and how SOGIESC individuals are still strongly condemned in the city. [14] The RIR also indicates that 66 percent of doctors in Lebanon view SOGIESC individuals as having an illness that can be treated through psychotherapy. The claimant’s own narrative describes how she was forced by her family to go to a XXXX who was transphobic and who tried to treat her as if she had a mental illness. [15] I find that the claimant has established that the societal discrimination, criminalization, and the ongoing violence towards SOGIESC individuals, including the abuse and discrimination that she has personally suffered from amounts to persecution, and the claimant has established a well-founded fear of persecution because of her SOGIESC identity if she were to return to Lebanon. [16] As such — sorry. Objective basis, Ukraine. The country condition document also support the claimant’s fears of returning to Ukraine. The US Department of State report found at Item 2.1 in the National Documentation Package for Ukraine which is found at Exhibit 3.2 also indicates that a significant human right issue in the country are crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, or intersex persons. [17] The report states that and I quote, “there was societal violence against LGBTQI+ persons, often perpetrated by members of violent radical groups, and authorities often did not adequately investigate these cases or hold perpetrators to account.”. Further, that report states that, and I quote, “law enforcement at times condoned or perpetrated violence against members of the LGBTQI+ community.” [18] This is also indicated in a 2022 report at Item 6.1, that states that and I quote, “anti-LGBT hate speech and hate crimes continued to be a severe issue this year.” And a report at Item 6.3 on violence against the LGBT Q+ community in 2001 indicates that far-right groups continue to purposefully monitor and attack community events. The report also notes that police continue to respond extremely passively to reports of already committed attacks on LGBTQ+ organizations and activities, and the practice of investigating hate crimes and other violations of rights has not changed significantly. [19] I further note that a Freedom House report at Item 2.3 indicate that SOGIESC individuals experience significant societal discrimination and generally do not receive protection from attacks against them. I find that the claimant has established that the ongoing threats of violence and discrimination towards SOGIESC individuals, including the risks the claimant may face from her own family in Ukraine, amount to persecution, and the claimant has established a well-founded fear of persecution because of her SOGIESC identity if she were to return to Ukraine. State Protection [20] I have considered whether state protection is available to the claimant in either country, and I find that there is none. In both countries, the country condition documents describe the violence perpetrated by law enforcement. The country condition documents (inaudible) also indicate that police enforced criminal laws targeting SOGIESC individuals. As such, I find that there is no operationally effective state protection available to the claimant in her particular circumstances. Internal Flight Alternative [21] I have also considered whether the claimant would have a viable internal flight alternative available to her in either Lebanon or Ukraine, and I find that there is none. In making this finding, I note that the country condition documents provide sufficient evidence to show that there is a location in either country, where SOGIESC individuals do not face discrimination, violence, and in Lebanon there is the ongoing risk of criminal charges. [22] With respect — sorry. With the lack of state protection noted above, I find that there is no viable internal flight alternative available to the claimant, as she would face more than a mere possibility of persecution anywhere in either country. CONCLUSION [23] For the foregoing reasons, I determined that the claimant is a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act. The Board therefore accepts her claim. ——— REASONS CONCLUDED ———", "response": "## Analysis of Refugee Decision: 2023 RLLR 118\n\n### Key Issues\nthat significant human rights issues in the country include crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, or intersex perso\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: mant is a Convention refugee. ANALYSIS Identity [6] The claimant’s identity as a citizen of both Lebanon and Ukraine has been established on a balance of probabilities by the claimant’s testimony and her passports which are found at Exhibit 1. Nexus [7] The claimant’s SOGIESC identity establishes a nexus to a Convention ground f\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "Explain how this Federal Court of Appeal of Canada decision clarifies immigration law:\n\nRana v. Teamsters Local Union No. 938 Court (s) Database Federal Court of Appeal Decisions Date 2023-05-15 Neutral citation 2023 FCA 103 File numbers A-245-22 Decision Content Date: 20230515 Docket: A-245-22 Citation: 2023 FCA 103 CORAM: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. BETWEEN: TARIQ RANA Applicant and TEAMSTERS LOCAL UNION NO. 938 Respondent Heard at Toronto, Ontario, on May 15, 2023. Judgment delivered from the Bench at Toronto, Ontario, on May 15, 2023. REASONS FOR JUDGMENT OF THE COURT BY: MONAGHAN J.A. Date: 20230515 Docket: A-245-22 Citation: 2023 FCA 103 CORAM: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. BETWEEN: TARIQ RANA Applicant and TEAMSTERS LOCAL UNION NO. 938 Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario, on May 15, 2023). MONAGHAN J.A. [1] The applicant, Mr. Rana, seeks judicial review of a decision of the Canadian Industrial Relations Board (2022 CIRB LD 4846) dismissing his application to the Board for reconsideration of an earlier reconsideration decision. That earlier decision dealt with Mr. Rana’s application for reconsideration of a 2019 Board decision (2019 CIRB LD 4112). That 2019 decision dismissed Mr. Rana’s complaint that the respondent union breached its duty of fair representation under section 37 of the Canada Labour Code, R.S.C. 1985, c. L-2. [2] Mr. Rana’s first application for reconsideration, made in 2019, was dismissed by the Board (2019 CIRB LD 4231) and his application for judicial review of that decision was dismissed by this Court (2020 FCA 190). The Supreme Court of Canada dismissed Mr. Rana’s application for leave to appeal: 39510 (1 April 2021). [3] Undaunted, in March 2022, Mr. Rana made an application to the Board for reconsideration of the earlier reconsideration decision, asserting he had obtained relevant information during the assessment of costs proceeding in this Court that followed his unsuccessful judicial review application. [4] The Board determined that Mr. Rana’s second reconsideration application was not timely made and Mr. Rana neither demonstrated due diligence nor provided any explanation for his delay. On that basis the Board dismissed his application. Nonetheless, the Board went on to explain in detail why, even if Mr. Rana’s application had been timely, the Board would not have reconsidered its 2019 decision. [5] Before us, Mr. Rana takes no issue with the Board’s determination that his second reconsideration application was not timely made. Rather, he submits the Board erred because it did not invite the union to respond to the evidence he submitted. This, he submits, is contrary to the principles of natural justice and procedural fairness. [6] There is no merit to Mr. Rana’s submission. The Board concluded that the second reconsideration application was not timely made and chose not to exercise its discretion to extend the time. We see no error in the Board’s exercise of its discretion. [7] As he has done on prior occasions, in this application Mr. Rana attempts to challenge the Board’s prior decisions and the bona fides of the Board and its members towards his complaints and applications. Mr. Rana’s allegations of this nature have been addressed and rejected, both by the Board and this Court, in prior proceedings stemming from the 2019 Board decision. We reiterate that they are completely unfounded. The fact that the Board does not accept Mr. Rana’s arguments or his version of the facts does not constitute bad faith. [8] We will dismiss the application with costs. “K.A. Siobhan Monaghan” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD APPLICATION FOR JUDICIAL REVIEW OF THE CANADA INDUSTRIAL RELATIONS BOARD’S (THE BOARD) LETTER DECISION 2022 CIRB LD 4846 (THE DECISION) DATED OCTOBER 27, 2022 DOCKET: A-245-22 STYLE OF CAUSE: TARIQ RANA v. TEAMSTERS LOCAL UNION NO. 938 PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: May 15, 2023 REASONS FOR JUDGMENT OF THE COURT BY: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. DELIVERED FROM THE BENCH BY: MONAGHAN J.A. APPEARANCES: Tariq Rana For The Applicant ON HIS OWN BEHALF Nora Parker For The Respondent SOLICITORS OF RECORD: Wright Henry LLP Toronto, Ontario For The Respondent", "response": "## Analysis of Court Decision: Rana v. Teamsters Local Union No. 938\n\n### Key Issues\nCIRB LD 4846) dismissing his application to the Board for reconsideration of an earlier reconsideration decision. That earlier decision dealt with Mr. Rana’s application for recon\n\n### Standard of Review\nRana v. Teamsters Local Union No. 938 Court (s) Database Federal Court of Appeal Decisions Date 2023-05-15 Neutral citation 2023 FCA 103 File numbers A-245-22 Decision Content Date: 20230515 Docket: A-245-22 Citation: 2023 FCA 103 CORAM: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. BETWEEN: TARIQ RANA Applicant and TEAMSTERS LOCAL UNION NO. 938 Respondent Heard at Toronto, Ontario, on May 15, 2023. Judgment delivered from the Bench at Toronto, Ontario, on May 15, 2023. REASONS FOR JUDGMENT OF THE COURT BY: MONAGHAN J.A. Date: 20230515 Docket: A-245-22 Citation: 2023 FCA 103 CORAM: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. BETWEEN: TARIQ RANA Applicant and TEAMSTERS LOCAL UNION NO. 938 Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario, on May 15, 2023). MONAGHAN J.A. [1] The applicant, Mr. Rana, seeks judicial review of a decision of the Canadian Industrial Relations Board (2022 CIRB LD 4846) dismissing his application to the Board for reconsideration of an earlier reconsideration decision. That earlier decision dealt with Mr. Rana’s application for reconsideration of a 2019 Board decision (2019 CIRB LD 4112). That 2019 decision dismissed Mr. Rana’s complaint that the respondent union breached its duty of fair representation under section 37 of the Canada Labour Code, R.S.C. 1985, c. L-2. [2] Mr. Rana’s first application for reconsideration, made in 2019, was dismissed by the Board (2019 CIRB LD 4231) and his application for judicial review of that decision was dismissed by this Court (2020 FCA 190). The Supreme Court of Canada dismissed Mr. Rana’s application for leave to appeal: 39510 (1 April 2021). [3] Undaunted, in March 2022, Mr. Rana made an application to the Board for reconsideration of the earlier reconsideration decision, asserting he had obtained relevant information during the assessment of costs proceeding in this Court that followed his unsuccessful judicial review application. [4] The Board determined that Mr. Rana’s second reconsideration application was not timely made and Mr. Rana neither demonstrated due diligence nor provided any explanation for his delay. On that basis the Board dismissed his application. Nonetheless, the Board went on to explain in detail why, even if Mr. Rana’s application had been timely, the Board would not have reconsidered its 2019 decision. [5] Before us, Mr. Rana takes no issue with the Board’s determination that his second reconsideration application was not timely made. Rather, he submits the Board erred because it did not invite the union to respond to the evidence he submitted. This, he submits, is contrary to the principles of natural justice and procedural fairness. [6] There is no merit to Mr. Rana’s submission. The Board concluded that the second reconsideration application was not timely made and chose not to exercise its discretion to extend the time. We see no error in the Board’s exercise of its discretion. [7] As he has done on prior occasions, in this application Mr. Rana attempts to challenge the Board’s prior decisions and the bona fides of the Board and its members towards his complaints and applications. Mr. Rana’s allegations of this nature have been addressed and rejected, both by the Board and this Court, in prior proceedings stemming from the 2019 Board decision. We reiterate that they are completely unfounded. The fact that the Board does not accept Mr. Rana’s arguments or his version of the facts does not constitute bad faith. [8] We will dismiss the application with costs. “K.A. Siobhan Monaghan” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD APPLICATION FOR JUDICIAL REVIEW OF THE CANADA INDUSTRIAL RELATIONS BOARD’S (THE BOARD) LETTER DECISION 2022 CIRB LD 4846 (THE DECISION) DATED OCTOBER 27, 2022 DOCKET: A-245-22 STYLE OF CAUSE: TARIQ RANA v. TEAMSTERS LOCAL UNION NO. 938 PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: May 15, 2023 REASONS FOR JUDGMENT OF THE COURT BY: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. DELIVERED FROM THE BENCH BY: MONAGHAN J.A. APPEARANCES: Tariq Rana For The Applicant ON HIS OWN BEHALF Nora Parker For The Respondent SOLICITORS OF RECORD: Wright Henry LLP Toronto, Ontario For The Respondent\n\n### Legal Analysis\nThe court's analysis focuses on: to, Ontario, on May 15, 2023. REASONS FOR JUDGMENT OF THE COURT BY: MONAGHAN J.A. Date: 20230515 Docket: A-245-22 Citation: 2023 FCA 103 CORAM: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. BETWEEN: TARIQ RANA Applicant and TEAMSTERS LOCAL UNION NO. 938 Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, O\n\n### Precedential Value\nAs a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation."}
{"prompt": "What is the key legal reasoning in this Refugee Appeal Division decision from the Immigration and Refugee Board of Canada?\n\nRAD File / Dossier de la SAR : TC1-04323 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Date of decision January 26, 2022 Date de la décision Panel Neil Kaufman Tribunal Counsel for the person who is the subject of the appeal Leonard H. Borenstein Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX (the Appellant), a citizen of China, appeals a decision of the Refugee Protection Division (RPD), dated March 29, 2021, rejecting his claim for refugee protection. He alleges that he fears persecution and/or harm from the Chinese authorities because he is a Falun Gong practitioner and Falun Gong practitioners are persecuted by the state in China. He argues that the RPD erred, and asks the Refugee Appeal Division (RAD) to substitute a positive determination or remit the matter to the RPD for redetermination. He does not seek to rely upon new evidence and does not request an oral hearing. [2] I have conducted an independent assessment of all the evidence, including listening to the audio recording of the RPD hearing, and the arguments of the Appellant. I am reviewing the RPD's decision on the standard of correctness as I do not find the RPD enjoyed a meaningful advantage in the assessment of oral testimony relating to the determinative issue.1 DETERMINATION [3] I dismiss the appeal and confirm the determination of the RPD that the Appellant is neither a Convention refugee, nor a person in need of protection. BACKGROUND AND OVERVIEW OF THE APPEAL Appellant's allegations [4] The details of the Appellant's allegations are included in his Basis of Claim Form (BOC),2 including his narrative,3 and in his testimony at the hearing. Briefly, the Appellant alleges that he is (now) 46-years-old, and was a farmer in China. In XXXX 2017, he developed XXXX in his XXXX. He sought medical attention from both Western doctors and Chinese traditional doctors, but obtained no relief. [5] In XXXX 2017, a friend introduced him to Falun Gong to relieve his pain, and despite being concerned because it is banned in China, he obtained permission from his wife to practice, but only in private. After being taught in his home by his friend for a short time he obtained relief from his pain. His friend proposed that he attend a group practice that the friend attended, and with the permission of his wife, he began to do so in XXXX 2017. The group met weekly and rotated between different practitioners' homes. In XXXX 2018, the group decided to stop group practice as the leader heard that the Public Security Bureau (PSB) was about to crack down on Falun Gong practitioners assisted by the neighbourhood committee. The sessions ended, and because of this information, his wife also told him to stop practising Falun Gong. The Appellant did not want to stop practising. He wanted to live somewhere he could practice Falun Gong without risk, and, with his wife's agreement, he decided to go to North America. He hired a smuggler who obtained a Canadian visitor's visa based on false information. He travelled with the smuggler to Canada, arriving on XXXX XXXX, 2018, and claimed refugee protection in January 2019. He resumed practising Falun Gong immediately when he arrived. He alleges that he will continue to practise Falun Gong, even if he is returned to China, and that if he is returned to China, his Falun Gong practice will be discovered by the authorities, resulting in persecution and harm. RPD's findings [6] The RPD found that the Appellant did not credibly establish that he is a genuine Falun Gong practitioner. It found that he did not demonstrate knowledge of Falun Gong that was commensurate with his claimed background and exposure to Falun Gong, that there were gaps in his knowledge of Falun Gong that would not reasonably be expected in someone with his Falun Gong experience, and that he did not demonstrate substantial understanding of the philosophy underlying the practice of Falun Gong. Appellant's arguments [7] The Appellant argues that the RPD erred in its assessment of his identity as a Falun Gong practitioner, which is based on a microscopic and flawed analysis of the Appellant's Falun Gong knowledge, in which the RPD expected the Appellant to display perfection regarding his Falun Gong knowledge. He also argues that the RPD wrongly failed to raise its concerns with the Appellant at the hearing, thereby denying the Appellant the opportunity to address those concerns. NEW ISSUE IDENTIFIED BY THE RAD [8] At the same time this appeal was assigned to me, another appeal (Appeal 2)4 was assigned to me that was based on a BOC narrative containing what appear to be striking similarities to the BOC narrative in this appeal, thereby raising questions and concerns in my mind. Those questions and concerns required that I give the Appellant notice of my concerns and afford him the opportunity to make submissions and/or provide further evidence regarding my concerns and questions. The Appellants in both appeals were represented by the same counsel. However, in order to allow me to fully disclose the basis for my concerns, I considered that it was necessary to disclose to the Appellant in this appeal the BOC narrative from Appeal 2. [9] There is a specific procedure set out in the Refugee Protection Division Rules (RPD Rules)5 to be followed when the RPD seeks to disclose to a claimant personal and other information that it wants to use from any other claim because the claims involve similar questions of fact or if the information is otherwise relevant to the determination of their claim. There is no specific rule in the Refugee Appeal Division Rules6 addressing this situation. However RAD rule 52,7 provides that, in the absence of a provision in the RAD Rules dealing with a matter raised during the proceedings, the RAD may do whatever is necessary to deal with the matter. Pursuant to that rule, the RAD followed, by analogy, the procedure set out in rule 21 of the RPD Rules, and gave notice to the Appellant in Appeal 2 and their counsel, that it intended to use information from their refugee file in Appeal 2 as evidence in the hearing of another claim. As is provided in RPD rule 21, the Appellant in Appeal 2 was given the opportunity to notify the RAD in writing whether they agreed or objected to the disclosure of information in their file in the other claim. The Appellant in Appeal 2 did not respond to that notice. The RAD assessed that there was no serious possibility that disclosing information from Appeal 2 would endanger the life, liberty or security of any person, or was likely to cause an injustice.8 Therefore, the RAD concluded that information from Appeal 2 could be used in this appeal. [10] The RAD then notified the Appellant in this appeal (and their counsel), and the Minister that it would be considering, as a new issue, the existence of similar narratives in Appeal 2 and this appeal, and invited them to make submissions and/or provide further evidence as follows (the Notice)9: * comments and/or explanations regarding the similarities and/or regarding the existence of the other similar narrative; and * submissions as to the significance, if any, of the similarities, and as to what findings, if any, should result from the similarities and/or the existence of the other similar narrative, including, without limitation, whether the similarities and/or the existence of the other similar narrative have any impact on the credibility of the Appellant and his claim. [11] Attached to the Notice were: * a copy of the BOC narrative in this appeal; * an anonymized/redacted copy of the BOC narrative in Appeal 2 (redacted to eliminate unnecessary personally identifying information regarding the identity of the Appellant in Appeal 2);10 and * a comparison table (the Comparison Table) prepared by the RAD highlighting similarities between the two BOC narratives,11 a copy of which is attached as Schedule \"A\" to these Reasons. [12] The Minister responded to the Notice,12 agreeing that there appear to be striking similarities between the narratives in this appeal and in Appeal 2. The Minister stated that the RAD can properly assess the claim without the assistance of the Minister, and declined to intervene. [13] Counsel for the Appellant responded to the Notice, providing submissions (Submissions).13 I have considered those Submissions in my independent assessment of the evidence. ANALYSIS OF THE MERITS OF THE APPEAL [14] In a decision identified as a RPD and RAD persuasive decision (X (Re)),14 the RAD outlined steps that can be taken in an analysis of similar narratives in a transparent and fair manner. The decision in X (Re) suggests the following principles:15 1. Analysis of a BOC narrative begins with the Maldonado principle, namely, that sworn evidence is presumed to be true unless there is reason to doubt its truthfulness; 2. This presumption may be displaced by a BOC narrative that bears striking resemblance to one or more others. Such striking similarity raises concern with regard to the integrity of the claim; 3. When BOC similarities are found similar enough to call the integrity of the claim into question, the burden of proof shifts to the claimant. The claimant must explain the similarities or establish, in whatever way they choose, on a balance of probabilities, that the narrative is their own; 4. If the claimant establishes the narrative as their own, on a balance of probabilities, the member goes on to fully consider the merits of the claim; 5. If the claimant identifies a new narrative or story, the member would then go on to fully consider the merits of the claim; and 6. When a claimant fails to establish, on a balance of probabilities, that the BOC narrative in question is a true representation of their story, the foundation of the claim may be unsubstantiated and the member may, depending on the circumstances, have sufficient basis to reject the claim without having to make additional credibility findings beyond those inherent in the claimant's explanation or testimony relating to the narrative. [15] Although members of the RPD and RAD are encouraged to adopt the reasoning of persuasive decisions in the interests of consistency and effective decision-making, they are not binding on members of those tribunals, and it is for the panel member, as an independent decision-maker, to decide whether the facts of the case before them are sufficiently similar to those in the persuasive decision, and whether to follow the reasoning in that decision. I have decided that it is appropriate in this case to follow and apply the reasoning in X (Re), because the issues raised in that decision are also raised in this case, and because I agree with the analytical framework and principles set out in that decision. The similarities in the BOC narratives [16] The striking similarities between the two similar narratives are readily apparent from the Comparison Table. Although different words are used at times in describing events, there are also many instances in which the Appellant's narrative uses words and sentences identical or nearly identical to those used in the Appeal 2 narrative, while in others, the same events are somewhat paraphrased. As was the case in X (Re), the Appellant's narrative, while not identical to the narrative in Appeal 2, is replete with identical or near-identical sentences and paragraphs. Most significant, in my assessment, is that, as was the case in X (Re), \"the flow, themes, and sequencing of events in the narratives are virtually identical.\" The two narratives tell substantially the same story, with the same series of events, in the same sequence, using similar and sometimes identical terminology, although sometimes with variation in detail. [17] As was also the case in X (Re), the narratives are duplicative of each other in matters not necessarily central to the claimants' alleged fear of persecution. These include but are not limited to the communications between the claimants and their wives about permission being given to practice Falun Gong and later being revoked, the involvement of cousins who connected them with smugglers, and the involvement of their landlords in Toronto in connecting them with other Falun Gong practitioners. [18] In my assessment, the striking similarities found in both central and non-central elements of the Appellant's story as found in the Comparison Table provide evidence that these narratives are substantially duplicative of each other. I recognize that not every element and paragraph is identical, and that some words are changed when describing similar events. However, the duplication in the stories, including both material and non-material elements of the claim, and in their structure and sequence, is so extensive as to rebut the presumption of truthfulness of the Appellant's narrative. Like the RAD in X (Re), it is not possible - or necessary - for me to conclude from the similarities alone that the Appellant's narrative is not his own, or to determine at this stage whether the Appellant's narrative is real, the narrative in Appeal 2 is real, or whether both narratives are false. As was the case in X (Re), there is a prima facie evident integrity issue with the narrative such that the burden shifts to the Appellant to address this issue, and to credibly establish, on a balance of probabilities, that his narrative is a truthful representation of his own story. [19] Once the apparent integrity issue was flagged, the Appellant was informed of my concern, and given an opportunity to provide an explanation and/or further evidence to establish, on a balance of probabilities, that what he asserts is true. As noted in X (Re), the explanation provided by the Appellant can take any one or more of multiple forms, such as evidence from the merits of the claim, evidence that demonstrates that the narrative is their own (such as testimony about how/when/with whom he wrote the narrative, an affidavit from someone who assisted them with the narrative, or evidence of the transfer of the narrative by email), and many other ways. The point is that, once the presumption of truthfulness is rebutted, the onus shifts to the Appellant to establish that the narrative is probably his. [20] In this case, once the issue was identified to the Appellant, his response did not include any new testimony from him or from anyone else supporting the assertion that the narrative is his. Rather it consists of submissions from counsel. That does not mean that the explanation is insufficient, but it does leave me with no evidence from the Appellant as to the creation of the narrative and his ownership of the narrative, or explaining the similarities. Instead, I am left with explanations from counsel, and it is those explanations I have considered. [21] To begin with, the response provided by counsel for the Appellant begins by stating that the Notice raising the issue of the similar narratives impugns \"both the credibility of my clients and the undersigned....\" That is not the case. Giving notice to a claimant of a new identified potential credibility issue - something the RAD is required to do - is not impugning the credibility of the Appellant. It is letting him know that there is a concern, and giving him an opportunity to address the concern. It is certainly not impugning the credibility of counsel. While the Notice states that the Appellants in both appeals are represented by the same counsel, that does not impugn counsel's credibility, and there are many potential explanations other than impropriety by counsel, even if the narratives are strikingly similar and even if the Appellant's narrative is not shown to be credible. I neither made nor intended any suggestion of misconduct by counsel. [22] In substance, the explanation provided by counsel for the similarities is that the substance of the story told in both narratives is the story told by almost all claimants whose claims are based on being Falun Gong practitioners from China. Counsel asserts that, to suggest any kind of impropriety or credibility issue as a result of the similarities reflects a \"misunderstanding of the nature of refugee claims based on Falun Gong affiliation.\" Counsel asserts that the fact pattern in these narratives is common to almost every Falun Gong claim; that, when assisting claimants in completing their BOC and providing their narratives, certain questions have to be answered and that their answers disclose that common fact pattern, and \"there are only so many ways to set out\" those answers; any similarities in language, whether striking or not, are said to be \"simply a reflection of that truism.\" [23] I acknowledge that claims by individuals claiming to be Falun Gong practitioners often contain many factual similarities and similar elements. They are commonly based on allegations that the claimant was introduced by another person to the practice of Falun Gong to address life concerns or illnesses, that they practiced initially alone or with their friend, and then in private group settings, and found the practice beneficial to them. Often it is alleged that their group practices are interrupted by a PSB raid or because of the perceived threat of an impending crackdown by the authorities. Often the claimants allege that they leave China because they are wanted by the authorities, although in others, they leave because they want to continue practising Falun Gong freely. In almost all, they allege that they resumed their Falun Gong practice in Canada. [24] However, the acknowledgment that similar allegations or elements are made by many other claimants does not adequately explain the issues with the similarities between the narratives of the Appellant in this appeal and in Appeal 2. First, the fact that similar core or \"boiler-plate\" allegations are made by many Falun Gong claimants does not mean that such allegations made by any particular claimant are a true reflection of events experienced by that claimant. Claims by claimants from many countries are often based on similar allegations or fact patterns. More importantly, the significance and role of the narrative in the refugee claim process must be considered. As was stated in X (Re), \"[the] narrative portion of the BoC is quite literally the foundation of the claim for refugee status. As is the case in this appeal, and in the vast majority of refugee claims and appeals, virtually all evidence presented in support of a claim, including testimony, flows from the BoC narrative. The BoC narrative is not just any piece of evidence - it underpins everything the claimant is bringing forward in the claim.\"16 [footnotes omitted]. [25] The narrative is the story of that refugee claimant. It is their recitation of the important events upon which their claim is based. It is not merely a generic summary of conditions in their own country or what others have experienced (although it may certainly contain and be based on such information), but rather, it is highly personalized testimony about what happened to them, and why they claim entitlement to refugee protection. While many claimants undoubtedly and quite properly obtain guidance from professional advisors and others, who are trying to help the claimants to put their best case forward, as to the kind of information that should be included in their narrative, it is not the advisors who are telling the story. Based upon my understanding of counsel's submissions, I understand him to be saying that similar questions are asked of their clients, and counsel may then assist in setting out in the narrative the information provided by their clients. I do not suggest that there is anything improper in doing so, as long as what is stated in the narrative is the claimant's own story. Some repetition of generic statements may be expected in narratives based on similar claim types. [26] I acknowledge that narratives in claims having a similar basis may at times be broadly similar as counsel ensures that each claimant addresses important issues. The problem with the narratives under consideration is that they do not only describe broadly similar stories, but the details of the stories are strikingly similar. The sequence and chronology of events are virtually identical, and the interactions between the Appellants and the other persons are virtually identical. By way of a few examples only:17 - in this appeal: \"My friend talked to me about the benefits of Falun Gong and he promised that Falun Gong would help me with my XXXX as well as my mental well-being if I practice Falun Gong exercises regularly and live according to the principles of Truthfulness, Compassion and Forbearance.\" - in Appeal 2: \"My friend talked to me about the benefits of Falun Gong.... My friend promised me that if I practiced Falun Gong regularly and lived according to the Falun Gong principles of Truthful, [sic] Compassion and Forbearance, my physical and mental health would be improved.\" - in this appeal: \"I told my friend I need to talk with my wife first.... I discussed my friend's advice with my wife. After I promised to practice only in private, my wife agreed.\" - in Appeal 2: \"I told my friend I need to talk with my wife first.... I asked my wife's permission to try Falun Gong. After I promised my wife I would only practice in private, my wife agreed.\" - in this appeal: \"I tried to get my wife to practice with me, but she was not interested due to the ban. - in Appeal 2: \"As I was receiving benefit from the practice of Falun Gong, I tried to get my wife to practice with me, but due to the ban, my wife was no [sic] interested. - in this appeal: \"My friend told me group practice could provide stronger energy field and I could learn more Falun Gong knowledge from experienced practitioners as Falun Gong materials were banned by Chinese government.\" - in Appeal 2: \"My friend told me that in group practice the energy field would be stronger. Also, as Falun Gong materials are banned in China, I could learn more Falun Gong knowledge from the leader. [27] Counsel for the Appellant points out in his submissions that there are differences in the claims, and points to the different ages of the Appellants, their different provincial origins, their different dates of arrival in Canada, and the differing genders of the smugglers they claim to have used. I would add to this list other differences, such as the \"other basic Falun Gong knowledge\" they each claim to have been taught by their friends. Counsel submits that \"a detailed review of the two files in question will reveal a list of additional facts to support the obvious conclusion that both of these men made refugee claims based on circumstances that were personal to each of them, based on their own life's circumstances,\" although no details of such additional facts are provided. I do not agree. I acknowledge that some details are different, and that the Appellants in the two appeals are not the same person. However, in my assessment, differences in some details do not detract from the striking linguistic, stylistic, and chronological similarities that are apparent when comparing the narratives. [28] As noted previously, the Appellant provided no new evidence explaining the similarities and/or showing that the narrative was created by him. Although I have been open to the possibility that there is a valid reason for the similarities, and gave the Appellant the opportunity to provide submissions and/or evidence showing such a reason, in my assessment, the explanation by counsel that there are only so many ways to describe events that are common to many Falun Gong claims, and the Appellants were represented by the same counsel, does not provide such a valid reason. I find that the offered explanation does not explain or overcome the improbable coincidence of the narratives being similar in so many respects.18 I find that the Appellant's credibility is impugned when something so personal as the facts described in the narrative are so strikingly similar to another unrelated narrative,19 and when such similarity is not reasonably explained. Summary [29] I find that the Appellant has not satisfied his onus of credibly establishing, on a balance of probabilities, the truth of his explanation for the striking similarities in the narratives in this appeal and Appeal 2, or that the narrative in this appeal is the Appellant's own. The absence of evidence from the Appellant explaining the similarities in the narratives or establishing that his narrative is his own suggests that such evidence does not exist because he did not write his own narrative. [30] Because of my findings regarding the narrative, it is unnecessary for me to consider further the RPD's other credibility findings or the Appellant's arguments concerning those findings. Given the centrality of the BOC narrative in a refugee claim, the finding that the Appellant's BOC narrative is not his own automatically undermines the allegations underlying the claim. This includes his allegation that he became a Falun Gong practitioner in China. He alleges that his practice of Falun Gong in Canada is a continuation of his practice in China, and does not allege a new impetus to become a Falun Gong practitioner in Canada. Therefore, even if the RPD's credibility findings regarding the Appellant's lack of knowledge regarding Falun Gong principles and practice are incorrect, that does not change my conclusion regarding the Appellant's lack of credibility resulting from my finding that the narrative is not his. Further, given that he has not established that the narrative is his, he has not established that he is likely to engage in Falun Gong practice should he return to China. [31] The RPD found that the Appellant did not establish a sur place claim. That finding is not challenged in this appeal. Although the finding is unchallenged, having considered all the evidence, I have come to the same conclusion as the RPD. [32] I am not satisfied that the Appellant has established that he faces a serious possibility of persecution on a Convention ground or a risk of subsection 97(1) harm if he returns to China. CONCLUSION [33] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection.20 (signed) Neil Kaufman Neil Kaufman January 26, 2022 Date 1 Canada (M.C.I.) v. Huruglica, 2016 FCA 93, at para. 103. 2 Exhibit RPD-1, RPD Record, Exhibit 2, pp. 11-26. 3 Ibid., at pp. 21-26. 4 The RAD file number for Appeal 2 is TC1-02963. The RPD decision in that appeal was issued on March 17, 2021. 5 Refugee Protection Division Rules, SOR/2012-256 (RPD Rules), rule 21. 6 Refugee Appeal Division Rules, SOR/2012-257 (RAD Rules). 7 Ibid., rule 52. 8 RPD Rules, sub-rule 21(5). 9 Exhibit RAD-1, Revised Notice to Appellant and Minister - RAD Member's Direction, December 7, 2021 (the Notice). 10 Ibid., Redacted copy of BOC narrative, Appeal 2. 11 Ibid., the Comparison Table. A copy of this table is attached as Schedule \"A\" to these Reasons. 12 Exhibit M-1, Minister's response to Direction, December 9, 2021. 13 Exhibit P-3, Appellant's response to Direction, December 22, 2021 (Submissions). 14 X (Re), 2018 CanLII 101516 (CA IRB) (X (Re)), application for leave and judicial review dismissed (October 15, 2018, Federal Court File IMM-2291-18); Notice of Identification of Persuasive Decision - RAD TB7-16268, February 27, 2019, https://irb.gc.ca/en/decisions/Pages/persuasive-decision-boc.aspx (Notice of Identification). 15 Ibid., Notice of Identification. 16 X (Re), supra note 14, at para. 38. 17 Other examples are apparent from the Comparison Table. 18 For a similar conclusion by the RAD in another case involving similar narratives, see X (Re), 2019 CanLII 142489 (CA IRB), leave to appeal dismissed, November 11, 2020, Federal Court File No. IMM7368-19, per Elliott J. (X (Re) 2). 19 X (Re), supra, note 14, para. 60. 20 Pursuant to paragraph 111(1)(a) of the IRPA. SCHEDULE \"A\" Comparison of narratives TC1-02963 TC1-04323 I was a farmer in China for most time of my life. [The claimant does not state his occupation in his narrative, but testified at the hearing that he was a farmer in China] I began to suffer from XXXX in XXXX 2017.... I went to seek help from both Western and Chinese Doctors for about half a year...but those medical treatments could not give me much help. The pain caused me to have bad sleep and short temper. In XXXX 2017, I had XXXX. I sought assistance from both Chinese and Western doctors for about XXXX months but to no avail. My sickness made me short-tempered. In middle XXXX 2017, my friend LZ came to my home to visit me. After he heard about my complaint about my sickness, my friend introduced me to Falun Gong. In XXXX 2017, my friend, ML, introduced me to Falun Gong when he heard me complain about my sickness during visiting my home My friend told me that he was a Falun Gong practitioner for XXXX months and he practiced Falun Gong for his XXXX pain. My friend talked to me about the benefits of Falun Gong...My friend promised me that if I practiced Falun Gong regularly and lived according to the Falun Gong principles of Truthful, Compassion and Forbearance, my physical and mental health would be improved. My friend told me he practiced Falun Gong XXXX months ago for his XXXX pain and after XXXX months practicing he had got much relief from his XXXX pain. My friend talked to me about the benefits of Falun Gong and he promised that Falun Gong would help me too with my XXXX as well as my mental well-being if I practice Falun Gong exercises regularly and live according to the principles of Truthfulness, Compassion and Forbearance. I was surprised by what my friend told me as I knew Falun Gong was banned by the Chinese government. I asked my friend if he was concerned about violating the ban, and my friend told me that he only practiced at his home and other practitioners' homes and therefore he had nothing to worry about.... I told my friend I need to talk with my wife first. I was concerned because Falun Gong is banned in China. My friend told me if I only practiced Falun Gong in private I would have nothing to worry about. I told my friend I need to talk with my wife first. I asked my wife's permission to try Falun Gong. After I promised my wife I would only practice in private, my wife agreed. I discussed my friend's advice with my wife. After I promised to practice only in private, my wife agreed. A few days after my friend's introduction of Falun Gong, my friend began to come to my home to teach me the Falun Gong exercises and some Falun Gong basic knowledge. It took me about two weeks to feel comfortable to practice the exercises on my own. In addition to the Falun Gong exercises and knowledge, my friend also taught me how to send \"Righteous Thoughts\" to put an end to the persecution of Falun Gong practitioners by the Chinese government. After I felt comfortable to practice the five sets of Falun Gong exercises, I practiced every night at my own home and send \"Righteous Thoughts\" four times a day. A few days after my friend's introduction of Falun Gong, he began to go to my home to teach me the five sets of Falun Gong exercises. In addition, my friend also taught me some Falun Gong basic knowledge such as the transformation of Kama [sic]to Virtue and getting rid of attachments. It took me XXXX weeks of instruction to learn from my friend to be able to do the exercises properly on my own. I then practiced the Falun Gong exercises on my own at home. After XXXX months of regular practice, I got relief from my XXXX pain. Besides the physical improvement I also felt more energetic. XXXX months after I practiced Falun Gong, my XXXX improved and I felt more energy. As I was receiving benefit from the practice of Falun Gong, I tried to get my wife to practice with me, but due to the ban my wife was no [sic] interested. I tried to get my wife to practice with me, but she was not interested due to the ban. In XXXX 2018, my friend invited me to join his Falun Gong practice group for more benefit. My friend told me that in group practice the energy field would be stronger. Also, as Falun Gong materials are banned in China, I could learn more Falun Gong knowledge from the leader.... After getting support from my wife again, I joined the Falun Gong practice group in XXXX 2018. The group practice was held once every weekend (Saturday or Sunday) at different members' homes. In XXXX 2017, under my friend's suggestion I joined a Falun Gong practice group after getting my wife's permission again. My friend told me group practice could provide stronger energy field and I could learn more Falun Gong knowledge from experienced practitioners as Falun Gong materials were banned by Chinese government. My group practice which rotated between practitioners' homes was held on Saturdays or Sundays. The group practice stopped in XXXX 2018 when the leader heard the PSB would crackdown against Falun Gong and other illegal activities. I regularly attended the group practice until XXXX 2018 when we decided to stop group practice as the leader heard the PSB were going to crack down on Falun Gong practitioners assisted by neighbourhood committee. After my wife heard this information, she told me to stop practicing Falun Gong even at our own home. I informed my wife and that news made my wife very nervous. She told me to stop practicing Falun Gong before I got into real trouble. I do not want to give up Falun Gong as it already brought me lots of benefits. I talked with my wife and she would not permit me to practice Falun Gong at our own home. I decided that I wanted to move to another country where Falun Gong is free to practice and if I could get status in that country I would bring my wife and our daughter to join me. As Falun Gong already brought me much benefits I did not want to give up practicing. After several discussions with my wife I decided to go to North America to practice Falun Gong without any risk. I told my wife that once I am settled, I would arrange for her and our son to join me. My younger cousin found a snakehead to help me to leave China. The snakehead improperly obtained a Canadian Visitor Visa for me on XXXX XXXX, 2018 by using false information My cousin advised me to use a snakehead to help me and he offered to find a snakehead for me...The snakehead helped me obtain a Canadian Visitor Visa in XXXX 2018 by using some false information on the Visa application. On XXXX XXXX, 2018 I left China and flew to Toronto, Canada accompanied by the snakehead as I had never been outside of China before. On XXXX XXXX 2018 I, accompanied by the snakehead, flew from China to Toronto as I wanted the snakehead to help me get settled in Toronto. The snakehead took my original passport after he brought me to my rental place in Scarborough, Canada. The snakehead gave me copies of my passport's photo page and Canadian Visa page for my records. He told me that I have valid status in Canada for the next six months and if I want I could find an immigration consultant to consult on how to remain in Canada permanently. After we left Toronto PIA, the snakehead brought me to my rental room in Toronto. As I still owed her some money, she directed me to give her my original passport to hold. I asked the snakehead to make me a copy of the photo page and Canadian Visa page of my passport so I would have a record. Before the snakehead left, she told me that my Canadian Visitor Visa allowed me to stay in Canada legally for six months and I should find an immigration consultant to help me going forward. On the day I arrived in Canada, I resumed my practice of Falun Gong immediately in my rental room. I told my landlord that I was a Falun Gong practitioner and he informed me I would find other Falun Gong practitioners at XXXX XXXX. I went to XXXX XXXX in late XXXX 2018 and began to practice at XXXX XXXX with other practitioners several times each week. Once I arrived in Canada, I resumed Falun Gong practice. A few days later, I found a Falun Gong practice group in XXXX XXXX through my landlord. Since late XXXX 2018 I have been practicing Falun Gong at XXXX XXXX with other practitioners several times a week and on my own at home. I also purchased Master Li's book Zhaun [sic] Falun in XXXX bookstore at XXXX XXXX. Now I already finished the first talk of Zhaun Falun. It is hard for me to understand because I only have XXXX years' education. I purchased Master Li's book Zhuan Falun from XXXX bookstore in XXXX XXXX and I am on the second talk. This is the first time that I had access to Falun Gong material. Zhuan Falun is difficult for me to understand. I am trying my best. In the middle of XXXX 2018 I found an immigration consultant through a Falun Gong practitioner. I told the immigration consultant that I am a Falun Gong practitioner from China and I want to practice Falun Gong openly and freely in Canada for the rest of my life. The immigration consultant told me I could file a refugee claim in Canada based on my Falun Gong identity. I went to see an immigration consultant in late of XXXX 2018. I told the consultant I am a Falun Gong practitioner from China and I want to practice Falun Gong openly and freely in Canada permanently. The immigration consultant told me I could file a refugee claim in Canada. The immigration consultant brought me to see an immigration lawyer in middle XXXX 2018. I completed my refugee claim forms with the lawyer in middle December 2018. The immigration consultant referred me to an immigration lawyer. I, the immigration consultant and my lawyer together finished my refugee claim application forms in January 2019. It is impossible for me to practice Falun Gong openly and freely in my own country. My wife also refuses to allow me to practice in my own home. I cannot imagine the Chinese government removing the ban on Falun Gong for the rest of my life. It is impossible for me to practice Falun Gong openly and freely in my home country and I cannot imagine the Chinese government will remove the ban on Falun Gong in my lifetime. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC1-04323 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français", "response": "## Analysis of Refugee Decision: TC1-04323\n\n### Key Issues\nsoning in X (Re), because the issues raised in that decision are also raised in this case, and because I agree with the analytical framework and principles set out in that decision\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: d on a microscopic and flawed analysis of the Appellant's Falun Gong knowledge, in which the RPD expected the Appellant to display perfection regarding his Falun Gong knowledge. He also argues that the RPD wrongly failed to raise its concerns with the Appellant at the hearing, thereby denying the Appellant the opportunity to add\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "What legal errors did the Federal Court of Appeal identify in this Federal Court of Appeal of Canada decision?\n\nPublic Service Alliance of Canada v. Canada (House of Commons) Court (s) Database Federal Court of Appeal Decisions Date 2023-05-24 Neutral citation 2023 FCA 110 File numbers A-122-21 Decision Content Date: 20230524 Docket: A-122-21 Citation: 2023 FCA 110 CORAM: RIVOALEN J.A. ROUSSEL J.A. GOYETTE J.A. BETWEEN: PUBLIC SERVICE ALLIANCE OF CANADA Applicant and HOUSE OF COMMONS Respondent Heard at Ottawa, Ontario, on May 16, 2023. Judgment delivered at Ottawa, Ontario, on May 24, 2023. REASONS FOR JUDGMENT BY: RIVOALEN J.A. CONCURRED IN BY: ROUSSEL J.A. GOYETTE J.A. Date: 20230524 Docket: A-122-21 Citation: 2023 FCA 110 CORAM: RIVOALEN J.A. ROUSSEL J.A. GOYETTE J.A. BETWEEN: PUBLIC SERVICE ALLIANCE OF CANADA Applicant and HOUSE OF COMMONS Respondent REASONS FOR JUDGMENT RIVOALEN J.A. [1] This is an application for judicial review of the arbitral award rendered on April 21, 2021 (2021 FPSLREB 45) by the Federal Public Sector Labour Relations and Employment Board (the Board) established pursuant to section 50 of the Parliamentary Employment and Staff Relations Act, R.S.C. 1985, c. 33 (2nd Supp) (the Act). [2] In its decision, the Board rejected the applicant’s proposal seeking a new appendix to the collective agreement between the employees of the House of Commons in the Reporting Sub-Group and Text Processing Sub-Group (the bargaining unit) and the House of Commons. The proposal consisted of a Memorandum of Understanding that included a lump sum payment of $2,500 to each member of the bargaining unit for general damages to compensate for the stress, aggravation, and pain and suffering experienced related to the employer’s implementation of the Phoenix pay system. The applicant justified the proposal in an attempt to mirror an agreement between tens of thousands of employees from the core public administration and the Treasury Board (2020 Phoenix settlement agreement). [3] The parties agree that the standard of review of the Board’s decision is reasonableness. The question before the Court is whether the arbitral award was reasonable within the meaning of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov]. [4] The applicant submits that the arbitral award is unreasonable and must be set aside. The applicant says that the Board rejected its proposal for the lump sum payment of $2,500 on the erroneous basis that it was not convinced that the implementation issues experienced by members employed by the House of Commons were sufficiently widespread to justify an award of damages when compared to the issues experienced by the employees of the core public administration. [5] The applicant argues that the arbitral award is based on a flawed premise that proof of stress, aggravation, or pain and suffering caused by the Phoenix pay system is required and is unreasonable for this reason. In particular, the applicant submits that the Board failed to grasp the distinction that, in the 2020 Phoenix settlement agreement, there was no requirement for the applicant’s members to provide evidence of stress, aggravation, or pain and suffering related to a specific Phoenix-related pay problem in order to receive general damages of $2,500. The applicant’s rationale is that being under the Phoenix pay system is sufficient to establish the evidence of stress based on the potential for serious pay problems. As it did before the Board, the applicant also points to the example of employees working for the Canada Revenue Agency (CRA), who were under the Phoenix pay system, having received the lump sum payment of $2,500 without having experienced any Phoenix-related pay problems. The applicant further argues that, in its analysis on this point, the Board improperly treated general damages as if they were part of total compensation. [6] I am of the view that the applicant’s arguments cannot stand. I see no basis to conclude that the Board’s decision was unreasonable. [7] Under the judicial review framework set out in Vavilov, a reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov at para. 85). The burden is on the party challenging a decision to show that it is unreasonable, a conclusion that requires showing that the decision contains a serious flaw. In addition, the reviewing court must refrain from reweighing and reassessing the evidence considered by the decision maker. Reviewing courts must also ordinarily refrain from deciding the issue that was before the decision maker and must respect the decision maker’s role and expertise (Vavilov at paras. 75, 83, 100, 125). [8] The Board, in this case, had wide authority—under the interest arbitration process—to resolve matters referred to it, determine the appropriate terms and conditions of employment, and impose those terms via a binding award. This Court has recognized that interest arbitrators are afforded wide discretion to settle the terms of the parties’ collective agreement, and the decisions they make are almost always policy determinations and rarely involve legal issues. Additionally, this Court has recognized that the need for finality, which animates the need for deference in labour cases generally, is particularly acute in interest arbitration cases (Laurentian Pilotage Authority v. Pilotes du Saint-Laurent Central Inc., 2018 FCA 117, 299 A.C.W.S. (3d) 235 at paras. 60-61, 63). [9] As its reasons disclose, the Board took into account the factors set out in section 53 of the Act. It weighed the evidence and considered the proposals made by the parties. At paragraphs 75 to 83 of its reasons, the Board set out a coherent and rational basis for its decision to reject the proposal for a lump sum payment of $2,500 to each member of the bargaining unit. Weighing all considerations, the Board was not prepared to establish the precedent of matching the 2020 Phoenix settlement agreement in the arbitral award and did not accept that matching a damage award designed to compensate employees for the specific problems that occurred in the Treasury Board’s jurisdiction was justified by a comparability argument without having clearer evidence that problems of similar or substantial extent occurred at the House of Commons. [10] Similarly, the Board was not convinced by the situation of the employees of the CRA who were entitled to the lump sum. The Board noted, at paragraph 77 of its reasons, that the CRA employees received a smaller general economic increase in the third and fourth years of their collective agreement than that awarded by the Board in its arbitral decision. It was within the Board’s ambit to consider total compensation in conducting its comparability analysis with respect to the CRA employees. [11] Turning specifically to the evidence on the record, I note that the evidence submitted by the applicant before the Board consisted of a sample of four employees of the bargaining unit (out of a total of 62) who experienced pay issues during the Phoenix implementation. There was no evidence to substantiate that members suffered stress, aggravation, or pain and suffering because of pay-related issues. [12] In response, the evidence submitted by the respondent before the Board was that it implemented efficient and flexible mechanisms to mitigate against any negative impacts the Phoenix pay system caused to its employees. In addition, the respondent offered extensive reasons for opposing the lump sum payment proposal. It outlined the history of the Phoenix implementation in the core public administration and provided reasons why that history differed considerably from that experienced by employees of the House of Commons. Also, of the four samples provided by the applicant, three were not related to Phoenix issues but were rather because of human error. [13] As previously mentioned, the Board considered and weighed the proposals from both sides, as it was required to do. There was no evidence before it that any of the applicant’s members working at the House of Commons had experienced stress, aggravation, or pain and suffering from Phoenix-related pay problems, let alone problems of similar or substantial extent to those experienced by the employees of the core public administration. [14] Thus, I am of the view that the applicant has not met its burden to show that the Board’s decision was unreasonable. I see no serious flaw in the Board’s reasoning, based on the record that was before it and the positions taken by both parties in the arbitral dispute. The arbitral award is based on an internally coherent and rational chain of analysis that is justified in relation to the record and the Board’s authority under the Act. [15] The applicant is asking this Court to reweigh the evidence that was before the Board, which is not its role. I see no reason to intervene. [16] For these reasons, I would dismiss the application for judicial review with costs. \"Marianne Rivoalen\" J.A. “I agree. Sylvie E. Roussel J.A.” “I agree. Nathalie Goyette J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-122-21 STYLE OF CAUSE: PUBLIC SERVICE ALLIANCE OF CANADA v. HOUSE OF COMMONS PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: May 16, 2023 REASONS FOR JUDGMENT BY: RIVOALEN J.A. CONCURRED IN BY: ROUSSEL J.A. GOYETTE J.A. DATED: MAY 24, 2023 APPEARANCES: Andrew Astritis Simcha Walfish For The Applicant Carole Piette Jean-Michel Richardson For The Respondent SOLICITORS OF RECORD: Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l. Ottawa, Ontario For The Applicant Emond Harnden LLP/s.r.l. Ottawa, Ontario For The Respondent", "response": "## Analysis of Court Decision: Public Service Alliance of Canada v. Canada (House of Commons)\n\n### Key Issues\ninced that the implementation issues experienced by members employed by the House of Commons were sufficiently widespread to justify an award of damages when compared to the issues\n\n### Standard of Review\n3] The parties agree that the standard of review of the Board’s decision is reasonableness. The question before the Court is whether the arbitral award was reasonable within the me\n\n### Legal Analysis\nThe court's analysis focuses on: t further argues that, in its analysis on this point, the Board improperly treated general damages as if they were part of total compensation. [6] I am of the view that the applicant’s arguments cannot stand. I see no basis to conclude that the Board’s decision was unreasonable. [7] Under the judicial review framework set out in\n\n### Precedential Value\nAs a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation."}
{"prompt": "What is the key holding of this Federal Court of Appeal of Canada decision?\n\nCanadian Tire Corporation Ltd. v. Canada (Border Services Agency) Court (s) Database Federal Court of Appeal Decisions Date 2023-05-30 Neutral citation 2023 FCA 117 File numbers A-3-22 Decision Content Date: 20230530 Docket: A-3-22 Citation: 2023 FCA 117 CORAM: DE MONTIGNY J.A. LASKIN J.A. MACTAVISH J.A. BETWEEN: CANADIAN TIRE CORPORATION LTD. Appellant and PRESIDENT OF THE CANADA BORDER SERVICES AGENCY Respondent Heard at Ottawa, Ontario, on May 30, 2023. Judgment delivered from the Bench at Ottawa, Ontario, on May 30, 2023. REASONS FOR JUDGMENT OF THE COURT BY: DE MONTIGNY J.A. Date: 20230530 Docket: A-3-22 Citation: 2023 FCA 117 CORAM: DE MONTIGNY J.A. LASKIN J.A. MACTAVISH J.A. BETWEEN: CANADIAN TIRE CORPORATION LTD. Appellant and PRESIDENT OF THE CANADA BORDER SERVICES AGENCY Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on May 30, 2023). DE MONTIGNY J.A. [1] At issue in this appeal is the proper classification under the Customs Tariff of goods described as “marine winch straps” (the goods at issue). They comprise both a textile strap and a forged metal hook at one end of the strap, which is used to fasten the strap to the load that is to be moved by operation of a winch (sold separately). The sole issue before the Canadian International Trade Tribunal (the Tribunal), and now before us on appeal, is whether the goods should be classified under heading 59.11 as “Textile products and articles, for technical uses, specified in Note 7 to this Chapter” or under heading 63.07 as “Other made up articles, including dress patterns”. The appellant argues that these goods should be classified under heading 59.11. Once the goods are placed under the correct heading, the parties do not dispute the applicable subheading or specific tariff item. [2] In its Decision of November 9, 2021 (Canadian Tire Corporation Limited v. President of the Canada Border Services Agency, AP-2020-20), the Tribunal confirmed the Canada Border Service Agency’s decision that the goods at issue do not fall within heading 59.11, but are rather classifiable under heading 63.07. The Tribunal came to that conclusion on the basis of Legal Note 7 to Section XI of Chapter 59 of the Customs Tariff (S.C. 1997, c. 36), which prescribes that only goods falling within either Note 7(a) or Note 7(b) may be classified under heading 59.11. The Tribunal further found that Note 7(b) was the only one being applicable to the goods at issue. It reads as follows: Textile articles (other than those of headings 59.08 to 59.10) of a kind used for technical purposes (for example, textile fabrics and felts, endless or fitted with linking devices, of a kind used in paper-making or similar machines (for example, for pulp or asbestos-cement), gaskets, washers, polishing discs and other machinery parts. [3] While recognizing that the goods at issue were both “textile articles” and “used for technical purposes”, the Tribunal nevertheless found that they could not be classified under heading 59.11 because explanatory note (B) to heading 59.11 requires that goods must remain “essentially articles of textile” to fall under that heading. Relying on earlier jurisprudence considering the nature of an “accessory”, the Tribunal determined that the metal hook would have to be “optional, incidental or a mere accessory” for the goods to be “essentially” an article of textile. Since the hook is essential to the operable functionality of the marine winch strap and cannot be removed or replaced with another type of fastener, the Tribunal found that these goods were not classifiable under heading 59.11 but fell under heading 63.07. [4] Before us, the appellant claims that the Tribunal erred in applying heading 59.11 to the goods at issue, and contends that the marine winch straps are indeed essentially articles of textile. Yet the application of a provision of the Customs Tariff to a set of facts is a mixed question of fact and law, and is not properly before us. Pursuant to subsection 68(1) of the Customs Act, R.S.C. 1985, c. 1, this Court may only hear appeals from decisions of the Tribunal based on questions of law. We have not been persuaded that the Tribunal erred in its application of the General Rules for the Interpretation of the Harmonized System found in the Schedule to the Customs Tariff, and in particular of Rule 1 and of its interplay with Rule 2. [5] Even if we were prepared to entertain the appellant’s arguments, we have not been convinced that the Tribunal erred in its interpretation of Legal Notes 7(b) or 8(a). With regard to Note 7(b), the appellant argues that the Tribunal failed to consider that “paper-making machines” is but one example of the type of machine that the goods can be attached to in order to benefit from heading 59.11. A careful reading of the Tribunal’s reasons belies that claim. Not only did the Tribunal italicize the words “of a kind used in paper-making or similar machines” when quoting Legal Note 7(b) (at para. 72 of its reasons), but it also stressed in the following paragraph that the marine winch is not “of a kind” used for paper-making machines and observed that there was no evidence that the hand operated winch is used in conjunction with the goods at issue is “similar” to a paper-making machine. [6] As for Legal Note 8(a), the appellant contends that the Tribunal erred in relying on Legal Note 8, pursuant to which goods that are “made up articles” within the meaning of Legal Note 7 are prima facie excluded from Chapter 59. There is no issue that the goods are “made up articles”; what the appellant claims is that the Tribunal paid no attention to the words “except where the context otherwise requires” in Legal Note 8. Once again, this argument is without merit because the Tribunal did advert to these words and expressly found there to be “no probative evidence … concerning the nature of any context that would render legal note 8 (sic) inapplicable or irrelevant to the goods at issue or to the classification analysis” (at para. 84). Moreover, the appellant failed to provide any element of context that was put forward and ignored by the Tribunal. [7] For all of the foregoing reasons, we are therefore of the view that the Tribunal did not err in finding that heading 59.11 does not apply to the goods at issue, and that the goods at issue are more properly classifiable under heading 63.07. As such, the appeal will be dismissed, with costs. \"Yves de Montigny\" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-3-22 STYLE OF CAUSE: CANADIAN TIRE CORPORATION LTD. v. PRESIDENT OF THE CANADA BORDER SERVICES AGENCY PLACE OF HEARING: OTTAWA, ONTARIO DATE OF HEARING: May 30, 2023 REASONS FOR JUDGMENT OF THE COURT BY: DE MONTIGNY J.A. LASKIN J.A. MACTAVISH J.A. DELIVERED FROM THE BENCH BY: DE MONTIGNY J.A. APPEARANCES: Michael Kaylor For The Appellant Sarah-Dawn Norris Taylor Andreas For The Respondent SOLICITORS OF RECORD: Lapointe Rosenstein Marchand Melançon, LLP Montréal, Quebec For The Appellant Shalene Curtis-Micallef Deputy Attorney General of Canada For The Respondent", "response": "## Analysis of Court Decision: Canadian Tire Corporation Ltd. v. Canada (Border Services Agency)\n\n### Key Issues\nto a set of facts is a mixed question of fact and law, and is not properly before us. Pursuant to subsection 68(1) of the Customs Act, R.S.C. 1985, c. 1, this Court may only hear\n\n### Standard of Review\nCanadian Tire Corporation Ltd. v. Canada (Border Services Agency) Court (s) Database Federal Court of Appeal Decisions Date 2023-05-30 Neutral citation 2023 FCA 117 File numbers A-3-22 Decision Content Date: 20230530 Docket: A-3-22 Citation: 2023 FCA 117 CORAM: DE MONTIGNY J.A. LASKIN J.A. MACTAVISH J.A. BETWEEN: CANADIAN TIRE CORPORATION LTD. Appellant and PRESIDENT OF THE CANADA BORDER SERVICES AGENCY Respondent Heard at Ottawa, Ontario, on May 30, 2023. Judgment delivered from the Bench at Ottawa, Ontario, on May 30, 2023. REASONS FOR JUDGMENT OF THE COURT BY: DE MONTIGNY J.A. Date: 20230530 Docket: A-3-22 Citation: 2023 FCA 117 CORAM: DE MONTIGNY J.A. LASKIN J.A. MACTAVISH J.A. BETWEEN: CANADIAN TIRE CORPORATION LTD. Appellant and PRESIDENT OF THE CANADA BORDER SERVICES AGENCY Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on May 30, 2023). DE MONTIGNY J.A. [1] At issue in this appeal is the proper classification under the Customs Tariff of goods described as “marine winch straps” (the goods at issue). They comprise both a textile strap and a forged metal hook at one end of the strap, which is used to fasten the strap to the load that is to be moved by operation of a winch (sold separately). The sole issue before the Canadian International Trade Tribunal (the Tribunal), and now before us on appeal, is whether the goods should be classified under heading 59.11 as “Textile products and articles, for technical uses, specified in Note 7 to this Chapter” or under heading 63.07 as “Other made up articles, including dress patterns”. The appellant argues that these goods should be classified under heading 59.11. Once the goods are placed under the correct heading, the parties do not dispute the applicable subheading or specific tariff item. [2] In its Decision of November 9, 2021 (Canadian Tire Corporation Limited v. President of the Canada Border Services Agency, AP-2020-20), the Tribunal confirmed the Canada Border Service Agency’s decision that the goods at issue do not fall within heading 59.11, but are rather classifiable under heading 63.07. The Tribunal came to that conclusion on the basis of Legal Note 7 to Section XI of Chapter 59 of the Customs Tariff (S.C. 1997, c. 36), which prescribes that only goods falling within either Note 7(a) or Note 7(b) may be classified under heading 59.11. The Tribunal further found that Note 7(b) was the only one being applicable to the goods at issue. It reads as follows: Textile articles (other than those of headings 59.08 to 59.10) of a kind used for technical purposes (for example, textile fabrics and felts, endless or fitted with linking devices, of a kind used in paper-making or similar machines (for example, for pulp or asbestos-cement), gaskets, washers, polishing discs and other machinery parts. [3] While recognizing that the goods at issue were both “textile articles” and “used for technical purposes”, the Tribunal nevertheless found that they could not be classified under heading 59.11 because explanatory note (B) to heading 59.11 requires that goods must remain “essentially articles of textile” to fall under that heading. Relying on earlier jurisprudence considering the nature of an “accessory”, the Tribunal determined that the metal hook would have to be “optional, incidental or a mere accessory” for the goods to be “essentially” an article of textile. Since the hook is essential to the operable functionality of the marine winch strap and cannot be removed or replaced with another type of fastener, the Tribunal found that these goods were not classifiable under heading 59.11 but fell under heading 63.07. [4] Before us, the appellant claims that the Tribunal erred in applying heading 59.11 to the goods at issue, and contends that the marine winch straps are indeed essentially articles of textile. Yet the application of a provision of the Customs Tariff to a set of facts is a mixed question of fact and law, and is not properly before us. Pursuant to subsection 68(1) of the Customs Act, R.S.C. 1985, c. 1, this Court may only hear appeals from decisions of the Tribunal based on questions of law. We have not been persuaded that the Tribunal erred in its application of the General Rules for the Interpretation of the Harmonized System found in the Schedule to the Customs Tariff, and in particular of Rule 1 and of its interplay with Rule 2. [5] Even if we were prepared to entertain the appellant’s arguments, we have not been convinced that the Tribunal erred in its interpretation of Legal Notes 7(b) or 8(a). With regard to Note 7(b), the appellant argues that the Tribunal failed to consider that “paper-making machines” is but one example of the type of machine that the goods can be attached to in order to benefit from heading 59.11. A careful reading of the Tribunal’s reasons belies that claim. Not only did the Tribunal italicize the words “of a kind used in paper-making or similar machines” when quoting Legal Note 7(b) (at para. 72 of its reasons), but it also stressed in the following paragraph that the marine winch is not “of a kind” used for paper-making machines and observed that there was no evidence that the hand operated winch is used in conjunction with the goods at issue is “similar” to a paper-making machine. [6] As for Legal Note 8(a), the appellant contends that the Tribunal erred in relying on Legal Note 8, pursuant to which goods that are “made up articles” within the meaning of Legal Note 7 are prima facie excluded from Chapter 59. There is no issue that the goods are “made up articles”; what the appellant claims is that the Tribunal paid no attention to the words “except where the context otherwise requires” in Legal Note 8. Once again, this argument is without merit because the Tribunal did advert to these words and expressly found there to be “no probative evidence … concerning the nature of any context that would render legal note 8 (sic) inapplicable or irrelevant to the goods at issue or to the classification analysis” (at para. 84). Moreover, the appellant failed to provide any element of context that was put forward and ignored by the Tribunal. [7] For all of the foregoing reasons, we are therefore of the view that the Tribunal did not err in finding that heading 59.11 does not apply to the goods at issue, and that the goods at issue are more properly classifiable under heading 63.07. As such, the appeal will be dismissed, with costs. \"Yves de Montigny\" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-3-22 STYLE OF CAUSE: CANADIAN TIRE CORPORATION LTD. v. PRESIDENT OF THE CANADA BORDER SERVICES AGENCY PLACE OF HEARING: OTTAWA, ONTARIO DATE OF HEARING: May 30, 2023 REASONS FOR JUDGMENT OF THE COURT BY: DE MONTIGNY J.A. LASKIN J.A. MACTAVISH J.A. DELIVERED FROM THE BENCH BY: DE MONTIGNY J.A. APPEARANCES: Michael Kaylor For The Appellant Sarah-Dawn Norris Taylor Andreas For The Respondent SOLICITORS OF RECORD: Lapointe Rosenstein Marchand Melançon, LLP Montréal, Quebec For The Appellant Shalene Curtis-Micallef Deputy Attorney General of Canada For The Respondent\n\n### Legal Analysis\nThe court's analysis focuses on: ssue or to the classification analysis” (at para. 84). Moreover, the appellant failed to provide any element of context that was put forward and ignored by the Tribunal. [7] For all of the foregoing reasons, we are therefore of the view that the Tribunal did not err in finding that heading 59.11 does not apply to the goods at is\n\n### Precedential Value\nAs a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation."}
{"prompt": "Analyze this Refugee Appeal Division decision from the Immigration and Refugee Board of Canada and explain its implications for refugee determination:\n\nRAD File / Dossier de la SAR : MC1-05134 MC1-05135 / MC1-05136 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal [REDACTED] [REDACTED] [REDACTED] XXXX XXXX Personnes en cause Date of decision January 31, 2022 Date de la décision Panel Michael J. Gardiner Tribunal Counsel for the persons who are the subject of the appeal Jacqueline M Lewis Conseil des personnes en cause Designated representative [REDACTED]for[REDACTED] XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal. [REDACTED] (Principal Appellant), [REDACTED] (Associate Appellant), and [REDACTED] (Minor Associate Appellant) are citizens of Nigeria. 1. The Appellants fear harm at the hands of their extended family due to the Appellants' opposition to Female Genital Mutation (FGM). The Appellants allege that family members want to subject the Associate Appellants to the practice. 2. The Refugee Protection Division (RPD) found that the Appellants are not credible in their claim. 3. The Appellants argue on appeal that the RPD erred in finding that the Appellants are not credible. 4. The determinative issue for Refugee Appeal Division (RAD) is whether the RPD erred in finding that the Appellants are not credible. 5. I find that the RPD did not err. I agree with the RPD that there are serious omissions and inconsistencies in the Appellants' testimony. I find that the Appellants are not credible. DECISION [2] I dismiss the appeal. The RPD was correct in finding that the Appellants are neither Convention1 refugees nor persons in need of protection. BACKGROUND [3] The Appellants' main allegations are set out in the Principal Appellant's Basis of Claim (BOC) form. The Associate Appellants have adopted the same allegations. [4] The Appellants allege they face persecution from family members because the Appellants are opposed to FGM. The Appellants allege in their BOC form that family members seek to perform FGM/Circumcision (FGM/C) on the Minor Associate Appellant. In addition, the Associate Appellant testified at the RPD hearing that she fears being subjected to FGM/C by family members. [5] The Principal Appellant was born into a practicing Muslim family with five siblings. The Principal Appellant converted to Christianity in 2013. He is XXXX XXXX as a result of a childhood XXXX XXXX. [6] The Appellants testified that they were approached in 2014 by members of the Principal Appellant's family seeking to perform FGM/C on the Minor Associate Appellant, their daughter. [7] The Appellants testified that in 2016 family members attempted to kidnap the Minor Associate Appellant in order to perform FGM/C on her. The attempt was thwarted but the agents of persecution continued to threaten and harass the Appellants. [8] The Appellants left Ogun state for Lagos State in XXXX 2017. They remained in Lagos State until they left Nigeria for the United States (USA) in XXXX 2017. They remained in the USA until XXXX XXXX, 2017, when they crossed the borderinto Canada and claimed refugee protection. [9] The Principal Appellant and Associate Appellant have a daughter who was born in Canada on XXXX XXXX, 2018. The Appellants testified that their daughter has XXXX XXXXdisease, commonly known as [REDACTED]. The Appellants allege that she faces persecution and death from family members in Nigeria who believe that babies with this condition should not live. [10] The Principal Appellant and Associate Appellant have a son who was born in Canada on XXXX XXXX, 2021. The Appellants do not allege that their infant son has health problems. CHILDREN BORN IN CANADA [11] The Appellants' two children who were born in Canada are Canadian citizens by birth. [12] Canadian citizens cannot claim refugee protection in Canada, they enjoy the full protection of the Canadian state by virtue of their Canadian citizenship. As citizens of Canada, they enjoy the right to remain in Canada and the right to leave and re-enter Canada. [13] The RPD found that there is insufficient evidence to conclude that the Appellants would face a serious possibility of persecution or a likelihood of section 97 harm2 if they were to return to Nigeria with a child with [REDACTED]. The Appellants do not challenge this finding on appeal. [14] I agree with the RPD Panel. I find there is insufficient evidence in the record before me to support a finding that the Appellants would face a serious possibility of persecution, or a likelihood of section 97 harm were they to return to Nigeria with a daughter with XXXX XXXX disease. ANALYSIS [15] My role is to look at all the evidence and decide if the RPD made the correct decision.3 As part of my analysis, I have conducted an independent assessment of the evidence and the arguments.4 The Appellants are not credible in their claim [16] The Appellants argue on appeal that the RPD Panel erred in finding that the Appellants are not credible in their claim. I find that the RPD did not err for the reasons that follow. [17] When a person swears to the truth of certain allegations before the Immigration and Refugee Board of Canada, there is a presumption that those allegations are true unless there is a reason to doubt their truthfulness. This presumption of truthfulness does not apply to inferences or conclusions a witness may draw from facts, or to speculation for which there is no evidentiary basis.5 [18] The presumption that a person's sworn testimony is true may be rebutted where problems are identified with the testimony. These problems can include contradictions, inconsistencies, and omissions; incoherent or vague testimony; limited knowledge of key elements of the case; or a reliance on false documents. [19] The RPD identified problems with the Appellants' testimony and found that these problems are sufficient to rebut the presumption that the Appellants' testimony is true. The RPD identified omissions in the Appellants' BOC form narratives regarding persecution in Nigeria in 2014 and failure to include police reports in their BOC form narrative. The RPD took a negative inference from the Associate Appellants claim in her testimony at the RPD that she fears the agents of persecution will perform FGM on her where she has not mentioned this fear in her BOC form narrative. The RPD took a negative inference from the Appellants testimony regarding their stay in Lagos. The Associate Appellant's fear of FGM [20] The RPD drew a negative credibility inference from the Associate Appellant's allegations regarding her fears of FGM/C being performed on her by the agents of persecution. The Appellants do not challenge the RPD's negative credibility inference with respect to the Associate Appellant's fear of FGM/C, however the Appellants challenge the RPD's overall finding that the Appellants are not credible in their claim. [21] The RPD found: [24] During the hearing, the co-claimant testified about her fear of becoming a victim of FGM/C herself as the extended family members, Mr. XXXX and Mr. XXXX started demanding the performance of the ritual on her also. She was asked on the reason behind the omission in her BOC form narrative that in addition to minor claimant's FGM/C, she fears for her own FGM/C also. She stated, 'we came to this place, we were scared, and it skipped our mind'.6 [22] The RPD noted that: [26] ...While the co-claimant was first approached for her own FGM/C after the birth of the minor claimant in XXXX 2014, nonetheless, she failed to mention it in her story that was written three years after this incident (in 2017) and the hearing was further held four years (XXXX 2021) after the story was written and submitted. She had ample opportunities and time to make this material addition to her story.7 [23] Based on the record before me, I agree with the RPD. I note that the Appellants were represented by Counsel at the RPD hearing in January 2021 and the RPD hearing in June 2021. The Appellants affirmed that their BOC form narratives were complete and correct. The Associate Appellants rely on the narrative in the Principal Appellant's BOC form. [24] The Principal Appellant submitted an updated BOC form narrative on XXXX XXXX, 2021 through the Appellants' Counsel. The updated BOC form narrative describes the circumstances of the Appellants' Canadian-born children.8 The updated narrative does not include any mention that the Associate Appellant fears FGM/C herself. [25] Based on the record before me, I agree with the RPD Panel. I take a negative credibility inference. I do not accept the Associate Appellant's explanation that she omitted to mention her own fear FGM/C until the RPD hearing June 4, 2021, because the Appellants were scared and her own fear of FGM skipped her mind. The Appellants have not advanced any additional reason for this omission. Omissions in the Appellants BOC form [26] The Appellants argue on appeal that the RPD erred in considering omissions in their BOC form narrative. The Appellants cite Feradov v. Canada (Minister of Citizenship and Immigration), 2007 FC 101, at paragraphs 18-19. [27] I do not agree that the RPD erred. In paragraph 18 of the jurisprudence cited by the Appellants, the Federal Court held: \"While the failure to mention material or key allegations of persecution in one's PIF is a reasonable basis for concern, the omission of peripheral detail is not.\"9 [28] The RPD found that the Appellants omitted mention of the first incidence of harassment from the family in 2014 including that the Appellants sought assistance from the police. The RPD found that the Appellants omitted from their BOC form that they went to the police following the 2016 incident. The RPD found that the Appellants omitted from their BOC form narrative that the Associate Appellant also feared being subjected to FGM/C. The RPD did not accept the Appellants' explanation for the omissions. [29] I find that these omissions are not omissions of \"peripheral detail\" but rather are material or key allegations of the Appellants claim. I note that the Appellant testified that they completed their initial BOC form documents with assistance from counsel. I note that the Appellants submitted a revised BOC form narrative to the RPD in XXXX 2021 before the second RPD hearing. The RPD was represented by the same Counsel at both RPD hearings. I do not accept the Appellants' explanation for these omissions. The Minor Associate Appellant's fear of FGM [30] With respect to the Appellants' fear regarding the Minor Associate Appellant and FGM, the Appellants argue on appeal: [12] It is submitted that the RPD did not dispute the Appellants' narrative nor testimony per se. The member did not draw any adverse inference, nor make any implausibility finding. Instead, the member focused only on the \"omission\" of facts that, in its opinion, should have been present in the Appellant's narrative. [...] [21] It is submitted that the Appellants' narrative and testimony alone are sufficient to substantiate the claim. They are presumed true, have not been disputed, and provide enough basis and information to support their fear that was generated after the principal Appellant and the co-Appellant's refusal to allow this practice/family tradition to be perpetrated on the minor claimant.10 [31] The Appellants further argue on appeal: [24] It is submitted that the Appellants have met the evidentiary burden of proof. The narrative and testimony, which are presumed true and undisputed by the RPD, in conjunction with the documentary evidence, are more than sufficient to meet the balance of probability standard.11 [32] I do not agree with the Appellants' argument on appeal. Contrary to the Appellants' assertions, the RPD drew an adverse inference with respect to the Appellants' fears regarding the Minor Associate Appellant. The RPD concluded: \"Given the foregoing, the panel makes a negative inference of the claimants' credibility as it relates to their fear of their persecutors due to their refusal to allow them to perform FGM/C on the minor claimant.\"12 2014 Threats not included in BOC form [33] The Principal Appellant testified at the RPD hearing that the agent of persecution first approached the Appellants in XXXX 2014 seeking to perform FGM/C on the Minor Associate Appellant. The Principal Appellant testified that when the Appellants refused, they started to receive threatening phone calls from Mr. XXXXand Mr. XXXX. The Principal Appellant testified that he approached the police to report the threats, but the police declined to take his report because Mr. XXXX is a powerful man and the police viewed the situation as a family matter. [34] The 2014 threats are not included in the Appellants' BOC form narrative. The Appellants' BOC form narrative states that the agents of persecution approached the Appellants in 2016:13 Initially, we did not take the issue seriously when we were approached by relatives on XXXX XXXX,2016 to bring XXXX for circumcision. Two elders from the village came to my house asking that we bring her to the village as soon as possible. [35] The RPD asked the Principal Appellant why the details of the 2014 threats are not included in the Appellants' BOC form narrative or amended BOC form narrative. The Principal Appellant testified that he did not include details of 2014 incidents in his BOC form because \"...when we came here we were scared...[and] we could not think straight, so we did not know what to do.\"14 [36] The RPD noted that the Appellants were asked for any new information at the outset of the RPD hearing. The Appellants did not indicate that they had any new information. The RPD concluded that: [20] Though the claimants may have been scared or disoriented when they first arrived in Canada, they had three years after submitting their BOC until the day of the hearing to include this information. Furthermore, they provided an amendment to their BOC prior to the second sitting, still they made no mention of these material allegations.15 [37] I agree with the RPD. I also note that the Principal Appellant testified that the Appellants completed their BOC form narrative with the assistance of Counsel. When the RPD Panel asked the Principal Appellant why he had not indicated on his BOC form at question 2(c) that he had visited police, the Principal Appellant testified that: The lawyer we were using when we first arrived before we changed to this new lawyer, she is the one that told us that because when, because we don't have any evidences, so she said we didn't need to write anything because according to the police it is a family matter and they were not going to get involved. So according to her because we did not have any evidence concerning that, that is why she said we didn't need to write it.16 [38] I do not accept the Appellants explanation that the omissions in the Appellants' BOC form narrative are attributable to the legal advice they received in Canada. 2016 report to police omitted from BOC form Narrative. [39] The Principal Appellant's BOC form narrative states: The worst came when on XXXX XXXX, 2016 individuals claiming to have been sent by us tried to pick up our daughter from the day care/ school. The school authorities refused to let our daughter go as my wife was always the one taking her from and back to the day care/ school. Shortly after, my wife arrived, and those men fled.17 [40] The Associate Appellant testified at the RPD hearing that she went immediately to the police to file a report but that the police told her it was a family matter.18 When the RPD asked why the Appellants had not included in their BOC form that they went to the police, the Associate Appellant testified: \"The main reason why we did not put it in our story was the same reason we give earlier, that we were not settled, our mind was not at rest then we came in.\"19 [41] I do not accept the accept the Appellants' explanation. I take a negative credibility inference. Hiding in Lagos [42] The Appellants argue on appeal that the RPD erred in finding that Appellants have failed to establish that the main impetus behind relocating to Lagos in XXXX 2017 was to keep their persecutors at bay. [43] The Principal Appellant's BOC form narrative states: ...We couldn't stand all that pressure and all the threats so in early XXXX 2017, I left my job and we moved to Lagos state to avoid any direct contact with my relatives and be free of threats and of the constant harassment. We stayed with a friend with the hope that we have been able to overcome the battle. We were traced to our new location and the threats continued. We met someone at the church we were attending who promised to assist us in securing an America visa.20 [44] The RPD identified two concerns with the Appellants' testimony regarding their move to Lagos. The RPD's first concern was that that the Appellants continued to live with XXXX XXXX (Mr. XXXX) after the Appellants say they were located by the agents of persecution in Lagos. I will consider the Appellants' movements and lodging in Lagos when I consider the affidavit from Mr. XXXX in the analysis that follows. [45] The RPD's second concern was that the Appellants continued to attend church once the agents of persecution had identified their location and church affiliation. [46] The Appellants argue on appeal that: [27] ...As per the Church, the Appellants testified that they are devoted Christians and as such, they have to attend the Church regularly. As their lives were in danger, they could not stop going to Church and pray for God to help them and rescue them from this unfortunate situation.21 [47] The RPD noted that \"the claimants knew that their agents of persecution inquired about them from the pastor of their church in Lagos on XXXX XXXX, 2017, nevertheless, they continued to go to church but 'after some time they stopped going.'\"22 [48] The RPD found that the Appellants' behaviour was not consistent with persons in hiding. I agree with the RPD. I do not accept the Appellants' arguments on appeal that they had to go to church because they were Christian. When the RPD canvassed the matter, the Principal Appellant did not identify a religious duty to attend church and testified that they stopped going to church after some time.23 The Principal Appellant did not provide an explanation for this change in behaviour. When the RPD asked the Principal Appellant when they stopped going to church, he testified: \"That is where we still were, we didn't go anywhere, we didn't leave the place, that is where we still were.\"24 Affidavit from XXXX XXXX and Appellants' Movements in Lagos [49] The Appellants argue on appeal that the RPD erred by not accepting Mr. XXXX affidavit. I find that the RPD did not err for the reasons that follow. [50] The Appellants adduced an affidavit from XXXX XXXX in which Mr. XXXX states: \"That the entire family [the Appellants] stayed with me in Lagos State for some weeks only going out on occasions for fear of not being noticed by the adversaries and perhaps people in connivance with them.\"25 [51] The Principal Appellant testified that the family stayed at the home of his friend Mr. XXXX for about three months.26 When the RPD asked what measures they took to hide after they were located by the agents of persecution, the Principal Appellant testified that the Appellants moved from house to house. [52] The Appellants cite jurisprudence that letters or affidavits need to be considered for what they do say, not for what they do not.27 [53] I find that the RPD accepted Mr. XXXX affidavit and I find that the RPD considered the affidavit in accordance with jurisprudence. I find that Mr. XXXX affidavit contradicts the Principal Appellant's testimony. The Principal Appellant testified that the Appellants moved from house to house in Lagos to avoid detection; Mr XXXX writes in his affidavit that the Appellants stayed with him and only went out on occasion. When the RPD canvassed the inconsistency with the Principal Appellant, the Principal Appellant explained that the Appellants stayed with Mr. XXXX but moved from house to house within Mr. XXXX compound. The RPD did not accept the Principal Appellant's explanation. I do not accept the Principal Appellant's explanation. I find that the Principal Appellant's testimony evolved when questioned by the RPD Panel. I take a negative credibility inference. [54] I note that the affidavit from the Principal Appellant' sister states \"that the constant threat by the family culminated in their decision to relocate at the expense of the employments to seek safety, from where they were able to move out of the country.\"28 The affidavit does not provide any details of the move nor does it set out how the Appellants sought safety in Lagos beyond moving there. [55] The RPD concluded that: [40] The panel finds that the claimants have failed to establish, on a balance of probabilities, that the main impetus behind relocating to Lagos in XXXX 2017 was 'to hide' and keep their persecutors at bay. Given this conclusion, the panel finds that XXXX XXXX affidavit is not capable, in and of itself, to overcome this significant credibility concern.29 [56] I agree with the RPD. I find that the Appellants have failed to establish, on a balance of probabilities, that they moved to Lagos in 2017 to hide and keep the agents of persecution at bay. The RPD did not err in dismissing the Appellants' evidence based on credibility concerns [57] The Appellants cite jurisprudence that the RPD cannot dismiss the Appellant's evidence based on credibility concerns the RPD Panel had with the Appellants' oral testimony.30 I find that the RPD Panel did not err. [58] The Appellants argue that: [32] It is submitted that foreign documents are presumed to be authentic and credible on their face, unless there is valid reason to reject the documents. It is submitted that the RAD failed to apply this presumption. The Appellants' provided evidence from numerous sources to collaborate their claim. They provided an affidavit from XXXX XXXX and a letter from the XXXX XXXX church of God. The Board cannot simply dismiss the Appellant's evidence, justifying its treatment based on the credibility concerns it had with the Appellant's oral testimony.31 [59] Based on my independent analysis of the record before me, I find that the RPD did not err. There is no evidence that the RPD Panel rejected the authenticity of any of the documents that the Appellants submitted. The RPD considered the affidavit from XXXX XXXX and a letter from the XXXX XXXX Church of God. The RPD found that the affidavit and letter contradict the Principal Appellant's testimony at the RPD hearing. The RPD noted that both the affidavit and the letter both state that the authors first met the Principal Appellant in Lagos on XXXX XXXX, 2016. The Principal Appellant testified at the RPD that he had not met XXXX XXXX nor had he been to the church prior to his arrival in Lagos in XXXX 2017. The affidavit from XXXX XXXX states that the affiant met the Appellants on XXXX XXXX, 2016 when they came to the XXXX [sic] XXXX Church of God, Lagos State, with XXXX XXXX on XXXX XXXX, 2016. The letter on the letterhead of the XXXX XXXX Church of God signed by XXXX XXXX states that the family came to the church to seek protection on XXXX XXXX, 2016. The Principal Appellant was unable to explain why both of the documents that the Appellants adduced in evidence state that the authors met the Principal Appellant in 2016. When the RPD Panel canvassed the contradiction with the Principal Appellant, he stated he did not know anything about 2016. [60] I agree the RPD's assessment that the chronology of the Appellants' relocation to Lagos is important to their claim. The RPD found: [44] Considering that principal claimant's testimony that they moved to Lagos in XXXX 2017 is directly in contradiction with these two documents which states that the claimants first saw/met them in XXXX 2016, the panel does not give these documents any probative value in terms of substantiating claimants' key allegations as it relates to their fear of FGM/C being performed on the minor claimant and relocating to Lagos to protect themselves.32 [61] I find that the affidavit and letter have no probative value given that they contradict the Principal Appellant's testimony on an important element of the Appellants' claim. The RPD Panel did not engage in microscopic analysis [62] The Appellants argue on appeal that the RPD erred by displaying a zeal to discredit the Appellant's testimony and by microscopic analysis. The Appellants cite Sheikh v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 15200 (FC). The Appellants do not set out which parts of the RPD's analysis they allege contravene jurisprudence set out in Sheikh. [63] Based on my independent analysis of the record before me, I find that the RPD Panel did not err. The facts in the present case are significantly different from the facts in Sheikh. In Sheikh, the court found that the panel identified discrepancies that were exaggerated or peripheral to the claim for protection. In the present case, find that the RPD identified inconsistencies and omissions that are central to the Appellants' claim for refugee protection. The RPD considered evidence regarding FGM in the Appellants' family [64] The Appellants argue on appeal that the RPD Panel failed to acknowledge the subjective evidence in regard to the practice of FGM in the Appellant's family. The Appellants argue that: [34] ...The Appellants' testimony, together with their supporting documents and evidence, should on a balance of probabilities show that the Appellants have demonstrated their fear of persecution by the hands of their family members.33 [65] I find that the RPD did not err. The RPD considered the affidavit that the Appellants submitted from the Principal Appellant's sister confirming the occurrence of FGM/C in the tradition of the Appellants' family.34 [66] I have considered the evidence that the Appellants provided to the RPD. I find that the sister's affidavit establishes that the Appellants' family favours FGM for female members of the family. I find that the evidence from the sister is not sufficient to support a finding that the Appellants face a serious possibility of persecution or, on a balance of probabilities, a likelihood of section 97 harm. The Principal Appellant's sister writes that he has been the subject of ridicule and bullying by the family due to his disability and his conversion to Christianity in 2013. The sister writes of threats to the Associate Appellant but provides no details. The sister writes: \"That the constant attack and threat to the family culminated in their decision to relocate to Lagos State at the expense of their employments to seek for safety from where they were able to move out of the country.\"35 Objective Evidence regarding FGM in Nigeria [67] The RPD cites objective documentary evidence in the National Documentation Package (NDP) that parents can chose not to subject their daughters to FGM. The RPD found that objective evidence establishes that parents who reject FGM may in some instances be subjected to social ostracism and criticism, but that this does not rise to the level of persecution.36 The Appellants do not challenge this finding on appeal. [68] The RPD cites documentary evidence in the NDP that indicates that if husbands support their wives in rejecting FGM, \"there is little or nothing the society can do\" with regards to forcing a woman to undergo FGM.37 The Appellants do not challenge this finding on appeal. CONCLUSION [69] I find that the Appellants have failed to establish through sufficient credible evidence that they face a serious possibility of persecution in Nigeria or, on a balance of probabilities, a risk to their lives or a risk of cruel and unusual treatment or punishment or a danger of torture. [70] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) Michael J. Gardiner Michael J. Gardiner January 31, 2022 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, \"Handbook on Procedures and Criteria for Determining Refugee Status\", under the 1951 Convention. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, section 97. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 4 Tekle v. Canada (Minister of Citizenship and Immigration) 2017 FC 1040. 5 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.) at 305. 6 Exhibit RPD-1, RPD Record, RPD Decision, at p. 8, para. 24. 7 Ibid., para. 26. 8 Ibid., at p. 19. 9 Feradov v. Canada (Minister of Citizenship and Immigration), 2007 FC 101. 10 Exhibit P-2, Appellants' Record, at p. 29, para. 21. 11 Ibid., para. 24. 12 Exhibit RPD-1, RPD Record, RPD Decision, at p. 8, para. 23. 13 Ibid., Basis of Claim (BOC) form narrative, at p. 22. 14 RPD Hearing Transcript (January 28, 2021), at p. 21, lines 4-7. 15 Exhibit RPD-1, RPD Record, RPD Decision, at p. 7, para. 20. 16 Audio of June 4, 2021 hearing at 11:30; or RPD Hearing Transcript (June 4, 2021), at p. 4. 17 Exhibit RPD-1, RPD Record, BOC form narrative, at p. 22. 18 Audio of January 28, 2021 at 55:40. 19 Ibid., at 01:00:14; or RPD Hearing Transcript (January 28, 2021), at p. 25. 20 Exhibit RPD-1, RPD Record, BOC form narrative, at p. 23. 21 Exhibit P-2, Appellants' Record, at p. 30, para. 27 22 Exhibit RPD-1, RPD Record, RPD Decision, at p. 10, para. 36. 23 Audio of June 4, 2021 at 25:59. 24 Ibid., at 26:20. 25 Exhibit RPD-1, RPD Record, at p. 175. 26 Audio of June 4, 2021 at 21:40. 27 Mahmud v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 8019 (FC), [1999] FCJ No 729 (QL), paras. 11-12. 28 Exhibit RPD-1, RPD Record, at p. 173. 29 Ibid., RPD Decision, at p. 11, para. 40. 30 Ramalingam v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 7241 (FC). 31 Exhibit P-2, Appellants' Record, at 32, para. 32. 32 Exhibit RPD-1, RPD Record, RPD Decision, at p. 12, para. 44. 33 Exhibit P-2, Appellants' Record, at 32, para. 34. 34 Exhibit RPD-1, RPD Record, RPD Decision, at p. 6, para. 14. 35 Ibid., at p. 173, para. 9. 36 Exhibit RPD-1, RPD Record, Document 3: National Documentation Package for Nigeria (April 16, 2021), item 1.4: EASO Country of Origin Information Report: Nigeria. Country Focus, European Union. European Asylum Support Office, June 2017; item 5.12: Whether parents can refuse female genital mutilation (FGM) of their daughter; state protection available (2016-October 2018), Immigration and Refugee Board of Canada, 29 October 2018, NGA106183.FE. 37 Ibid., item 5.17: Prevalence of female genital mutilation (FGM) among the Urhobo, including the consequences for refusing to undergo this procedure, particularly pregnant women; state protection available (2014- March 2015), Immigration and Refugee Board of Canada, 19 March 2015, NGA105120. E. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MC1-05134 MC1-05135 / MC1-05136 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français", "response": "## Analysis of Refugee Decision: MC1-05134\n\n### Key Issues\nindicated on his BOC form at question 2(c) that he had visited police, the Principal Appellant testified that: The lawyer we were using when we first arrived before we changed to\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: ghter with XXXX XXXX disease. ANALYSIS [15] My role is to look at all the evidence and decide if the RPD made the correct decision.3 As part of my analysis, I have conducted an independent assessment of the evidence and the arguments.4 The Appellants are not credible in their claim [16] The Appellants argue on appeal that the RP\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "Explain how this Refugee Appeal Division decision from the Immigration and Refugee Board of Canada interprets refugee law:\n\nRAD File No. / No de dossier de la SAR : MB9-25596 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal [REDACTED] Personne en cause Date of decision May 6, 2022 Date de la décision Panel Bianca Eleonora Suciu Tribunal Counsel for the person who is the subject of the appeal Mark Gruszczynski Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] This is an appeal de novo conducted in accordance with the judgment on consent rendered by the Federal Court on June 1, 2021 (IMM-2244-21). [2] [REDACTED] (the appellant), a citizen of Nigeria, is appealing the decision rendered by the Refugee Protection Division (RPD) on October 15, 2019, rejecting his claim for refugee protection filed under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [3] The RPD found the appellant to be generally credible, but concluded that internal flight alternatives were available to him in Abuja and Benin City. The appellant is appealing the RPD's decision and asks that the Refugee Appeal Division (RAD) allow the appeal or refer the matter to the RPD for re-determination. OVERVIEW [4] The appellant fears harm at the hands of the members of the O'odua Peoples Congress (OPC), an extremist group, who are demanding [REDACTED] XXXX his father purchased from the former king. The appellant alleges in his Basis of Claim Form that the group's members have been persecuting his family since 1989 and that they killed two of his sisters, in 1992 and 1998, as well as his older brother in 2003. [5] The appellant testified that he left Nigeria in XXXX 2005. In 2012, he moved to the United States. He arrived in Canada to claim refugee protection in 2019. [6] He fears that the OPC will kill him if he returns to Nigeria, because he allegedly still holds the title to the property they are demanding. DETERMINATION [7] Based on my own analysis of all the evidence on the record, including the recording of the hearing, I am of the opinion that the RPD erred in its credibility assessment. However, I cannot either confirm the RPD's determination or substitute my own without rehearing the evidence that was presented to the RPD. Because I do not have jurisdiction to hold a new hearing, I must refer the matter to the RPD for re-determination. [8] The appeal is allowed. ROLE OF THE REFUGEE APPEAL DIVISION [9] The RAD is required to conduct its own analysis to determine whether the RPD made any of the errors the appellant cites in his arguments. While the RAD can show deference to the RPD's assessment in certain exceptional cases,1 the applicable standard of review in this case is the correctness standard. ANALYSIS Credibility [10] In my opinion, the RPD's credibility analysis is incorrect. The evidence on the record reveals a number of major contradictions that could be determinative of the claim, and the RPD did not address these at the hearing. [11] In particular, the reasons the appellant gave at his entry interview in Canada are completely different from those described in his claim for refugee protection. Moreover, I note that the appellant lived in Italy for seven years and in the US for seven years without claiming asylum. That has a direct impact on his alleged risk in Nigeria, but the RPD did not address this at the hearing. [12] I further note that, in the letter the appellant's mother sent to the head of the OPC, she claims that her daughter XXXX was killed by OPC members before XXXX 1995. However, the record also contains a police complaint filed by XXXX in 1998, that is, three years after her alleged death. The RPD did not question the appellant about this contradiction, which pertains to a key aspect of his refugee protection claim. [13] I am of the opinion that the RPD must also consider what steps the appellant took to protect himself from the alleged risk while he was still in Nigeria. [14] Given that the above elements raise serious doubts concerning the credibility of the claim, which the RPD did not consider, I am required to refer the matter to a different RPD member for re-determination, in accordance with paragraph 111(2)(b) of the IRPA. [15] Consequently, I am unable to analyze the issue of \"compelling reasons\" under subsection 108(4) of the IRPA, in accordance with the judgment on consent rendered by the Federal Court on June 1, 2021 (IMM-2244-21). CONCLUSION [16] In accordance with paragraph 111(1)(c) of the IRPA, I am setting aside the RPD's determination and referring the matter to a different RPD member for re-determination. [17] The appeal is allowed. (Signed) Bianca E Suciu Bianca Eleonora Suciu May 6, 2022 Date IRB translation Original language: French 1 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at paras. 90-91; Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, at paras. 70-74. --------------- ------------------------------------------------------------ --------------- RAD File No. / No de dossier de la SAR : MB9-25596 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français", "response": "## Analysis of Refugee Decision: MB9-25596\n\n### Key Issues\nlleged death. The RPD did not question the appellant about this contradiction, which pertains to a key aspect of his refugee protection claim. [13] I am of the opinion that the RPD\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: RMINATION [7] Based on my own analysis of all the evidence on the record, including the recording of the hearing, I am of the opinion that the RPD erred in its credibility assessment. However, I cannot either confirm the RPD's determination or substitute my own without rehearing the evidence that was presented to the RPD. Becaus\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "What rights and responsibilities are established by this Federal legislation from the Canadian government?\n\n# Annulment of Marriages Act (Ontario) RSC 1970, c A-14 An Act to provide in the Province of Ontario for the annulment of marriage ### Short title 1 This Act may be cited as the Annulment of Marriages Act (Ontario). ### Part of law of England, on 15th July 1870 continued as law of Ontario 2 The law of England as to the annulment of marriage, as that law existed on the 15th day of July 1870, in so far as it can be made to apply in the Province of Ontario, and in so far as it has not been repealed, as to the Province, by any Act of the Parliament of the United Kingdom or by any Act of the Parliament of Canada or by this Act, and as altered, varied, modified or affected, as to the Province, by any such Act, is in force in the Province of Ontario. ### Jurisdiction 3 The Supreme Court of Ontario has jurisdiction for all purposes of this Act.", "response": "## Analysis of LEGISLATION-FED: Annulment of Marriages Act (Ontario)\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nWhen applying this legislation to immigration cases, practitioners should consider both the explicit requirements and the underlying policy objectives. The provisions must be interpreted in light of the Canadian Charter of Rights and Freedoms, international obligations, and relevant jurisprudence. Particular attention should be paid to procedural fairness requirements and the proper exercise of discretionary authority."}
{"prompt": "What are the implications of this Refugee Protection Division decision from the Refugee Law Lab Reporter for similar cases?\n\n2023 RLLR 100 Citation: 2023 RLLR 100 Tribunal: Refugee Protection Division Date of Decision: December 4, 2023 Panel: Radostina Pavlova Counsel for the Claimant(s): N/A Country: Haiti RPD Number: TC2-27957 Associated RPD Number(s): N/A ATIP Number: A-2024-00593 ATIP Pages: N/A DECISION [1] XXXX XXXX (hereafter, the “claimant”) is a citizen Haiti who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”, the “Act”).[1] ALLEGATIONS [2] In summary, the claimant alleges that he fears persecution in Haiti on the part of members of the ruling party Haitian Tet Kale Party (PHTK) on the basis of his anti-government political activity and membership in the opposition party [REDACTED] XXXX XXXX. He claims that he joined the party in 2011, because it reflected his views on the direction the country should take and was introduced to it by a mentor of his in university, who is one of the party’s XXXX and was later the claimant’s boss when he worked for the non-governmental organization “[REDACTED] [REDACTED] [REDACTED] XXXX”. The claimant alleges that, while still in Haiti, he participated in manifestations protesting the government’s policies and politics, which manifestations were violently cracked down upon by the government forces. He claims that he was personally targeted and threatened by members of the PHTK. The claimant came to Canada in XXXX 2019, to attend a conference on behalf of XXXX, and prolonged his stay waiting for the situation in Haiti to calm down. In that period, he was receiving information of repressions on the part of the government of many of his fellow party members. In XXXX 2019, he claims, a press statement that was critical of the government was published by his party, and the persecution increased, where the party’s headquarters were vandalised. The claimant’s residence in the Delmas zone in Port-au-Prince was attacked by unknown armed persons, who terrorized his younger sister, who was living there; she was helped to escape by a neighbour and ultimately left the country to settle in the Dominican Republic. The claimant alleges that he continues his political activity from abroad and participates in online meetings and other activities as a member of the opposition party [REDACTED] XXXX XXXX. DETERMINATION [3] For the reasons that follow, I find that the claimant is a Convention refugee under s. 96 of the IRPA on the basis of his political opinion. ANALYSIS The claimant’s identity is established [4] The claimant’s identity was established on balance of probabilities through his oral testimony and the certified true copy of his Haitian passport,[2] containing a Canadian visitor visa, which is on file. Nexus to a Convention ground is established [5] The claimant alleges that he fears persecution in Haiti on the basis of his membership in an opposition pollical party and political activities opposing the government in place in Haiti and the ruling party. Since political opinion is one of the five grounds enumerated in the Convention, I find that a connection to a Convention ground has been established and have, accordingly, assessed the claim under s. 96 of the IRPA. The claimant’s allegations are credible [6] I found that the claimant has established on a balance of probability his key allegations regarding his political engagement and his subjective fear. His testimony at the hearing, which benefits from a presumption of truth,[3] was direct, spontaneous, and consistent with his Basis of Claim (BOC)[4] narrative. The claimant, who represented himself, was a sophisticated witness and delivered a testimony that demonstrated a level knowledge and understanding commensurate with his alleged political involvement and activity. He was able to explain in detail the reasons for which he became a member of the [REDACTED] XXXX XXXX party, its ideology and positioning on the political landscape in Haiti; he knew the names and roles of its executives and testified spontaneously and in detail on his relationship specifically with the current XXXX of the party, who was also his director at XXXX; he also named fellow members who had been subjected to repressions on the part of the authorities since the claimant’s departure from the country, and was convincing in his testimony on the events that unfolded which led him to decide to apply for protection in Canada. [7] The claimant supported his allegations with documentary evidence[5] that I found to be probative and reliable, including letters from his employer, showing that, as alleged, he worked for the organization XXXX from 2014 to the moment he left Haiti; evidence that he came to Canada to attend a conference on behalf of this organization; a copy of the press release from the party [REDACTED] XXXX XXXX, dated XXXX XXXX, 2019, in which the regime in place in Haiti and the ruling party PHTK are criticized; photographs of the claimant participating in anti-government manifestations. There was nothing on the face of the documents or the manner they were obtained to lead me to doubt their authenticity, and I have accorded to them significant evidentiary weight. The claimant also explained at the hearing that, when it comes to establishing his membership in the [REDACTED] XXXX XXXX party, he did not have a membership card, as the party did not issue such cards; he also stated that he had tried to obtain documentary evidence to corroborate the attack on his home in XXXX 2019, but had been unable to do so, since his sister had left the country and his mother had passed away since he left the country, thus limiting his ability to have family members assist in collecting documentary evidence. I find that these explanations are reasonable, and that the documents he did provide, along with his testimony that I found to be credible on a balance of probabilities, are sufficient to establish his key allegations and his subjective fear of persecution in Haiti. Objective basis [8] The available objective evidence contained in the National Documentation Package (NDP)[6] for Haiti supports the claimant’s allegations and establishes that his subjective fear has an objective basis and is well-founded. [9] According to documents found in the NDP, political parties in Haiti, particularly dominant ones such as the PHTK, the current party in power, are reportedly in collusion with armed criminal gangs. Reports at Items 1.41 and 10.8 indicate that politicians do not hesitate to use gangs against their political rivals. According to Items 10.7 and 2.1, politically motivated killings are widespread in the country. Political demonstrations against the government have been violently suppressed in recent years, according to Items 4.23, 4.32 and 4.33. Freedom House in its report found at Item 2.6 of the NDP classifies Haiti as “not free” and states that pervasive insecurity and criminal violence impair political activity in Haiti; political opposition leaders are subjected to threats and abductions, and protests organized by opposition parties are met with repressive force on the part of the government, according to this source. The same report further indicates that organized crime and corrupt patronage networks limit Haitians’ political choice, with politicians often relying on money from drug trafficking and other illicit activity to finance their campaigns. Political rivalries, according to Item 7.6, are a common motive for revenge, which may take various forms, including threats, kidnapping and murder. [10] Based on the above-mentioned sources, I find that the objective evidence supports the claimant’s subjective fear of persecution in Haiti. State Protection [11] While states are presumed able to offer protection to their citizens, unless the state is in a complete breakdown, this presumption can be refuted with clear and convincing evidence. In the case of present-day Haiti, the objective evidence is unequivocal that the Haitian state has lost control to pervasive violence committed by criminal gangs, who have proven to be more powerful and better resourced by the police, according, for instance, to Items 7.1 and 10.2 of the NDP. The judiciary is practically non-functioning and is susceptible to corruption and political influences, according to the objective sources. [12] For these reasons, I find that the presumption of state protection has been refuted with clear and convincing evidence and that the claimant cannot rely on such protection in Haiti. Internal Flight Alternative (IFA) [13] Considering that the agents of persecution in the present claim are state actors, that, according to the objective evidence, targets of revenge on the part of armed gangs based on political rivalries can be easily found through word-of-mouth as well other formal and informal networks, that Haiti is a small country and freedom of circulation is obstructed by the pervasiveness of armed gang violence, I find that, on balance of probabilities, the claimant does not have a viable IFA in Haiti. CONCLUSION [14] For the above-stated reasons, I find that the claimant meets the definition of Convention refugee under s. 96 of the IRPA. [15] The claim is accepted. ——— REASONS CONCLUDED ——— [1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1). [2] Exhibit 1. [3] Maldonado v. Canada (Minister of Employment and Immigration), [1979] F.C.J. No. 248 (FCA)(QL), [1980] 2 FC 302 (CA). [4] Exhibit 2. [5] Exhibit 7. [6] Exhibit 3.", "response": "## Analysis of Refugee Decision: 2023 RLLR 100\n\n### Key Issues\n2023 RLLR 100 Citation: 2023 RLLR 100 Tribunal: Refugee Protection Division Date of Decision: December 4, 2023 Panel: Radostina Pavlova Counsel for the Claimant(s): N/A Country: Haiti RPD Number: TC2-27957 Associated RPD Number(s): N/A ATIP Number: A-2024-00593 ATIP Pages: N/A DECISION [1] XXXX XXXX (hereafter, the “claimant”) is a citizen Haiti who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”, the “Act”).[1] ALLEGATIONS [2] In summary, the claimant alleges that he fears persecution in Haiti on the part of members of the ruling party Haitian Tet Kale Party (PHTK) on the basis of his anti-government political activity and membership in the opposition party [REDACTED] XXXX XXXX. He claims that he joined the party in 2011, because it reflected his views on the direction the country should take and was introduced to it by a mentor of his in university, who is one of the party’s XXXX and was later the claimant’s boss when he worked for the non-governmental organization “[REDACTED] [REDACTED] [REDACTED] XXXX”. The claimant alleges that, while still in Haiti, he participated in manifestations protesting the government’s policies and politics, which manifestations were violently cracked down upon by the government forces. He claims that he was personally targeted and threatened by members of the PHTK. The claimant came to Canada in XXXX 2019, to attend a conference on behalf of XXXX, and prolonged his stay waiting for the situation in Haiti to calm down. In that period, he was receiving information of repressions on the part of the government of many of his fellow party members. In XXXX 2019, he claims, a press statement that was critical of the government was published by his party, and the persecution increased, where the party’s headquarters were vandalised. The claimant’s residence in the Delmas zone in Port-au-Prince was attacked by unknown armed persons, who terrorized his younger sister, who was living there; she was helped to escape by a neighbour and ultimately left the country to settle in the Dominican Republic. The claimant alleges that he continues his political activity from abroad and participates in online meetings and other activities as a member of the opposition party [REDACTED] XXXX XXXX. DETERMINATION [3] For the reasons that follow, I find that the claimant is a Convention refugee under s. 96 of the IRPA on the basis of his political opinion. ANALYSIS The claimant’s identity is established [4] The claimant’s identity was established on balance of probabilities through his oral testimony and the certified true copy of his Haitian passport,[2] containing a Canadian visitor visa, which is on file. Nexus to a Convention ground is established [5] The claimant alleges that he fears persecution in Haiti on the basis of his membership in an opposition pollical party and political activities opposing the government in place in Haiti and the ruling party. Since political opinion is one of the five grounds enumerated in the Convention, I find that a connection to a Convention ground has been established and have, accordingly, assessed the claim under s. 96 of the IRPA. The claimant’s allegations are credible [6] I found that the claimant has established on a balance of probability his key allegations regarding his political engagement and his subjective fear. His testimony at the hearing, which benefits from a presumption of truth,[3] was direct, spontaneous, and consistent with his Basis of Claim (BOC)[4] narrative. The claimant, who represented himself, was a sophisticated witness and delivered a testimony that demonstrated a level knowledge and understanding commensurate with his alleged political involvement and activity. He was able to explain in detail the reasons for which he became a member of the [REDACTED] XXXX XXXX party, its ideology and positioning on the political landscape in Haiti; he knew the names and roles of its executives and testified spontaneously and in detail on his relationship specifically with the current XXXX of the party, who was also his director at XXXX; he also named fellow members who had been subjected to repressions on the part of the authorities since the claimant’s departure from the country, and was convincing in his testimony on the events that unfolded which led him to decide to apply for protection in Canada. [7] The claimant supported his allegations with documentary evidence[5] that I found to be probative and reliable, including letters from his employer, showing that, as alleged, he worked for the organization XXXX from 2014 to the moment he left Haiti; evidence that he came to Canada to attend a conference on behalf of this organization; a copy of the press release from the party [REDACTED] XXXX XXXX, dated XXXX XXXX, 2019, in which the regime in place in Haiti and the ruling party PHTK are criticized; photographs of the claimant participating in anti-government manifestations. There was nothing on the face of the documents or the manner they were obtained to lead me to doubt their authenticity, and I have accorded to them significant evidentiary weight. The claimant also explained at the hearing that, when it comes to establishing his membership in the [REDACTED] XXXX XXXX party, he did not have a membership card, as the party did not issue such cards; he also stated that he had tried to obtain documentary evidence to corroborate the attack on his home in XXXX 2019, but had been unable to do so, since his sister had left the country and his mother had passed away since he left the country, thus limiting his ability to have family members assist in collecting documentary evidence. I find that these explanations are reasonable, and that the documents he did provide, along with his testimony that I found to be credible on a balance of probabilities, are sufficient to establish his key allegations and his subjective fear of persecution in Haiti. Objective basis [8] The available objective evidence contained in the National Documentation Package (NDP)[6] for Haiti supports the claimant’s allegations and establishes that his subjective fear has an objective basis and is well-founded. [9] According to documents found in the NDP, political parties in Haiti, particularly dominant ones such as the PHTK, the current party in power, are reportedly in collusion with armed criminal gangs. Reports at Items 1.41 and 10.8 indicate that politicians do not hesitate to use gangs against their political rivals. According to Items 10.7 and 2.1, politically motivated killings are widespread in the country. Political demonstrations against the government have been violently suppressed in recent years, according to Items 4.23, 4.32 and 4.33. Freedom House in its report found at Item 2.6 of the NDP classifies Haiti as “not free” and states that pervasive insecurity and criminal violence impair political activity in Haiti; political opposition leaders are subjected to threats and abductions, and protests organized by opposition parties are met with repressive force on the part of the government, according to this source. The same report further indicates that organized crime and corrupt patronage networks limit Haitians’ political choice, with politicians often relying on money from drug trafficking and other illicit activity to finance their campaigns. Political rivalries, according to Item 7.6, are a common motive for revenge, which may take various forms, including threats, kidnapping and murder. [10] Based on the above-mentioned sources, I find that the objective evidence supports the claimant’s subjective fear of persecution in Haiti. State Protection [11] While states are presumed able to offer protection to their citizens, unless the state is in a complete breakdown, this presumption can be refuted with clear and convincing evidence. In the case of present-day Haiti, the objective evidence is unequivocal that the Haitian state has lost control to pervasive violence committed by criminal gangs, who have proven to be more powerful and better resourced by the police, according, for instance, to Items 7.1 and 10.2 of the NDP. The judiciary is practically non-functioning and is susceptible to corruption and political influences, according to the objective sources. [12] For these reasons, I find that the presumption of state protection has been refuted with clear and convincing evidence and that the claimant cannot rely on such protection in Haiti. Internal Flight Alternative (IFA) [13] Considering that the agents of persecution in the present claim are state actors, that, according to the objective evidence, targets of revenge on the part of armed gangs based on political rivalries can be easily found through word-of-mouth as well other formal and informal networks, that Haiti is a small country and freedom of circulation is obstructed by the pervasiveness of armed gang violence, I find that, on balance of probabilities, the claimant does not have a viable IFA in Haiti. CONCLUSION [14] For the above-stated reasons, I find that the claimant meets the definition of Convention refugee under s. 96 of the IRPA. [15] The claim is accepted. ——— REASONS CONCLUDED ——— [1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1). [2] Exhibit 1. [3] Maldonado v. Canada (Minister of Employment and Immigration), [1979] F.C.J. No. 248 (FCA)(QL), [1980] 2 FC 302 (CA). [4] Exhibit 2. [5] Exhibit 7. [6] Exhibit 3.\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: sis of his political opinion. ANALYSIS The claimant’s identity is established [4] The claimant’s identity was established on balance of probabilities through his oral testimony and the certified true copy of his Haitian passport,[2] containing a Canadian visitor visa, which is on file. Nexus to a Convention ground is established\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "What compliance obligations are created by this Federal regulations from the Canadian government?\n\n# Lieutenant Governors Superannuation Regulations CRC, c 1022 Regulations Made Pursuant to the Lieutenant Governors Superannuation Act Enabling authority: LIEUTENANT GOVERNORS SUPERANNUATION ACT ## Short Title 1 These Regulations may be cited as the Lieutenant Governors Superannuation Regulations. ## Interpretation 2 In these Regulations, *Act* means the Lieutenant Governors Superannuation Act; (Loi) *Minister* means the President of the Treasury Board; (ministre) *prior service* means service as the Lieutenant Governor of a province prior to December 2, 1975. (service antérieur) ## Payments for Elective Service 3 (1) Where a contributor has elected to pay in instalments in respect of a period of prior service, the first instalment shall be due and payable at the end of the month in which the election made by the contributor has been received by the Minister and succeeding instalments shall be payable monthly thereafter during the life of the contributor in equal amounts, except with respect to the last instalment which may be less in amount than the preceding instalments. (2) The total amount required to be paid by a contributor described in subsection (1) shall be fully paid within a period of 20 years computed in accordance with the Canadian Life Tables 1970-72, with interest at the rate of four per cent per annum. (3) A contributor referred to in subsection (1) may from time to time amend his payment plan to provide for payment of any instalments still to be paid (a) in a lump sum; (b) by larger monthly instalments on a basis similar to that described in subsection (1) calculated as of the date of the amendment; or (c) in a lump sum and by monthly instalments on a basis similar to that described in subsection (1) calculated as of the date of the amendment and payable within the same or a lesser period than that previously arranged under that subsection. (4) Where the amount of each instalment paid by a contributor described in subsection (1) is greater than the minimum amount required to be paid to comply with subsection (2), the contributor may, from time to time, amend his payment plan to provide for payment of instalments still to be paid in any amount if (a) the total amount required to be paid by that contributor is fully paid within a period of 20 years computed in accordance with the Canadian Life Tables 1970-72, with interest at the rate of four per cent per annum; and (b) he passes a medical examination within such time as the Minister prescribes. 4 (1) Where a contributor referred to in section 3 defaults in respect of an instalment payable by him, payment of the amount in default with interest at the rate of four per cent per annum shall be payable (a) in a lump sum immediately on demand, or (b) in monthly instalments for the lesser of (i) the life of the contributor, or (ii) the remainder of the period during which instalments under subsection (1) are to be paid, as the contributor elects, computed in accordance with Canadian Life Tables 1970-72 on the amount that is in default to the date of the demand, with interest at the rate of four per cent per annum. (2) Where a contributor referred to in subsection (1) does not make an election within 30 days from the date of a demand made under paragraph (1)(a), the method of payment of the amount in default shall be in accordance with paragraph (1)(b). ## Unpaid Instalments 5 Subject to section 4, where a contributor who has elected to pay in instalments in respect of a period of prior service becomes entitled to any benefit under the Act before the amount payable by him by way of instalments has been paid, the unpaid instalments may be reserved out of the benefit payable to the contributor (a) in the case of a lump sum benefit, by a lump sum immediately, or (b) in the case of any benefit other than a lump sum benefit (i) by a lump sum immediately, or (ii) by monthly instalments for the lesser of (A) the life of the contributor, or (B) the remainder of the period during which instalments under this section are to be paid, as the contributor elects. 6 Where any amount payable by a contributor under these Regulations has become due but remains unpaid at the time of his death, the Minister shall, if the amount with interest is not paid forthwith by the personal representative of the contributor, demand payment from the surviving spouse of the contributor to whom a pension is payable under the Act and if the amount with interest to the date of demand is not paid, it may be recovered at any time and, without prejudice to any other recourse available to Her Majesty with respect to the recovery thereof, by retention, by way of deduction or set-off out of the pension payable to the spouse, (a) in a lump sum immediately, or (b) in instalments for a term specified by the Minister, as the recipient elects, with interest at the rate of four per cent per annum. 7 (1) Where an amount that is payable by a contributor is paid after the day on which it is due, there shall, in addition, be payable interest on that amount at the rate of four per cent per annum from the due date until the day on which it is paid. (2) Notwithstanding subsection (1), (a) where a contributor or his personal representative pays in full an amount that is due before the day on which a demand is made under sections 4 to 6 for payment of the amount due, interest is not payable thereon; (b) where a demand is made by or on behalf of the Minister under sections 4 to 6 for payment of an amount including interest and that amount is paid in full before the expiration of 30 days from the date of demand, interest is not payable thereon; and (c) where a contributor has authorized or directed that the amount payable by him under this section be deducted from moneys payable to him by or on behalf of Her Majesty and the contributor is in default because those deductions have not been made, interest is not payable under sections 4 to 6 on an amount equal to the deductions that have not been so made. 8 For the purposes of sections 4 to 6, a demand by the Minister for payment of an amount is deemed to have been made on the day on which a letter, demanding payment, signed by or on behalf of the Minister, and addressed to the contributor or recipient, as the case may be, is placed in the mail. 9 Nothing in these Regulations prohibits a person from paying at any time before it is due any amount payable by him, or that is deductible from his benefit. ## Medical Examinations 10 A contributor, before becoming entitled to a pension under the Act in respect of a disability, shall undergo a thorough physical examination. ## Forms 11 A form to elect to contribute pursuant to subsection 5(1) of the Act in respect of prior service is set out in Schedule I. 12 A form to elect not to contribute pursuant to section 4 of the Act is set out in Schedule II.", "response": "## Analysis of REGULATIONS-FED: Lieutenant Governors Superannuation Regulations\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nThese regulations provide specific implementation details for broader legislative frameworks. Practitioners should ensure strict compliance with procedural requirements, timelines, and documentation standards. The regulations must be interpreted consistent with their enabling legislation and may be subject to challenge if they exceed the authority granted by the statute."}
{"prompt": "Explain the purpose and application of this section of Access to Information Act:\n\n# Access to Information Act RSC 1985, c A-1 An Act to extend the present laws of Canada that provide access to information under the control of the Government of Canada and to provide for the proactive publication of certain information ## Short Title ### Short title 1 This Act may be cited as the Access to Information Act. ## Purpose of Act ### Purpose of Act 2 (1) The purpose of this Act is to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions. ### Specific purposes of Parts 1 and 2 (2) In furtherance of that purpose, (a) Part 1 extends the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government; and (b) Part 2 sets out requirements for the proactive publication of information. ### Complementary procedures (3) This Act is also intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public. ## Interpretation ### Definitions 3 In this Act, *alternative format*, with respect to a record, means a format that allows a person with a sensory disability to read or listen to that record; (support de substitution) *business day* means a day other than (a) a Saturday; (b) a Sunday or other holiday; and (c) a day that falls during the Christmas recess, as defined in section 2 of the Federal Courts Rules ; (jour ouvrable) *Court* means the Federal Court; (Cour) *designated Minister* means a person who is designated as the Minister under subsection 3.2(1); (ministre désigné) *foreign state* means any state other than Canada; (État étranger) *government institution* means (a) any department or ministry of state of the Government of Canada, or any body or office, listed in Schedule I, and (b) any parent Crown corporation, and any wholly-owned subsidiary of such a corporation, within the meaning of section 83 of the Financial Administration Act ; (institution fédérale) *head*, in respect of a government institution, means (a) in the case of a department or ministry of state, the member of the Queen’s Privy Council for Canada who presides over the department or ministry, or (b) in any other case, either the person designated under subsection 3.2(2) to be the head of the institution for the purposes of this Act or, if no such person is designated, the chief executive officer of the institution, whatever their title; ( responsable d’institution fédérale) *Information Commissioner* means the Commissioner appointed under section 54; (Commissaire à l’information) *personal information* has the same meaning as in section 3 of the Privacy Act ; (renseignements personnels) *record* means any documentary material, regardless of medium or form; (document) *sensory disability* means a disability that relates to sight or hearing; (déficience sensorielle) *third party*, in respect of a request for access to a record under Part 1, means any person, group of persons or organization other than the person that made the request or a government institution. (tiers) ### For greater certainty 3.01 (1) For greater certainty, any provision of this Act that applies to a government institution that is a parent Crown corporation applies to any of its wholly-owned subsidiaries within the meaning of section 83 of the Financial Administration Act. ### For greater certainty (2) For greater certainty, the Canadian Race Relations Foundation and the Public Sector Pension Investment Board are parent Crown corporations for the purposes of this Act. ### For greater certainty 3.1 For greater certainty, for the purposes of this Act, information that relates to the general administration of a government institution includes information that relates to expenses paid by the institution for travel, including lodging, and hospitality. ## Designation ### Power to designate Minister 3.2 (1) The Governor in Council may designate a member of the Queen’s Privy Council for Canada to be the Minister for the purposes of any provision of this Act. ### Power to designate head (2) The Governor in Council may, by order, designate a person to be the head of a government institution, other than a department or ministry of state, for the purposes of this Act. # PART 1 ## Access to Government Records ## Access ## Right of Access ### Right to access to records 4 (1) Subject to this Part, but notwithstanding any other Act of Parliament, every person who is (a) a Canadian citizen, or (b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, has a right to and shall, on request, be given access to any record under the control of a government institution. ### Extension of right by order (2) The Governor in Council may, by order, extend the right to be given access to records under subsection (1) to include persons not referred to in that subsection and may set such conditions as the Governor in Council deems appropriate. ### Responsibility of government institutions (2.1) The head of a government institution shall, without regard to the identity of a person making a request for access to a record under the control of the institution, make every reasonable effort to assist the person in connection with the request, respond to the request accurately and completely and, subject to the regulations, provide timely access to the record in the format requested. ### Records produced from machine readable records (3) For the purposes of this Part, any record requested under this Part that does not exist but can, subject to such limitations as may be prescribed by regulation, be produced from a machine readable record under the control of a government institution using computer hardware and software and technical expertise normally used by the government institution shall be deemed to be a record under the control of the government institution. ## Information about Government Institutions ### Publication on government institutions 5 (1) The designated Minister shall cause to be published, on a periodic basis not less frequently than once each year, a publication containing (a) a description of the organization and responsibilities of each government institution, including details on the programs and functions of each division or branch of each government institution; (b) a description of all classes of records under the control of each government institution in sufficient detail to facilitate the exercise of the right of access under this Part; (c) a description of all manuals used by employees of each government institution in administering or carrying out any of the programs or activities of the government institution; and (d) the title and address of the appropriate officer for each government institution to whom requests for access to records under this Part should be sent. ### Bulletin (2) The designated Minister shall cause to be published, at least twice each year, a bulletin to bring the material contained in the publication published under subsection (1) up to date and to provide to the public other useful information relating to the operation of this Act. ### Descriptions in publication and bulletins (3) Any description that is required to be included in the publication or bulletins published under subsection (1) or (2) may be formulated in such a manner that the description does not itself constitute information on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under this Part. ### Publication and bulletin to be made available (4) The designated Minister shall cause the publication referred to in subsection (1) and the bulletin referred to in subsection (2) to be made available throughout Canada in conformity with the principle that every person is entitled to reasonable access thereto. ## Requests for Access ### Request for access to record 6 A request for access to a record under this Part shall be made in writing to the government institution that has control of the record and shall provide sufficient detail to enable an experienced employee of the institution to identify the record with a reasonable effort. ### Reasons for declining to act on request 6.1 (1) With the Information Commissioner’s written approval, the head of a government institution may, before giving a person access to a record or refusing to do so, decline to act on the person’s request if, in the opinion of the head of the institution, the request is vexatious, is made in bad faith or is otherwise an abuse of the right to make a request for access to records. ### Limitation (1.1) The head of a government institution is not authorized under subsection (1) to decline to act on a person’s request for a record for the sole reason that the information contained in it has been published under Part 2. ### Time limit suspended (1.2) If the head of a government institution communicates with the Information Commissioner to obtain his or her approval to decline to act, the 30-day period set out in section 7 — and any extension to it under section 9 — is suspended during the period beginning on the day on which the head of the institution communicates with the Information Commissioner and ending on the day on which he or she receives the Information Commissioner’s decision in writing. ### Notice — suspension (1.3) The head of the institution shall give written notice to the person who made the request for access to a record under this Part of the suspension of the period, and of the reasons for the suspension, at the same time as they communicate with the Information Commissioner to obtain his or her approval to decline to act. ### Notice — end of suspension (1.4) If the Information Commissioner refuses to give his or her approval, the head of the institution shall, on receiving the Information Commissioner’s decision in writing, give written notice to the person who made the request for access to a record under this Part of the refusal and of the date on which the running of the period resumes in accordance with subsection (1.2). ### Notice (2) If the head of a government institution declines to act on the person’s request, they shall give the person written notice of their decision to decline to act on the request and their reasons for doing so. ### Notice where access requested 7 Where access to a record is requested under this Part, the head of the government institution to which the request is made shall, subject to sections 8 and 9, within 30 days after the request is received, (a) give written notice to the person who made the request as to whether or not access to the record or a part thereof will be given; and (b) if access is to be given, give the person who made the request access to the record or part thereof. ### Transfer of request 8 (1) Where a government institution receives a request for access to a record under this Part and the head of the institution considers that another government institution has a greater interest in the record, the head of the institution may, subject to such conditions as may be prescribed by regulation, within fifteen days after the request is received, transfer the request and, if necessary, the record to the other government institution, in which case the head of the institution transferring the request shall give written notice of the transfer to the person who made the request. ### Deeming provision (2) For the purposes of section 7, where a request is transferred under subsection (1), the request shall be deemed to have been made to the government institution to which it was transferred on the day the government institution to which the request was originally made received it. ### Meaning of greater interest (3) For the purpose of subsection (1), a government institution has a greater interest in a record if (a) the record was originally produced in or for the institution; or (b) in the case of a record not originally produced in or for a government institution, the institution was the first government institution to receive the record or a copy thereof. ### Extension of time limits 9 (1) The head of a government institution may extend the time limit set out in section 7 or subsection 8(1) in respect of a request under this Part for a reasonable period of time, having regard to the circumstances, if (a) the request is for a large number of records or necessitates a search through a large number of records and meeting the original time limit would unreasonably interfere with the operations of the government institution, (b) consultations are necessary to comply with the request that cannot reasonably be completed within the original time limit, or (c) notice of the request is given pursuant to subsection 27(1) by giving notice of the extension and, in the circumstances set out in paragraph (a) or (b), the length of the extension, to the person who made the request within thirty days after the request is received, which notice shall contain a statement that the person has a right to make a complaint to the Information Commissioner about the extension. ### Notice of extension to Information Commissioner (2) Where the head of a government institution extends a time limit under subsection (1) for more than thirty days, the head of the institution shall give notice of the extension to the Information Commissioner at the same time as notice is given under subsection (1). ### Where access is refused 10 (1) Where the head of a government institution refuses to give access to a record requested under this Part or a part thereof, the head of the institution shall state in the notice given under paragraph 7(a) (a) that the record does not exist, or (b) the specific provision of this Part on which the refusal was based or, where the head of the institution does not indicate whether a record exists, the provision on which a refusal could reasonably be expected to be based if the record existed, and shall state in the notice that the person who made the request has a right to make a complaint to the Information Commissioner about the refusal. ### Existence of a record not required to be disclosed (2) The head of a government institution may but is not required to indicate under subsection (1) whether a record exists. ### Deemed refusal to give access (3) Where the head of a government institution fails to give access to a record requested under this Part or a part thereof within the time limits set out in this Part, the head of the institution shall, for the purposes of this Part, be deemed to have refused to give access. ### Application fee 11 (1) Subject to this section, a person who makes a request for access to a record under this Part shall pay, at the time the request is made, any application fee of not more than $25, that may be prescribed by regulation. ### Waiver (2) The head of a government institution to which a request for access to a record is made under this Part may waive the requirement to pay a fee or a part of a fee under this section or may refund a fee or a part of a fee paid under this section. ## Access Given ### Access to record 12 (1) A person who is given access to a record or a part thereof under this Part shall, subject to the regulations, be given an opportunity to examine the record or part thereof or be given a copy thereof. ### Language of access (2) Where access to a record or a part thereof is to be given under this Part and the person to whom access is to be given requests that access be given in a particular official language, a copy of the record or part thereof shall be given to the person in that language (a) forthwith, if the record or part thereof already exists under the control of a government institution in that language; or (b) within a reasonable period of time, if the head of the government institution that has control of the record considers it to be in the public interest to cause a translation to be prepared. ### Access to record in alternative format (3) Where access to a record or a part thereof is to be given under this Part and the person to whom access is to be given has a sensory disability and requests that access be given in an alternative format, a copy of the record or part thereof shall be given to the person in an alternative format (a) forthwith, if the record or part thereof already exists under the control of a government institution in an alternative format that is acceptable to that person; or (b) within a reasonable period of time, if the head of the government institution that has control of the record considers the giving of access in an alternative format to be necessary to enable the person to exercise the person’s right of access under this Part and considers it reasonable to cause that record or part thereof to be converted. ## Exemptions ## Responsibilities of Government ### Information obtained in confidence 13 (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Part that contains information that was obtained in confidence from (a) the government of a foreign state or an institution thereof; (b) an international organization of states or an institution thereof; (c) the government of a province or an institution thereof; (d) a municipal or regional government established by or pursuant to an Act of the legislature of a province or an institution of such a government; or (e) an aboriginal government. ### Where disclosure authorized (2) The head of a government institution may disclose any record requested under this Part that contains information described in subsection (1) if the government, organization or institution from which the information was obtained (a) consents to the disclosure; or (b) makes the information public. ### Definition of aboriginal government (3) The expression *aboriginal government* in paragraph (1)(e) means (a) Nisga’a Government, as defined in the Nisga’a Final Agreement given effect by the Nisga’a Final Agreement Act ; (b) the council, as defined in the Westbank First Nation Self-Government Agreement given effect by the Westbank First Nation Self-Government Act ; (c) the Tlicho Government, as defined in section 2 of the Tlicho Land Claims and Self-Government Act ; (d) the Nunatsiavut Government, as defined in section 2 of the Labrador Inuit Land Claims Agreement Act ; (e) the council of a participating First Nation as defined in subsection 2(1) of the First Nations Jurisdiction over Education in British Columbia Act ; (e.1) the Tla’amin Government, as defined in subsection 2(2) of the Tla’amin Final Agreement Act ; (f) the Tsawwassen Government, as defined in subsection 2(2) of the Tsawwassen First Nation Final Agreement Act ; (f.1) the Cree Nation Government, as defined in subsection 2(1) of the Cree Nation of Eeyou Istchee Governance Agreement Act or a Cree First Nation, as defined in subsection 2(2) of that Act; (g) a Maanulth Government, within the meaning of subsection 2 (2) of the Maanulth First Nations Final Agreement Act ; (h) Sioux Valley Dakota Oyate Government, within the meaning of subsection 2 (2) of the Sioux Valley Dakota Nation Governance Act ; (h.1) the Whitecap Dakota Government, as defined in section 2 of the Self-Government Treaty Recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate Act ; (i) the council of a participating First Nation, as defined in section 2 of the Anishinabek Nation Education Agreement Act ; or (j) a First Nation Government or the Anishinabek Nation Government, as defined in section 2 of the Anishinabek Nation Governance Agreement Act, or an Anishinaabe Institution, within the meaning of section 1.1 of the Agreement, as defined in section 2 of that Act. ### Federal-provincial affairs 14 The head of a government institution may refuse to disclose any record requested under this Part that contains information the disclosure of which could reasonably be expected to be injurious to the conduct by the Government of Canada of federal-provincial affairs, including, without restricting the generality of the foregoing, any such information (a) on federal-provincial consultations or deliberations; or (b) on strategy or tactics adopted or to be adopted by the Government of Canada relating to the conduct of federal-provincial affairs. ### International affairs and defence 15 (1) The head of a government institution may refuse to disclose any record requested under this Part that contains information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities, including, without restricting the generality of the foregoing, any such information (a) relating to military tactics or strategy, or relating to military exercises or operations undertaken in preparation for hostilities or in connection with the detection, prevention or suppression of subversive or hostile activities; (b) relating to the quantity, characteristics, capabilities or deployment of weapons or other defence equipment or of anything being designed, developed, produced or considered for use as weapons or other defence equipment; (c) relating to the characteristics, capabilities, performance, potential, deployment, functions or role of any defence establishment, of any military force, unit or personnel or of any organization or person responsible for the detection, prevention or suppression of subversive or hostile activities; (d) obtained or prepared for the purpose of intelligence relating to (i) the defence of Canada or any state allied or associated with Canada, or (ii) the detection, prevention or suppression of subversive or hostile activities; (e) obtained or prepared for the purpose of intelligence respecting foreign states, international organizations of states or citizens of foreign states used by the Government of Canada in the process of deliberation and consultation or in the conduct of international affairs; (f) on methods of, and scientific or technical equipment for, collecting, assessing or handling information referred to in paragraph (d) or (e) or on sources of such information; (g) on the positions adopted or to be adopted by the Government of Canada, governments of foreign states or international organizations of states for the purpose of present or future international negotiations; (h) that constitutes diplomatic correspondence exchanged with foreign states or international organizations of states or official correspondence exchanged with Canadian diplomatic missions or consular posts abroad; or (i) relating to the communications or cryptographic systems of Canada or foreign states used (i) for the conduct of international affairs, (ii) for the defence of Canada or any state allied or associated with Canada, or (iii) in relation to the detection, prevention or suppression of subversive or hostile activities. ### Definitions (2) In this section, *defence of Canada or any state allied or associated with Canada* includes the efforts of Canada and of foreign states toward the detection, prevention or suppression of activities of any foreign state directed toward actual or potential attack or other acts of aggression against Canada or any state allied or associated with Canada; (défense du Canada ou d’États alliés ou associés avec le Canada) *subversive or hostile activities* means (a) espionage against Canada or any state allied or associated with Canada, (b) sabotage, (c) activities directed toward the commission of terrorist acts, including hijacking, in or against Canada or foreign states, (d) activities directed toward accomplishing government change within Canada or foreign states by the use of or the encouragement of the use of force, violence or any criminal means, (e) activities directed toward gathering information used for intelligence purposes that relates to Canada or any state allied or associated with Canada, and (f) activities directed toward threatening the safety of Canadians, employees of the Government of Canada or property of the Government of Canada outside Canada. ( activités hostiles ou subversives) ### Law enforcement and investigations 16 (1) The head of a government institution may refuse to disclose any record requested under this Part that contains (a) information obtained or prepared by any government institution, or part of any government institution, that is an investigative body specified in the regulations in the course of lawful investigations pertaining to (i) the detection, prevention or suppression of crime, (ii) the enforcement of any law of Canada or a province, or (iii) activities suspected of constituting threats to the security of Canada within the meaning of the Canadian Security Intelligence Service Act, if the record came into existence less than twenty years prior to the request; (b) information relating to investigative techniques or plans for specific lawful investigations; (c) information the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information (i) relating to the existence or nature of a particular investigation, (ii) that would reveal the identity of a confidential source of information, or (iii) that was obtained or prepared in the course of an investigation; or (d) information the disclosure of which could reasonably be expected to be injurious to the security of penal institutions. ### Security (2) The head of a government institution may refuse to disclose any record requested under this Part that contains information that could reasonably be expected to facilitate the commission of an offence, including, without restricting the generality of the foregoing, any such information (a) on criminal methods or techniques; (b) that is technical information relating to weapons or potential weapons; or (c) on the vulnerability of particular buildings or other structures or systems, including computer or communication systems, or methods employed to protect such buildings or other structures or systems. ### Policing services for provinces or municipalities (3) The head of a government institution shall refuse to disclose any record requested under this Part that contains information that was obtained or prepared by the Royal Canadian Mounted Police while performing policing services for a province or municipality pursuant to an arrangement made under section 20 of the Royal Canadian Mounted Police Act, where the Government of Canada has, on the request of the province or municipality agreed not to disclose such information. ### Definition of *investigation* (4) For the purposes of paragraphs (1)(b) and (c), *investigation* means an investigation that (a) pertains to the administration or enforcement of an Act of Parliament; (b) is authorized by or pursuant to an Act of Parliament; or (c) is within a class of investigations specified in the regulations. ### Records relating to investigations, examinations and audits 16.1 (1) The following heads of government institutions shall refuse to disclose any record requested under this Part that contains information that was obtained or created by them or on their behalf in the course of an investigation, examination or audit conducted by them or under their authority: (a) the Auditor General of Canada; (b) the Commissioner of Official Languages for Canada; (c) the Information Commissioner; and (d) the Privacy Commissioner. ### Exception (2) However, the head of a government institution referred to in paragraph (1)(c) or (d) shall not refuse under subsection (1) to disclose any record that contains information that was created by or on behalf of the head of the government institution in the course of an investigation or audit conducted by or under the authority of the head of the government institution once the investigation or audit and all related proceedings, if any, are finally concluded. ### Records relating to investigations 16.2 (1) The Commissioner of Lobbying shall refuse to disclose any record requested under this Part that contains information that was obtained or created by the Commissioner or on the Commissioner’s behalf in the course of an investigation conducted by or under the authority of the Commissioner. ### Exception (2) However, the Commissioner shall not refuse under subsection (1) to disclose any record that contains information that was created by the Commissioner or on the Commissioner’s behalf in the course of an investigation conducted by, or under the authority of, the Commissioner once the investigation and all related proceedings, if any, are finally concluded. ### Investigations, examinations and reviews under the Canada Elections Act 16.3 Subject to section 541 of the Canada Elections Act, the Chief Electoral Officer may refuse to disclose any record requested under this Part that contains information that was obtained or created by or on behalf of a person who conducts an investigation, examination or review in the performance of their functions under the Canada Elections Act. 16.31 [Repealed, 2018, c. 31, s. 391] ### Public Sector Integrity Commissioner 16.4 (1) The Public Sector Integrity Commissioner shall refuse to disclose any record requested under this Part that contains information (a) obtained or created by him or her or on his or her behalf in the course of an investigation into a disclosure made under the Public Servants Disclosure Protection Act or an investigation commenced under section 33 of that Act; or (b) received by a conciliator in the course of attempting to reach a settlement of a complaint filed under subsection 19.1(1) of that Act. ### Exception (2) Subsection (1) does not apply in respect of a record that contains information referred to in paragraph (1)(b) if the person who gave the information to the conciliator consents to the record being disclosed. ### Public Servants Disclosure Protection Act 16.5 The head of a government institution shall refuse to disclose any record requested under this Part that contains information created for the purpose of making a disclosure under the Public Servants Disclosure Protection Act or in the course of an investigation into a disclosure under that Act. ### Secretariat of National Security and Intelligence Committee of Parliamentarians 16.6 The Secretariat of the National Security and Intelligence Committee of Parliamentarians shall refuse to disclose any record requested under this Part that contains information obtained or created by it or on its behalf in the course of assisting the National Security and Intelligence Committee of Parliamentarians in fulfilling its mandate. ### Safety of individuals 17 The head of a government institution may refuse to disclose any record requested under this Part that contains information the disclosure of which could reasonably be expected to threaten the safety of individuals. ### Economic interests of Canada 18 The head of a government institution may refuse to disclose any record requested under this Part that contains (a) trade secrets or financial, commercial, scientific or technical information that belongs to the Government of Canada or a government institution and has substantial value or is reasonably likely to have substantial value; (b) information the disclosure of which could reasonably be expected to prejudice the competitive position of a government institution or to interfere with contractual or other negotiations of a government institution; (c) scientific or technical information obtained through research by an officer or employee of a government institution, the disclosure of which could reasonably be expected to deprive the officer or employee of priority of publication; or (d) information the disclosure of which could reasonably be expected to be materially injurious to the financial interests of a government institution or to the ability of the Government of Canada to manage the economy of Canada or could reasonably be expected to result in an undue benefit to any person, including such information that relates to (i) the currency, coinage or legal tender of Canada, (ii) a contemplated change in the rate of bank interest or in government borrowing, (iii) a contemplated change in tariff rates, taxes, duties or any other revenue source, (iv) a contemplated change in the conditions of operation of financial institutions, (v) a contemplated sale or purchase of securities or of foreign or Canadian currency, or (vi) a contemplated sale or acquisition of land or property. ### Economic interests of certain government institutions 18.1 (1) The head of a government institution may refuse to disclose a record requested under this Part that contains trade secrets or financial, commercial, scientific or technical information that belongs to, and has consistently been treated as confidential by, (a) the Canada Post Corporation; (b) Export Development Canada; (c) the Public Sector Pension Investment Board; or (d) VIA Rail Canada Inc. ### Exceptions (2) However, the head of a government institution shall not refuse under subsection (1) to disclose a part of a record that contains information that relates to (a) the general administration of an institution referred to in any of paragraphs (1)(a) to (d); or (b) any activity of the Canada Post Corporation that is fully funded out of moneys appropriated by Parliament. ## Personal Information ### Personal information 19 (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Part that contains personal information. ### Where disclosure authorized (2) The head of a government institution may disclose any record requested under this Part that contains personal information if (a) the individual to whom it relates consents to the disclosure; (b) the information is publicly available; or (c) the disclosure is in accordance with section 8 of the Privacy Act. ## Third Party Information ### Third party information 20 (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Part that contains (a) trade secrets of a third party; (b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party; (b.1) information that is supplied in confidence to a government institution by a third party for the preparation, maintenance, testing or implementation by the government institution of emergency management plans within the meaning of section 2 of the Emergency Management Act and that concerns the vulnerability of the third party’s buildings or other structures, its networks or systems, including its computer or communications networks or systems, or the methods used to protect any of those buildings, structures, networks or systems; (c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; or (d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party. ### Product or environmental testing (2) The head of a government institution shall not, pursuant to subsection (1), refuse to disclose a part of a record if that part contains the results of product or environmental testing carried out by or on behalf of a government institution unless the testing was done as a service to a person, a group of persons or an organization other than a government institution and for a fee. ### Methods used in testing (3) Where the head of a government institution discloses a record requested under this Part, or a part thereof, that contains the results of product or environmental testing, the head of the institution shall at the same time as the record or part thereof is disclosed provide the person who requested the record with a written explanation of the methods used in conducting the tests. ### Preliminary testing (4) For the purposes of this section, the results of product or environmental testing do not include the results of preliminary testing conducted for the purpose of developing methods of testing. ### Disclosure if a supplier consents (5) The head of a government institution may disclose any record that contains information described in subsection (1) with the consent of the third party to whom the information relates. ### Disclosure authorized if in public interest (6) The head of a government institution may disclose all or part of a record requested under this Part that contains information described in any of paragraphs (1)(b) to (d) if (a) the disclosure would be in the public interest as it relates to public health, public safety or protection of the environment; and (b) the public interest in disclosure clearly outweighs in importance any financial loss or gain to a third party, any prejudice to the security of its structures, networks or systems, any prejudice to its competitive position or any interference with its contractual or other negotiations. ### Public Sector Pension Investment Board 20.1 The head of the Public Sector Pension Investment Board shall refuse to disclose a record requested under this Part that contains advice or information relating to investment that the Board has obtained in confidence from a third party if the Board has consistently treated the advice or information as confidential. ### Canada Pension Plan Investment Board 20.2 The head of the Canada Pension Plan Investment Board shall refuse to disclose a record requested under this Part that contains advice or information relating to investment that the Board has obtained in confidence from a third party if the Board has consistently treated the advice or information as confidential. ### National Arts Centre Corporation 20.4 The head of the National Arts Centre Corporation shall refuse to disclose a record requested under this Part if the disclosure would reveal the terms of a contract for the services of a performing artist or the identity of a donor who has made a donation in confidence and if the Corporation has consistently treated the information as confidential. ## Operations of Government ### Advice, etc. 21 (1) The head of a government institution may refuse to disclose any record requested under this Part that contains (a) advice or recommendations developed by or for a government institution or a minister of the Crown, (b) an account of consultations or deliberations in which directors, officers or employees of a government institution, a minister of the Crown or the staff of a minister participate, (c) positions or plans developed for the purpose of negotiations carried on or to be carried on by or on behalf of the Government of Canada and considerations relating thereto, or (d) plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation, if the record came into existence less than twenty years prior to the request. ### Exercise of a discretionary power or an adjudicative function (2) Subsection (1) does not apply in respect of a record that contains (a) an account of, or a statement of reasons for, a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person; or (b) a report prepared by a consultant or an adviser who was not a director, an officer or an employee of a government institution or a member of the staff of a minister of the Crown at the time the report was prepared. ### Testing procedures, tests and audits 22 The head of a government institution may refuse to disclose any record requested under this Part that contains information relating to testing or auditing procedures or techniques or details of specific tests to be given or audits to be conducted if the disclosure would prejudice the use or results of particular tests or audits. ### Internal audits 22.1 (1) The head of a government institution may refuse to disclose any record requested under this Part that contains a draft report of an internal audit of a government institution or any related audit working paper if the record came into existence less than fifteen years before the request was made. ### Exception (2) However, the head of a government institution shall not refuse under subsection (1) to disclose a draft report of an internal audit of a government institution if a final report of the audit has been published or if a final report of the audit is not delivered to the institution within two years after the day on which the audit was first commenced. ### Protected information — solicitors, advocates and notaries 23 The head of a government institution may refuse to disclose any record requested under this Part that contains information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege. ### Protected information — patents and trademarks 23.1 The head of a government institution may refuse to disclose any record requested under this Part that contains information that is subject to the privilege set out in section 16.1 of the Patent Act or section 51.13 of the Trademarks Act. ## Statutory Prohibitions ### Statutory prohibitions against disclosure 24 (1) The head of a government institution shall refuse to disclose any record requested under this Part that contains information the disclosure of which is restricted by or pursuant to any provision set out in Schedule II. (2) [Repealed, 2019, c. 18, s. 11] ### Severability 25 Notwithstanding any other provision of this Part, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under this Part by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material. ## Refusal of Access ### Refusal of access if information to be published 26 The head of a government institution may refuse to disclose any record requested under this Part or any part of a record if the head of the institution believes on reasonable grounds that the material in the record or in part of the record will be published by a government institution, agent of the Government of Canada or minister of the Crown — other than under Part 2 — within 90 days after the request is made or within any further period of time that may be necessary for printing or translating the material for the purpose of printing it. ## Third Party Intervention ### Notice to third parties 27 (1) If the head of a government institution intends to disclose a record requested under this Part that contains or that the head has reason to believe might contain trade secrets of a third party, information described in paragraph 20(1)(b) or (b.1) that was supplied by a third party, or information the disclosure of which the head can reasonably foresee might effect a result described in paragraph 20(1)(c) or (d) in respect of a third party, the head shall make every reasonable effort to give the third party written notice of the request and of the head’s intention to disclose within 30 days after the request is received. ### Waiver of notice (2) Any third party to whom a notice is required to be given under subsection (1) in respect of an intended disclosure may waive the requirement, and where the third party has consented to the disclosure the third party shall be deemed to have waived the requirement. ### Contents of notice (3) A notice given under subsection (1) shall include (a) a statement that the head of the government institution giving the notice intends to release a record or a part thereof that might contain material or information described in subsection (1); (b) a description of the contents of the record or part thereof that, as the case may be, belong to, were supplied by or relate to the third party to whom the notice is given; and (c) a statement that the third party may, within twenty days after the notice is given, make representations to the head of the government institution that has control of the record as to why the record or part thereof should not be disclosed. ### Extension of time limit (4) The head of a government institution may extend the time limit set out in subsection (1) in respect of a request under this Part where the time limit set out in section 7 is extended under paragraph 9(1)(a) or (b) in respect of the same request, but any extension under this subsection shall be for a period no longer than the period of the extension under section 9. ### Representations of third party and decision 28 (1) Where a notice is given by the head of a government institution under subsection 27(1) to a third party in respect of a record or a part thereof, (a) the third party shall, within twenty days after the notice is given, be given the opportunity to make representations to the head of the institution as to why the record or the part thereof should not be disclosed; and (b) the head of the institution shall, within thirty days after the notice is given, if the third party has been given an opportunity to make representations under paragraph (a), make a decision as to whether or not to disclose the record or the part thereof and give written notice of the decision to the third party. ### Representations to be made in writing (2) Representations made by a third party under paragraph (1)(a) shall be made in writing unless the head of the government institution concerned waives that requirement, in which case they may be made orally. ### Contents of notice of decision to disclose (3) A notice given under paragraph (1)(b) of a decision to disclose a record requested under this Part or a part thereof shall include (a) a statement that the third party to whom the notice is given is entitled to request a review of the decision under section 44 within twenty days after the notice is given; and (b) a statement that the person who requested access to the record will be given access thereto or to the part thereof unless, within twenty days after the notice is given, a review of the decision is requested under section 44. ### Disclosure of record (4) Where, pursuant to paragraph (1)(b), the head of a government institution decides to disclose a record requested under this Part or a part thereof, the head of the institution shall give the person who made the request access to the record or the part thereof forthwith on completion of twenty days after a notice is given under that paragraph, unless a review of the decision is requested under section 44. 29 [Repealed, 2019, c. 18, s. 12] ## Complaints ### Receipt and investigation of complaints 30 (1) Subject to this Part, the Information Commissioner shall receive and investigate complaints (a) from persons who have been refused access to a record requested under this Part or a part thereof; (b) from persons who have been required to pay an amount under section 11 that they consider unreasonable; (c) from persons who have requested access to records in respect of which time limits have been extended pursuant to section 9 where they consider the extension unreasonable; (d) from persons who have not been given access to a record or a part thereof in the official language requested by the person under subsection 12(2), or have not been given access in that language within a period of time that they consider appropriate; (d.1) from persons who have not been given access to a record or a part thereof in an alternative format pursuant to a request made under subsection 12(3), or have not been given such access within a period of time that they consider appropriate; (e) in respect of any publication or bulletin referred to in section 5; or (f) in respect of any other matter relating to requesting or obtaining access to records under this Part. ### Complaints submitted on behalf of complainants (2) Nothing in this Part precludes the Information Commissioner from receiving and investigating complaints of a nature described in subsection (1) that are submitted by a person authorized by the complainant to act on behalf of the complainant, and a reference to a complainant in any other section includes a reference to a person so authorized. ### Information Commissioner may initiate complaint (3) Where the Information Commissioner is satisfied that there are reasonable grounds to investigate a matter relating to requesting or obtaining access to records under this Part, the Commissioner may initiate a complaint in respect thereof. ### Reasons for refusing or ceasing to investigate (4) The Information Commissioner may refuse or cease to investigate a complaint if, in the Commissioner’s opinion, (a) the complaint is trivial, frivolous or vexatious or is made in bad faith; or (b) an investigation or any further investigation is unnecessary having regard to all the circumstances of the complaint, including that the complaint is already the subject of an investigation or that the subject matter of the complaint has already been the subject of a report by the Commissioner. ### Notice (5) If the Information Commissioner refuses or ceases to investigate a complaint, he or she shall give a written notice to (a) the complainant, stating the reasons for refusing or ceasing to investigate the complaint; (b) the head of the government institution concerned, if the Commissioner provided the head of the institution with a notice under section 32; (c) any third party that was entitled under paragraph 35(2)(c) to make and that made representations to the Commissioner in respect of the complaint; and (d) the Privacy Commissioner, if the Information Commissioner consulted him or her under subsection 36(1.1) or section 36.2. ### Written complaint 31 A complaint under this Part shall be made to the Information Commissioner in writing unless the Commissioner authorizes otherwise. If the complaint relates to a request by a person for access to a record, it shall be made within sixty days after the day on which the person receives a notice of a refusal under section 7, is given access to all or part of the record or, in any other case, becomes aware that grounds for the complaint exist. ## Investigations ### Notice of intention to investigate 32 Before commencing an investigation of a complaint under this Part, the Information Commissioner shall notify the head of the government institution concerned of the intention to carry out the investigation and shall inform the head of the institution of the substance of the complaint. ### Notice to third parties 33 Where the head of a government institution refuses to disclose a record requested under this Part or a part thereof and receives a notice under section 32 of a complaint in respect of the refusal, the head of the institution shall forthwith advise the Information Commissioner of any third party that the head of the institution has notified under subsection 27(1) in respect of the request or would have notified under that subsection if the head of the institution had intended to disclose the record or part thereof. ### Regulation of procedure 34 Subject to this Part, the Information Commissioner may determine the procedure to be followed in the performance of any duty or function of the Commissioner under this Part. ### Investigations in private 35 (1) Every investigation of a complaint under this Part by the Information Commissioner shall be conducted in private. ### Right to make representations (2) In the course of an investigation of a complaint under this Part by the Information Commissioner, a reasonable opportunity to make representations shall be given to (a) the person who made the complaint, (b) the head of the government institution concerned, (c) a third party if (i) the Information Commissioner intends to make an order, under subsection 36.1(1), requiring the disclosure of a record or a part of a record — or to recommend the disclosure of a record or a part of a record — that contains, or that the Commissioner has reason to believe might contain, trade secrets of the third party, information described in paragraph 20(1)(b) or (b.1) that was supplied by the third party or information the disclosure of which the Commissioner can reasonably foresee might effect a result described in paragraph 20(1)(c) or (d) in respect of the third party, and (ii) the third party can reasonably be located, and (d) the Privacy Commissioner, if the Information Commissioner consults him or her under subsection 36(1.1) or section 36.2. However no one is entitled as of right to be present during, to have access to or to comment on representations made to the Information Commissioner by any other person. ### Powers of Information Commissioner in carrying out investigations 36 (1) The Information Commissioner has, in relation to the carrying out of the investigation of any complaint under this Part, power (a) to summon and enforce the appearance of persons before the Information Commissioner and compel them to give oral or written evidence on oath and to produce such documents and things as the Commissioner deems requisite to the full investigation and consideration of the complaint, in the same manner and to the same extent as a superior court of record; (b) to administer oaths; (c) to receive and accept such evidence and other information, whether on oath or by affidavit or otherwise, as the Information Commissioner sees fit, whether or not the evidence or information is or would be admissible in a court of law; (d) to enter any premises occupied by any government institution on satisfying any security requirements of the institution relating to the premises; (e) to converse in private with any person in any premises entered pursuant to paragraph (d) and otherwise carry out therein such inquiries within the authority of the Information Commissioner under this Part as the Commissioner sees fit; and (f) to examine or obtain copies of or extracts from books or other records found in any premises entered pursuant to paragraph (d) containing any matter relevant to the investigation. ### For greater certainty (1.1) For greater certainty, the Information Commissioner may, during the investigation of any complaint under this Part, consult the Privacy Commissioner and may, in the course of the consultation, disclose to him or her personal information. ### Access to records (2) Despite any other Act of Parliament, any privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries and litigation privilege, and subject to subsection (2.1), the Information Commissioner may, during the investigation of any complaint under this Part, examine any record to which this Part applies that is under the control of a government institution, and no such record may be withheld from the Commissioner on any grounds. ### Protected information — solicitors, advocates and notaries (2.1) The Information Commissioner may examine a record that contains information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege only if the head of a government institution refuses to disclose the record under section 23. ### For greater certainty (2.2) For greater certainty, the disclosure by the head of a government institution to the Information Commissioner of a record that contains information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege does not constitute a waiver of those privileges or that professional secrecy. ### Evidence in other proceedings (3) Except in a prosecution of a person for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Part, in a prosecution for an offence under section 67, in a review before the Court under this Part or in an appeal from such proceedings, evidence given by a person in proceedings under this Part and evidence of the existence of the proceedings is inadmissible against that person in a court or in any other proceedings. ### Witness fees (4) Any person summoned to appear before the Information Commissioner pursuant to this section is entitled in the discretion of the Commissioner to receive the like fees and allowances for so doing as if summoned to attend before the Federal Court. ### Return of documents, etc. (5) Any document or thing produced pursuant to this section by any person or government institution shall be returned by the Information Commissioner within ten days after a request is made to the Commissioner by that person or government institution, but nothing in this subsection precludes the Commissioner from again requiring its production in accordance with this section. ## Orders and Reports ### Power to make order 36.1 (1) If, after investigating a complaint described in any of paragraphs 30(1)(a) to (e), the Commissioner finds that the complaint is well-founded, he or she may make any order in respect of a record to which this Part applies that he or she considers appropriate, including requiring the head of the government institution that has control of the record in respect of which the complaint is made (a) to disclose the record or a part of the record; and (b) to reconsider their decision to refuse access to the record or a part of the record. ### Limitation (2) The Information Commissioner is not authorized to make an order after investigating a complaint that he or she initiates under subsection 30(3). ### Condition (3) The order may include any condition that the Information Commissioner considers appropriate. ### Effect (4) The order takes effect on (a) the 31st business day after the day on which the head of the government institution receives a report under subsection 37(2), if only the complainant and the head of the institution are provided with the report; or (b) the 41st business day after the day on which the head of the government institution receives a report under subsection 37(2), if a third party or the Privacy Commissioner is also provided with the report. ### Deemed date of receipt (5) For the purposes of this section, the head of the government institution is deemed to have received the report on the fifth business day after the date of the report. ### Consulting Privacy Commissioner 36.2 If the Information Commissioner intends to make an order requiring the head of a government institution to disclose a record or a part of a record that the head of the institution refuses to disclose under subsection 19(1), the Information Commissioner shall consult the Privacy Commissioner and may, in the course of the consultation, disclose to him or her personal information. ### Notice to third parties 36.3 (1) If the Information Commissioner intends to make an order requiring the head of a government institution to disclose a record or a part of a record that the Commissioner has reason to believe might contain trade secrets of a third party, information described in paragraph 20(1)(b) or (b.1) that was supplied by a third party or information the disclosure of which the Commissioner can reasonably foresee might effect a result described in paragraph 20(1)(c) or (d) in respect of a third party, the Commissioner shall make every reasonable effort to give the third party written notice of the Commissioner’s intention. ### Contents of notice (2) The notice must include (a) a statement that the Information Commissioner intends to make an order requiring the head of a government institution to disclose a record or a part of a record that might contain material or information described in subsection (1); (b) a description of the contents of the record or the part of the record that, as the case may be, belong to, were supplied by or relate to the third party to whom the notice is given; and (c) a statement that the third party may, within 20 days after the notice is given, make representations to the Commissioner as to why the record or the part of the record should not be disclosed. ### Information Commissioner’s initial report to government institution 37 (1) If, on investigating a complaint under this Part, the Information Commissioner finds that the complaint is well-founded, the Commissioner shall provide the head of the government institution concerned with a report that sets out (a) the findings of the investigation and any recommendations that the Commissioner considers appropriate; (b) any order that the Commissioner intends to make; and (c) the period within which the head of the government institution shall give notice to the Commissioner of the action taken or proposed to be taken to implement the order or recommendations set out in the report or reasons why no such action has been or is proposed to be taken. ### Final report to complainant, government institution and other persons (2) The Information Commissioner shall, after investigating a complaint under this Part, provide a report that sets out the results of the investigation and any order or recommendations that he or she makes to (a) the complainant; (b) the head of the government institution; (c) any third party that was entitled under paragraph 35(2)(c) to make and that made representations to the Commissioner in respect of the complaint; and (d) the Privacy Commissioner, if he or she was entitled under paragraph 35(2)(d) to make representations and he or she made representations to the Commissioner in respect of the complaint. However, no report is to be made under this subsection and no order is to be made until the expiry of the time within which the notice referred to in paragraph (1)(c) is to be given to the Information Commissioner. ### Contents of report (3) The Information Commissioner may include in the report referred to in subsection (2) any comments on the matter that he or she thinks fit and shall include in that report (a) a summary of any notice that he or she receives under paragraph (1)(c); (b) a statement that any person to whom the report is provided has the right to apply for a review under section 41, within the period specified for exercising that right, and that the person must comply with section 43 if they exercise that right; (c) a statement that if no person applies for a review within the period specified for doing so, any order set out in the report takes effect in accordance with subsection 36.1(4); and (d) a statement, if applicable, that the Information Commissioner will provide a third party or the Privacy Commissioner with the report. ### Publication (3.1) The Information Commissioner may publish the report referred to in subsection (2). ### Limitation (3.2) However, the Information Commissioner is not to publish the report until the expiry of the periods to apply to the Court for a review of a matter that are referred to in section 41. ### Access to be given (4) If the head of a government institution gives notice to the Information Commissioner under paragraph (1)(c) that access to a record or a part of a record will be given to a complainant, the head of the institution shall give the complainant access to the record or the part of the record (a) on receiving the report under subsection (2) or within any period specified in the Commissioner’s order, if only the complainant and the head of the institution are provided with the report; or (b) on the expiry of the 40th business day after the day on which the head of the government institution receives the report under subsection (2) or within any period specified in the Commissioner’s order that begins on the expiry of that 40th business day, if a third party or the Privacy Commissioner are also provided with the report, unless a review is applied for under section 41. ### Deemed date of receipt (5) For the purposes of this section, the head of the government institution is deemed to have received the report referred to in subsection (2) on the fifth business day after the date of the report. ## Reports to Parliament ### Annual report 38 The Information Commissioner shall, within three months after the termination of each financial year, submit an annual report to Parliament on the activities of the office during that financial year. ### Special reports 39 (1) The Information Commissioner may, at any time, make a special report to Parliament referring to and commenting on any matter within the scope of the powers, duties and functions of the Commissioner where, in the opinion of the Commissioner, the matter is of such urgency or importance that a report thereon should not be deferred until the time provided for transmission of the next annual report of the Commissioner under section 38. ### Where investigation made (2) Any report made pursuant to subsection (1) that relates to an investigation under this Part shall be made only after the procedures set out in section 37 have been followed in respect of the investigation. ### Transmission of reports 40 (1) Every report to Parliament made by the Information Commissioner under section 38 or 39 shall be made by being transmitted to the Speaker of the Senate and to the Speaker of the House of Commons for tabling in those Houses. ### Reference to Parliamentary committee (2) Every report referred to in subsection (1) shall, after it is transmitted for tabling under that subsection, be referred to the committee designated or established by Parliament for the purpose of section 99. ## Review by the Federal Court ### Review by Federal Court — complainant 41 (1) A person who makes a complaint described in any of paragraphs 30(1)(a) to (e) and who receives a report under subsection 37(2) in respect of the complaint may, within 30 business days after the day on which the head of the government institution receives the report, apply to the Court for a review of the matter that is the subject of the complaint. ### Review by Federal Court — government institution (2) The head of a government institution who receives a report under subsection 37(2) may, within 30 business days after the day on which they receive it, apply to the Court for a review of any matter that is the subject of an order set out in the report. ### Review by Federal Court — third parties (3) If neither the person who made the complaint nor the head of the government institution makes an application under this section within the period for doing so, a third party who receives a report under subsection 37(2) may, within 10 business days after the expiry of the period referred to in subsection (1), apply to the Court for a review of the application of any exemption provided for under this Part that may apply to a record that might contain information described in subsection 20(1) and that is the subject of the complaint in respect of which the report is made. ### Review by Federal Court — Privacy Commissioner (4) If neither the person who made the complaint nor the head of the institution makes an application under this section within the period for doing so, the Privacy Commissioner, if he or she receives a report under subsection 37(2), may, within 10 business days after the expiry of the period referred to in subsection (1), apply to the Court for a review of any matter in relation to the disclosure of a record that might contain personal information and that is the subject of the complaint in respect of which the report is made. ### Respondents (5) The person who applies for a review under subsection (1), (3) or (4) may name only the head of the government institution concerned as the respondent to the proceedings. The head of the government institution who applies for a review under subsection (2) may name only the Information Commissioner as the respondent to the proceedings. ### Deemed date of receipt (6) For the purposes of this section, the head of the government institution is deemed to have received the report on the fifth business day after the date of the report. ### Operation of order stayed 41.1 (1) Subject to subsection (2), the making of an application under section 41 operates as a stay of any order set out in a report received under subsection 37(2) by the person who made the application until the proceedings are finally concluded. ### Part of order operative (2) If all of the persons who received the report agree in writing, any part of the order that relates to a matter that is not the subject of the proceedings becomes operative. ### Parties to review 41.2 (1) If a person who receives a report under subsection 37(2) applies to the Court for a review under section 41, any other person who received the report under that subsection has the right to appear as a party to the review. ### Scope of proceedings (2) If a complainant, a third party or the Privacy Commissioner files notice of their intention to appear as a party to a review with the Court within 10 business days after the expiry of the period referred to in subsection 41(1), they may raise for determination by the Court any matter in respect of which they may make an application under section 41. ### Burden of proof – party (3) If a third party or the Privacy Commissioner raises a matter for determination by the court under subsection (2), the burden of establishing that the disclosure of a record requested under this Part or a part of such a record is not authorized is on the person who raises the matter. ### Information Commissioner may appear 42 The Information Commissioner may (a) appear before the Court on behalf of a complainant; or (b) appear as a party to any review applied for under section 41 or, with leave of the Court, as a party to any review applied for under section 44. ### Service on head of government institution 43 (1) If a complainant, a third party or the Privacy Commissioner makes an application for a review under section 41, he or she shall immediately serve a copy of the originating document on the head of the government institution who received the report under subsection 37(2). ### Service or notice (2) If the head of a government institution makes an application for a review under section 41, he or she shall immediately serve a copy of the originating document on the persons who are entitled to be provided a report under subsection 37(2) and on the Information Commissioner. However, if the head of the institution is served with a copy of an originating document under subsection (1), he or she shall, as soon as possible after being served, give written notice of the application to those persons and to the Information Commissioner, unless any of those persons or the Commissioner has already been served with a copy of the document. ### Third party may apply for review 44 (1) Any third party to whom the head of a government institution is required under paragraph 28(1)(b) to give notice of a decision to disclose a record or a part of a record under this Part may, within 20 days after the notice is given, apply to the Court for a review of the matter. ### Notice to person who requested record (2) The head of a government institution who has given notice under paragraph 28(1)(b) that a record requested under this Part or a part of such a record will be disclosed shall, on being given notice of an application made under subsection (1) in respect of the disclosure, give written notice of the application to the person who requested access to the record. ### Person who requested access may appear as party (3) Any person who has been given notice of an application for a review under subsection (2) may appear as a party to the review. ### De novo review 44.1 For greater certainty, an application under section 41 or 44 is to be heard and determined as a new proceeding. ### Hearing in summary way 45 An application made under section 41 or 44 is to be heard and determined in a summary way in accordance with any special rules made in respect of such applications under section 46 of the Federal Courts Act. ### Access to records 46 Despite any other Act of Parliament, any privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries and litigation privilege, the Court may, in the course of any proceedings before it arising from an application under section 41 or 44, examine any record to which this Part applies that is under the control of a government institution, and no such record may be withheld from the Court on any grounds. ### Court to take precautions against disclosing 47 (1) In any proceedings before the Court arising from an application under section 41 or 44, the Court shall take every reasonable precaution, including, when appropriate, receiving representations ex parte and conducting hearings in camera, to avoid the disclosure by the Court or any person of (a) any information or other material on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under this Part; or (b) any information as to whether a record exists where the head of a government institution, in refusing to disclose the record under this Part, does not indicate whether it exists. ### Disclosure of offence authorized (2) The Court may disclose to the appropriate authority information relating to the commission of an offence against a law of Canada or a province by a director, an officer or an employee of a government institution if, in the Court’s opinion, there is evidence of such an offence. ### Burden of proof — subsection 41(1) or (2) 48 (1) In any proceedings before the Court arising from an application under subsection 41(1) or (2), the burden of establishing that the head of a government institution is authorized to refuse to disclose a record requested under this Part or a part of such a record or to make the decision or take the action that is the subject of the proceedings is on the government institution concerned. ### Burden of proof — subsection 41(3) or (4) (2) In any proceedings before the Court arising from an application under subsection 41(3) or (4), the burden of establishing that the head of a government institution is not authorized to disclose a record that is described in that subsection and requested under this Part or a part of such a record is on the person who made that application. ### Order of Court where no authorization to refuse disclosure found 49 Where the head of a government institution refuses to disclose a record requested under this Part or a part thereof on the basis of a provision of this Part not referred to in section 50, the Court shall, if it determines that the head of the institution is not authorized to refuse to disclose the record or part thereof, order the head of the institution to disclose the record or part thereof, subject to such conditions as the Court deems appropriate, to the person who requested access to the record, or shall make such other order as the Court deems appropriate. ### Order of Court where reasonable grounds of injury not found 50 Where the head of a government institution refuses to disclose a record requested under this Part or a part thereof on the basis of section 14 or 15 or paragraph 16(1)(c) or (d) or 18(d), the Court shall, if it determines that the head of the institution did not have reasonable grounds on which to refuse to disclose the record or part thereof, order the head of the institution to disclose the record or part thereof, subject to such conditions as the Court deems appropriate, to the person who requested access to the record, or shall make such other order as the Court deems appropriate. ### Order of Court if authorization to refuse disclosure found 50.1 The Court shall, if it determines that the head of a government institution is authorized to refuse to disclose a record or a part of a record on the basis of a provision of this Part not referred to in section 50 or that the head of the institution has reasonable grounds on which to refuse to disclose a record or a part of a record on the basis of section 14 or 15 or paragraph 16(1)(c) or (d) or 18(d), make an order declaring that the head of the institution is not required to comply with the provisions of the Information Commissioner’s order that relate to the matter that is the subject of the proceedings, or shall make any other order that it considers appropriate. ### Order of Court — other decisions or actions 50.2 If the subject matter of the proceedings before the Court is the decision or action of the head of a government institution, other than a decision or action referred to in any of sections 49 to 50.1, the Court shall, (a) if it determines that the head of the institution is not authorized to make that decision or to take that action, make an order declaring that the head of the institution is required to comply with the provisions of the Information Commissioner’s order that relate to that matter, or make any other order that it considers appropriate; or (b) if it determines that the head of the institution is authorized to make that decision or to take that action, make an order declaring that the head of the institution is not required to comply with the provisions of the Information Commissioner’s order that relate to that matter, or make any other order that it considers appropriate. ### Incompatible provisions 50.3 An order of the Court made under any of sections 49 to 50.2 has the effect of rescinding the provisions of the Information Commissioner’s order relating to any matter that is the subject of the proceedings that are incompatible with the Court’s order. ### Court to specify rescinded provisions 50.4 The Court must specify in any order that it makes under any of sections 49 to 50.2 the provisions of the Information Commissioner’s order relating to any matter that is the subject of the proceedings that are rescinded under section 50.3. ### Order of Court not to disclose record 51 Where the Court determines, after considering an application under section 44, that the head of a government institution is required to refuse to disclose a record or part of a record, the Court shall order the head of the institution not to disclose the record or part thereof or shall make such other order as the Court deems appropriate. ### Applications relating to international affairs or defence 52 (1) An application under section 41 relating to a record or a part of a record that the head of a government institution has refused to disclose by reason of paragraph 13(1)(a) or (b) or section 15 shall be heard and determined by the Chief Justice of the Federal Court or by any other judge of that Court that the Chief Justice may designate to hear those applications. ### Special rules for hearings (2) An application referred to in subsection (1) or an appeal brought in respect of such application shall (a) be heard in camera ; and (b) on the request of the head of the government institution concerned, be heard and determined in the National Capital Region described in the schedule to the National Capital Act. ### Ex parte representations (3) During the hearing of an application referred to in subsection (1) or an appeal brought in respect of such application, the head of the government institution concerned shall, on the request of the head of the institution, be given the opportunity to make representations ex parte. ### Costs 53 (1) Subject to subsection (2), the costs of and incidental to all proceedings in the Court under this Part shall be in the discretion of the Court and shall follow the event unless the Court orders otherwise. ### Costs — important new principle (2) If the Court is of the opinion that an application for review under section 41 has raised an important new principle in relation to this Part, the Court shall order that costs be awarded to the applicant even if the applicant has not been successful in the result. ## Office of the Information Commissioner ## Information Commissioner ### Appointment 54 (1) The Governor in Council shall, by commission under the Great Seal, appoint an Information Commissioner after consultation with the Leader of the Government in the Senate or Government Representative in the Senate, the Leader of the Opposition in the Senate, the Leader or Facilitator of every other recognized party or parliamentary group in the Senate and the leader of every recognized party in the House of Commons and approval of the appointment by resolution of the Senate and House of Commons. ### Tenure (2) Subject to this section, the Information Commissioner holds office during good behaviour for a term of seven years, but may be removed for cause by the Governor in Council at any time on address of the Senate and House of Commons. ### Further terms (3) The Information Commissioner, on the expiration of a first or any subsequent term of office, is eligible to be re-appointed for a further term not exceeding seven years. ### Interim appointment (4) In the event of the absence or incapacity of the Information Commissioner, or if that office is vacant, the Governor in Council may appoint any qualified person to hold that office in the interim for a term not exceeding six months, and that person shall, while holding office, be paid the salary or other remuneration and expenses that may be fixed by the Governor in Council. ### Rank, powers and duties generally 55 (1) The Information Commissioner shall rank as and have all the powers of a deputy head of a department, shall engage exclusively in the duties of the office of Information Commissioner under this Part or under any other Act of Parliament and shall not hold any other office under Her Majesty for reward or engage in any other employment for reward. ### Salary and expenses (2) The Information Commissioner shall be paid a salary equal to the salary of a judge of the Federal Court, other than the Chief Justice of that Court, and is entitled to be paid reasonable travel and living expenses incurred in the performance of duties under this Part or under any other Act of Parliament. ### Pension benefits (3) The provisions of the Public Service Superannuation Act, other than those relating to tenure of office, apply to the Information Commissioner, except that a person appointed as Information Commissioner from outside the public service, as defined in the Public Service Superannuation Act, may, by notice in writing given to the President of the Treasury Board not more than sixty days after the date of appointment, elect to participate in the pension plan provided in the Diplomatic Service (Special) Superannuation Act, in which case the provisions of that Act, other than those relating to tenure of office, apply to the Information Commissioner from the date of appointment and the provisions of the Public Service Superannuation Act do not apply. ### Other benefits (4) The Information Commissioner is deemed to be employed in the federal public administration for the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act. ## Assistant Information Commissioner ### Appointment of Assistant Information Commissioner 56 (1) The Governor in Council may, on the recommendation of the Information Commissioner, appoint one or more Assistant Information Commissioners. ### Tenure of office and removal of Assistant Information Commissioner (2) Subject to this section, an Assistant Information Commissioner holds office during good behaviour for a term not exceeding five years. ### Further terms (3) An Assistant Information Commissioner, on the expiration of a first or any subsequent term of office, is eligible to be re-appointed for a further term not exceeding five years. ### Duties generally 57 (1) An Assistant Information Commissioner shall engage exclusively in such duties or functions of the office of the Information Commissioner under this Part or under any other Act of Parliament as are delegated by the Information Commissioner to that Assistant Information Commissioner and shall not hold any other office under Her Majesty for reward or engage in any other employment for reward. ### Salary and expenses (2) An Assistant Information Commissioner is entitled to be paid a salary to be fixed by the Governor in Council and such travel and living expenses incurred in the performance of duties under this Part or under any other Act of Parliament as the Information Commissioner considers reasonable. ### Pension benefits (3) The provisions of the Public Service Superannuation Act, other than those relating to tenure of office, apply to an Assistant Information Commissioner. ### Other benefits (4) An Assistant Information Commissioner is deemed to be employed in the federal public administration for the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act. ## Staff ### Staff of the Information Commissioner 58 (1) Such officers and employees as are necessary to enable the Information Commissioner to perform the duties and functions of the Commissioner under this Part or under any other Act of Parliament shall be appointed in accordance with the Public Service Employment Act. ### Technical assistance (2) The Information Commissioner may engage on a temporary basis the services of persons having technical or specialized knowledge of any matter relating to the work of the Commissioner to advise and assist the Commissioner in the performance of the duties and functions of the Commissioner under this Part or under any other Act of Parliament and, with the approval of the Treasury Board, may fix and pay the remuneration and expenses of those persons. ## Delegation ### Delegation by Information Commissioner 59 (1) Subject to subsection (2), the Information Commissioner may authorize any person to exercise or perform, subject to such restrictions or limitations as the Commissioner may specify, any of the powers, duties or functions of the Commissioner under this Part or under any other Act of Parliament except (a) in any case other than a delegation to an Assistant Information Commissioner, the power to delegate under this section; and (b) in any case, the powers, duties or functions set out in sections 36.1, 38 and 39. ### Investigations relating to international affairs and defence (2) The Information Commissioner or an Assistant Information Commissioner may not delegate the investigation of a complaint resulting from a refusal by the head of a government institution to disclose all or part of a record under paragraph 13(1)(a) or (b) or section 15 except to one of eight officers or employees — or one of any greater number of officers or employees fixed by the designated Minister — specifically designated by the Commissioner for the purpose of conducting those investigations. ### Delegation by Assistant Information Commissioner (3) An Assistant Information Commissioner may authorize any person to exercise or perform, subject to such restrictions or limitations as the Assistant Information Commissioner may specify, any of the powers, duties or functions of the Information Commissioner under this Part or under any other Act of Parliament that the Assistant Information Commissioner is authorized by the Information Commissioner to exercise or perform. ## General ### Principal office 60 The principal office of the Information Commissioner shall be in the National Capital Region described in the schedule to the National Capital Act. ### Security requirements 61 The Information Commissioner and every person acting on behalf or under the direction of the Commissioner who receives or obtains information relating to any investigation under this Part or under any other Act of Parliament shall, with respect to access to and the use of that information, satisfy any security requirements applicable to, and take any oath of secrecy required to be taken by, persons who normally have access to and use of that information. ### Confidentiality 62 Subject to this Part, the Information Commissioner and every person acting on behalf or under the direction of the Commissioner shall not disclose any information that comes to their knowledge in the performance of their duties and functions under this Part. ### Disclosure authorized 63 (1) The Information Commissioner may disclose or may authorize any person acting on behalf or under the direction of the Commissioner to disclose information (a) that, in the opinion of the Commissioner, is necessary to (i) carry out an investigation under this Part, or (ii) establish the grounds for findings, recommendations and orders set out in any report under this Part; or (b) in the course of a prosecution for an offence under this Part, a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Part, a review before the Court under this Part or an appeal therefrom. ### Disclosure of offence authorized (2) The Information Commissioner may disclose to the Attorney General of Canada information relating to the commission of an offence against a law of Canada or a province by a director, an officer or an employee of a government institution if, in the Commissioner’s opinion, there is evidence of such an offence. ### Information not to be disclosed 64 In carrying out an investigation under this Part and in any report published under subsection 37(3.1) or made to Parliament under section 38 or 39, the Information Commissioner and any person acting on behalf or under the direction of the Information Commissioner shall take every reasonable precaution to avoid the disclosure of, and shall not disclose, (a) any information or other material on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under this Part; or (b) any information as to whether a record exists where the head of a government institution, in refusing to give access to the record under this Part, does not indicate whether it exists. ### No summons 65 The Information Commissioner or any person acting on behalf or under the direction of the Commissioner is not a competent or compellable witness, in respect of any matter coming to the knowledge of the Commissioner or that person as a result of performing any duties or functions under this Part during an investigation, in any proceedings other than a prosecution for an offence under this Part, a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Part, a review before the Court under this Part or an appeal therefrom. ### Protection of Information Commissioner 66 (1) No criminal or civil proceedings lie against the Information Commissioner, or against any person acting on behalf or under the direction of the Commissioner, for anything done, reported or said in good faith in the course of the exercise or performance or purported exercise or performance of any power, duty or function of the Commissioner under this Part. ### Libel or slander (2) For the purposes of any law relating to libel or slander, (a) anything said, any information supplied or any document or thing produced in good faith in the course of an investigation by or on behalf of the Information Commissioner under this Part is privileged; and (b) any report made in good faith by the Information Commissioner under this Part and any fair and accurate account of the report made in good faith in a newspaper or any other periodical publication or in a broadcast is privileged. ## Offences ### Obstruction 67 (1) No person shall obstruct the Information Commissioner or any person acting on behalf or under the direction of the Commissioner in the performance of the Commissioner’s duties and functions under this Part. ### Offence and punishment (2) Every person who contravenes this section is guilty of an offence and liable on summary conviction to a fine not exceeding one thousand dollars. ### Obstructing right of access 67.1 (1) No person shall, with intent to deny a right of access under this Part, (a) destroy, mutilate or alter a record; (b) falsify a record or make a false record; (c) conceal a record; or (d) direct, propose, counsel or cause any person in any manner to do anything mentioned in any of paragraphs (a) to (c). ### Offence and punishment (2) Every person who contravenes subsection (1) is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding two years or to a fine not exceeding $10,000, or to both; or (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding six months or to a fine not exceeding $5,000, or to both. ## Exclusions ### Part 1 does not apply to certain materials 68 This Part does not apply to (a) published material, other than material published under Part 2, or material available for purchase by the public; (b) library or museum material preserved solely for public reference or exhibition purposes; or (c) material placed in the Library and Archives of Canada, the National Gallery of Canada, the Canadian Museum of History, the Canadian Museum of Nature, the National Museum of Science and Technology, the Canadian Museum for Human Rights or the Canadian Museum of Immigration at Pier 21 by or on behalf of persons or organizations other than government institutions. ### Canadian Broadcasting Corporation 68.1 This Part does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities, other than information that relates to its general administration. ### Atomic Energy of Canada Limited 68.2 This Part does not apply to any information that is under the control of Atomic Energy of Canada Limited other than information that relates to (a) its general administration; or (b) its operation of any nuclear facility within the meaning of section 2 of the Nuclear Safety and Control Act that is subject to regulation by the Canadian Nuclear Safety Commission established under section 8 of that Act. ### Confidences of the Queen’s Privy Council for Canada 69 (1) This Part does not apply to confidences of the Queen’s Privy Council for Canada, including, without restricting the generality of the foregoing, (a) memoranda the purpose of which is to present proposals or recommendations to Council; (b) discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions; (c) agenda of Council or records recording deliberations or decisions of Council; (d) records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy; (e) records the purpose of which is to brief ministers of the Crown in relation to matters that are before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d); (f) draft legislation; and (g) records that contain information about the contents of any record within a class of records referred to in paragraphs (a) to (f). ### Definition of *Council* (2) For the purposes of subsection (1), *Council* means the Queen’s Privy Council for Canada, committees of the Queen’s Privy Council for Canada, Cabinet and committees of Cabinet. ### Exception (3) Subsection (1) does not apply to (a) confidences of the Queen’s Privy Council for Canada that have been in existence for more than twenty years; or (b) discussion papers described in paragraph (1)(b) (i) if the decisions to which the discussion papers relate have been made public, or (ii) where the decisions have not been made public, if four years have passed since the decisions were made. ### Certificate under Canada Evidence Act 69.1 (1) If a certificate under section 38.13 or 38.41 of the Canada Evidence Act prohibiting the disclosure of information contained in a record is issued before a complaint is filed under this Part in respect of a request for access to that information, this Part does not apply to that information. ### Certificate following filing of complaint (2) Despite any other provision of this Part, if a certificate under section 38.13 or 38.41 of the Canada Evidence Act prohibiting the disclosure of information contained in a record is issued after the filing of a complaint under this Part in relation to a request for access to that information, (a) all proceedings under this Part in respect of the complaint, including an investigation, appeal or judicial review, are discontinued; (b) the Information Commissioner shall not disclose the information and shall take all necessary precautions to prevent its disclosure; and (c) the Information Commissioner shall, within 10 days after the certificate is published in the Canada Gazette, return the information to the head of the government institution that controls the information. ## Designated Minister’s Duties and Functions ### Duties and functions of designated Minister 70 (1) Subject to subsection (2), the designated Minister shall (a) cause to be kept under review the manner in which records under the control of government institutions are maintained and managed to ensure compliance with the provisions of this Part and the regulations relating to access to records; (b) prescribe any forms that may be required for the operation of this Part and the regulations made under this Part; (c) cause to be prepared and distributed to government institutions directives and guidelines concerning the operation of this Part and the regulations made under this Part; and (c.1) [Repealed, 2019, c. 18, s. 33] (d) cause statistics to be collected on an annual basis for the purpose of assessing the compliance of government institutions with the provisions of this Part and the regulations relating to access to records and cause to be published on an annual basis a report containing a summary of those statistics. ### Duties and functions of designated Minister (1.1) The designated Minister may fix the number of officers or employees of the Information Commissioner for the purposes of subsection 59(2). ### Exception for Bank of Canada (2) Anything that is required to be done by the designated Minister under paragraph (1)(a) or (c) shall be done in respect of the Bank of Canada by the Governor of the Bank of Canada. ## Regulations ### Governor in Council 71 The Governor in Council may make regulations (a) prescribing limitations in respect of the format in which records are to be provided under subsection 4(2.1); (b) prescribing limitations in respect of records that can be produced from machine readable records for the purpose of subsection 4(3); (c) prescribing the procedure to be followed in making and responding to a request for access to a record under this Part; (d) prescribing, for the purpose of subsection 8(1), the conditions under which a request may be transferred from one government institution to another; (e) prescribing a fee for the purposes of subsection 11(1); (f) prescribing, for the purpose of subsection 12(1), the manner or place in which access to a record or a part of a record shall be given; (g) specifying investigative bodies for the purpose of paragraph 16(1)(a); (h) specifying classes of investigations for the purpose of paragraph 16(4)(c); and (i) prescribing the procedures to be followed by the Information Commissioner and any person acting on behalf or under the direction of the Information Commissioner in examining or obtaining copies of records relevant to an investigation of a complaint in respect of a refusal to disclose a record or a part of a record under paragraph 13(1)(a) or (b) or section 15. # PART 2 ## Proactive Publication of Information ## Senate, House of Commons and Parliamentary Entities ## Interpretation ### Definition of quarter 71.01 In sections 71.02 to 71.14, *quarter* means a three-month period that begins on the first day of January, April, July or October. ## Senators ### Travel expenses 71.02 Within 90 days after the end of the quarter in which any travel expenses incurred by a Senator are reimbursed, the Speaker of the Senate shall cause to be published on the Senate’s website the following information: (a) the Senator’s name; (b) the purpose of the travel; (c) the dates of the travel; (d) the places visited; (e) the total cost for each of the following classes of expenses, including the costs for any other person such as a spouse or dependant who participated in the travel: (i) transportation, (ii) lodging, (iii) meals and any incidental expenses, and (iv) other expenses; and (f) the total amount of the travel expenses. ### Hospitality expenses 71.03 Within 90 days after the end of the quarter in which any expenses incurred by a Senator for a hospitality activity are reimbursed, the Speaker of the Senate shall cause to be published on the Senate’s website the following information: (a) the Senator’s name; (b) the purpose of the hospitality activity; (c) the date of the hospitality activity; (d) the municipality in which the hospitality activity took place; (e) the name of any commercial establishment or vendor involved in the hospitality activity; (f) the number of persons who attended the hospitality activity; and (g) the total amount of the expenses for the hospitality activity. ### Contracts 71.04 (1) Within 90 days after the end of the quarter in which a contract is entered into by a Senator with respect to Senate business, including a contract for professional, technical or administrative services or expertise, the Speaker of the Senate shall cause to be published on the Senate’s website the following information: (a) the Senator’s name; (b) the subject matter of the contract; (c) the names of the other parties; (d) the contract period; and (e) the value of the contract. ### Increase or decrease in value of contract (2) Within 90 days after the end of the quarter in which a contract referred to in subsection (1) is amended so that its value is increased or decreased, the Speaker of the Senate shall cause to be published on the Senate’s website the value of the contract as amended. ## Members of the House of Commons ### Travel expenses 71.05 Within 90 days after the end of the quarter in which any travel expenses incurred by a member of the House of Commons are reimbursed, the Speaker of the House of Commons shall cause to be published on the House of Commons’ website the following information: (a) the member’s name; (b) the purpose of the travel; (c) the dates of the travel; (d) the places visited; (e) the total cost for each of the following classes of expenses, including the costs for any other person such as a spouse or dependant who participated in the travel: (i) transportation, (ii) lodging, (iii) meals and any incidental expenses, and (iv) other expenses; and (f) the total amount for all travel expenses. ### Hospitality expenses 71.06 Within 90 days after the end of the quarter in which any expenses incurred by a member of the House of Commons for a hospitality activity are reimbursed, the Speaker of the House of Commons shall cause to be published on the House of Commons’ website the following information: (a) the member’s name; (b) the purpose of the hospitality activity; (c) the date of the hospitality activity; (d) the municipality in which the hospitality activity took place; (e) the name of any commercial establishment or vendor involved in the hospitality activity; (f) the number of persons who attended the hospitality activity; and (g) the total amount of the expenses for the hospitality activity. ### Contracts 71.07 (1) Within 90 days after the end of the quarter in which a contract is entered into by a member of the House of Commons with respect to House of Commons business, including a contract for professional, technical or administrative services or expertise, the Speaker of the House of Commons shall cause to be published on the House of Commons’ website the following information: (a) the member’s name; (b) the subject matter of the contract; (c) the names of the other parties; (d) the contract period; and (e) the value of the contract. ### Increase or decrease in value of contract (2) Within 90 days after the end of the quarter in which a contract referred to in subsection (1) is amended so that its value is increased or decreased, the Speaker of the House of Commons shall cause to be published on the House of Commons’ website the value of the contract as amended. ## Parliamentary Entities ### Definition of head of a parliamentary entity 71.08 In sections 71.09 to 71.11, *head of a parliamentary entity* means (a) in respect of any administrative unit of the Senate — including a business sector, an operational division or a directorate — the person or committee that the Senate, by its rules or orders, designates; (b) in respect of the office of the Senate Ethics Officer, the Speaker of the Senate; (c) in respect of any administrative unit of the House of Commons, the Speaker of the House of Commons; (d) in respect of the office of the Conflict of Interest and Ethics Commissioner, the Speaker of the House of Commons; (e) in respect of the Library of Parliament, the Speaker of the Senate and the Speaker of the House of Commons, jointly; (f) in respect of the Parliamentary Protective Service, the Speaker of the Senate and the Speaker of the House of Commons, jointly; and (g) in respect of the office of the Parliamentary Budget Officer, the Speaker of the Senate and the Speaker of the House of Commons, jointly. ### Travel expenses 71.09 Within 60 days after the end of the quarter in which any travel expenses incurred by an employee of a parliamentary entity are reimbursed, the head of the parliamentary entity shall cause to be published on the entity’s website the following information: (a) the employee’s name; (b) the purpose of the travel; (c) the dates of the travel; (d) the places visited; (e) the total cost for each of the following classes of expenses, including the costs for any other person such as a spouse or dependant who participated in the travel: (i) transportation, (ii) lodging, (iii) meals and any incidental expenses, and (iv) other expenses; and (f) the total amount of the travel expenses. ### Hospitality expenses 71.1 Within 60 days after the end of the quarter in which any expenses incurred by an employee of a parliamentary entity for a hospitality activity are reimbursed, the head of the parliamentary entity shall cause to be published on the entity’s website the following information: (a) the employee’s name; (b) the purpose of the hospitality activity; (c) the date of the hospitality activity; (d) the municipality in which the hospitality activity took place; (e) the name of any commercial establishment or vendor involved in the hospitality activity; (f) the number of persons who attended the hospitality activity; and (g) the total amount of the expenses for the hospitality activity. ### Contracts over $10,000 71.11 (1) Within 60 days after the end of the quarter in which a contract that is in relation to the activities of a parliamentary entity and that has a value of more than $10,000 is entered into, the head of the parliamentary entity shall cause to be published on the entity’s website the following information: (a) the subject matter of the contract; (b) the names of the parties; (c) the contract period; and (d) the value of the contract. ### Contracts of $10,000 or less (2) Within 60 days after the end of the quarter in which a contract — that has been entered into in relation to the activities of a parliamentary entity and that has a value of $10,000 or less — is amended so that its value exceeds $10,000, the head of the parliamentary entity shall cause to be published on the entity’s website the information referred to in paragraphs (1)(a) to (d) with respect to the contract as amended. ### Increase or decrease in value of contract (3) Within 60 days after the end of the quarter in which a contract referred to in subsection (1) or (2) is amended so that its value is increased or decreased, the head of the parliamentary entity shall cause to be published on the entity’s website the value of the contract as amended. ## Parliamentary Privilege and Security of Persons, Infrastructure and Goods ### Parliamentary privilege 71.12 Sections 71.02 to 71.11 do not apply to any of the information or any part of the information referred to in those sections if the Speaker of the Senate or the Speaker of the House of Commons, as applicable, determines that the publication may constitute a breach of parliamentary privilege. ### Security of persons, infrastructure and goods 71.13 The Speaker of the Senate, the Speaker of the House of Commons or the person or committee designated for the purposes of paragraph 71.08(a), as applicable, is not required to cause to be published any of the information or any part of the information referred to in any of sections 71.09 to 71.11 if the Speaker of the Senate or the Speaker of the House of Commons, as applicable, determines, after receiving the advice of the Parliamentary Protective Service or any administrative unit of the Senate or of the House of Commons, that the publication could compromise the security of persons, infrastructure or goods in the parliamentary precinct, as defined in section 79.51 of the Parliament of Canada Act. ### Final decision 71.14 A determination by the Speaker of the Senate, the Speaker of the House of Commons or a delegate of either Speaker that a publication may constitute a breach of parliamentary privilege or could compromise the security of persons, infrastructure or goods is final for the purposes of this Part, subject to the rules and orders of both Houses of Parliament. ## Ministers ### Definitions 72 The following definitions apply in sections 73 to 80. *minister* includes the Prime Minister and any Minister of State or Associate Minister. (ministre) *ministerial adviser* has the same meaning as in subsection 2(1) of the Conflict of Interest Act. (conseiller ministériel) *ministerial staff* has the same meaning as in subsection 2(1) of the Conflict of Interest Act. (personnel ministériel) *quarter* means a three-month period that begins on the first day of April, July, October or January. (trimestre) 72.1 [Repealed, 2019, c. 18, s. 37] ### Mandate letters 73 The Prime Minister shall cause to be published in electronic form any letter or revised letter in which he or she establishes the mandate of any other minister within 30 days after the issuance of the letter or revised letter. ### Briefing materials 74 A minister shall cause to be published in electronic form (a) within 120 days after the appointment of the minister, the package of briefing materials that is prepared for the minister by a government institution for the purpose of enabling the minister to assume the powers, duties and functions of his or her office; (b) within 30 days after the end of the month in which any memorandum prepared by a government institution for the minister is received by his or her office, the title and reference number of each memorandum that is received; (c) within 30 days after the last sitting day of the House of Commons in June and December or, respectively, no later than July 31 or January 31 if the House of Commons is not sitting in June or December, the package of question period notes that were prepared by a government institution for the minister and that were in use on the last sitting day of the month in question; and (d) within 120 days after the minister’s appearance before a committee of Parliament, the package of briefing materials that is prepared by a government institution for the minister for the purpose of that appearance. ### Travel expenses 75 Within 30 days after the end of the month in which any travel expenses incurred by a minister, any of his or her ministerial advisers or any member of his or her ministerial staff are reimbursed, the minister shall cause to be published in electronic form the following information: (a) the name of the minister, the ministerial adviser or the ministerial staff member, as applicable; (b) the purpose of the travel; (c) the dates of the travel; (d) the places visited; (e) the total cost for each of the following classes of expenses, including the costs for any other person such as a spouse or dependant who participated in the travel: (i) transportation, (ii) lodging, (iii) meals and any incidental expenses, and (iv) other expenses; and (f) the total amount of the travel expenses. ### Hospitality expenses 76 Within 30 days after the end of the month in which any expenses incurred by a minister, any of his or her ministerial advisers or any member of his or her ministerial staff for a hospitality activity are reimbursed, the minister shall cause to be published in electronic form the following information: (a) the name of the minister, the ministerial adviser or the ministerial staff member, as applicable; (b) the purpose of the hospitality activity; (c) the date of the hospitality activity; (d) the municipality in which the hospitality activity took place; (e) the name of any commercial establishment or vendor involved in the hospitality activity; (f) the number of persons who attended the hospitality activity; and (g) the total amount of the expenses for the hospitality activity. ### Contracts over $10,000 77 (1) Within 30 days after the end of each of the first three quarters and within 60 days after the end of each fourth quarter, a minister shall cause to be published in electronic form the following information with respect to any contract that is entered into during the quarter in relation to the activities of the minister’s office that result in expenses being incurred by the minister or by any of his or her ministerial advisers or any member of his or her ministerial staff if the value of the contract is more than $10,000: (a) the subject matter of the contract; (b) the names of the parties; (c) the contract period; (d) the value of the contract; and (e) the reference number assigned to the contract, if any. ### Contracts of $10,000 or less (2) Within 30 days after the end of the quarter in which a contract — that has been entered into in relation to the activities of a minister’s office that result in expenses being incurred by the minister or by any of his or her ministerial advisers or any member of his or her ministerial staff and that has a value of $10,000 or less — is amended so that its value exceeds $10,000, or within 60 days after the end of that quarter if that quarter is the fourth quarter, the minister shall cause to be published in electronic form the information referred to in paragraphs (1)(a) to (e) with respect to the contract as amended. ### Increase or decrease in value of contract (3) Within 30 days after the end of the quarter in which a contract referred to in subsection (1) or (2) is amended so that its value is increased or decreased by more than $10,000, or within 60 days after the end of that quarter if that quarter is the fourth quarter, the minister shall cause to be published in electronic form the value of the contract as amended. ### Expense reports 78 Within 120 days after the end of each fiscal year, a minister shall cause to be published in electronic form a report of all expenses that were incurred by his or her office and were paid out of the Consolidated Revenue Fund during that fiscal year. ### Form of publications 79 (1) The designated Minister shall specify the form of the publications referred to in sections 74 to 78. ### Directives and guidelines (2) The designated Minister may cause to be established directives and guidelines concerning the information or materials that must be published under any of sections 74 to 78. If directives and guidelines are established, the designated Minister shall cause them to be distributed to ministers. ### Publication not required 80 (1) A minister is not required to cause to be published any of the information, any part of the information, any of the materials or any part of the materials referred to in any of sections 74 to 78 if that information, that part of the information, those materials or that part of those materials were set out in a record and, in dealing with a request for access to that record, a head of a government institution could under Part 1 refuse to disclose that record, in whole or in part, for a reason that is set out in that Part. ### Publication not permitted (2) A minister shall not cause to be published any of the information, any part of the information, any of the materials or any part of the materials referred to in any of sections 74 to 78 if that information, that part of the information, those materials or that part of those materials were set out in a record and, in dealing with a request for access to that record, a head of a government institution would be required under Part 1 to refuse to disclose that record, in whole or in part, for a reason that is set out in that Part or because that Part does not apply to the information or materials in question. ### Information deemed not to be personal information (3) For the purposes of this section, information that must be published under section 75 or 76 is not personal information. ## Government Institutions ### Definitions 81 The following definitions apply in sections 82 to 90. *government entity* means a government institution that is (a) a department named in Schedule I to the Financial Administration Act, (b) a division or branch of the federal public administration set out in column I of Schedule I.1 to that Act, or (c) a corporation named in Schedule II to that Act. ( entité fédérale) *quarter* means a three-month period that begins on the first day of April, July, October or January. (trimestre) *senior officer or employee* means, in respect of a government institution, any person who exercises the powers or performs the duties and functions of a deputy minister, an associate deputy minister, an assistant deputy minister, a deputy head, an assistant deputy head, a president, a vice-president, a chief executive officer or a member of a board of directors, and any person who holds a position of an equivalent rank. (dirigeant ou employé) ### Travel expenses 82 Within 30 days after the end of the month in which any travel expenses incurred by a senior officer or employee of a government institution are reimbursed, the head of the government institution shall cause to be published in electronic form the following information: (a) the senior officer’s or employee’s name, as applicable; (b) the purpose of the travel; (c) the dates of the travel; (d) the places visited; (e) the total cost for each of the following classes of expenses: (i) transportation, (ii) lodging, (iii) meals and any incidental expenses, and (iv) other expenses; (f) the total amount of the travel expenses; and (g) any other information that, in accordance with Treasury Board policies, must be published. ### Hospitality expenses 83 Within 30 days after the end of the month in which any expenses incurred by a senior officer or employee of a government institution for a hospitality activity are reimbursed, the head of the government institution shall cause to be published in electronic form the following information: (a) the senior officer’s or employee’s name, as applicable; (b) the purpose of the hospitality activity; (c) the date of the hospitality activity; (d) the municipality in which the hospitality activity took place; (e) the name of any commercial establishment or vendor involved in the hospitality activity; (f) the number of persons who attended the hospitality activity; (g) the total amount of the expenses for the hospitality activity; and (h) any other information that, in accordance with Treasury Board policies, must be published. ### Reports tabled in Parliament 84 Within 30 days after the day on which it is tabled, the head of a government institution shall cause to be published in electronic form any report of the government institution respecting its activities that, under an Act of Parliament, must be tabled in the Senate or the House of Commons. ### Reclassification of positions 85 Within 30 days after the end of the quarter in which there is a reclassification of an occupied position in a government institution that is a department named in Schedule I to the Financial Administration Act or a portion of the core public administration named in Schedule IV to that Act, the head of the government institution shall cause to be published in electronic form the following information: (a) the organizational unit in question; (b) the number and title of the reclassified position; (c) the previous classification and the new classification; (d) the purpose of the reclassification; (e) the effective date of the reclassification; and (f) any other information that, in accordance with Treasury Board policies, must be published. ### Contracts over $10,000 86 (1) Within 30 days after the end of each of the first three quarters and within 60 days after the end of each fourth quarter, the head of a government entity shall cause to be published in electronic form the following information with respect to any contract that is entered into during the quarter in relation to the activities of the government entity if the value of the contract is more than $10,000: (a) the subject matter of the contract; (b) the names of the parties; (c) the contract period; (d) the value of the contract; (e) the reference number assigned to the contract, if any; and (f) any other information that, in accordance with Treasury Board policies, must be published. ### Contracts of $10,000 or less (2) Within 30 days after the end of the quarter in which a contract that has been entered into in relation to the activities of a government entity and that has a value of $10,000 or less is amended so that its value exceeds $10,000, or within 60 days after the end of that quarter if that quarter is the fourth quarter, the head of the government entity shall cause to be published in electronic form the information referred to in paragraphs (1)(a) to (f) with respect to the contract as amended. ### Increase or decrease in value of contract (3) Within 30 days after the end of the quarter in which a contract referred to in subsection (1) or (2) is amended so that its value is increased or decreased by more than $10,000, or within 60 days after the end of that quarter if that quarter is the fourth quarter, the head of the government entity shall cause to be published in electronic form the value of the contract as amended. ### Grants and contributions over $25,000 87 (1) Within 30 days after the end of the quarter in which an agreement or arrangement is entered into with respect to a grant or contribution that is in relation to the activities of a government entity, that was authorized by Parliament under an appropriation Act and that has a value of more than $25,000, the head of the government entity shall cause to be published in electronic form the following information: (a) the names of the parties; (b) the municipality, province and country where the recipient resides or, in the case of a corporation or organization, where its head office is located or where it carries on business; (c) the purpose of the grant or contribution; (d) the date of the agreement or arrangement; (e) the value of the grant or contribution; and (f) any other information that, in accordance with Treasury Board policies, must be published. ### Grants and contributions of $25,000 or less (2) Within 30 days after the end of the quarter in which an agreement or arrangement — that was entered into in relation to the activities of a government entity, that was authorized by Parliament under an appropriation Act and that has a value of $25,000 or less — is amended so that the value of the grant or contribution exceeds $25,000, the head of the entity shall cause to be published in electronic form the information referred to in paragraphs (1)(a) to (f) with respect to the amended agreement or arrangement. ### Increase or decrease in value of grant or contribution (3) Within 30 days after the end of the quarter in which an agreement or arrangement referred to in subsection (1) or (2) is amended so that the value of the grant or contribution is increased or decreased, the head of the government entity shall cause to be published in electronic form the value of the grant or contribution as amended. ### Briefing materials 88 The head of a government entity shall cause to be published in electronic form (a) within 120 days after the appointment of a deputy head or a person to a position of an equivalent rank, the package of briefing materials that is prepared for the deputy head or the person for the purpose of enabling him or her to assume the powers, duties and functions of his or her office; (b) within 30 days after the end of the month in which any memorandum prepared for the deputy head or the person is received by his or her office, the title and reference number of each memorandum that is received; and (c) within 120 days after an appearance before a committee of Parliament, the package of briefing materials that is prepared for the deputy head or the person for the purpose of that appearance. ### Form of publications 89 (1) The designated Minister shall specify the form of the publications referred to in sections 82 to 88. ### Directives and guidelines (2) The designated Minister may cause to be established directives and guidelines concerning the information or materials that must be published under any of sections 82, 83 and 85 to 88. If directives and guidelines are established, the designated Minister shall cause them to be distributed to government institutions. ### Publication not required 90 (1) A head of a government institution is not required to cause to be published any of the information, any part of the information, any of the materials or any part of the materials referred to in any of sections 82 to 88 if that information, that part of the information, those materials or that part of those materials were set out in a record and, in dealing with a request for access to that record, he or she could under Part 1 refuse to disclose that record, in whole or in part, for a reason that is set out in that Part. ### Publication not permitted (2) A head of a government institution shall not cause to be published any of the information, any part of the information, any of the materials or any part of the materials referred to in any of sections 82 to 88 if that information, that part of the information, those materials or that part of those materials were set out in a record and, in dealing with a request for access to that record, he or she would be required under Part 1 to refuse to disclose that record, in whole or in part, for a reason that is set out in that Part or because that Part does not apply to the information or materials in question. ## Office of the Registrar of the Supreme Court of Canada, Courts Administration Service and Office of the Commissioner for Federal Judicial Affairs ## Interpretation ### Definitions 90.01 The following definitions apply in sections 90.02 to 90.24. *Chief Administrator* means the Chief Administrator of the Courts Administration Service. (administrateur en chef) *Commissioner* means the Commissioner for Federal Judicial Affairs. (commissaire) *quarter* means a three-month period that begins on the first day of January, April, July or October. (trimestre) *Registrar* means the Registrar of the Supreme Court of Canada. (registraire) ## Office of the Registrar of the Supreme Court of Canada ### Definitions 90.02 The following definitions apply in this section and sections 90.03 to 90.09. *Deputy Registrar* means the Deputy Registrar of the Supreme Court. (registraire adjoint) *Office of the Registrar of the Supreme Court* means the Registrar and that portion of the federal public administration appointed under subsection 12(2) of the Supreme Court Act. (Bureau du registraire de la Cour Suprême) *Supreme Court* means the Supreme Court of Canada. (Cour suprême) ### Travel expenses — Registrar and Deputy Registrar 90.03 Within 30 days after the end of the quarter in which any travel expenses incurred by the Registrar or the Deputy Registrar are reimbursed, the Registrar shall cause to be published in electronic form the following information: (a) the Registrar’s or Deputy Registrar’s name, as applicable; (b) the purpose of the travel; (c) the dates of the travel; (d) the places visited; (e) the total cost for each of the following classes of expenses: (i) transportation, (ii) lodging, (iii) meals and any incidental expenses, and (iv) other expenses; and (f) the total amount of the travel expenses. ### Hospitality expenses — Registrar and Deputy Registrar 90.04 Within 30 days after the end of the quarter in which any expenses incurred by the Registrar or the Deputy Registrar for a hospitality activity are reimbursed, the Registrar shall cause to be published in electronic form the following information: (a) the Registrar’s or Deputy Registrar’s name, as applicable; (b) the purpose of the hospitality activity; (c) the date of the hospitality activity; (d) the municipality in which the hospitality activity took place; (e) the name of any commercial establishment or vendor involved in the hospitality activity; (f) the number of persons who attended the hospitality activity; and (g) the total amount of the expenses for the hospitality activity. ### Contracts over $10,000 90.05 (1) Within 30 days after the end of the quarter in which a contract that is in relation to the activities of the Office of the Registrar of the Supreme Court and that has a value of more than $10,000 is entered into, the Registrar shall cause to be published in electronic form the following information: (a) the subject matter of the contract; (b) the names of the parties; (c) the contract period; (d) the value of the contract; and (e) the reference number assigned to the contract, if any. ### Contracts of $10,000 or less (2) Within 30 days after the end of the quarter in which a contract — that has been entered into in relation to the activities of the Office of the Registrar of the Supreme Court and that has a value of $10,000 or less — is amended so that its value exceeds $10,000, the Registrar shall cause to be published in electronic form the information referred to in paragraphs (1)(a) to (e) with respect to the contract as amended. ### Increase or decrease in value of contract (3) Within 30 days after the end of the quarter in which a contract referred to in subsection (1) or (2) is amended so that its value is increased or decreased, the Registrar shall cause to be published in electronic form the value of the contract as amended. ### Incidental expenditures — judges 90.06 Within 30 days after the end of the quarter in which any incidental expenditure incurred by any judge of the Supreme Court is reimbursed under subsection 27(1) of the Judges Act, the Registrar shall cause to be published in electronic form the following information: (a) the total amount of the incidental expenditures reimbursed; (b) the number of judges to whom a reimbursement was made; (c) a detailed description of each class of incidental expenditures reimbursed; (d) the number of judges who received a reimbursement for each class of incidental expenditures; and (e) the applicable guidelines. ### Representational allowances — judges 90.07 Within 30 days after the end of the quarter in which any travel or other expenses incurred by any judge of the Supreme Court or his or her spouse or common-law partner are reimbursed under subsection 27(6) of the Judges Act as a representational allowance, the Registrar shall cause to be published in electronic form the following information: (a) the total amount of the expenses reimbursed; (b) the number of judges to whom a reimbursement was made; (c) a detailed description of each class of expenses reimbursed; (d) the number of judges who received a reimbursement for each class of expenses; and (e) the applicable guidelines. ### Travel allowances — judges 90.08 Within 30 days after the end of the quarter in which any moving, transportation, travel or other expenses incurred by any judge of the Supreme Court are reimbursed under section 34 of the Judges Act as a travel allowance, the Registrar shall cause to be published in electronic form the following information: (a) the total amount of the expenses reimbursed; (b) the number of judges to whom a reimbursement was made; (c) a detailed description of each class of expenses reimbursed; (d) the number of judges who received a reimbursement for each class of expenses; and (e) the applicable guidelines. ### Conference allowances — judges 90.09 Within 30 days after the end of the quarter in which any travel or other expenses incurred by any judge of the Supreme Court are reimbursed under section 41 of the Judges Act as a conference allowance, the Registrar shall cause to be published in electronic form the following information: (a) the total amount of the expenses reimbursed; (b) the number of judges to whom a reimbursement was made; (c) a detailed description of each class of expenses reimbursed; (d) a description of the meeting, conference or seminar, its date, its location and the number of judges in attendance; and (e) the applicable guidelines. ## Courts Administration Service ### Definition of Service 90.1 In sections 90.11 to 90.13, *Service* means the Courts Administration Service. ### Travel expenses — Chief Administrator and deputies 90.11 Within 30 days after the end of the quarter in which any travel expenses incurred by the Chief Administrator or any Deputy Chief Administrator are reimbursed, the Chief Administrator shall cause to be published in electronic form the following information: (a) the Chief Administrator’s or Deputy Chief Administrator’s name, as applicable; (b) the purpose of the travel; (c) the dates of the travel; (d) the places visited; (e) the total cost for each of the following classes of expenses: (i) transportation, (ii) lodging, (iii) meals and any incidental expenses, and (iv) other expenses; and (f) the total amount of the travel expenses. ### Hospitality expenses — Chief Administrator and deputies 90.12 Within 30 days after the end of the quarter in which any expenses incurred by the Chief Administrator or any Deputy Chief Administrator for a hospitality activity are reimbursed, the Chief Administrator shall cause to be published in electronic form the following information: (a) the Chief Administrator’s or Deputy Chief Administrator’s name, as applicable; (b) the purpose of the hospitality activity; (c) the date of the hospitality activity; (d) the municipality in which the hospitality activity took place; (e) the name of any commercial establishment or vendor involved in the hospitality activity; (f) the number of persons who attended the hospitality activity; and (g) the total amount of the expenses for the hospitality activity. ### Contracts over $10,000 90.13 (1) Within 30 days after the end of the quarter in which a contract that is in relation to the activities of the Service and that has a value of more than $10,000 is entered into, the Chief Administrator shall cause to be published in electronic form the following information: (a) the subject matter of the contract; (b) the names of the parties; (c) the contract period; (d) the value of the contract; and (e) the reference number assigned to the contract, if any. ### Contracts of $10,000 or less (2) Within 30 days after the end of the quarter in which a contract — that has been entered into in relation to the activities of the Service and that has a value of $10,000 or less — is amended so that its value exceeds $10,000, the Chief Administrator shall cause to be published in electronic form the information referred to in paragraphs (1)(a) to (e) with respect to the contract as amended. ### Increase or decrease in value of contract (3) Within 30 days after the end of the quarter in which a contract referred to in subsection (1) or (2) is amended so that its value is increased or decreased, the Chief Administrator shall cause to be published in electronic form the value of the contract as amended. ## Office of the Commissioner for Federal Judicial Affairs ### Definitions 90.14 The following definitions apply in sections 90.15 to 90.21. *judge* means a judge of a superior court other than the Supreme Court of Canada. (juge) *Office* means the Office of the Commissioner for Federal Judicial Affairs. (Bureau) ### Travel expenses — Commissioner and deputies 90.15 Within 30 days after the end of the quarter in which any travel expenses incurred by the Commissioner or any Deputy Commissioner are reimbursed, the Commissioner shall cause to be published in electronic form the following information: (a) the Commissioner’s or Deputy Commissioner’s name, as applicable; (b) the purpose of the travel; (c) the dates of the travel; (d) the places visited; (e) the total cost for each of the following classes of expenses: (i) transportation, (ii) lodging, (iii) meals and any incidental expenses, and (iv) other expenses; and (f) the total amount of the travel expenses. ### Hospitality expenses — Commissioner and deputies 90.16 Within 30 days after the end of the quarter in which any expenses incurred by the Commissioner or any Deputy Commissioner for a hospitality activity are reimbursed, the Commissioner shall cause to be published in electronic form the following information: (a) the Commissioner’s or Deputy Commissioner’s name, as applicable; (b) the purpose of the hospitality activity; (c) the date of the hospitality activity; (d) the municipality in which the hospitality activity took place; (e) the name of any commercial establishment or vendor involved in the hospitality activity; (f) the number of persons who attended the hospitality activity; and (g) the total amount of the expenses for the hospitality activity. ### Contracts over $10,000 90.17 (1) Within 30 days after the end of the quarter in which a contract that is in relation to the activities of the Office and that has a value of more than $10,000 is entered into, the Commissioner shall cause to be published in electronic form the following information: (a) the subject matter of the contract; (b) the names of the parties; (c) the contract period; (d) the value of the contract; and (e) the reference number assigned to the contract, if any. ### Contracts of $10,000 or less (2) Within 30 days after the end of the quarter in which a contract — that has been entered into in relation to the activities of the Office and that has a value of $10,000 or less — is amended so that its value exceeds $10,000, the Commissioner shall cause to be published in electronic form the information referred to in paragraphs (1)(a) to (e) with respect to the contract as amended. ### Increase or decrease in value of contract (3) Within 30 days after the end of the quarter in which a contract referred to in subsection (1) or (2) is amended so that its value is increased or decreased, the Commissioner shall cause to be published in electronic form the value of the contract as amended. ### Incidental expenditures — judges 90.18 Within 30 days after the end of the quarter in which any incidental expenditure incurred by any judge of a particular court is reimbursed under subsection 27(1) of the Judges Act, the Commissioner shall cause to be published in electronic form the following information: (a) the name of the court; (b) the total amount of the incidental expenditures reimbursed for that court; (c) the number of judges to whom a reimbursement was made; (d) a detailed description of each class of incidental expenditures reimbursed; (e) the number of judges who received a reimbursement for each class of incidental expenditures; and (f) the applicable guidelines. ### Representational allowances — judges 90.19 Within 30 days after the end of the quarter in which any travel or other expenses incurred by any judge or his or her spouse or common-law partner are reimbursed under subsection 27(6) of the Judges Act as a representational allowance, the Commissioner shall cause to be published in electronic form the following information: (a) the total amount of the expenses reimbursed; (b) the number of judges to whom a reimbursement was made; (c) a detailed description of each class of expenses reimbursed; (d) the number of judges who received a reimbursement for each class of expenses; and (e) the applicable guidelines. ### Travel allowances — judges 90.2 Within 30 days after the end of the quarter in which any moving, transportation, travel or other expenses incurred by any judge of a particular court are reimbursed under section 34 of the Judges Act as a travel allowance, the Commissioner shall cause to be published in electronic form the following information: (a) the name of the court; (b) the total amount of the expenses reimbursed for that court; (c) the number of judges to whom a reimbursement was made; (d) a detailed description of each class of expenses reimbursed; (e) the number of judges who received a reimbursement for each class of expenses; and (f) the applicable guidelines. ### Conference allowances — judges 90.21 Within 30 days after the end of the quarter in which any travel or other expenses incurred by any judge of a particular court are reimbursed under section 41 of the Judges Act as a conference allowance, the Commissioner shall cause to be published in electronic form the following information: (a) the name of the court; (b) the total amount of the expenses reimbursed for that court; (c) the number of judges to whom a reimbursement was made; (d) a detailed description of each class of expenses reimbursed; (e) a description of the meeting, conference or seminar, its date, its location and the number of judges in attendance; and (f) the applicable guidelines. ## Judicial Independence, Protected Information, Security of Persons, Infrastructure and Goods and Canadian Judicial Council ### Judicial independence 90.22 The Registrar, the Chief Administrator or the Commissioner, as applicable, may, on an exceptional basis, decline to cause to be published information or any part of the information described in any of sections 90.03 to 90.09, 90.11 to 90.13 and 90.15 to 90.21 if they determine that the publication, even in the aggregate, could interfere with judicial independence. ### Protected information and security 90.23 The Registrar, the Chief Administrator or the Commissioner, as applicable, is not required to cause to be published any of the information or any part of the information referred to in any of sections 90.03 to 90.09, 90.11 to 90.13 and 90.15 to 90.21 if he or she determines that (a) the information or the part of the information is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege; or (b) the publication could compromise the security of persons, infrastructure or goods. ### Final decision 90.24 A determination by the Registrar, the Chief Administrator or the Commissioner that a publication could interfere with judicial independence or could compromise the security of persons, infrastructure or goods or that any information or part of any information is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege is final. ## General ### Information Commissioner 91 (1) The Information Commissioner shall not exercise any powers or perform any duties or functions in relation to the proactive publication of information under this Part, including receiving and investigating complaints or exercising any other powers, duties or functions under Part 1. ### Precision (2) Nothing in subsection (1) shall be construed as preventing the Information Commissioner from exercising his or her powers or performing his or her duties and functions under Part 1 with respect to a record that, although subject to Part 2, is subject to a request for access under Part 1. # PART 3 ## General ### Designated Minister’s power 92 The designated Minister may provide services with respect to the administration of this Act to the public and to any government institution. ### Five-year review 93 (1) The designated Minister shall undertake a review of this Act within one year after the day on which this section comes into force and every five years after the review is undertaken and shall cause a report to be laid before each House of Parliament. ### Reference to Parliamentary committee (2) After the report is laid before both Houses, it shall be referred to the committee designated or established by Parliament for the purpose of section 99. ### Annual report — government institutions 94 (1) Every year the head of every government institution shall prepare a report on the administration of this Act within the institution during the period beginning on April 1 of the preceding year and ending on March 31 of the current year. ### Tabling of report (2) Every report prepared under subsection (1) shall be laid before each House of Parliament on any of the first 15 days on which that House is sitting after September 1 of the year in which the report is prepared. ### Reference to Parliamentary committee (3) Every report prepared under subsection (1) shall, after it is laid before both Houses under subsection (2), be referred to the committee designated or established by Parliament for the purpose of section 99. ### Copy of report to designated Minister (4) The head of every government institution shall provide a copy of the report to the designated Minister immediately after it is laid before both Houses. ### Form and content of report (5) The designated Minister shall prescribe the form of, and what information is to be included in, the reports prepared under subsection (1). ### Delegation by head of government institution 95 (1) The head of a government institution may, by order, delegate any of their powers, duties or functions under this Act to one or more officers or employees of that institution. ### Delegation to officers or employees of other government institution (2) The head of a government institution may, for the purposes of subsection 96(1), by order, delegate any of their powers, duties or functions under this Act to one or more officers or employees of another government institution. ### Provision of services related to access to information 96 (1) A government institution may provide services related to any power, duty or function conferred or imposed on the head of a government institution under this Act to another government institution that is presided over by the same Minister or that is under the responsibility of the same Minister and may receive such services from any other such government institution. ### Written agreement (2) A government institution may provide services under subsection (1) to another government institution only if it enters into an agreement in writing with the other government institution in respect of those services before it provides the services. ### Notice (3) The head of a government institution to which the services are provided shall provide a copy of the agreement to the Information Commissioner and the designated Minister as soon as possible after the agreement is entered into. The head of the institution shall also notify the Information Commissioner and the designated Minister of any material change to that agreement. ### Fees (4) The head of a government institution that provides the services may charge a fee for those services. The fee is not to exceed the cost of providing the service. ### Spending authority (5) The head of the institution that charges the fee may spend the revenues that are received from the provision of the services for any purpose of that institution. If the head of the institution spends the revenues, he or she must do so in the fiscal year in which they are received or, unless an appropriation Act provides otherwise, in the next fiscal year. ### Records not under control of institution 97 The records that the head of a government institution provides to the head of another government institution for the purpose of the other institution providing the services referred to in subsection 96(1) are not under the control of that other institution. ### Protection from civil proceeding or from prosecution — Part 1 98 (1) Despite any other Act of Parliament, no civil or criminal proceedings lie against the head of any government institution, or against any person acting on behalf or under the direction of the head of a government institution, and no proceedings lie against the Crown or any government institution, for the disclosure in good faith of any record or any part of a record under Part 1, for any consequences that flow from that disclosure, or for the failure to give any notice required under Part 1 if reasonable care is taken to give the required notice. ### Protection from civil proceeding or from prosecution — Part 2 (2) Despite any other Act of Parliament, no civil or criminal proceedings lie against any person who is required to cause to be published any information or any materials, in whole or in part, under Part 2 or against any person acting on behalf or under the direction of that person, and no proceedings lie against the Crown or any entity, for the publication in good faith of any information or any materials, in whole or in part, under Part 2, or for any consequences that flow from that publication. ### Permanent review of Act by Parliamentary committee 99 The administration of this Act shall be reviewed on a permanent basis by any committee of the House of Commons, of the Senate or of both Houses of Parliament that may be designated or established by Parliament for that purpose. ### Review and report 99.1 A committee referred to in section 99 shall undertake a review of this Act within one year after the day on which this section comes into force and every five years after the review is undertaken, and shall submit a report on each review to the Senate, the House of Commons or both Houses of Parliament, as the case may be, including a statement of any changes the committee would recommend. ### Binding on Crown 100 This Act is binding on Her Majesty in right of Canada. ### Regulations 101 (1) The Governor in Council may make regulations prescribing criteria for adding, under paragraph (2)(a), the name of a body or office to Schedule I. ### Amendments to Schedule I (2) The Governor in Council may, by order, (a) add to Schedule I the name of any department, ministry of state, body or office of the Government of Canada; (b) replace in Schedule I the former name of any department, ministry of state, body or office of the Government of Canada with its new name; and (c) delete from Schedule I the name of any department, ministry of state, body or office of the Government of Canada that has ceased to exist or has become part of another department, ministry of state, body or office of the Government of Canada.", "response": "## Analysis of LEGISLATION-FED: Access to Information Act\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nWhen applying this legislation to immigration cases, practitioners should consider both the explicit requirements and the underlying policy objectives. The provisions must be interpreted in light of the Canadian Charter of Rights and Freedoms, international obligations, and relevant jurisprudence. Particular attention should be paid to procedural fairness requirements and the proper exercise of discretionary authority."}
{"prompt": "Explain how this Federal Court of Canada decision interprets immigration legislation:\n\nTuz v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2023-07-24 Neutral citation 2023 FC 1001 File numbers IMM-2194-22 Decision Content Date: 20230724 Docket: IMM-2194-22 Citation: 2023 FC 1001 Ottawa, Ontario, July 24, 2023 PRESENT: The Honourable Madam Justice Strickland BETWEEN: APOLONIO DZIB TUZ BRITTANY NAYELI DZIB FIGUEROA HILARY ESTEFANNY DZIB FIGUEROA NAYELI FIGUEROA CHAVEZ Applicants and THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP Respondent JUDGMENT AND REASONS [1] This is the judicial review of the decision of the Refugee Appeal Division [RAD] affirming the determination of the Refugee Protection Division [RPD] finding that the Applicants are not Convention Refugees nor persons in need of protection, pursuant to s 96 and s 97(1), respectively, of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. Background [2] The Applicants are a family, Apolonio Dzib Tuz [Principal Applicant], his spouse [Spouse] and their two minor children [Minor Applicants]. They are all citizens of Mexico and the Principal Applicant is of Mayan descent. [3] The Applicants lived in Cancun, Mexico, where the Principal Applicant worked as an independent contractor in construction. They claim that on September 7, 2018, the Principal Applicant received a call from a man who identified himself as a member of the Los Zetas cartel [Los Zetas]. That man demanded that the Principal Applicant pay him a monthly fee, meaning extortion money. The Principal Applicant did not take this phone call seriously, as he thought it was a scam. On September 11, 2018, while the Principal Applicant was driving home from work with his brother-in-law, they realized they were being followed by a motorcycle. They pulled over and hid in the bush where they overheard one of the men tell the other to “go look for them and kill them”. [4] The Principal Applicant and his Spouse went to stay with the Spouse’s grandmother, who lives in an isolated part of Cancun, before fleeing to Canada on September 14, 2018. The Minor Applicants arrived in Canada eight months later, on May 18, 2019. In August 2019, the Applicants initiated their refugee claim on the basis that they feared that the Los Zetas would kill them because they tried to escape. [5] On October 25, 2021, the Refugee Protection Division [RPD] found that the Applicants were not Convention Refugees as they did not have a well-founded fear of persecution related to a Convention ground, such as ethnicity. Nor were they persons in need of protection as they had an internal flight alternative [IFA] within Mexico. The Applicants appealed to the RAD, and on March 1, 2022, the RAD confirmed the decision of the RPD. [6] This is the judicial review of the RAD’s decision. Decision Under Review [7] The RAD found that the Applicants’ fear of persecution from the Los Zetas does not have a nexus with the one of the Convention grounds under s 96 of the IRPA. Nor had the Applicants established that they fear persecution based on their ethnicity or for any other Convention reason. [8] The RAD also found, based on the objective documentary evidence and on a balance of probabilities, that the Los Zetas do not have a presence in the state of Durango, the proposed IFA. The RAD also found there was insufficient evidence to establish that the Los Zetas have any influence in Durango through its alliances with other drug cartels, specifically as it relates to the tracking or locating of specific individuals. [9] With respect to the first prong of the IFA test, whether there is a serious possibility of persecution or likely risk of s 97(1) harm in the city of Durango, the IFA, the RAD agreed with the Applicants that the RPD erred in finding that the Los Zetas do not have the means to locate them there. However, the RAD agreed with the RPD that the Los Zetas do not have the motivation to locate the Applicants in the IFA location. As to the second prong of the IFA analysis, the RAD found that it would be objectively reasonable for the Applicants to relocate to the city of Durango. With respect to the concern that the Principal Applicant and the Minor Applicants would face discrimination because of their Mayan ethnicity, the RAD found that there was no evidence that the Principal Applicant faced discrimination in accessing housing, employment or even schooling for himself or his daughters while living in Cancun. Accordingly, they had failed to establish they would face such discrimination in the IFA location because of their ethnicity. With respect to the Applicants’ submission that the IFA would be unreasonable because of their mental health issues, the RAD found that the Applicants did not provide evidence that the mental health services they require would not be available or accessible at the IFA location. [10] Accordingly, the RAD confirmed the decision of the RPD and dismissed the appeal. Issues and Standard of Review [11] The matters identified by the Applicants give rise to two issues: Was the decision rendered in breach of the duty of procedural fairness? Was the decision reasonable? [12] Issues of procedural fairness are to be reviewed on a correctness standard (Mission Institution v Khela, 2014 SCC 24 at para 79 and in Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43). In Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [CPR], the Federal Court of Appeal held that although the required reviewing exercise may be best – albeit imperfectly – reflected in the correctness standard, issues of procedural fairness do not necessarily lend themselves to a standard of review analysis. Rather, the Court is to determine whether the proceedings were fair in all of the circumstances (CPR at paras 54-56; see also Watson v Canadian Union of Public Employees, 2023 FCA 48 at para 17). [13] The parties submit, and I agree, that in assessing the merits of the Officer’s decision the reasonableness standard applies (Canada (Minster of Citizenship and Immigration) v Vavilov 2019 SCC 65 at paras 23, 25 [Vavilov]). [14] When appearing before me, counsel for the Applicant submitted, as I understood it, that a failure by a decision maker – the RAD in this case – to consider an issue or evidence is “elevated” and governed by the correctness standard of review. There is no merit to this submission. In Vavilov, the Supreme Court set out that the presumption of reasonableness can be rebutted in two types of situations (para 17), neither of which come into play in this matter. Failures to consider evidence or to grapple with an issue fall within the reasonableness standard of review (Vavilov at paras 98, 99, 101, 105, 126, 128). Contrary to counsel’s submissions, such errors are not failures of natural justice or procedural fairness attracting the correctness standard. No Breach of Procedural Fairness [15] The Applicants submit that the RAD was in breach of the duty of procedural fairness because it failed to put new issues to them. [16] Specifically, in finding that relocation to the IFA location would not be unreasonable, the RAD noted that psychotherapy assessment reports concerning the Principal Applicant and his Spouse recommended 10 sessions of therapy for each of them. Before the RPD, they testified that they had been attending the sessions, but not how many were completed. The RAD noted that before it the Applicants did not provide evidence that the 10 sessions had not been completed or whether they require additional treatment or therapy. Nor did they provide evidence that the mental health services they require would not be available or accessible to them in the IFA location. Accordingly, the IFA location would not be unreasonable because of their mental health issues. [17] The Applicants submit that the RPD did not ask the Applicants how many sessions they attended and that when the RAD raises new questions, or comments about evidence submitted by the Applicants, it is necessary to present the questions to the Applicants and allow them to respond. [18] In my view, the RAD did not raise a new question and did not err in further considering this issue or the Applicants’ evidence. The case law cited by the Applicants pertains to the opportunity to respond to new credibility concerns raised by the RAD (Bouchra v Canada (Citizenship and Immigration), 2020 FC 1063; Isapourkhoramdehi v Canada (Citizenship and Immigration), 2018 FC 819). Here, however, the RAD was referring to the sufficiency of the evidence before them relating to the reasonableness of the IFA location in light of the Applicants’ mental health issues. The Applicants raised both the Principal Applicant’s and his Spouse’s mental health before the RPD. The Principal Applicant’s testimony was that he and his Spouse were attending the therapy sessions. As the RAD noted, the RPD addressed the psychotherapy assessments and concluded that there was no evidence that treatment is unavailable in Durango. While the RAD noted the lack of any evidence before the RPD or the RAD as to the status of the therapy sessions or of a need for further therapy, like the RPD, it also found that the Applicants had not provided evidence that the services would not be available in Durango. That is, even if there had been evidence of a need for further therapy, the Applicants had not established that this would not be available to them in Mexico. [19] In my view, the insufficiency of the evidence pointed out by the RAD was not a new question. Rather, the onus was on the Applicants to put forward evidence and arguments supporting their position that the proposed IFA is unreasonable in view of their mental health. The RAD reasonably found that they had not done so. [20] Nor did the RAD raise any other new issues, as counsel for the Applicant submitted, for the first time, when appearing before me. Decision Was Not Reasonable i. Risk to Minor Applicants [21] The Applicants first submit that the RAD erred by failing to consider their submission on the risk to the Minor Applicants due to their Mayan ethnicity. In their written submissions, the Applicants point to post-hearing submissions made to the RPD to support their position that the Minor Applicants were at an increased risk of becoming targets of the cartels for human trafficking and were more likely to be killed simply for being Indigenous women. The Applicants assert that the RAD failed to analyse this argument. [22] However, unnoted by the Applicants, is that the RPD indicated in its decision that, at the end of the hearing before it, counsel for the Applicants did not seek to submit post-hearing documentation or further written post-hearing submissions. Counsel had subsequently sought to file additional written submissions on persecution and femicide and psychoanalytical assessments for the Minor Applicants. The RPD refused to accept those submissions finding that counsel had every opportunity to make submissions at the conclusion of the hearing, and the submissions spoke to matters that were not a part of the claim and were not canvassed at the hearing. Further, the psychoanalytical assessments for the Minor Applicants were reasonably available for disclosure given that they were dated August 1, 2021 – the same date as the psychoanalytical assessments of the Principal Applicant and his Spouse – which were submitted prior to the hearing. Thus, the materials that the Applicants now say were not considered by the RAD were not admitted into the record by the RPD. [23] As the Respondent points out, the Applicants did not raise the RPD’s refusal to accept these submissions as an issue before the RAD. The RAD did not err by failing to consider submissions that were not before it. ii. Consideration of relevant evidence [24] The Applicants also submit that the RAD erred by failing to consider relevant evidence when making findings of fact as it pertained to: (i) the method of tracking used by Los Zetas, (ii) the reasonableness of the Principal Applicant relocating to Durango, and (iii) the reasonableness of the Minor Applicants relocating to Durango. [25] With respect to the first point, the Applicants submit that the RAD erred by failing to consider that family networks are only one of the methods available to the Los Zetas cartel to track individuals despite having noted that the cartel: has a communication network consisting of cameras and radios; informants including taxi drivers, food vendors, police, and lookouts to gather information; has private investigators to track people; has access to property records in the United States and Mexico; and can place GPS trackers on cars. [26] However, given that the RAD agreed with the Applicants that the RPD erred in finding that the Los Zetas do not have the means to locate them in the IFA location – and accepted that the Los Zetas do have the means to track the Applicants at the IFA – I fail to see an error or how the purported error by the RAD renders the decision unreasonable. [27] As to the second point, the Applicants submit that the RAD erred by failing to consider evidence that Indigenous persons like the Principal Applicant and the Minor Applicants cannot obtain employment and that the Principal Applicant was fortunate to find work as a contractor because of a special connection in Cancun, but that he has no relationships in Durango that would go out of their way to help him find work. [28] Review of the transcript indicates that the RPD asked the Principal Applicant if he would be able to work in construction in Durango. He said that he would but because organized crime is “within the construction field”, they would find him. Later, when questioned by his counsel about his assertions of being discriminated against on the basis of his ethnicity, he stated that it is difficult to get work. When asked how he got work in Cancun, his response was that it took him a long time and he worked very hard to find employment and “[t]he people that opened the door and gave me a job, an opportunity, would refer me to other friends and other people”. When asked if he has those same connections in Durango, he stated that he does not. [29] In their submission to the RAD, the Applicants pointed to this testimony as well as objective country documents indicating that Indigenous persons have access to fewer employment opportunities and are excluded from employment and other benefits. They submitted that the RPD erred in finding that there was no evidence to indicate that the Principal Applicant had been excluded from employment opportunities in Cancun. More specifically, that the Principal Applicant’s testimony was relevant evidence concerning the treatment of Mayans in Mexico and corroborated the documentary evidence in the NDP. [30] The RAD acknowledged the Applicants’ submission that the Principal Applicant would have difficulty in finding work because of his Mayan ethnicity and because organized crime and infiltrated the construction industry. However, having conducted its own independent assessment of the evidence, it agreed with the RPD that it was objectively reasonable, in all of the circumstances, for the Applicants to relocate to Durango. As to the Applicants’ documentary evidence of the construction industry being infiltrated by organized crime, that evidence dealt with the construction industry in another area of Mexico and was insufficient to establish that the cartels have infiltrated the construction trade in the state or city of Durango. The RAD acknowledged that at the hearing the Principal Applicant stated why he felt it would be more difficult for him to continue to work in the construction industry. However, it found that he did not establish that he would not be able to work in that industry at all, or that he would not be able to find some other form of work. The RAD found that the Principal Applicant’s reasons related to being employed in the construction industry were insufficient to find that the IFA location was unreasonable. [31] In my view, while the RAD did not explicitly refer to the Principal Applicant’s testimony, the RAD did state that it considered why the Principal Applicant held the view that it would be more difficult for him to work in the construction industry in Durango. His evidence was that he had faced discrimination in Cancun but that, ultimately, he was able to get construction jobs and referrals from those jobs. I do not agree that the RAD failed to consider the Principal Applicant’s testimony. [32] That said, I do agree that the RAD’s statement that there was no evidence that the Principal Applicant had faced discrimination in accessing employment in Cancun was in error given the Principal Applicant’s testimony described above. The Applicants also referred to country conditions documentation, specifically the Response to Information Requests, Mexico: Situation and treatment of Indigenous persons by society and by the authorities; state protection and support services available; situation of Indigenous persons living in cities, particularly Mexico City, Guadalajara and Monterrey (107- September 2020). This states, among other things, that “Indigenous persons have access to ‘fewer’ formal employment opportunities” and “may be excluded from employment and other benefits”. While it was certainly open to the RAD to assign little weight to this country condition evidence or to afford more weight to the Principal Applicant’s ability to obtain work in the past, it did not make that finding. The RAD failed to assess whether this documentary evidence supported the Principal Applicant’s claim that he would face discrimination in accessing employment in the IFA due to his ethnicity. [33] Similarly, the Applicants had submitted that the Minor Applicants suffered discrimination in Cancun because of their ethnicity. In their submission to the RAD, they pointed to the testimony before the RPD that the Minor Applicants were bullied at school, called names and pushed on a daily basis. While the RAD acknowledged the submission that the Minor Applicants would continue to face discrimination and bullying at school in the IFA location, it found, as set out above, that the Principal Applicant and the Minor Applicants failed to establish that they would face discrimination in accessing housing, employment, schooling, or social services in the IFA location as a result of their ethnicity. In my view, the RAD did not engage with the Applicants’ submission as to discrimination to which they asserted the Minor Applicants would be subjected. Whether, as the Applicants assert, this bullying would amount to “past persecution” is simply not addressed by the RAD in determining whether the proposed IFA was reasonable. [34] I acknowledge the general statement by the RAD that the Applicants had not established that they fear persecution based on their ethnicity. However, the failure to address the evidence of discrimination renders this a conclusion without justification. iii. Persecution of family members [35] The Applicants submit that the RAD erred by requiring persecution of family members. According to the Applicants, this error arises from the RAD’s finding that the Los Zetas would not be motivated to track the Applicants in Durango, specifically its statement that “none of the [PA]’s family have been threatened by the Los Zetas in retaliation for ignoring their telephone call for extortion money or payment of same”. The Applicants submit that the Court stated, in Fodor v Canada (Citizenship and Immigration), 2020 FC 2018 [Fodor] at paragraph 51, that implying a legal requirement that a relative should be persecuted is an error of law. Further, in Agudo v Canada (Citizenship and Immigration), 2021 FC 320 at paragraph 45, the Court held that when families are similarly situated, this may be evidence that an applicant might be targeted, however, this does not imply that family members who are not similarly situated must be targeted. The Applicants submit that their family members are not similarly situated to the Principal Applicant as the Los Zetas are after him because he is a contractor and his family members are not. [36] The Respondent submits that, contrary to the Applicants’ submissions, the RAD did not require persecution of persons similarly situated to the Applicants in order to conclude that the Los Zetas cartel were motivated to track the Applicants. However, the lack of evidence of threats or attempts to locate the Applicants through their family in Cancun was an indication of the level of interest of the Los Zetas cartel in the Applicants, which the RAD reasonably took into account. [37] I do not agree with the Applicants that the RAD imported a requirement of persecution of family members in finding that the Los Zetas did not have the motivation to pursue the Applicants in the IFA location. In Fodor, at para 51, Justice McHaffie noted, in the context of a pre-removal risk assessment, that since there is no obligation for a claimant to demonstrate that they have themselves been persecuted in the past, it would be incongruous to effectively require evidence that a claimant’s sibling has faced persecution in their stead. As will be discussed below, that is not the situation before me. [38] When appearing before me, counsel for the Applicants also argued that the RAD erred by elevating the use of an applicant’s family network as a means to track them to a mandatory requirement for establishing motivation by their agent of persecution. However, the RAD did not do so. Nor did it ignore the evidence. [39] The RAD referred to the documentary evidence and found that this indicates that Los Zetas will not track down just anyone. If a large debt is owed, or if there is a personal vendetta or a high-ranking betrayal, then it might be worth the time and resources to track a person. Based on the circumstances of the interaction that the Principal Applicant allegedly had with the Los Zetas, the RAD found, on a balance of probabilities, that they would not be motivated to find him. Further, the fact that his family remained in Cancun, including his cousin, and that the Minor Applicants had remained there for eight months before joining their parents in Canada, and had not been personally approached by anyone asking about the Applicants’ whereabouts, confirmed this. While a letter of support from a neighbour indicated that after the Applicants left their home in 2018, different men on several occasions asked about the Principal Applicant’s whereabouts, the RAD found this was insufficient to establish that they were members of Los Zetas or that they would be motivated to pursue the Applicants to the IFA. The RAD found on a balance of probabilities that the evidence as a whole did not demonstrate that Los Zetas are motivated to seek the Applicants out. The RAD also noted that the country conditions evidence indicates that cartels use family networks to track a person in which they are interested. However, no one had approached any of the Applicants’ family members. The RAD did not make this a mandatory requirement. It was simply one of many factors it considered in determining that the Los Zetas would not be motivated to pursue the Applicants in the IFA. Viewed in context, it is also clear that the RAD did not import a requirement of persecution of similarly situated family members. Rather, the RAD was assessing the motivation of the Los Zetas to pursue the Applicants. Conclusion [40] Although the RAD’s reasons were largely sound, given my finding that the RAD erred by failing to assess some of the Applicants’ evidence of discrimination based on ethnicity that the Applicants claimed the Principal Applicant and Minor Applicants would face in the IFA location, the decision is unreasonable and must be returned for reconsideration. JUDGMENT IN IMM-2194-22 THIS COURT’S JUDGMENT is that The application for judicial review is granted; The decision is set aside and the matter shall be remitted to another officer for redetermination; There shall be no order as to costs; and No question of general importance for certification was proposed or arises. \"Cecily Y. Strickland\" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-2194-22 STYLE OF CAUSE: APOLONIO DZIB TUZ, BRITTANY NAYELI DZIB FIGUEROA, HILARY ESTEFANNY DZIB FIGUEROA, NAYELI FIGUEROA CHAVEZ v THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP PLACE OF HEARING: By videoconference using Zoom DATE OF HEARING: July 12, 2023 JUDGMENT AND REASONS: STRICKLAND J. DATED: july 24, 2023 APPEARANCES: Jeffrey L. Goldman For The Applicants Amy King For The Respondent SOLICITORS OF RECORD: Barrister and Solicitor Toronto, Ontario For The Applicants Attorney General of Canada Department of Justice Canada Toronto, Ontario For The Respondent", "response": "## Analysis of Court Decision: Tuz v. Canada (Citizenship and Immigration)\n\n### Key Issues\necause of their mental health issues, the RAD found that the Applicants did not provide evidence that the mental health services they require would not be available or accessible a\n\n### Standard of Review\nmissed the appeal. Issues and Standard of Review [11] The matters identified by the Applicants give rise to two issues: Was the decision rendered in breach of the duty of procedura\n\n### Legal Analysis\nThe court's analysis focuses on: o the second prong of the IFA analysis, the RAD found that it would be objectively reasonable for the Applicants to relocate to the city of Durango. With respect to the concern that the Principal Applicant and the Minor Applicants would face discrimination because of their Mayan ethnicity, the RAD found that there was no evidenc\n\n### Precedential Value\nThis Federal Court decision has persuasive value for similar cases before the court and provides guidance to the Immigration and Refugee Board on the proper interpretation of law and procedural requirements. While not binding on other Federal Court judges, it establishes a precedent that will often be followed for consistency."}
{"prompt": "How does this Federal Court of Appeal of Canada decision affect immigration jurisprudence?\n\nMapachee v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2023-05-18 Neutral citation 2023 FCA 109 File numbers A-87-20 Decision Content Date: 20230518 Docket: A-87-20 Citation: 2023 FCA 109 [ENGLISH TRANSLATION] CORAM: RIVOALEN J.A. ROUSSEL J.A. GOYETTE J.A. BETWEEN: KATHERINE MAPACHEE Applicant and ATTORNEY GENERAL OF CANADA Respondent Heard at Ottawa, Ontario, on May 18, 2023. Judgment delivered from the bench at Ottawa, Ontario, on May 18, 2023. REASONS FOR JUDGMENT OF THE COURT BY: RIVOALEN J.A. Date: 20230518 Docket: A-87-20 Citation: 2023 FCA 109 CORAM: RIVOALEN J.A. ROUSSEL J.A. GOYETTE J.A. BETWEEN: KATHERINE MAPACHEE Applicant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the bench at Ottawa, Ontario, on May 18, 2023.) RIVOALEN J.A. [1] The applicant filed an application for judicial review of a decision rendered by the Appeal Division of the Social Security Tribunal (the Appeal Division) (2020 SST 151), which determined that she was not eligible to receive the benefits provided for under the Employment Insurance Act, S.C. 1996, c. 23 (the Act). Under subsection 30(1) of the Act, a claimant is disqualified from receiving any employment insurance benefits if the claimant voluntarily left any employment in the absence of a just cause as set out in paragraph 29(c). The issue before this Court is the interpretation of subparagraph 29(c)(ix) of the Employment Insurance Act. [2] The General Division of the Social Security Tribunal (the General Division) reviewed the non‑exhaustive list of circumstances that constitute just cause for voluntarily leaving an employment, as set out in paragraph 29(c) of the Act, and found that although the applicant had left her employment voluntarily, she had not left without just cause. According to the General Division, by modifying one of the essential terms and conditions of the employment contract, the employer had made significant changes in the applicant’s work duties. According to the evidence on record, the applicant had no reasonable alternative to leaving. [3] On February 18, 2020, the Appeal Division found that the evidence did not support the General Division’s conclusion that the employer had changed the applicant’s work duties significantly within the meaning of paragraph 29(c) of the Act. The Appeal Division concluded that if she had not gone back to school, the applicant would clearly have carried on the same work duties. Consequently, she did not have just cause for voluntarily leaving her employment. [4] It should be recalled that the role conferred on the Appeal Division under subsection 58(1) of the Department of Employment and Social Development Act, S.C. 2005, c. 34, is rather limited. The Appeal Division can intervene only if the General Division failed to observe a principle of natural justice, erred in law or based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. [5] The Appeal Division’s decision is subject to the reasonableness standard of review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov]. The burden is on the applicant to show that the decision is unreasonable: Vavilov at para. 100. [6] Therefore, this Court’s role on judicial review of an Appeal Division decision is to determine whether the Appeal Division applied the factors set out in subsection 58(1) in an unreasonable manner. This is an exacting standard that is not met easily: unless it can be shown that a decision is either based on an internally incoherent reasoning or unjustified in light of the legal and factual constraints that bear on it, a reviewing court must show deference to the administrative decision-maker or tribunal (Uvaliyev v. Canada (Attorney General), 2021 FCA 222). [7] The applicant has raised new arguments before this Court, namely that she was the victim of psychological harassment, racism and discrimination. Those arguments were not raised before the General Division or the Appeal Division. Therefore, she cannot raise them for the first time before this Court. [8] Upon carefully reviewing the record and the applicant’s written and oral submissions, we are of the opinion that the Appeal Division committed no reviewable error. [9] The issue before the General Division was whether the modification to the applicant’s work schedule constituted significant changes to her work duties within the meaning of subparagraph 29(c)(ix). That subparagraph refers to “significant changes in work duties”. Modifying a claimant’s work hours or schedule does not necessarily represent significant changes to the claimant’s work duties. In light of the record, we find that it was reasonable for the Appeal Division to conclude that the evidence was insufficient to support the applicant’s allegations that her work duties had been changed significantly within the meaning of subparagraph 29(c)(ix) of the Act. [10] However, we disagree with the Appeal Division’s remarks at paragraph 15 of its reasons. We are of the view that the General Division did not ignore this Court’s consistent case law, but rather chose to dispose of the issue before it in a different manner, namely, by considering the working conditions rather than the applicant’s return to school. Nevertheless, we remain of the opinion that the Appeal Division reasonably found that the General Division erred in its interpretation of subparagraph 29(c)(ix) of the Act. The Appeal Division’s decision is owed a high level of deference, and despite the applicant’s best efforts to convince us of the contrary, this Court’s role is limited. [11] Consequently, we would dismiss this application for judicial review. Given that costs were not sought, none will be awarded. “Marianne Rivoalen” J.A. Certified true translation Melissa Paquette, Jurilinguist FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-87-20 STYLE OF CAUSE: KATHERINE MAPACHEE v. ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: May 18, 2023 REASONS FOR JUDGMENT OF THE COURT BY: RIVOALEN J.A. ROUSSEL J.A. GOYETTE J.A. DELIVERED FROM THE BENCH BY: RIVOALEN J.A. APPEARANCES: Katherine Mapachee For the applicant (on her own behalf) Suzette Bernard For the respondent SOLICITORS OF RECORD: Shalene Curtis-Micallef Deputy Attorney General of Canada For the respondent", "response": "## Analysis of Court Decision: Mapachee v. Canada (Attorney General)\n\n### Key Issues\nA. [1] The applicant filed an application for judicial review of a decision rendered by the Appeal Division of the Social Security Tribunal (the Appeal Division) (2020 SST 151), wh\n\n### Standard of Review\nsubject to the reasonableness standard of review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov]. The burden is on the appl\n\n### Legal Analysis\nThe court's analysis focuses on: upport the General Division’s conclusion that the employer had changed the applicant’s work duties significantly within the meaning of paragraph 29(c) of the Act. The Appeal Division concluded that if she had not gone back to school, the applicant would clearly have carried on the same work duties. Consequently, she did not have\n\n### Precedential Value\nAs a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation."}
{"prompt": "What rights and responsibilities are established by this Federal legislation from the Canadian government?\n\n# Antarctic Environmental Protection Act SC 2003, c 20 An Act respecting the protection of the Antarctic Environment Assented to 2003-10-20 ### Preamble WHEREAS Canada is a party to the Antarctic Treaty, to the Convention for the Conservation of Antarctic Seals and to the Convention on the Conservation of Antarctic Marine Living Resources; WHEREAS the Antarctic is a natural reserve, devoted to peace and science; AND WHEREAS the Government of Canada is committed to the comprehensive protection of the Antarctic environment and dependent and associated ecosystems; NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: ## Short Title ### Short title 1 This Act may be cited as the Antarctic Environmental Protection Act. ## Interpretation ### Definitions 2 (1) The following definitions apply in this Act. *Antarctic* means (a) the continent of Antarctica, including its iceshelves; (b) all islands south of 60 o south latitude, including their iceshelves; (c) all areas of the continental shelf that are adjacent to that continent or to those islands and that are south of 60 o south latitude; and (d) all sea and airspace south of 60 o south latitude. (Antarctique) *authorized representative* has the same meaning as in section 2 of the Canada Shipping Act, 2001. (représentant autorisé) *Canadian* means (a) a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act ; or (b) a corporation established or continued under the laws of Canada or a province. ( Canadien) *Canadian aircraft* has the same meaning as in subsection 3(1) of the Aeronautics Act. (aéronef canadien) *Canadian expedition* means a journey undertaken by a person or persons (a) that is organized in Canada; or (b) for which the final place of departure of the person or persons is in Canada. ( expédition canadienne) *Canadian vessel* has the same meaning as in section 2 of the Canada Shipping Act, 2001. (bâtiment canadien) *Chief Review Officer* means the review officer appointed as Chief Review Officer under subsection 244(1) of the Canadian Environmental Protection Act, 1999 and includes any review officer designated under subsection 244(3) of that Act to perform the functions of the Chief Review Officer. (réviseur-chef) *conveyance* includes any vehicle, vessel or aircraft. (moyen de transport) *master* includes every person who has command or charge of a vessel but does not include a pilot. (capitaine) *Minister* means the member of the Queen’s Privy Council for Canada who is designated by the Governor in Council as the Minister for the purpose of this Act. (ministre) *permit* means a permit issued under section 21. (permis) *place* includes any platform anchored at sea, shipping container or conveyance. (lieu) *Protocol* means the Protocol on Environmental Protection to the Antarctic Treaty, signed at Madrid on October 4, 1991, as amended from time to time, to the extent that the amendments are binding on Canada. (Protocole) *registered owner* has the same meaning as in subsection 3(1) of the Aeronautics Act. (propriétaire enregistré) *Treaty* means the Antarctic Treaty, signed at Washington on December 1, 1959, as amended from time to time, to the extent that the amendments are binding on Canada. (Traité) *vessel* means a boat, ship or craft designed, used or capable of being used solely or partly for navigation in, on, through or immediately above water, without regard to the method or lack of propulsion, but does not include a fixed platform. (bâtiment) ### Same meaning (2) Unless a contrary intention appears, words and expressions used in this Act have the same meaning as in the Treaty or the Protocol. ### Another Party to the Protocol (3) A reference in this Act to *another Party to the Protocol* is a reference to a Party other than Canada. ## Purpose ### Purpose of the Act 3 The purpose of this Act is to protect the Antarctic environment, particularly by implementing the Protocol. ## Application ### Her Majesty 4 This Act is binding on Her Majesty in right of Canada and of a province. ### Non-application to Canadian Forces 5 This Act does not apply to a member of the Canadian Forces acting in that capacity or in respect of a vessel, facility or aircraft of the Canadian Forces or a foreign military force or in respect of any other vessel, facility or aircraft that is under the command, control or direction of the Canadian Forces. 6 [Repealed, 2012, c. 19, s. 60] ## Prohibitions ### Canadian expeditions 7 (1) No person who is on a Canadian expedition shall be in the Antarctic except in accordance with a permit or under the written authorization of another Party to the Protocol. ### Exceptions (2) Subsection (1) does not apply to a person who is (a) travelling through, on or above the high seas to an immediate destination outside the Antarctic; or (b) in the Antarctic for the sole purpose of fishing for profit. ### Canadian stations 8 No person shall be in a Canadian station in the Antarctic except in accordance with a permit. ### Canadian vessels 9 (1) No Canadian vessel shall be in the Antarctic except in accordance with a permit or under the written authorization of another Party to the Protocol. ### Exceptions (2) Subsection (1) does not apply to a Canadian vessel that is (a) travelling through or on the high seas to an immediate destination outside the Antarctic; or (b) in the Antarctic for the sole purpose of fishing for profit. ### Canadian aircraft 10 (1) No person shall operate a Canadian aircraft in the Antarctic except in accordance with a permit or under the written authorization of another Party to the Protocol. ### Exception (2) Subsection (1) does not apply in respect of a Canadian aircraft travelling to an immediate destination outside the Antarctic. ### Mineral resources 11 No Canadian or Canadian vessel shall, in the Antarctic, conduct any activity relating to mineral resources, including the recovery or exploitation of, or the prospecting or exploration for, mineral resources. This does not prohibit scientific research conducted in accordance with a permit or under the written authorization of another Party to the Protocol. ### Native species 12 (1) Except in accordance with a permit or under the written authorization of another Party to the Protocol, no Canadian shall, in the Antarctic, (a) kill, injure, capture, handle or molest a native mammal or native bird; (b) remove or damage native plants in a manner that significantly affects their local distribution or abundance; (c) fly or land a helicopter or other aircraft in a manner that disturbs any concentration of native birds or seals; (d) use a vehicle or vessel, including a hovercraft and a small boat, in a manner that disturbs any concentration of native birds or seals; (e) use an explosive or firearm in a manner that disturbs any concentration of native birds or seals; (f) while on foot, wilfully disturb a breeding or moulting native bird; (g) while on foot, wilfully disturb any concentration of native birds or seals; (h) significantly damage any concentration of terrestrial native plants by landing an aircraft, driving a vehicle or walking on it, or in any other manner; or (i) engage in any activity that results in the significant adverse modification of the habitat of any species or population of native mammals, native birds, native plants or native invertebrates. ### Definitions (2) The following definitions apply in subsection (1). *native bird* means a member, at any stage of its life cycle, including eggs, of any species of the class Aves that is indigenous to the Antarctic or that occurs there seasonally through natural migrations. (oiseau indigène) *native invertebrate* means any terrestrial or freshwater invertebrate, at any stage of its life cycle, that is indigenous to the Antarctic. (invertébré indigène) *native mammal* means a member of any species of the class Mammalia that is indigenous to the Antarctic or that occurs there seasonally through natural migrations. (mammifère indigène) *native plant* means any terrestrial or freshwater vegetation, including bryophytes, lichens, fungi and algae, at any stage of its life cycle, including seeds and other propagules, that is indigenous to the Antarctic. (plante indigène) ### Introduction of non-native species 13 (1) No Canadian or Canadian vessel shall introduce into the Antarctic any animal or plant of a species that is not indigenous to the Antarctic, except in accordance with a permit or under the written authorization of another Party to the Protocol. ### Exceptions (2) Subsection (1) does not apply in respect of (a) any bird or mammal that occurs in the Antarctic seasonally through natural migrations; or (b) food other than poultry or live animals. ### Specified substances and products 14 No Canadian or Canadian vessel shall introduce into the Antarctic any substance or product specified in the regulations. ### Specially protected areas 15 No Canadian or Canadian vessel shall be in an Antarctic specially protected area designated by the regulations except in accordance with a permit or under the written authorization of another Party to the Protocol. ### Historic sites and monuments 16 No Canadian or Canadian vessel shall damage, destroy or remove any part of an historic site or monument in the Antarctic designated by the regulations. ### Waste disposal 17 (1) No Canadian shall dispose of waste in the Antarctic except in accordance with a permit or under the written authorization of another Party to the Protocol. ### Absolute prohibition (2) Despite subsection (1), no Canadian shall, in the Antarctic, burn waste in the open air or dispose of waste in any ice-free area or in any fresh water system. ### Discharge into sea 18 (1) No Canadian vessel shall, while in the Antarctic, discharge into the sea any oil or oily mixture or any food waste except in accordance with a permit or under the written authorization of another Party to the Protocol. ### Absolute prohibition — garbage (2) Despite subsection (1), no Canadian vessel shall, while in the Antarctic, discharge into the sea any garbage, plastic or other product or substance that is harmful to the marine environment. ### Sewage (3) Despite subsection (1), no Canadian vessel that is certified to carry more than 10 persons on board shall, while in the Antarctic, (a) discharge into the sea any untreated sewage within 12 nautical miles of any land or any iceshelf; or (b) instantaneously discharge into the sea any sewage stored in a holding tank. ### Meaning of *garbage* (4) In subsection (2), *garbage*, in respect of a vessel, means all kinds of victual, domestic and operational waste, other than fresh fish and parts of fresh fish. ### Emergencies 19 Sections 7 to 18 do not apply in respect of emergencies involving the safety of a person, the protection of the environment or the safety of any vessel, aircraft, equipment or facility that has a significant value. ### Things obtained in contravention of Act 20 No person or vessel in Canada, and no Canadian or Canadian vessel while in the Antarctic, shall possess, sell, offer for sale, trade, give, transport, transfer or send anything that has been obtained in contravention of this Act or the regulations. ## Permits ## Issuance ### Issuance 21 (1) The Minister may, on application, issue permits for the purposes of this Act. ### Application (2) An application for a permit must be in the form and contain the information prescribed by the regulations. ### Additional information (3) The Minister may require an applicant for a permit to provide the Minister with any information that he or she considers necessary. ### Conditions (4) Subject to the regulations, the Minister may include in a permit any condition that he or she considers appropriate. ### Minister may refuse or suspend permit (5) The Minister may refuse to issue a permit, or may amend, suspend or cancel a permit, if he or she is of the opinion that the public interest warrants it. ### Statutory Instruments Act (6) A permit is not a statutory instrument for the purposes of the Statutory Instruments Act. ### Application on behalf of others 22 (1) A person may apply for a permit on behalf of a Canadian vessel or any other person and, if a permit is issued on behalf of a vessel or person other than the permit holder, that vessel or other person is subject to the conditions of the permit to the extent that those conditions are expressed in the permit to apply to them. ### Identification of person or vessel (2) For the purpose of subsection (1), a Canadian vessel or person need not be expressly named in a permit in order to be subject to its conditions so long as the vessel or person is sufficiently identified in the permit, either by class or other description. ### Deemed contravention by permit holder (3) If a Canadian vessel or person that is not a permit holder but that is bound by a condition of a permit contravenes the condition, the holder of the permit is also deemed to have contravened that condition. ## Environmental Impact Assessments ### Preliminary environmental evaluation 23 (1) The Minister may issue a permit only if he or she is satisfied that a preliminary environmental evaluation in relation to the activities to which the permit is to relate has been conducted in accordance with the regulations. ### Initial or comprehensive evaluation (2) If the Minister, after having considered the preliminary evaluation, is of the opinion that the activities will likely have at least a minor or transitory impact on the environment, he or she must ensure that an initial environmental evaluation, or a comprehensive environmental evaluation, in relation to those activities is conducted in accordance with the regulations before the permit is issued. ### Comprehensive evaluation (3) If the Minister, after having considered an initial evaluation, is of the opinion that the activities will likely have more than a minor or transitory impact on the environment, he or she must ensure that a comprehensive environmental evaluation in relation to those activities is conducted in accordance with the regulations before a permit is issued. ### Restriction (4) The Minister may not issue the permit if he or she is of the opinion, after having considered the comprehensive evaluation, that the activities are likely to have a significant adverse environmental impact that cannot be justified in the circumstances. ## Waste Management Plans and Emergency Plans ### Requirement for plans 24 The Minister may issue a permit that authorizes persons on a Canadian expedition, or a Canadian vessel or Canadian aircraft, to be in the Antarctic only if the Minister is satisfied that a waste management plan and an emergency plan for the expedition, vessel or aircraft have been prepared in accordance with the regulations. ## Security ### Requirement to provide security 25 (1) The Minister may require an applicant for a permit to provide and maintain security with the Minister, in an amount specified in, or determined in accordance with, the regulations and in a form prescribed by the regulations or a form satisfactory to the Minister. ### How security may be applied (2) Any security may be applied by the Minister to reimburse Her Majesty in right of Canada, either fully or partially, for reasonable costs incurred by Her Majesty in preventing, mitigating or remedying any adverse environmental impact caused by the permit holder or persons or vessels bound by conditions of the permit. ## Regulations ### General 26 (1) The Governor in Council may make regulations (a) respecting applications for permits, including the form of the applications, who may apply for permits and the information that must be provided in respect of permit applications; (b) respecting the making of applications for a permit on behalf of a Canadian vessel; (c) respecting the issuance, renewal, cancellation and suspension of permits, and the conditions that the Minister may include in a permit; (d) respecting the activities that may be authorized by a permit; (e) specifying substances and products for the purposes of section 14; (f) designating Antarctic specially protected areas for the purposes of section 15; (g) designating historic sites and monuments for the purposes of section 16; (h) respecting environmental impact assessments for the purposes of section 23; (i) respecting waste management plans and emergency plans for the purposes of section 24; (j) respecting security for the purposes of section 25; (j.1) designating provisions of the regulations for the purposes of paragraphs 50(1)(b) and 50.3(1)(b); and (k) respecting any other matter that the Governor in Council considers necessary for carrying out the purposes of this Act. ### Incorporation by reference (2) Regulations made under subsection (1) may incorporate by reference any document, including a document prepared by an organization working under the Treaty or the Protocol or by another Party to the Protocol. ### Amended from time to time (3) Material may be incorporated by reference as it existed on a specified date or as amended from time to time. ### Incorporated material is not a regulation (4) Material that is incorporated by reference in a regulation made under this Act is not a regulation for the purposes of the Statutory Instruments Act. ### Defence (5) For greater certainty, no person or vessel may be convicted of an offence or subjected to a penalty for the contravention of a provision of a regulation made under this Act that incorporates material by reference unless it is proved that, at the time of the alleged contravention, (a) the material was reasonably accessible to the person or vessel; (b) reasonable steps had been taken to ensure that the material was accessible to persons or vessels likely to be affected by the regulation; or (c) the material had been published in the Canada Gazette. ### Regulations — fees 27 (1) The Minister may make regulations (a) prescribing the fees or a scale of fees or the manner of determining the fees to be paid for issuing, amending or renewing permits; (b) prescribing the persons or vessels or classes of persons or vessels by whom or on whose behalf the fees are to be paid, and requiring the fees to be paid by those persons, vessels or classes; (c) exempting any person or vessel, or class of persons or vessels, from the requirement to pay any of those fees; and (d) generally, in respect of any condition or any other matter in relation to the payment of those fees. ### Limit (2) Fees that are prescribed by or under regulations made under subsection (1) in respect of the issuance, amendment or renewal of permits shall in the aggregate not exceed an amount sufficient to compensate Her Majesty in right of Canada for any reasonable costs incurred by Her Majesty in carrying out those functions. ### Recovery 28 Fees required by the regulations to be paid constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction. ## Enforcement in Canada ## Enforcement Officers and Analysts ### Designation 29 (1) The Minister may designate as an enforcement officer or analyst for the purpose of this Act or any provision of this Act any person or member of a class of persons who, in the Minister’s opinion, is qualified to be so designated. ### Powers (2) For the purposes of this Act, an enforcement officer in Canada has all the powers of a peace officer, but the Minister may specify limits on those powers when designating the enforcement officer. ### Limits (3) The Minister may limit the powers that may be exercised by an enforcement officer or analyst under this Act. ### Production of certificate (4) The Minister must provide every enforcement officer and analyst with a certificate of designation that includes any limits under subsection (2) or (3). On entering any place, the enforcement officer or analyst must, if so requested, produce the certificate to the person in charge of the place. ### Immunity 29.1 Enforcement officers and analysts are not personally liable for anything they do or omit to do in good faith under this Act. ## Inspections in Canada ### Entry 30 (1) Subject to subsection (2), for the purposes of this Act, an enforcement officer may, at any reasonable time, enter any place in Canada in which the enforcement officer believes, on reasonable grounds, there is anything to which this Act applies or any document relating to its administration. ### Dwelling-house (2) An enforcement officer may not enter a dwelling-house without the consent of the occupant or pursuant to a warrant issued under subsection (3). ### Warrant for inspection of dwelling-house (3) If, on ex parte application, a justice is satisfied by information on oath that (a) the conditions for entry described in subsection (1) exist in relation to a dwelling-house, (b) entry to the dwelling-house is necessary for any purpose relating to the administration of this Act, and (c) entry to the dwelling-house has been refused or there are reasonable grounds for believing that entry will be refused, the justice may issue a warrant authorizing the enforcement officer named in it to conduct an inspection of the dwelling-house, subject to any conditions that may be specified in the warrant, and authorizing any other person named in the warrant to accompany the enforcement officer and exercise any power specified in the warrant. ### Warrants for inspection of non-dwellings (4) If, on ex parte application, a justice is satisfied by information on oath that (a) the conditions for entry described in subsection (1) exist in relation to a place other than a dwelling-house, (b) entry to the place is necessary for any purpose relating to the administration of this Act, (c) entry to the place has been refused, the enforcement officer was not able to enter without the use of force or the place was abandoned, and (d) subject to subsection (5), all reasonable attempts were made to notify the owner, operator or person in charge of the place, the justice may issue a warrant authorizing the enforcement officer named in it to conduct an inspection of the place, subject to any conditions that may be specified in the warrant, and authorizing any other person named in the warrant to accompany the enforcement officer and exercise any power specified in the warrant. ### Waiving notice (5) The justice may waive the requirement to give notice under paragraph (4)(d) if he or she is satisfied that attempts to give the notice would be unsuccessful because the owner, operator or person in charge is absent from the jurisdiction of the justice or that it is not in the public interest to give the notice. ### Use of force (6) In executing a warrant issued under subsection (3) or (4), an enforcement officer shall not use force unless the use of force has been specifically authorized in the warrant. ### Stopping and detaining conveyances (7) For the purposes of this Act, an enforcement officer may, at any reasonable time, direct that any conveyance be stopped — or be moved, by the route and in the manner that the officer may specify, to a place specified by the officer where an inspection can be carried out — and the officer may, for a reasonable time, detain any conveyance. ### Vessels and aircraft (8) For the purposes of this Act but subject to subsection (2), if an enforcement officer believes on reasonable grounds that there is, on any vessels or aircraft in Canada, anything to which this Act applies or any document relating to its administration, the officer may, at any reasonable time, (a) direct that the vessel be stopped — or be moved, by the route and in the manner that the officer may specify, to a place specified by the officer where an inspection can be carried out — and the officer may, for a reasonable time, detain the vessel; (b) board the vessel or aircraft; or (c) travel on the vessel or aircraft. ### Powers of inspection (9) In carrying out an inspection of a place under this section, an enforcement officer may, for the purposes of this Act, (a) examine any substance, product or other thing relevant to the administration of this Act that is found in the place; (b) open and examine any receptacle or package found that he or she believes on reasonable grounds contains any substance, product or other thing; (c) examine any books, records, electronic data or other documents that he or she believes on reasonable grounds contain any information relevant to the administration of this Act and make copies of them or take extracts from them; (d) take samples of anything relevant to the administration of this Act; and (e) conduct any tests or take any measurements. ### Analysts (10) An analyst may, for the purposes of this Act, accompany an enforcement officer who is carrying out an inspection of a place under this section, and the analyst may, when accompanying the enforcement officer, enter the place and exercise any of the powers described in subsection (9). ### Disposition of samples (11) An enforcement officer or analyst may dispose of a sample taken under paragraph (9)(d) in any manner that the officer or analyst considers appropriate. ### Operation of computer systems and copying equipment (12) In carrying out an inspection, an enforcement officer may (a) use or cause to be used any computer system or data processing system at the place being inspected to examine any data contained in, or available to, the system; (b) reproduce any record, or cause it to be reproduced from the data, in the form of a printout or other intelligible output and remove the printout or other output for examination or copying; and (c) use or cause to be used any copying equipment at the place being inspected to make copies of any books, records, electronic data or other documents. ### Duty of person in possession or control (13) Every person who is in possession or control of a place being inspected under this section shall permit the enforcement officer to do anything referred to in subsection (12). ### Assistance (14) The owner or person in charge of a place being inspected under this section, and every person found in the place, shall (a) give the enforcement officer or analyst all reasonable assistance to enable the officer or analyst to carry out their functions under this Act; and (b) provide the enforcement officer or analyst with any information with respect to the administration of this Act that he or she may reasonably require. ### Production of documents and samples 31 (1) The Minister may, for the purposes of this Act, by registered letter or by a demand served personally, require any person in Canada, within any reasonable time and in any reasonable manner that may be stipulated in the letter or demand, (a) to produce at a place specified by the Minister any sample taken in Canada or any document; or (b) to conduct any tests in Canada or take any measurements or samples there. ### Compliance (2) Any person who is required to do anything under subsection (1) shall, despite any other law to the contrary, comply with the requirement. ## Search and Seizure in Canada ### Authority to issue warrant for search and seizure 32 (1) If, on ex parte application, a justice is satisfied by information on oath that there are reasonable grounds to believe that there is in any place in Canada (a) anything by means of or in relation to which any provision of this Act or the regulations has been contravened, or (b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence under this Act, the justice may issue a warrant authorizing an enforcement officer, or any other person named in the warrant, to enter and search the place and to seize anything referred to in paragraph (a) or (b), subject to any conditions that may be specified in the warrant. ### Warrant for seizure of vessel or aircraft (2) If, on ex parte application, a justice is satisfied by information on oath that there are reasonable grounds to believe that an offence has been committed by a Canadian vessel or any other vessel or the pilot in command of a Canadian aircraft, he or she may issue a warrant authorizing an enforcement officer, or authorizing any other person named in the warrant, to seize the vessel or aircraft anywhere in Canada. ### Search and seizure (3) A person authorized by a warrant issued under subsection (1) or (2) may (a) at any reasonable time, enter and search a place referred to in the warrant; (b) seize and detain anything referred to in the warrant; and (c) exercise the powers described in subsections 30(9) and (11). ### Where warrant not necessary (4) An enforcement officer may exercise the powers described in subsection (3) without a warrant if the conditions for obtaining the warrant exist but, by reason of exigent circumstances, it would not be practical to obtain the warrant. ### Exigent circumstances (5) For greater certainty, exigent circumstances include circumstances in which the delay necessary to obtain a warrant under subsection (1) or (2) would result in a danger to human life or the environment or the loss or destruction of evidence. ### Operation of computer system and copying equipment (6) A person authorized under this section to search a place may (a) use or cause to be used any computer system at the place to search any data contained in or available to the computer system; (b) reproduce any record or cause it to be reproduced from the data in the form of a printout or other intelligible output; (c) seize any printout or other output for examination or copying; or (d) use or cause to be used any copying equipment at the place to make copies of the record. ### Duty of person in possession or control (7) Every person who is in possession or control of a place where a search is carried out under this section shall permit the person carrying out the search to do anything referred to in subsection (6). ### Custody 33 (1) Anything seized under section 32 must be delivered into the custody of a person whom the Minister designates. ### Discharge of cargo (2) If a thing seized under section 32 has cargo on board, the cargo may be discharged, under the supervision of (a) the enforcement officer or other person by whom the thing was seized, or (b) the person into whose custody the thing was delivered in accordance with subsection (1), at the place in Canada that is capable of receiving the cargo and is nearest to the place of seizure, or at any other place that is satisfactory to the enforcement officer or other person supervising the discharge of the cargo. ### Sale of perishable cargo (3) If a thing seized under section 32 has cargo on board that is perishable, (a) the enforcement officer or other person by whom the thing was seized, or (b) the person into whose custody the thing was delivered in accordance with subsection (1) may sell the cargo or the portion of it that is perishable, and the proceeds of the sale shall be paid to the Receiver General or shall be deposited in a bank to the credit of the Receiver General. ### Order for delivery of cargo (4) The owner of the cargo may apply to the Federal Court for an order requiring the person who has custody of the cargo or the proceeds of any sale of the cargo to deliver the cargo or proceeds to the owner, and the Court may make the order if it is satisfied that the applicant is the owner of the cargo to which the application relates. ### Redelivery on deposit of security 34 (1) If a thing has been seized under section 32, the Federal Court may, with the consent of the Minister, order redelivery of the thing or delivery of the proceeds realized from a sale of any perishable cargo under subsection 33(3) to the person from whom the thing was seized if security in the form of a bond, in an amount and form satisfactory to the Minister, is given to the Minister. ### Seized vessel etc., to be returned unless proceedings instituted (2) Anything referred to in subsection (1) that has been seized under section 32, or any security given to the Minister under subsection (1), shall be returned or paid to the person from whom the thing was seized within 30 days after the day of its seizure unless, before the expiry of that period, proceedings are instituted in respect of an offence under this Act alleged to have been committed by the owner of the thing. ## Detention in Canada ### Seizure 35 (1) Whenever, during the course of an inspection or search, an enforcement officer has reasonable grounds to believe that an offence under this Act has been committed, the enforcement officer may seize and detain anything (a) by means of or in relation to which the enforcement officer reasonably believes the offence occurred; or (b) that the enforcement officer reasonably believes will afford evidence of the offence. ### Limitation (2) An enforcement officer shall not seize anything under subsection (1) unless the thing is required as evidence or for purposes of analysis, or unless the enforcement officer is of the opinion that the seizure is necessary in the public interest. ### Notice of contravention (3) An enforcement officer who has seized and detained a thing under subsection (1) shall, as soon as practicable, advise the person in whose possession it was at the time of the seizure of the provision of this Act or the regulations that the enforcement officer believes has been contravened. ### Detention and release (4) A thing seized under subsection (1) or section 32, other than a vessel or aircraft, shall not be detained (a) after the owner of the thing or the person in whose possession it was at the time of the seizure applies to the enforcement officer or to the Minister for its release and the enforcement officer or the Minister is satisfied that it is not necessary in the public interest to continue to detain the thing or that the thing is not required as evidence or for purposes of analysis; or (b) after the expiry of 90 days after the day of its seizure, unless before that time (i) the thing has been forfeited under section 40, (ii) proceedings have been instituted in respect of the contravention in relation to which the thing was seized, in which case it may be detained until the proceedings are finally concluded, or (iii) the Minister has, in accordance with section 36, served or made reasonable efforts to serve notice of an application for an order extending the period during which the thing may be detained. ### Storage of seized thing (5) A thing seized by an enforcement officer under subsection (1) or section 32, other than a vessel, aircraft, platform or other structure, shall be kept or stored in the place where it was seized except if (a) in the opinion of the enforcement officer, (i) it is not in the public interest to do so, or (ii) the thing seized, or a sample of it, is required as evidence and removal and storage of the thing seized are necessary to ensure that the thing or sample will be available as evidence in any related proceedings, or (b) the person in whose possession it was at the time of its seizure or the person entitled to possession of the place requests the enforcement officer to have it removed to some other place, in which case, the thing may be removed to and stored in any other place at the direction of or with the concurrence of an enforcement officer and at the expense of the person who requested that it be removed. ### Interference with seized thing (6) Unless authorized by an enforcement officer, no person shall remove, alter or interfere in any way with a thing seized and detained by an enforcement officer under subsection (1) or section 32, but an enforcement officer shall, at the request of the person from whom it was seized, allow that person or any person authorized by that person to examine it and, if practicable, provide a sample or copy of it to that person. ### Application to extend period of detention 36 (1) If proceedings referred to in paragraph 35(4)(b) have not been instituted in respect of the contravention in relation to which a thing was seized under section 32 or subsection 35(1), the Minister may, before the expiry of 90 days after the day of its seizure and on serving prior notice in accordance with subsection (2) on the owner of the thing or on the person who at the time of the seizure was in possession of it, apply to a provincial court judge, as defined in section 2 of the Criminal Code, within whose territorial jurisdiction the seizure was made for an order extending the period during which it may be detained. ### Notice (2) The notice shall be served by personal service at least five clear days before the day on which the application is to be made, or by registered mail at least seven clear days before that day, and shall specify (a) the provincial court in which the application is to be made; (b) the place where and the time when the application is to be heard; (c) the thing seized in respect of which the application is to be made; and (d) the grounds on which the Minister intends to rely to show why there should be an extension of the period during which the thing seized may be detained. ### Order of extension granted (3) If, on the hearing of an application made under subsection (1), the judge is satisfied that the thing seized should continue to be detained, the judge shall order (a) that the thing be detained for any additional period and on any conditions relating to the detention for that additional period that the judge considers proper; and (b) on the expiry of the additional period, that the thing be restored to the person from whom it was seized or to any other person entitled to its possession unless, before the expiry of the additional period, an event referred to in subparagraph 35(4)(b)(i), (ii) or (iii) has occurred. ### Order of extension refused (4) If, on the hearing of an application made under subsection (1), the judge is not satisfied that the thing seized should continue to be detained, the judge shall order that, on the expiry of 90 days after the day of its seizure, it be restored to the person from whom it was seized or to any other person entitled to its possession unless, before the expiry of that period, an event referred to in subparagraph 35(4)(b)(i) or (ii) has occurred. ## Detention of Vessels ### Detention 37 (1) An enforcement officer may make a detention order in respect of a Canadian vessel, or any other vessel in Canada, if the enforcement officer has reasonable grounds to believe that (a) the vessel has committed an offence under this Act; or (b) an authorized representative of the Canadian vessel or of the other vessel, or the master of the Canadian vessel, has committed an offence under this Act and that the vessel was used in connection with the commission of the offence. ### Order in writing (2) The detention order shall be in writing and be addressed to all persons at any port in Canada where the vessel to which the order relates is or will be who are empowered to give a clearance in respect of the vessel. ### Notice of detention order (3) Notice of the detention order shall be served on the master of the vessel in respect of which the order is made. ### Duty of authorized representative or master (4) If the notice has been served on the master of the vessel, the authorized representative or master of the vessel shall not give an order for the vessel to go into an area of the sea referred to in paragraph 122(2)(f) or (g) of the Canadian Environmental Protection Act, 1999 during the term of the detention order. ### Duty of persons empowered to give clearance (5) Subject to subsection (6), no person to whom a detention order is addressed shall, after notice of the order is received by the person, give clearance in respect of the vessel to which the order relates. ### When clearance given (6) A person to whom a detention order is addressed and who has received notice of the order may give clearance in respect of the vessel to which the order relates if (a) the vessel or the authorized representative or master of the vessel, as the case may be, (i) has not, within 30 days after the day on which the order was made, been charged with the offence that gave rise to the order, or (ii) has, within 30 days after the day on which the order was made, been charged with that offence and appears in Canada to answer to the charge; (b) security for payment of the maximum fine that might be imposed as a result of a conviction of the vessel or the person charged with that offence and of costs related to proceedings in connection with the charge, or security for payment of any lesser amount that is approved by the Minister or a person designated by the Minister for the purpose, is given to Her Majesty in right of Canada; or (c) proceedings in respect of the alleged offence that gave rise to the making of the detention order are discontinued. ### Foreign state to be notified (7) If a vessel to which a detention order relates is registered in a foreign state, that state is to be notified that the order was made. ## Direction of Vessels ### Power to direct 37.01 An enforcement officer may direct a Canadian vessel, or any other vessel in Canada, to proceed, by the route and in the manner that the enforcement officer may specify, to any place specified by the enforcement officer if the officer has reasonable grounds to believe that (a) the vessel is committing, has committed or is about to commit an offence under this Act; or (b) a person on board the vessel is committing, has committed or is about to commit such an offence and the vessel was, is being or is about to be used in connection with the commission of the offence. ## Environmental Protection Compliance Orders ### Meaning of *order* 37.02 For the purpose of sections 37.03 to 37.12, *order* means an environmental protection compliance order issued under section 37.03. ### Order 37.03 (1) Whenever, during the course of an inspection or a search, an enforcement officer has reasonable grounds to believe that any provision of this Act or the regulations has been contravened by a person who is continuing the commission of the offence, or that any of those provisions are likely to be contravened, the enforcement officer may issue an environmental protection compliance order directing any person described in subsection (2) to take any of the measures referred to in subsection (3) that are reasonable in the circumstances and consistent with the protection of the Antarctic environment and dependent and associated ecosystems, and with public safety, in order to cease or refrain from committing the alleged contravention. ### Persons subject to order (2) Subsection (1) applies to (a) any person who causes or contributes to the alleged contravention; (b) any person who is likely to cause or contribute to the alleged contravention; or (c) in the case of an alleged contravention by a person to whom a permit applies, any person to whom that permit applies. ### Specific measures (3) The order may specify that the person to whom the order is directed take one or more of the following measures: (a) refrain from doing anything in contravention of this Act or the regulations, or do anything to comply with this Act or the regulations; (b) stop or shut down any activity, work, undertaking or thing for a specified period; (c) cease the operation of any activity or any part of a work, undertaking or thing until the enforcement officer is satisfied that the activity, work, undertaking or thing will be operated in accordance with this Act and the regulations; (d) move any conveyance to another location including, in the case of a Canadian vessel, moving the vessel into port or, in the case of an aircraft, landing the aircraft; (e) unload or reload the contents of any conveyance; and (f) take any other measure that the enforcement officer considers necessary to facilitate compliance with the order — or to restore the components of the environment damaged by the alleged contravention or to protect the components of the environment put at risk by the alleged contravention — including (i) maintaining records on any relevant matter, (ii) reporting periodically to the enforcement officer, and (iii) submitting to the enforcement officer any information, proposal or plan specified by the enforcement officer that sets out any action to be taken by the person with respect to the subject matter of the order. ### Contents of order (4) Subject to section 37.04, an order must be made in writing and must set out (a) the name of the person or persons to whom it is directed; (b) the provision of this Act or the regulations that is alleged to have been or that is likely to be contravened; (c) the relevant facts surrounding the alleged contravention; (d) the measures to be taken; (e) the time or the day when each measure is to begin or the period during which it is to be carried out; (f) subject to subsection (5), the duration of the order; (g) a statement that a request for a review may be made to the Chief Review Officer; and (h) the period within which a request for a review may be made. ### Duration of order (5) An order may not be in force for a period of more than 180 days. ### Failing to file report (6) For the purposes of subsection (1), a person who commits an offence by failing to file a report required by this Act or the regulations is deemed to be continuing the commission of the offence each day that the report is not filed. ### Statutory Instruments Act (7) An order is not a statutory instrument for the purposes of the Statutory Instruments Act. ### Exigent circumstances 37.04 (1) In the case of exigent circumstances, an order may be given orally on the condition that it is followed, within seven days, by a written order issued in accordance with section 37.03. ### Meaning of *exigent circumstances* (2) For greater certainty, *exigent circumstances* includes circumstances in which the delay necessary to issue a written order that meets the requirements of subsection 37.03(4) would result in danger to human life or the environment. ### Notice of intent 37.05 (1) Except in exigent circumstances, an enforcement officer shall, whenever practicable, before issuing an order, (a) provide every person who will be subject to the order with an oral or written notice of the officer’s intention to issue it; and (b) allow a reasonable opportunity in the circumstances for the person to make oral representations. ### Contents of notice of intent (2) The notice of intent to issue the order must include (a) a statement of the purpose of the notice; (b) a reference to the statutory authority under which the order is to be issued; and (c) a statement that the party notified may make oral representations to the enforcement officer within the period stated in the notice. ### Compliance with order 37.06 (1) A person to whom an order is directed shall, immediately on receipt of the order or a copy of it or on being directed by an enforcement officer in an order given orally under subsection 37.04(1), comply with the order. ### No bar to proceedings (2) The issuance of or compliance with an order in respect of a person’s alleged contravention of this Act or the regulations is not a bar to any proceedings against the person under this or any other Act in relation to the alleged contravention. ### Intervention by enforcement officer 37.07 (1) If a person to whom an order is directed fails to take any measures specified in the order, an enforcement officer may take the measures or cause them to be taken. ### Access to property (2) An enforcement officer or other person authorized or required by an enforcement officer to take measures under subsection (1) may enter and have access to any place or property and may do any reasonable thing that may be necessary in the circumstances. ### Personal liability (3) Any person, other than a person described in paragraph 37.03(2)(a) or (b), who provides assistance or advice in taking the measures specified in an order or who takes any measures authorized or required by an enforcement officer under subsection (1) is not personally liable either civilly or criminally in respect of any act or omission in the course of providing assistance or advice or taking any measures under that subsection unless it is established that the person acted in bad faith. ### Recovery of reasonable costs and expenses by Her Majesty 37.08 (1) Her Majesty in right of Canada may recover the costs and expenses of and incidental to any measures taken under subsection 37.07(1) from any person referred to in paragraph 37.03(2)(a) to the extent of the person’s negligence in causing or contributing to the alleged contravention. ### Costs must have been reasonably incurred (2) The costs and expenses may only be recovered to the extent that they can be established to have been reasonably incurred in the circumstances. ### Liability (3) The persons referred to in subsection (1) are jointly and severally, or solidarily, liable for the costs and expenses referred to in that subsection. ### Procedure (4) A claim under this section may be sued for and recovered by Her Majesty in right of Canada with costs in proceedings brought or taken in the name of Her Majesty in right of Canada in any court of competent jurisdiction. ### Recourse or indemnity (5) This section does not limit or restrict any right of recourse or indemnity that a person may have against any other person. ### Limitation period (6) If events giving rise to a claim under this section occur, no proceedings in respect of the claim may be instituted more than five years after the day on which the events occur or become evident to the Minister, whichever is later. ### Minister’s certificate (7) A document purporting to have been issued by the Minister certifying the day on which the events giving rise to a claim under this section came to the knowledge of the Minister shall be received in evidence and, in the absence of any evidence to the contrary, the document is to be considered as proof of that fact without proof of the signature or of the official character of the person appearing to have signed the document and without further proof. ### Request for review 37.09 (1) Any person to whom an order is directed may, by notice in writing given to the Chief Review Officer within 30 days after the day on which the person receives a copy of the written order or after the oral order is given, make a request to the Chief Review Officer for a review of the order. ### Extension of period for request (2) The Chief Review Officer may extend the period within which a request for a review may be made if, in his or her opinion, it is in the public interest to do so. ### Variation or cancellation of order 37.1 (1) At any time before a notice requesting a review of an order is received by the Chief Review Officer, the enforcement officer may, after giving reasonable notice, (a) amend or suspend a term or condition of the order, or add a term or condition to, or delete a term or condition from, the order; (b) cancel the order; (c) correct a clerical error in the order; or (d) extend the duration of the order for a period of not more than 180 days less the number of days that have passed since the day on which the order was received by the person who is subject to it. ### Notice of intent (2) Except in exigent circumstances, an enforcement officer shall, whenever practicable, before exercising a power under paragraph (1)(a) or (d), (a) provide every person who will be subject to the order with an oral or written notice of the officer’s intention to exercise the power; and (b) allow a reasonable opportunity in the circumstances for the person to make oral representations. ### Contents of notice of intent (3) The notice of intent to exercise a power under paragraph (1)(a) must include (a) a statement of the purpose of the notice; (b) a reference to the statutory authority under which the power is to be exercised; and (c) a statement that the party notified may make oral representations to the enforcement officer within the period stated in the notice. ### Regulations 37.11 The Minister may make regulations (a) prescribing the form of reporting to enforcement officers under subparagraph 37.03(3)(f)(ii) and specifying the information required to be contained in or to accompany the report; and (b) of either particular or general application, respecting representations made to enforcement officers under paragraph 37.05(1)(b) or 37.1(2)(b). ### Review 37.12 Sections 257 to 271 of the Canadian Environmental Protection Act, 1999 apply, with any modifications that the circumstances require, to a review requested of any order. ## Assistance to Enforcement Officers and Analysts ### Right of passage 38 An enforcement officer, analyst or any other person may, while carrying out their functions under this Act, enter on and pass through or over private property without being liable for exercising that power or without the owner of the property having the right to object to that use of the property. ### Assistance 39 The owner or the person in charge of a place entered by an enforcement officer or analyst under section 32, and every person found in the place, shall (a) give the enforcement officer or analyst all reasonable assistance to enable the officer or analyst to carry out their functions under this Act; and (b) provide the enforcement officer or analyst with any information with respect to the administration of this Act that the enforcement officer or analyst may reasonably require. ## Forfeiture in Canada ### Forfeiture on consent 40 (1) If an enforcement officer has seized a thing under section 32 or subsection 35(1) and the owner or person who was in lawful possession of it at the time of the seizure consents in writing at the request of the enforcement officer to its forfeiture, it is forfeited to Her Majesty in right of Canada. ### Disposal or destruction (2) The Minister may dispose of or destroy a thing forfeited under subsection (1) and, if the Minister so directs, the costs of the disposal or destruction shall be paid by the owner or the person who was in lawful possession of the thing at the time it was seized. ### Forfeiture by order of court 41 (1) Subject to sections 42 and 43, if a person is convicted of an offence under this Act and anything seized under section 32 or subsection 35(1) is then being detained, (a) the thing is, on the conviction and in addition to any punishment imposed for the offence, forfeited to Her Majesty in right of Canada if the court so directs, in which case (i) the Minister may dispose of or destroy the thing, and (ii) the costs of the forfeiture and disposal or destruction shall be paid by the offender; or (b) the thing shall, on the expiry of the period for taking an appeal from the conviction or on the final conclusion of the proceedings, be restored to the person from whom it was seized or to any other person entitled to its possession on any conditions that may be imposed by order of the court and that, in the opinion of the court, are necessary to avoid the commission of a further offence under this Act. ### Things deemed not to have been seized (2) For the purpose of subsection (1), anything released from detention under paragraph 35(4)(a) or (b) is deemed not to have been seized under section 32 or subsection 35(1). ### Court may order forfeiture 42 If the authorized representative of a Canadian vessel or the registered owner of a Canadian aircraft has been convicted of an offence under this Act, the convicting court may, if the vessel or aircraft was seized under section 32 or subsection 35(1), in addition to any other penalty imposed, order that the vessel or aircraft, or any security given under subsection 34(1) be forfeited, and on the making of the order, the vessel or aircraft or security is forfeited to Her Majesty in right of Canada. ### Disposal of forfeited vessel, aircraft, etc. 43 (1) If proceedings referred to in subsection 34(2) are instituted within the period referred to in that subsection and, at the final conclusion of those proceedings, any vessel or aircraft, or any security given under subsection 34(1), is ordered to be forfeited, it may be disposed of as the Governor in Council directs. ### Return of seized vessel, etc., where no forfeiture ordered (2) If a thing has been seized under section 32 and proceedings referred to in subsection (1) are instituted, but the thing is not, at the final conclusion of the proceedings, ordered to be forfeited, it must be returned to the person from whom it was seized, the proceeds of any sale of the cargo under subsection 33(3) must be paid to that person and any security given to the Minister under subsection 34(1) must be returned to that person. ### Exception (3) If, at the conclusion of proceedings referred to in subsection (1), the person from whom the thing was seized is convicted of an offence arising out of a contravention of this Act or the regulations, the thing and any cargo or the proceeds or security may be retained until the fine is paid, or the thing and any cargo may be sold under execution in satisfaction of the fine, or the proceeds realized from the sale of the cargo or the security or any part of the cargo or security may be applied in payment of the fine. ### Application by person claiming interest 44 (1) If a thing has been ordered to be forfeited under this Act, any person, other than a person who was a party to the proceedings that resulted in the order, who claims a right or an interest in the thing as owner, holder of a security established on property or other right in rem or holder of any other claim under Canadian law may, within 30 days after the day on which the thing is ordered to be forfeited, apply by notice in writing to the Federal Court for an order under subsection (5). ### Date of hearing (2) The Federal Court must fix a day for the hearing of the application. ### Notice (3) An applicant for an order under subsection (5) must, at least 30 days before the day fixed under subsection (2), serve a notice of the application and of the hearing on the Minister and on all other persons claiming a right or an interest in the thing that is the subject-matter of the application as owner, holder of a security established on property or other right in rem or holder of any other claim under Canadian law of whom the applicant has knowledge. ### Notice of intervention (4) Each person, other than the Minister, who is served with a notice under subsection (3) and who intends to appear at the hearing of the application to which the notice relates must, at least 10 days before the day fixed for the hearing, file a notice of intervention in the Registry of the Federal Court and serve a copy of the notice on the Minister and on the applicant. ### Order declaring nature and extent of interests (5) If, on the hearing of an application under this section, the Federal Court is satisfied that the applicant, or the intervenors, if any, or any of them, (a) is innocent of any complicity in any conduct that caused the thing to be subject to forfeiture and of any collusion in relation to any such conduct, and (b) exercised all reasonable care in respect of the persons permitted to obtain possession and use of the thing so as to be satisfied that it was not likely to be used contrary to the provisions of this Act or, in the case of a holder of a security established on property, other than the holder of a maritime lien or statutory right in rem, that the applicant or intervenor exercised such care with respect to the person who gave the property as security, those of the applicant and the intervenors in respect of whom the Court is so satisfied are entitled to an order declaring that their rights or interests are not affected by the forfeiture and declaring the nature and extent of each of their rights or interests and the ranking among them. ### Additional order (6) If an order is made under subsection (5), the Court may, in addition, order that the thing to which the rights or interests relate be delivered to one or more of the persons found to have a right or an interest in it or that an amount equal to the value of each of the interests so declared be paid to the persons found to have those interests. ## Liability for Costs ### Liability for costs 44.1 If a thing is seized under this Act, the person who owned the thing at the time it was seized, the person who had charge or control of the thing immediately before it was seized and the person who possessed it immediately before it was seized are jointly and severally, or solidarily, liable for all the costs of seizure, detention, maintenance and forfeiture, including any destruction or disposal costs, incurred by Her Majesty in right of Canada in relation to the thing in excess of any proceeds of its disposition, if any. ## Inspections in the Antarctic ### Designation of inspectors 45 (1) The Minister may designate as an inspector, for the purpose of this Act or any provision of this Act, any person or any member of a class of persons who, in the Minister’s opinion, is qualified to be so designated. ### Limits (2) The Minister may, including on the request of the Minister of Foreign Affairs, limit the powers that may be exercised by an inspector under this Act. ### Production of certificate (3) The Minister must provide every inspector with a certificate of designation that includes any limits specified under subsection (2). On entering any place, the inspector must, if so requested, produce the certificate to the person in charge of the place. ### Powers of inspectors 46 (1) Subject to subsections (2) and (6), for the purposes of this Act, an inspector may, at any reasonable time, enter any place in the Antarctic in which the inspector believes, on reasonable grounds, there is anything to which this Act applies or any document relating to its administration. ### Dwelling-houses (2) An inspector may not enter a dwelling-house without the consent of the occupant. ### Stopping and detaining conveyances (3) For the purposes of this Act, an inspector may, at any reasonable time, direct that any of the following be moved to a place where an inspection can be carried out and may, for a reasonable time, detain any of the following: (a) a Canadian vessel or Canadian aircraft in the Antarctic; or (b) any other conveyance in the Antarctic that is owned by a Canadian except a vessel or aircraft that is not a Canadian vessel or Canadian aircraft. ### Powers in relation to vessels, etc. (4) Subject to subsection (2), for the purposes of this Act, an inspector may, at any reasonable time, (a) board a Canadian vessel or Canadian aircraft in the Antarctic; or (b) travel on the vessel or aircraft. ### Powers of inspectors (5) In carrying out an inspection of a place under this section, an inspector may exercise any of the powers referred to in subsections 30(9), (11) and (12). ### Foreign ownership (6) An inspector may not exercise any powers under this section in respect of any station, installation, equipment, platform anchored at sea, shipping container or conveyance (other than a Canadian vessel or Canadian aircraft) that is owned by a person who is not a Canadian unless the inspector first obtains the consent of the person in charge of the station, installation, equipment, platform, container or conveyance. ### Analysts (7) An analyst may, for the purposes of this Act, accompany an inspector who is carrying out an inspection of a place under this section, and the analyst may, when accompanying the inspector, enter the place and exercise any of the powers referred to in subsection (5). ### Assistance (8) The owner of a place or a Canadian or permit holder in charge of a place being inspected under this section, and every Canadian or permit holder found in the place, shall (a) give the inspector or analyst all reasonable assistance to enable the inspector or analyst to carry out their functions under this Act; and (b) provide the inspector or analyst with any information with respect to the administration of this Act that he or she may reasonably require. ### Immunity 46.1 Inspectors are not personally liable for anything they do or omit to do in good faith under this Act. ### Production of documents and samples 47 (1) The Minister may, for the purposes of this Act, by registered letter or by a demand served personally, require any Canadian, or any permit holder, who is in Canada or the Antarctic, within any reasonable time and in any reasonable manner that may be stipulated in the letter or demand, (a) to produce at a place specified by the Minister any sample taken in the Antarctic or any document; or (b) to conduct any tests in the Antarctic or take any measurements or samples there. ### Compliance (2) A person who is required to do anything under subsection (1) shall, despite any other law to the contrary, comply with the requirement. ## Obstruction and False Information ### Obstruction 48 No person in Canada, and no Canadian or permit holder in the Antarctic, shall obstruct an enforcement officer, inspector or analyst or hinder any of them in carrying out their functions under this Act. ### Knowingly providing false or misleading information, etc. 49 (1) No person in Canada, and no Canadian or permit holder in the Antarctic, shall, with respect to any matter related to this Act, knowingly (a) provide any person with false or misleading information, results or samples; or (b) file a document that contains false or misleading information. ### Negligently providing false or misleading information, etc. (2) No person in Canada, and no Canadian or permit holder in the Antarctic, shall, with respect to any matter related to this Act, negligently (a) provide any person with false or misleading information, results or samples; or (b) file a document that contains false or misleading information. ### Offence — persons 50 (1) Every person commits an offence who contravenes (a) section 11, subsection 12(1) or 13(1), section 14, 16, 17 or 20, subsection 37(4) or 37.06(1), section 48 or subsection 49(1); (b) any provision of the regulations designated by regulations made under paragraph 26(1)(j.1); or (c) any order or direction made under this Act, including one made by a court. ### Penalty — individuals (2) Every individual who commits an offence under subsection (1) is liable, (a) on conviction on indictment, (i) for a first offence, to a fine of not less than $15,000 and not more than $1,000,000 or to imprisonment for a term of not more than three years, or to both, and (ii) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000 or to imprisonment for a term of not more than five years, or to both; or (b) on summary conviction, (i) for a first offence, to a fine of not less than $5,000 and not more than $300,000 or to imprisonment for a term of not more than six months, or to both, and (ii) for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000 or to imprisonment for a term of not more than one year, or to both. ### Penalty — other persons (3) Every person, other than an individual or a corporation referred to in subsection (4), that commits an offence under subsection (1) is liable, (a) on conviction on indictment, (i) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and (ii) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000; or (b) on summary conviction, (i) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and (ii) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000. ### Penalty — small revenue corporations (4) Every corporation that commits an offence under subsection (1) and that the court determines under section 50.2 to be a small revenue corporation is liable, (a) on conviction on indictment, (i) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and (ii) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or (b) on summary conviction, (i) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and (ii) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000. ### Offence — persons 50.1 (1) Every person commits an offence who contravenes (a) any provision of this Act or the regulations, other than a provision whose contravention is an offence under subsection 50(1); or (b) any obligation arising from this Act, whose contravention is not an offence under subsection 50(1). ### Penalty — individuals (2) Every individual who commits an offence under subsection (1) is liable, (a) on conviction on indictment, (i) for a first offence, to a fine of not more than $100,000, and (ii) for a second or subsequent offence, to a fine of not more than $200,000; or (b) on summary conviction, (i) for a first offence, to a fine of not more than $25,000, and (ii) for a second or subsequent offence, to a fine of not more than $50,000. ### Penalty — other persons (3) Every person, other than an individual or a corporation referred to in subsection (4), that commits an offence under subsection (1) is liable, (a) on conviction on indictment, (i) for a first offence, to a fine of not more than $500,000, and (ii) for a second or subsequent offence, to a fine of not more than $1,000,000; or (b) on summary conviction, (i) for a first offence, to a fine of not more than $250,000, and (ii) for a second or subsequent offence, to a fine of not more than $500,000. ### Penalty — small revenue corporations (4) Every corporation that commits an offence under subsection (1) and that the court determines under section 50.2 to be a small revenue corporation is liable, (a) on conviction on indictment, (i) for a first offence, to a fine of not more than $250,000, and (ii) for a second or subsequent offence, to a fine of not more than $500,000; or (b) on summary conviction, (i) for a first offence, to a fine of not more than $50,000, and (ii) for a second or subsequent offence, to a fine of not more than $100,000. ### Determination of small revenue corporation status 50.2 For the purpose of sections 50 and 50.1, a court may determine a corporation to be a small revenue corporation if the court is satisfied that the corporation’s gross revenues for the 12 months immediately before the day on which the subject matter of the proceedings arose — or, if it arose on more than one day, for the 12 months immediately before the first day on which the subject matter of the proceedings arose — were not more than $5,000,000. ### Offence — vessels 50.3 (1) Every Canadian vessel or other vessel commits an offence that contravenes (a) subsection 9(1), section 11, subsection 13(1), any of sections 14 to 16, any of subsections 18(1) to (3) or section 20; (b) any provision of the regulations designated by regulations made under paragraph 26(1)(j.1); or (c) any order or direction made under this Act, including one made by a court. ### Penalty — vessels of 7 500 tonnes deadweight or over (2) Every Canadian vessel or other vessel of 7 500 tonnes deadweight or over that commits an offence under subsection (1) is liable, (a) on conviction on indictment, (i) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and (ii) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000; or (b) on summary conviction, (i) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and (ii) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000. ### Penalty — other vessels (3) Every Canadian vessel or other vessel of less than 7 500 tonnes deadweight that commits an offence under subsection (1) is liable, (a) on conviction on indictment, (i) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and (ii) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or (b) on summary conviction, (i) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and (ii) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000. ### Offences — vessels 50.4 (1) Every Canadian vessel or other vessel commits an offence that contravenes any provision of this Act or the regulations, other than a provision whose contravention is an offence under subsection 50.3(1). ### Penalty — vessels of 7 500 tonnes deadweight or over (2) Every Canadian vessel or other vessel of 7 500 tonnes deadweight or over that commits an offence under subsection (1) is liable, (a) on conviction on indictment, (i) for a first offence, to a fine of not more than $500,000, and (ii) for a second or subsequent offence, to a fine of not more than $1,000,000; or (b) on summary conviction, (i) for a first offence, to a fine of not more than $250,000, and (ii) for a second or subsequent offence, to a fine of not more than $500,000. ### Penalty — other vessels (3) Every Canadian vessel or other vessel of less than 7 500 tonnes deadweight that commits an offence under subsection (1) is liable, (a) on conviction on indictment, (i) for a first offence, to a fine of not more than $250,000, and (ii) for a second or subsequent offence, to a fine of not more than $500,000; or (b) on summary conviction, (i) for a first offence, to a fine of not more than $50,000, and (ii) for a second or subsequent offence, to a fine of not more than $100,000. ### Deeming — second and subsequent offence 50.5 (1) For the purposes of subsections 50(2) to (4), 50.1(2) to (4), 50.3(2) and (3) and 50.4(2) and (3), a conviction for a particular offence under this Act is deemed to be a conviction for a second or subsequent offence if the court is satisfied that the offender has been previously convicted — under any Act of Parliament, or any Act of the legislature of a province, that relates to environmental or wildlife conservation or protection — of a substantially similar offence. ### Application (2) Subsection (1) applies only to previous convictions on indictment and to previous convictions on summary conviction, and to previous convictions under any similar procedure under any Act of the legislature of a province. ### Relief from minimum fine 50.6 The court may impose a fine that is less than the minimum amount provided for in section 50 or 50.3, as the case may be, if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court shall provide reasons if it imposes a fine that is less than the minimum amount provided for in any of those sections. ### Additional fine 50.7 If a person or a Canadian vessel or other vessel is convicted of an offence under this Act and the court is satisfied that, as a result of the commission of the offence, the person — or, if the offender is a Canadian vessel or other vessel, the owner or operator of the vessel — acquired any property, benefit or advantage, the court shall order the offender to pay an additional fine in an amount equal to the court’s estimation of the value of that property, benefit or advantage. The additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act. ### Notice to shareholders 50.8 If a corporation that has shareholders is convicted of an offence under this Act, the court shall make an order directing the corporation to notify its shareholders, in the manner and within the time directed by the court, of the facts relating to the commission of the offence and of the details of the punishment imposed. ### Fundamental purpose of sentencing 50.9 The fundamental purpose of sentencing for offences under this Act is to contribute to respect for the law protecting the Antarctic environment and dependent and associated ecosystems in light of the global significance of the Antarctic and the Treaty through the imposition of just sanctions that have as their objectives (a) to deter the offender and any other person from committing offences under this Act; (b) to denounce unlawful conduct that damages or creates a risk of damage to the environment; and (c) to reinforce the “polluter pays” principle by ensuring that offenders are held responsible for effective clean-up and environmental restoration. ### Sentencing principles 50.91 (1) In addition to the principles and factors that the court is otherwise required to consider, including those set out in sections 718.1 to 718.21 of the Criminal Code, the court shall consider the following principles when sentencing a person who is convicted of an offence under this Act: (a) the amount of the fine should be increased to account for every aggravating factor associated with the offence, including the aggravating factors set out in subsection (2); and (b) the amount of the fine should reflect the gravity of each aggravating factor associated with the offence. ### Aggravating factors (2) The aggravating factors are the following: (a) the offence caused damage or risk of damage to the Antarctic environment or any dependent and associated ecosystem; (b) the damage caused by the offence is extensive, persistent or irreparable; (c) the offender committed the offence intentionally or recklessly; (d) the offender failed to take reasonable steps to prevent the commission of the offence despite having the financial means to do so; (e) by committing the offence or failing to take action to prevent its commission, the offender increased revenue or decreased costs or intended to increase revenue or decrease costs; (f) the offender committed the offence despite having been warned by an enforcement officer or an inspector of the circumstances that subsequently became the subject of the offence; (g) the offender has a history of non-compliance with federal or provincial legislation that relates to environmental or wildlife conservation or protection; and (h) after the commission of the offence, the offender (i) attempted to conceal its commission, (ii) failed to take prompt action to prevent, mitigate or remediate its effects, or (iii) failed to take prompt action to reduce the risk of committing similar offences in the future. ### Absence of aggravating factor (3) The absence of an aggravating factor set out in subsection (2) is not a mitigating factor. ### Meaning of *damage* (4) For the purposes of paragraphs (2)(a) and (b), *damage* includes loss of use value and non-use value. ### Reasons (5) If the court is satisfied of the existence of one or more of the aggravating factors set out in subsection (2) but decides not to increase the amount of the fine because of that factor, the court shall give reasons for that decision. ### Proceedings against vessels 50.92 (1) The provisions of this Act and the Criminal Code relating to indictable or summary conviction offences that apply to persons apply also to Canadian vessels and other vessels, with any modifications that the circumstances require. ### Direction binds vessel (2) For the purpose of prosecuting a Canadian vessel or any other vessel for contravening a direction made under subsection 30(8), section 37.01 or subsection 46(3), any direction made under any of those provisions that is given to the master or a crew member of the vessel binds the vessel as though it had been given to the vessel. ### Service (3) If a Canadian vessel or other vessel is charged with having committed an offence under this Act, the summons may be served by leaving it with the authorized representative, master or any officer of the vessel or by posting the summons on some conspicuous part of the vessel. ### Appearance at trial (4) If a Canadian vessel or other vessel is charged with having committed an offence under this Act, the vessel may appear by counsel or representative. Despite the Criminal Code, if the vessel does not so appear, a court may, on proof of service of the summons, proceed to hold the trial. ### Liability of directors, officers, etc., of corporations 51 (1) If a corporation commits an offence under this Act, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the penalty provided for by this Act for an individual in respect of the offence committed by the corporation, whether or not the corporation has been prosecuted or convicted. ### Liability of directors and officers of corporate owners of vessels (2) If a Canadian vessel or other vessel commits an offence under this Act, every director or officer of a corporation that is an owner or an operator of the vessel who directed or influenced the corporation’s policies or activities in respect of conduct that is the subject matter of the offence is a party to and guilty of the offence and is liable on conviction to the penalty provided for by this Act for an individual who commits an offence under subsection 50(1), whether or not the vessel has been prosecuted or convicted. ### Duties of directors and officers of corporations (3) Every director and officer of a corporation, including every director and officer of a corporation that is the owner or operator of a Canadian vessel or other vessel who is in a position to direct or influence the corporation’s policies or activities relating to conduct prohibited by this Act, shall take all reasonable care to ensure that the corporation or the vessel, as the case may be, complies with (a) this Act and the regulations; and (b) any orders and directions of, and prohibitions and requirements imposed by, any court, the Minister, enforcement officers, inspectors and analysts. ### Liability of owners, operators, masters and chief engineers of vessels 52 (1) If a Canadian vessel or other vessel commits an offence under this Act and the owner, operator, master or chief engineer of the vessel directed, authorized, assented to, acquiesced in or participated in the commission of the offence, the owner, operator, master or chief engineer, as the case may be, is a party to and guilty of the offence and is liable on conviction to the penalty provided for by this Act for an individual who commits an offence under subsection 50(1), whether or not the vessel has been prosecuted or convicted. ### Duties of owners, operators, masters and chief engineers of vessels (2) The owner, operator, master and the chief engineer of a Canadian vessel or other vessel shall take all reasonable care to ensure that the vessel complies with (a) this Act and the regulations; and (b) any orders and directions of, and prohibitions and requirements imposed by, any court, the Minister, enforcement officers, inspectors and analysts. ### Continuing offence 53 If an offence under this Act is committed or continued on more than one day, the person or Canadian vessel that committed the offence is liable to be convicted for a separate offence for each day on which it is committed or continued. ### Offences involving more than one animal, plant, etc. 53.1 If an offence involves more than one animal or plant, or more than one native bird or native plant as defined in subsection 12(2), the fine to be imposed in respect of that offence may, despite sections 50, 50.1, 50.3 and 50.4, be the total of the fines that would have been imposed if each of the animals, plants, native birds or native plants had been the subject of a separate information. ### Identifying authorized representative, master, etc. 54 The authorized representative or master of a Canadian vessel or the registered owner or pilot in command of a Canadian aircraft may be charged with an offence under this Act as authorized representative, master, registered owner or pilot in command of the vessel or aircraft if it is adequately identified, and no such charge is invalid by reason only that it does not name the authorized representative, master, registered owner or pilot in command. ### Due diligence 55 (1) No person may be found guilty of an offence under this Act if it is established that the person exercised all due diligence to comply with this Act or to prevent the commission of the offence. ### Exception (2) Subsection (1) does not apply to an offence relating to (a) a contravention of paragraph 12(1)(f) or (g); (b) a contravention of section 48; or (c) a contravention of section 49 committed knowingly. ### No proceedings without consent 56 No proceedings in respect of an offence under this Act may be instituted except by or with the consent of the Attorney General of Canada. ### Limitation period 57 No proceedings by way of summary conviction in respect of an offence under this Act may be instituted more than five years after the day on which the subject matter of the proceedings arose, unless the prosecutor and the defendant agree that they may be instituted after the five years. ### Documents admissible in evidence 58 (1) A document made, given or issued under this Act and appearing to be signed by an analyst is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the document without proof of the signature or official character of the person appearing to have signed the document. ### Attendance of analyst (2) The party against whom the document is produced may, with leave of the court, require the attendance of the analyst who signed it. ### Notice (3) No document referred to in subsection (1) may be received in evidence unless the party intending to produce it has given to the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the document. ### Injunction 59 (1) If, on the application of the Minister, it appears to a court of competent jurisdiction that a person or Canadian vessel in Canada, or a Canadian, Canadian vessel or permit holder in the Antarctic, has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of an offence under this Act, the court may issue an injunction ordering any person or vessel named in the application (a) to refrain from doing any act or thing that, in the opinion of the court, may constitute or be directed toward the commission of an offence under this Act; or (b) to do any act or thing that, in the opinion of the court, may prevent the commission of an offence under this Act. ### Notice (2) No injunction may be issued under subsection (1) unless 48 hours notice is given to the party or parties named in the application or the urgency of the situation is such that service of notice would not be in the public interest. ### Proof of offence 60 (1) In any prosecution of an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee, agent or mandatary of the accused, whether or not the employee, agent or mandatary is identified or prosecuted for the offence. ### Proof of offence (2) In any prosecution of the master of a Canadian vessel or any other vessel or the pilot in command of a Canadian aircraft for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by a crew member or other person on board the vessel or aircraft, whether or not the crew member or other person is identified or prosecuted for the offence. 61 [Repealed, 2009, c. 14, s. 15] ### Importing substances by analysts 62 The Minister may, subject to any reasonable condition specified by the Minister, authorize in writing an analyst to import, possess and use a substance for the purpose of conducting measurements, tests and research with respect to the substance. 63 [Repealed, 2009, c. 14, s. 16] ### Absolute or conditional discharge 64 (1) If an offender has pleaded guilty to or been found guilty of an offence, the court may, instead of convicting the offender, by order direct that the offender be discharged absolutely or on conditions having any or all of the effects described in paragraphs 66(1)(a) to (n). ### Conditions of order (2) If an order is made under subsection (1) and the offender contravenes or fails to comply with it, or is convicted of an offence under this Act, the prosecutor may apply to the court to revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that could have been imposed if the offender had been convicted at the time the order was made. ### Suspended sentence 65 (1) If an offender is convicted of an offence under this Act, the court may suspend the passing of sentence and may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order under section 66. ### Application by prosecutor (2) If the passing of sentence has been suspended under subsection (1) and the offender contravenes or fails to comply with an order made under section 66, or is convicted of an offence under this Act, the prosecutor may apply to the court to impose any sentence that could have been imposed if the passing of sentence had not been suspended. ### Orders of court 66 (1) If an offender has been convicted of an offence under this Act, in addition to any other punishment that may be imposed under this Act, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order having any or all of the following effects: (a) prohibiting the offender from doing any act or engaging in any activity that may result in the continuation or repetition of the offence; (b) directing the offender to take any action that the court considers appropriate to remedy or avoid any harm to the environment that results or may result from the act or omission that constituted the offence; (c) directing the offender to carry out environmental effects monitoring in the manner established by the Minister or directing the offender to pay, in the manner prescribed by the court, an amount for the purposes of environmental effects monitoring; (c.1) directing the offender to implement an environmental management system that meets a recognized Canadian or international standard specified by the court; (c.2) directing the offender to pay Her Majesty in right of Canada an amount of money that the court considers appropriate for the purpose of promoting the conservation or protection of the Antarctic environment or dependent and associated ecosystems; (d) directing the offender to have an environmental audit conducted by a person of a class and at the times specified by the court and directing the offender to remedy any deficiencies revealed during the audit; (e) directing the offender to publish, in the manner specified by the court, the facts relating to the commission of the offence and the details of the punishment imposed, including any orders made under this subsection; (f) directing the offender to notify, at the offender’s own cost and in the manner directed by the court, any person aggrieved or affected by the offender’s conduct of the facts relating to the commission of the offence and of the details of the punishment imposed, including any orders made under this subsection; (g) directing the offender to post any bond or pay any amount of money into court that will ensure compliance with any order made under this section; (h) directing the offender to submit to the Minister, on application by the Minister made within three years after the date of conviction, any information with respect to the offender’s activities that the court considers appropriate and just in the circumstances; (i) directing the offender to compensate any person, monetarily or otherwise, in whole or in part, for the cost of any remedial or preventive action taken, caused to be taken or to be taken as a result of the act or omission that constituted the offence, including the costs of assessing appropriate remedial or preventive action; (j) directing the offender to perform community service, subject to any reasonable conditions that may be imposed in the order; (k) [Repealed, 2009, c. 14, s. 17] (l) directing the offender to pay, in the manner prescribed by the court, an amount for the purposes of conducting research with respect to the Antarctic; (m) directing the offender to pay, in the manner prescribed by the court, an amount to an educational institution including for scholarships for students enrolled in studies related to the environment; (n) requiring the offender to comply with any other conditions that the court considers appropriate in the circumstances for securing the offender’s good conduct and for deterring the offender and any other person from committing offences under this Act; (o) requiring the offender to surrender to the Minister any permit issued to the person; and (p) prohibiting the offender from applying for any new permit during any period that the court considers appropriate. ### Publication (2) If an offender fails to comply with an order made under paragraph (1)(e), the Minister may, in the manner that the court directed the offender to do so, publish the facts relating to the commission of the offence and the details of the punishment imposed and recover the costs of publication from the offender. ### Debt due to Her Majesty (3) If the court makes an order under paragraph (1)(c.2) or (i) directing a person to pay an amount to Her Majesty in right of Canada, or if the Minister incurs publication costs under subsection (2), the amount or the costs, as the case may be, constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction. ### Enforcement (4) If the court makes an order under paragraph (1)(i) directing an offender to pay an amount to a person, other than to Her Majesty in right of Canada, and the amount is not paid without delay, the person may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings. ### Cancellation or suspension of permits (5) If the court makes an order under paragraph (1)(o), any permit to which the order relates is cancelled unless the court makes an order suspending it for any period that the court considers appropriate. ### Coming into force and duration of order (6) An order made under subsection (1) comes into force on the day on which it is made or on any other day that the court may determine and shall not continue in force for more than three years after that day unless the court provides otherwise in the order. ### Compensation for loss of property 66.1 (1) If an offender has been convicted of an offence under this Act, the court may, at the time sentence is imposed and on the application of the person aggrieved, order the offender to pay to that person an amount by way of satisfaction or compensation for loss of or damage to property suffered by that person as a result of the commission of the offence. ### Enforcement (2) If the amount ordered to be paid under subsection (1) is not paid without delay, the aggrieved person may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings. ### Variation of sanctions 67 (1) Subject to subsection (2), if a court has made, in relation to an offender, an order or direction under section 64, 65 or 66, the court may, on application by the offender or the Attorney General of Canada, require the offender to appear before it and, after hearing the offender and the Attorney General, vary the order in one or any combination of the following ways that is applicable and, in the opinion of the court, is rendered desirable by a change in the circumstances of the offender since the order was made: (a) make changes in the order or the conditions specified in it or extend the time during which the order is to remain in force for any period, not exceeding one year, that the court considers desirable; or (b) decrease the time during which the order is to remain in force or relieve the offender, either absolutely or partially or for any period that the court considers desirable, of compliance with any condition that is specified in the order. ### Notice (2) Before making an order under subsection (1), the court may direct that notice be given to any persons that the court considers to be interested and may hear any of those persons. ### Subsequent applications with leave 68 If an application made under section 67 in respect of an offender has been heard by a court, no other application may be made under that section with respect to the offender except with leave of the court. ### Application of fines 68.1 (1) All fines received by the Receiver General in respect of the commission of an offence under this Act, other than fines collected under the Contraventions Act, are to be credited to the Environmental Damages Fund, an account in the accounts of Canada, and used for purposes related to protecting, conserving or restoring the environment or for administering that Fund. ### Recommendations of court (2) The court imposing the fine may recommend to the Minister that all or a portion of the fine credited to the Environmental Damages Fund be paid to a person or an organization specified by the court for a purpose referred to in subsection (1). ### Publication of information about contraventions 68.2 (1) For the purpose of encouraging compliance with this Act and the regulations, the Minister shall maintain, in a registry accessible to the public, information about all convictions of corporations for offences under this Act. ### Retention (2) Information in the registry is to be maintained for a minimum of five years. ### Contraventions Act 68.3 If an offence under this Act is designated as a contravention under the Contraventions Act, subsection 8(5) of that Act does not apply in respect of the fine that may be established for that contravention. ### Review 68.4 (1) The Minister shall, 10 years after the day on which this section comes into force and every 10 years after that, undertake a review of sections 50 to 68.3. ### Report to Parliament (2) The Minister shall, no later than one year after the day on which the review is undertaken, cause a report on the review to be tabled in each House of Parliament. ## Disclosure of Information ### Purposes for which information may be disclosed 69 (1) Information obtained in the administration of this Act may be disclosed (a) as may be necessary for the purposes of the administration or enforcement of this Act; (b) in order to notify other Parties to the Protocol (i) of the number and nature of permits issued under this Act, including their conditions, (ii) of any environmental emergency that has been discovered in the Antarctic or of any information relevant to a potential environmental risk in the Antarctic, and (iii) of an emergency in the Antarctic referred to in section 19 and any activities undertaken in relation to that emergency by a Canadian or other person on a Canadian expedition, a Canadian vessel or a Canadian aircraft; (c) in order to make publicly available annual reports on the steps taken by Canada to implement the Protocol, including administrative actions, enforcement measures and the preparation and implementation of emergency plans and waste management plans; (d) in order to make the following publicly available: (i) an initial environmental evaluation, (ii) any significant information obtained from procedures put in place to assess and verify the impact of an activity that has been the subject of an initial or comprehensive environmental evaluation, and any action taken in relation to that information, and (iii) a draft comprehensive environmental evaluation, any comments received on the draft, the final comprehensive environmental evaluation, notice of any decision relating to the final evaluation and any evaluation of the significance of the predicted impacts in relation to the proposed activity; (e) under an agreement or arrangement between the Government of Canada or any of its institutions and any other government in Canada, the government of a foreign state or an international organization or any of its institutions, or between the Minister and any other minister of the Crown in right of Canada, if (i) the purpose of the agreement or arrangement is the administration or enforcement of a law, and (ii) the government, international organization, institution or other minister undertakes to keep the information confidential; or (f) under an agreement or arrangement between the Government of Canada and the government of a foreign state or an international organization, if the government or organization undertakes to keep the information confidential. ### Disclosure of personal information (2) Personal information as defined in section 3 of the Privacy Act may not be disclosed under subsection (1) unless (a) the disclosure is in the interest of public health, public safety or the protection of the environment; and (b) the public interest in the disclosure clearly outweighs in importance any damage to the privacy, reputation or human dignity of any individual that may result from the disclosure. ## Coming into Force ### Order * 70 The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council. * [Note: Act in force December 1, 2003, see SI/2003-176.]", "response": "## Analysis of LEGISLATION-FED: Antarctic Environmental Protection Act\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nWhen applying this legislation to immigration cases, practitioners should consider both the explicit requirements and the underlying policy objectives. The provisions must be interpreted in light of the Canadian Charter of Rights and Freedoms, international obligations, and relevant jurisprudence. Particular attention should be paid to procedural fairness requirements and the proper exercise of discretionary authority."}
{"prompt": "What standard of review does this Federal Court of Canada decision apply to immigration decisions?\n\nMaheswaran v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2023-07-21 Neutral citation 2023 FC 1003 File numbers IMM-5529-20 Decision Content Date: 20230721 Docket: IMM-5529-20 Citation: 2023 FC 1003 Ottawa, Ontario, July 21, 2023 PRESENT: Mr. Justice Pentney BETWEEN: KANESHANANTH MAHESWARAN Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS [1] The Applicant, Kaneshananth Maheswaran, is a Tamil from northern Sri Lanka, who came to Canada in 2010 and claimed refugee status. His refugee claim was denied in 2011, and since that time he has lived and worked in Canada under various work permits. He says that he has developed a strong establishment here, including a strong work history, engagement with his community, as well as a close and meaningful relationship with his sister, brother-in-law, and nephew. The Applicant’s application for permanent residence from within Canada on humanitarian and compassionate (H&C) grounds was refused. [2] The Applicant seeks judicial review of the Officer’s decision denying his H&C claim. He argues that the decision is unreasonable because the Officer applied the wrong test, erred in assessing the hardships he would face on a return to Sri Lanka, and wrongly discounted his strong establishment in Canada. Finally, the Applicant submits that the Officer conducted an inadequate analysis of the best interests of the child, in light of the evidence of the close relationship between him and his nephew. [3] For the reasons that follow, I find that the determinative issue in this case is the Officer’s failure to explain why a relatively short gap in the Applicant’s employment history outweighed all of the other positive establishment factors. The decision is marred by an unexplained leap of logic on a crucial point, and this is a sufficiently serious flaw to warrant quashing the decision and sending the matter back for reconsideration. The application for judicial review will therefore be granted. I. Background [4] The Applicant is a Tamil from northern Sri Lanka. He says that he fled the country after he and his family were caught up in the conflict between government forces and the Liberation Tigers of Tamil Elam (LTTE), and he was arrested, interrogated, and beaten by security forces who believed he had ties to the LTTE. The Applicant initially went to the United Kingdom on a student visa, and then made his way to Canada in 2010. [5] Upon his arrival in Canada, the Applicant claimed refugee status based on the risk that he and his family faced in Sri Lanka due to his Tamil identity, and the mistreatment he experienced because of his perceived ties to the LTTE. The Applicant’s parents reside in France as refugees, and he has one sister in Canada and another who lives in Switzerland. [6] The Applicant’s refugee claim was dismissed by the Refugee Protection Division in 2011, because he was found to lack credibility and to have lied under oath to Canadian authorities in regard to key aspects of his claim. This Court dismissed the Applicant’s application for leave and judicial review of that decision. Following this, the Applicant submitted several applications for H&C relief under section 25 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], which were refused in May 2013, March 2015, and September 2017. [7] The Applicant filed a fourth claim for H&C relief in September 2019, based on his establishment in Canada, the risk and hardship he would face because of Sri Lanka’s treatment of the Tamil community, and his fear of the police who suspect that he is a member or supporter of the LTTE. He also cited his lack of family or other ties to Sri Lanka, as well as the best interests of his nephew in Canada, with whom he had developed an extremely close relationship. [8] On the establishment issue, the Officer gave strong positive weight to the Applicant’s length of time in Canada, his clean civil record and compliance with immigration law. The Officer noted the Applicant’s employment history of both full-time and seasonal work, reflected in the income tax documents he filed for tax years 2011 to 2018, as well as his commitment to personal development through job-related training. However, the Officer also noted that the Applicant had not demonstrated that he would be unable to find work if he returned to Sri Lanka, and that there was an unexplained gap in his employment history from November 2013 to August 2014. Based on this, the Officer attributed low weight to the Applicant’s employment history. [9] Noting the evidence of the Applicant’s close ties to friends in Canada, his support of the friends’ elderly parents, and his community activities, the Officer gave some positive weight to the Applicant’s engagement with the community. Despite this, the Officer attributed low weight to the Applicant’s overall establishment, stating: “However, I also observe that the lack of evidence and what has been noted above cannot be understated.” [10] In regard to hardship and ties to Sri Lanka, the Officer acknowledged that moving back to that country would constitute some form of upheaval for the Applicant, but found that he would be returning to a country where he had spent the majority of his life, having been raised and educated there. The Officer found that the Applicant could resettle and re-establish himself in Sri Lanka because he was familiar with the language and culture. Based on this and the limited evidence presented by the Applicant, the Officer gave low weight to the hardship factor. [11] The Officer attributed low weight to the best interests of the child element, because while the Applicant had shown that he had developed a strong relationship with his nephew (e.g. by visiting him every weekend), the evidence did not demonstrate a strong level of dependency. The Officer observed that if the Applicant left for Sri Lanka, the child would remain in Canada with his parents and could maintain contact with his uncle through other means of communication. [12] As for the Applicant’s claim of risk, the Officer noted that the country condition evidence showed that some Tamils face persecution in Sri Lanka because of their ethnicity and also their perceived support for the LTTE. However, the Officer found that the Applicant had not demonstrated that he would be at risk as a Tamil male from northern Sri Lanka, because he failed to show how the general country conditions would apply to his personal situation. [13] The Officer concluded that the positive elements in the Applicant’s case were not sufficient to grant him an exemption to the usual rule of applying for permanent residence from overseas, and thus refused the Applicant’s request for H&C relief. [14] The Applicant seeks judicial review of the decision. II. Issues and Standard of Review [15] The overarching issue in this case is whether the Officer’s decision is reasonable. Within that, the Applicant raises four sub-issues, arguing that the Officer: (i) applied the wrong legal framework to the section 25 analysis (as reflected by a failure to grapple with the Applicant’s personal circumstances, and giving undue weight to a minor gap in his employment history in assessing his establishment in Canada); (ii) erred by relying on the RPD’s negative credibility finding; (iii) ignored relevant and recent country condition evidence that the Applicant provided, and applied the wrong test to assessing the hardship associated with a return to Sri Lanka; and (iv) failed to conduct a proper assessment of the best interests of the child regarding the Applicant’s nephew. [16] The standard of review that applies to all of these questions is reasonableness, in accordance with the framework set out by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. [17] In summary, under the Vavilov framework, a reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov at para 85). An administrative decision-maker’s exercise of public power must be “justified, intelligible and transparent” (Vavilov at para 95). The onus is on the Applicant to demonstrate flaws in the decision that are “sufficiently central or significant to render the decision unreasonable” (Vavilov at para 100). The decision must be assessed in light of the history and context of the proceedings, including the evidence and submissions made to the decision-maker (Vavilov at para 94). Finally, “absent exceptional circumstances, a reviewing court will not interfere with [the decision maker’s] factual findings” (Vavilov at para 125). III. Analysis [18] The determinative issue in this case is the Officer’s failure to explain why a relatively short gap in the Applicant’s employment history was sufficient to outweigh all of the other positive establishment factors. [19] The analysis of the establishment factors included the following elements. On the length of time in Canada, the Officer attributed “strong positive weight” to this element, in light of the Applicant’s history of employment, his good civil record, and the fact that he had been in Canada since August 2010. [20] Turning to employment history, the decision notes the Applicant’s history of full-time, part-time, and seasonal employment from 2011 to 2018, as demonstrated by his income tax information showing employment income during this period. However, the Officer also notes that there is a gap in the Applicant’s employment from November 2013 until August 2014: “the [A]pplicant has provided no evidence to show how he was able to support himself during [this] period…” Based on this, the Officer concludes: “Therefore, based on the evidence presented to me and what has been noted above, I have attributed low weight to the [A]pplicant’s employment history as a positive component of this application.” [21] On ties to the community, the Officer attributed positive weight to this factor, based on the letters of support from friends, his engagement with the community – including caring for the elderly parents of friends, his history of making blood donations to the Canadian Red Cross, and his positive contribution to his workplace. [22] However, the Officer then goes on to sum up the analysis, in the following key passage: Overall, based on the totality of the evidence presented to me, I find that the applicant’s willingness to be self-sufficient, acquire new skills as well as get involved in his community is commendable. However, I also observe that the lack of evidence and what has been noted above cannot be understated. As such, I have attributed low weight to the establishment component of this application. [23] There are two main problems with this conclusion: first, the Officer’s reference to “the lack of evidence and what has been noted above…” is unclear. The only evidentiary deficiency mentioned in this part of the decision relates to the nine-month gap in the Applicant’s otherwise unbroken history of employment. The second problem arises from the first: having given strong positive weight to the Applicant’s time in Canada, and having accorded positive weight to the ties to the community, and also having found that he had shown an almost continuous pattern of employment over nine years, the Officer needed to explain why the failure to provide details about a nine-month period of unemployment was sufficiently serious to lead to an overall assessment that the Applicant’s establishment in Canada should be accorded low weight. [24] In making this finding, it is important to underline that I am not re-weighing the evidence, but rather pointing to an unexplained leap of logic at the heart of the Officer’s analysis on a key element of the overall H&C claim. There may be good reasons for the Officer to find that a lack of evidence on some points combined with the Applicant’s failure to explain his entire employment record are sufficiently serious to overcome the other positive elements and thus justify a low rating for the establishment factor. However, this conclusion needed to be explained. That is what responsive justification under the Vavilov framework for analysis calls for, and its absence here is a sufficiently serious flaw to warrant quashing the decision and sending the matter back for reconsideration. [25] This is sufficient to deal with this application. The parties submitted detailed arguments on the other points raised, but because this case will be sent back for reconsideration it is not appropriate to discuss these submissions in any detail. I will simply note that I was not persuaded by the Applicant’s other arguments, and in particular I reject the argument that the Officer failed to give effect to the equitable purpose that section 25 is meant to serve. In most other respects, I find the Officer’s decision to be careful, compassionate and thorough. IV. Conclusion [26] For the reasons set out above, I find that the Officer’s decision is unreasonable, when assessed against the framework set out in Vavilov. The gap in the reasoning regarding the Applicant’s period of unemployment, and why it outweighed the other positive elements of his establishment in Canada, is exactly the type of leap of logic that Vavilov signalled could lead to a finding of unreasonableness. That is the case here, and given the importance of the establishment factor in the overall H&C analysis, I am persuaded that this is sufficiently serious to warrant overturning the decision (Vavilov at para 100). [27] As discussed above, I am not persuaded by the Applicant’s other arguments. While the Applicant may disagree with the Officer’s findings on each of the points discussed above, this does not make the decision unreasonable. [28] For the reasons set out above, this application for judicial review is granted. The matter is remitted back to a different decision-maker for reconsideration. [29] There is no question of general importance for certification. JUDGMENT in IMM-5529-20 THIS COURT’S JUDGMENT is that: The application for judicial review is granted. The Applicant’s request for permanent residence from within Canada based on humanitarian and compassionate grounds is sent back for reconsideration by a different Officer, in accordance with these reasons. There is no question of general importance for certification. \"William F. Pentney\" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5529-20 STYLE OF CAUSE: KANESHANANTH MAHESWARAN v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: By videoconference DATE OF HEARING: march 16, 2022 REASONS FOR JUDGMENT AND JUDGMENT: pentney j. DATED: july 21, 2023 APPEARANCES: Suyema Mulla For The Applicant Meva Motwani For The Respondent SOLICITORS OF RECORD: Waldman and Associates Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent", "response": "## Analysis of Court Decision: Maheswaran v. Canada (Citizenship and Immigration)\n\n### Key Issues\nl review of the decision. II. Issues and Standard of Review [15] The overarching issue in this case is whether the Officer’s decision is reasonable. Within that, the Applicant rais\n\n### Standard of Review\nthe decision. II. Issues and Standard of Review [15] The overarching issue in this case is whether the Officer’s decision is reasonable. Within that, the Applicant raises four sub\n\n### Legal Analysis\nThe court's analysis focuses on: ficer conducted an inadequate analysis of the best interests of the child, in light of the evidence of the close relationship between him and his nephew. [3] For the reasons that follow, I find that the determinative issue in this case is the Officer’s failure to explain why a relatively short gap in the Applicant’s employment h\n\n### Precedential Value\nThis Federal Court decision has persuasive value for similar cases before the court and provides guidance to the Immigration and Refugee Board on the proper interpretation of law and procedural requirements. While not binding on other Federal Court judges, it establishes a precedent that will often be followed for consistency."}
{"prompt": "What factors were considered in this Refugee Protection Division decision from the Immigration and Refugee Board of Canada?\n\nImmigration and Refugee Board Refugee Protection Division Commission de l'immigration et du statut de réfugié Section de la protection des réfugiés RPD File No. / No de dossier de la SPR : MA8-00814 MA8-00815 MA8-00816 MA8-00817 MA8-00818 MA8-00819 MA8-00820 MA8-00821 MA8-00822 MA8-00823 Private Proceeding Huis clos Claimant(s) Demandeur(e)s d'asile XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX Date(s) of Hearing Date(s) de l'audience May 11, 2009, July 29, 2009, and July 30, 2009 Place of Hearing Lieu de l'audience Montréal, Quebec Date of Decision Date de la décision September 23, 2009 Panel Tribunal Ruth Delisle Lawyer Claimant's Counsel Conseil du demandeur d'asile Diane Favreau Lawyer Tribunal Officer Agent du tribunal Céline Paradis [Filing of documents] Designated Representative Représentant désigné XXXXX XXXXX XXXXX Minister's Counsel Conseil du ministre Anne-Renée Touchette Lawyer [1] XXXXX XXXXX XXXXX, his wife, XXXXX XXXXX XXXXX, and seven of their eight children, XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX XXXXX and XXXXX XXXXX XXXXX, are citizens of the Democratic Republic of the Congo (DRC). XXXXX XXXXX XXXXX is a citizen of the United States of America. They are claiming to be \"Convention refugees\" and \"persons in need of protection\" under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA). [2] XXXXX XXXXX XXXXX has been appointed as the designated representative of her minor children. ALLEGATIONS [3] The male claimant was a XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX in XXXXX, where he had worked since XXXXX, 2004, as XXXXX. [4] On XXXXX, 2003, a transitional government was formed in the DRC following a decision from the Inter-Congolese Dialogue in Sun City, South Africa. This new transitional government was made up of a president and four vice-presidents from the parties that were previously in conflict. Together, they were supposed to manage a transitional period that was not to exceed three years before elections. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. [5] On XXXXX, 2004, XXXXX XXXXX XXXXX signed a transfer order assigning the male claimant to a XXXXX XXXXX in XXXXX, on XXXXX, 2004, the male claimant arrived in the United States where, in the context of his duties, among other things, he attended sessions of the XXXXX XXXXX XXXXX XXXXX. He also headed the XXXXX XXXXX XXXXX XXXXX XXXXX as acting chargé d'affaires from XXXXX, 2007, and from XXXXX, 2007. During the same period, he spoke before the XXXXX XXXXX regarding XXXXX XXXXX XXXXX XXXXX XXXXX. He also managed the file of a Congolese man named XXXXX XXXXX XXXXX who had alleged links to XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. The male claimant also represented his country during the substantive session of the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. [6] The male claimant's problems at the XXXXX XXXXX in XXXXX began during the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. The male claimant was hoping for change, namely a democratic change of the country's leader. Stemming from this situation, he was subjected to various types of persecution; for example, people often answered him unkindly, his staff privileges were suspended, etc. After Joseph Kabila's victory, XXXXX XXXXX XXXXX XXXXX resignation message XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX [7] On March 22 and 23, 2007, the Presidential guard and certain elements of the Forces Armées de la République Démocratique du Congo (FARDC) [Armed Forces of the DRC] clashed in Kinshasa with members of the guard of ex-Vice President Jean-Pierre Bemba, who had become a senator, and forced Bemba to flee into exile, where he remains today. These clashes involving heavy weapons claimed many victims and led to persecution of Bangalas and people from the province of Équateur, where the male claimant and his mother are from. [8] When he returned from XXXXX in early August 2007, the male claimant noticed a hostile working environment. Every proposal, suggestion or request that he formulated was purely and simply rejected. His rights were respected less and less. For example, his transportation expenses and everything else given to staff were often reimbursed late. Similarly, when he requested office supplies, he often had to wait longer than others to receive them. Moreover, the male claimant was not listed on a travel order signed by the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX when his name should normally have been on the order, given that the same XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. [9] On XXXXX, 2007, the XXXXX also sent instructions regarding the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX including the male claimant, were to abstain from making any statements during the session. The male claimant felt particularly targeted, since he had been the only delegate from the XXXXX sitting on this Committee for almost three years. Furthermore, the XXXXX refused to involve the male claimant in two meetings held by the team in the context of preparing for the arrival of the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX as well as two other meetings following the same stay. He was also refused the badge given to people with access to the hallway of XXXXX XXXXX XXXXX XXXXX, despite his normal role in this type of event. [10] Before the presidential plane arrived in New York, the male claimant heard people saying in Swahili, [translation] \"XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX.\" After checking, the male claimant found that the group was composed partly of XXXXX XXXXX XXXXX XXXXX XXXXX. [11] In XXXXX 2007, the current XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX, with whom the male claimant had a good relationship, and whom the male claimant had met during the former's two trips to XXXXX when he was XXXXX XXXXX XXXXX XXXXX, asked, [translation] \"Are you from Équateur?\" [12] On XXXXX, 2007, two officers of the XXXXX intelligence services informed the male claimant that XXXXX XXXXX XXXXX was at the XXXXX and asked him whether he had met with XXXXX and whether he could tell them in which hotel XXXXX was staying. When the male claimant stated he had not and could not, they insisted and threatened him, among other reasons, because he, like XXXXX XXXXX XXXXX, is from Équateur. After this incident, the male claimant noticed on three occasions that he was being followed by officers of the XXXXX intelligence services. [13] On XXXXX, 2008, the male claimant had a heated discussion with the XXXXX regarding the organization of a conference XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. Since the XXXXX trip in XXXXX 2007, which was accompanied by demonstrations of hostility from the Congolese community against the government, officers of the government services were frequently present in the offices of the XXXXX XXXXX and surrounding area, and the male claimant often received anonymous telephone calls at home. He did not inform the police because he knew that the calls were from XXXXX government officers and knew their system. He wanted to avoid harming his family and himself, because he feared the XXXXX reaction if he accused the Congolese officers. [14] Thus, the male claimant began to go to his office less often and more carefully. On XXXXX, 2008, he wrote a letter of resignation, which he mailed to his department. [15] The male claimant alleges that his resignation was considered an act of treason because he was XXXXX XXXXX XXXXX XXXXX, which undermines the performance of the XXXXX XXXXX XXXXX XXXXX XXXXX. He claims that, given his mother's Mongala origins from the province of Équateur, which the current government's repression forces have been persecuting since the events of XXXXX, 2007, given the moral accusations and threats against him, and given the methods of the Congolese system, he is convinced that he and his family would be arrested and subjected to inhuman and degrading treatment, tortured, or even killed if they had to return to his country of citizenship. The police services, army, intelligence services and the system in place ensure that he would not have any protection if he returned to the country. The male claimant and his family presented themselves at the Canadian border on XXXXX, 2008, to seek refugee protection. MINISTER'S INTERVENTION [16] A notice of intention to intervene from the Minister's Representative on file, dated October 21, 2008, states that there are grounds to apply to the principal male claimant the provisions of Article 1F(a) and (c) of the Convention.1 The notice explains that the male claimant reportedly worked for the DRC government from XXXXX to XXXXX and that the existing documentary evidence shows that the country's government allegedly violated international and human rights. In this context, the Minister's Representative added that the principal male claimant could have participated in or been complicit in the commission of crimes against humanity or actions contrary to the purposes and principles of the United Nations. ANALYSIS Identity [17] To establish their identities, each of the claimants filed, among other documents, his or her diplomatic passport issued by the DRC, which were seized by Citizenship and Immigration Canada, except for their minor child named XXXXX XXXXX XXXXX, born in the United States as a result of the principal female claimant's extramarital relationship, for whom the claimants produced a XXXXX City birth certificate. The panel has certified true copies of these documents on file.2 The panel concludes that the claimants have provided identity documents that are acceptable under section 106 of the IRPA. Exclusion of the principal male claimant under Article 1F(a) of the Convention [18] Should the principal male claimant be excluded from Canada under the terms of section 98 of the IRPA,3 which incorporates Article 1F of the Convention?4 [19] The panel would like to explain that it was decided in Ramirez5 that the standard of proof to apply under Article 1F is lower than that required in criminal law (beyond a reasonable doubt) or civil law (on a balance of probabilities or a preponderance of evidence),6 and is described by the expression \"serious reasons for considering\". [20] The evidence has shown that the principal male claimant finished his university studies in 1994 and obtained his first public service job in XXXXX. The male claimant stated that he had submitted résumés more or less everywhere, but only once to his country's government, between three and six months before being hired. [21] When asked to inform the panel why he submitted a résumé to the government, the male claimant replied that a new regime had been in place since 1997, succeeding the Mobutu regime, and that many members of the former regime had left. He asserted that the government needed an XXXXX and that he was hired. The male claimant stressed that, at the time, there was a great deal of unemployment in the country and that this position was a career opportunity for him. Thus, he was appointed as a XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX in XXXXX 1999. The male claimant stated that, at this point, he was not appointed to the XXXXX, but was rather an XXXXX XXXXX XXXXX of finance and, according to him, he did not have any employees under him, not even a secretary. [22] In XXXXX 1999, the principal male claimant was appointed a XXXXX XXXXX, then a XXXXX XXXXX in the XXXXX XXXXX XXXXX XXXXX. In this position, the male claimant XXXXX XXXXX XXXXX XXXXX. The principal male claimant indicated that he asked to be transferred to the newly created and publicized XXXXX XXXXX XXXXX, which aimed to XXXXX XXXXX XXXXX. [23] The male claimant explained that, beginning in XXXXX as XXXXX XXXXX XXXXX, he XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. He also prepared the XXXXX XXXXX because he was the XXXXX XXXXX in the office, the others being legal specialists. At the port of entry (Exhibit A-2), the male claimant stated, [translation] \"XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX\". Again, the principal male claimant stated that he did not have authority over any staff. Despite the position that he occupied, the principal male claimant stated that he did not deal with the XXXXX XXXXX XXXXX XXXXX. According to the male claimant, this XXXXX was the responsibility of XXXXX XXXXX XXXXX who worked in collaboration with the people XXXXX XXXXX XXXXX XXXXX where these vulnerable persons were living. He stated that managing vulnerable persons was also not his responsibility. According to him, he was limited to contacting the two specialists to obtain their XXXXX XXXXX and XXXXX XXXXX XXXXX XXXXX. [24] In XXXXX 2000, the principal male claimant was promoted to XXXXX XXXXX to the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX, a position that he held until XXXXX 2003. The principal male claimant testified that his duties were the same as they were at the XXXXX XXXXX XXXXX, in addition to the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. During his interview with an immigration officer upon his arrival in Canada (Exhibit A-2), the male claimant stated that, during this period, he dealt with XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. He also told the Border Services Officer that, at the time, he had taken part in certain XXXXX meetings, XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX (Exhibit A-2). During his oral testimony, the principal male claimant stated that, at his level, he did not deal with XXXXX relations, even though he attended XXXXX meetings in XXXXX for the XXXXX and other meetings in XXXXX, all of which involved XXXXX of his country and XXXXX XXXXX staff. According to the male claimant, his actions were limited to keeping an XXXXX XXXXX XXXXX XXXXX that the XXXXX had to make. [25] Following a ministerial reorganization in June 2003, the male claimant lost his position and became XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX, becoming at the same time a state employee since he worked at the XXXXX XXXXX. The male claimant stated that he did not work much at that time because he was sick. [26] The principal male claimant stated that the XXXXX XXXXX XXXXX in XXXXX needed someone to take over the XXXXX XXXXX XXXXX XXXXX, therefore as an XXXXX, and since he spoke a little English and had worked in the XXXXX XXXXX XXXXX XXXXX, he had the required profile. The principal male claimant stated that, when the transitional government arrived in power, the XXXXX XXXXX XXXXX had told him to contact the XXXXX XXXXX . [27] The principal male claimant arrived in XXXXX as the XXXXX XXXXX XXXXX XXXXX, where he took responsibility for the XXXXX XXXXX, the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. He was also responsible for the XXXXX XXXXX, the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. Furthermore, he was responsible for XXXXX, in addition to being a focal point for the XXXXX XXXXX XXXXX (XXXXX). The principal male claimant stated that, in this regard, he represented the XXXXX at the meeting of XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX (Exhibit A-2). The principal male claimant also liaised with the XXXXX XXXXX agencies responsible for XXXXX XXXXX. [28] XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. [29] At this stage of his career, the male claimant stated that he did not deal with the XXXXX of the XXXXX XXXXX XXXXX, a responsibility that had been assumed by the XXXXX, who then reported to the XXXXX XXXXX XXXXX XXXXX XXXXX. However, the principal male claimant on two occasions performed the duties of XXXXX XXXXX XXXXX when the XXXXX head XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX He even spoke before a meeting of the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. [30] At this stage, for the purpose of its analysis, the panel must examine the following two questions: 1. Did the Congolese government commit crimes against humanity? 2. Was the principal male claimant complicit in acts committed by the DRC government? 1. Did the Congolese government commit crimes against humanity? (Article 1F(a)) [31] Given the evidence available to the panel, there is no doubt that the many violent actions committed by the Congolese government, even before the 2006 elections, fall under the definition of crimes against humanity as defined by the Rome Statute of the International Criminal Court,7 as well as by Mugesera,8 Sivakumar,9 Gonzalez10 and Sumaida.11 [32] In Sumaida, Justice Létourneau stated the following: Basically, the definitions of crimes against humanity refer to serious crimes or other inhumane acts committed against \"any civilian population\". [33] The extensive documentary evidence filed denounces the many crimes committed by the DRC governments, whether under Laurent-Désiré Kabila, his son Joseph Kabila, the transitional government prior to the election of Joseph Kabila in 2006, or even after his election. [34] The male claimant stated that he had submitted résumés to, among other places, the government of his country from three to six months before being hired in XXXXX. The documentation is unequivocal regarding the particularly horrible and violent events that were taking place during this period. [35] A newspaper article filed as Exhibit M-6112 states: [translation] Shortly after Kabila sent Rwandan soldiers home on July 27, 1998, Kabila's security services (military police and rapid response police) began to hunt down all of the Congolese Tutsis commonly known as Banyamulenge while the government, through the words of Mwenze Kongolo, among others, warned the population against anti-Rwandan xenophobia. Thus, on Friday, July 31, I witnessed a pursuit by military police of Banyamulenge that ended with the execution of two Banyamulenge soldiers. At the same time, Banyamulenge civilians had been arrested and then released .... The beginning of the terror. On Sunday, August 2, when the cities of Bukavu and Goma declared war against Kabila, Banyamulenge soldiers in Kinshasa clashed with the regular army at Camp Tchatchi before fleeing toward Brazzaville. The next day, Monday, August 3, Munene, Vice-Minister of the interior, declared a \"dead city\" day and asked people to stay in their homes so that a \"hunt for antisocial elements\" could begin. Thus began the generalized police roundup and execution of Tutsis and supposed Tutsis in the capital, civilian and military alike. That's when I was arrested. Liaison-Rwanda: Do you think that the calls to murder Congolese Tutsis that were broadcast on the radio led to numerous massacres organized by the army and by Kinshasa residents? Jean-Bernard Gervais: In general, it could be said that there were two waves of calls for massacres. The first wave, during the beginning of the war on August 2 was when, while on the air, President Kabila personally called for the murder of Tutsis. These calls for murder resulted in the arbitrary arrest and execution of Tutsis in Kinshasa and elsewhere. It is very difficult to count these killings. The second wave followed the rebel attack in the suburbs of Kinshasa in mid-August. Recall, for example, the words of Ndombasi, the head of Kabila's cabinet, who called for the eradication of the \"Tutsi vermin.\" Then, Kinshasa's population \"went to work,\" burning anyone suspected of belonging to the Tutsi ethnic group. These people often had nothing to do with Tutsis. As for me, I was imprisoned at the Kokolo camp, where we were entitled to nothing. Every day, five or six prisoners would disappear. One night, we heard gunshots and horrible screams, and understood what was happening to the disappearing prisoners. The hateful calls of the leaders undoubtedly served to support the mass executions of Tutsis. Liaison-Rwanda: Was this a voluntary strategy on the part of the Congolese authorities at that point? Were these pogroms confined to Kinshasa, or were they occurring throughout the country? Are we dealing with genocide or attempted genocide? Jean-Bernard Gervais: I don't think there was any strategy to these executions. Leaders were irresponsible. Everything was very confused. On one hand, Tutsis were being imprisoned in military camps, and on the other hand, people were being incited to \"eradicate\" them. Mass graves were discovered all over the country, such as in Kisangani, Kalemie and Bas-Congo province. The massacres were widespread but, until an investigation is conducted, it is difficult to determine the number of people killed. It must not be more than 10 000 people. The situation since August 2, 1998, has been much more comparable to what happened in Rwanda in 1990 when the Front patriotique rwandais (FPR) [Rwandan patriotic front] started the war; namely, a large portion of the Tutsi population was imprisoned in camps, stadiums, etc., ... all of which led to executions. You could say that we are on the path to genocide. It is even more worrying that a few thousand Tutsi civilians are still being held throughout the country, primarily in the Kokolo camp in Kinshasa, and in the Kigoma convent in Lubumbashi. Kabila will use them as human shields, in case the rebels attempt to take one of these cities. One small detail: when I was imprisoned in the Kokolo camp, there were 600 of us. Now, there are only 130. How many will be there tomorrow? [36] Another document, filed as Exhibit M-62,13 from reliable and well-informed sources, also details the mass arrests of and acts of violence toward Tutsis, the arbitrary arrest of journalists, political opponents and human rights activists. This same document also states the following: 5.5.1. Children According to Human Rights Watch, the DRC authorities have urged children between 12 and 20 years of age to join the FAC, which are involved in fighting against the rebellion in the DRC (AFP 12 Aug. 1998; Info-Congo Kinshasa 31 Aug. 1998, 7). As of early September 1998, many children were already serving as soldiers, both in the FAC and in the rebel forces, and both sides were continuing to recruit children to fight in the war (ibid.; ASADHO 9 Sept. 1998, 3). In its report on human rights violations committed by the two sides between 2 August and 17 September 1998, the Groupe Justice et Libération, indicates that the government forces in Kisangani [translation] \"have used anti-Rwandan propaganda and the promise of good wages to enrol numerous youths, including children under 15 years of age\" (18 Sept. 1998, 11). The report adds that the rebel forces also included children under 15 (ibid.). Rebel military leaders estimated that a total of some 5,000 children were fighting in the current war for one side or the other (AFP 8 Oct. 1998; M2 Presswire 24 Aug. 1998). [37] The U.S. Department of State's report for 1999 (Exhibit M-48) also details arbitrary arrests, violations of human rights and even extrajudicial killings of people with Tutsi facial features. [38] The panel did not find any notable change in the modus operandi of Laurent-Désiré Kabila's government in the reports of Amnesty International or Human Rights Watch, or in the documents produced by the United Nations for 1999 and 2000, filed as Exhibits M-3, M-4, M-18, M-19, M-37 and M-49. [39] It must be noted that no significant change appeared in the documentation when Joseph Kabila succeeded his father following the latter's assassination in January 2001. A document produced by Amnesty International in 2003, entitled Democratic Republic of Congo - On the precipice: the deepening human rights and humanitarian crisis in Ituri (Exhibit M-8), makes for convincing reading. The U.S. Department of State's report for 2002 (Exhibit M-51) makes the same observations. Furthermore, a Human Rights Watch report dated January 18, 2006, (Exhibit M-23) states the following: In 2005, combatants from armed groups as well as government soldiers deliberately killed, raped, and abducted civilians and destroyed or looted their property in repeated attacks, particularly in eastern Congo. A feeble justice system failed to prosecute these recent crimes and did nothing to end impunity for war crimes and crimes against humanity committed during the previous two wars. The September 2005 discovery of mass graves from 1996 in the eastern region of Rutshuru served as a reminder of the unpunished mass slaughter of civilians in Congo in the last decade. Government Soldiers and Armed Groups Target Civilians The government failure to integrate troops of former belligerent groups into the national army and to properly train and pay its soldiers underlay some military abuses. Military abuses such as those that occurred in December 2004 in North Kivu where government soldiers and combatants refusing integration fought and killed at least one hundred civilians, many of them targeted on an ethnic basis, were repeated elsewhere in 2005. In Walungu, South Kivu, government soldiers raped civilians and looted property during operations against the FDLR in late 2004 and early 2005. In Equateur, poorly paid and undisciplined troops went on a rampage in July 2005, killing, raping, and stealing from civilians. As government soldiers tried to take control of Ituri and parts of North and South Kivu, Maniema and Katanga in late 2004 and 2005, both they and the combatants fighting them committed grave violations of international humanitarian and human rights law. In Ituri, which experienced widespread violence against civilians in previous years, more than fifteen thousand members of armed groups agreed to lay down their weapons, but others who refused to disarm increased attacks on MONUC peacekeepers and government soldiers. In February 2005 nine peacekeepers were killed in an ambush north of Bunia, the main town. Combatants refusing disarmament took control of areas near the towns of Boga and Kilo in August and September 2005, forcing thousands of civilians to flee their homes. In North Kivu, where authorities illegally distributed hundreds of firearms to civilians in late 2004, there was little progress in 2005 in recuperating the weapons, some of which were used by civilians to harm, rob, or intimidate others. Civil and Political Rights In January and June 2005, security forces killed dozens of men, women, and children protesting electoral delays in Kinshasa, Mbuyi Mayi, Goma and other towns. In May 2005, the national security service arrested over one hundred people, primarily from southern Katanga, supposedly suspected of planning a Katangan secession attempt. They detained some for months without charge. In hundreds of cases throughout the country, police and other agents of security services arbitrarily detained and tortured citizens with the intent of extorting payment from them. Authorities arrested and closed the operations of journalists who criticized those in power, such as a television station of Vice President Jean-Pierre Bemba, who is likely a chief challenger of President Kabila in the up-coming elections. [40] Regarding governance during the transition period from mid-2003 to the 2006 elections, the human rights situation in the DRC did not improve. Child soldiers continued to be recruited,14 and all forms of violent action by officers of the state continued.15 [41] Regarding the post-electoral period, when Joseph Kabila was returned to power, the male claimant alleges the following in his narrative report:16 [translation] After having analyzed the actions and decisions of the current system that resulted from the latest elections and has been in power for a year (the largely negative results, the repeated violations of human rights, including the repression of individual freedoms and the freedom of expression guaranteed in the constitution, the impunity, the political clientelism, the moral support for many anti-democratic events, the political police, the intolerance, the muzzling of the opposition, the consolidation of a growing dictatorship to the public's great displeasure, the killings, the imprisonment of people for their opinions, the increasingly frequent intrusions into homes that did not even spare elected officials despite their parliamentary immunity, the corruption, the arbitrariness of rule, etc.), I refused to serve as the relay or spokesman of a government that embodies these negative values, and I resigned. [42] It must be noted that this portion of the male claimant's written testimony is corroborated by the documentary evidence.17 [43] Although the Congolese government is not an organization principally directed to a limited, brutal purpose, the panel has no doubt that the many violent acts committed by this government correspond to the definition of crimes against humanity as defined in the international legal instruments,18 as well as in Mugesera,19 Sivakumar,20 Gonzalez21 and Sumaida.22 These acts are serious crimes, inhuman acts committed against a civilian population in a systematic and widespread manner. The evidence clearly shows that the Congolese government represses human rights, carries out civilian massacres and engages in governmental corruption.23 2. Was the principal male claimant complicit in acts committed by the DRC government? Preamble: Case law [44] Following an analysis of Ramirez,24 Moreno25 and Sivakumar,26 Justice Reed stated the following in Penate:27 As I understand the jurisprudence, it is that a person who is a member of the persecuting group and who has knowledge that activities are being committed by the group and who neither takes steps to prevent them occurring (if he has the power to do so) nor disengages himself from the group at the earliest opportunity (consistent with safety for himself) but who lends his active support to the group will be considered to be an accomplice. A shared common purpose will be considered to exist. I note that the situation envisaged by this jurisprudence is not one in which isolated incidents of international offences have occurred but where the commission of such offences is a continuous and regular part of the operation. [45] Moreover, in Sivakumar,28 the principles supporting \"complicity by association\" were stated in the following manner: * Complicity through association can mean that individuals may be rendered responsible for the acts of others because of their close association with the principal actors. * Furthermore, the case for an individual's complicity in international crimes committed by his or her organization is stronger if the individual member in question holds a position of importance within the organization. The closer one is to being a leader rather than an ordinary member, the more likely it is that an inference will be drawn that one knew of the crime and shared the organization's purpose in committing that crime. * In such circumstances, an important factor to consider is evidence that the individual protested against the crime or tried to stop its commission or attempted to withdraw from the organization. * Association with an organization responsible for the perpetration of international crimes may constitute complicity if there is personal and knowing participation or toleration of the crimes. [46] Justice Blanchard stated in Sungu29 that \"'personal and knowing participation' may be direct or indirect\".30 Among other things, he stated the following: ... It is not working within an organization that makes someone an accomplice to the organization's activities, but knowingly contributing to those activities in any way or making them possible, whether from within or from outside the organization. Those who become involved in an operation that is not theirs, but that they know will probably lead to the commission of an international offence, lay themselves open to the application of the exclusion clause in the same way as those who play a direct part in the operation. [47] Complicity by association was described in the following manner in Bazargan:31 In our view, it goes without saying that \"personal and knowing participation\" can be direct or indirect and does not require formal membership in the organization that is ultimately engaged in the condemned activities. It is not working within an organization that makes someone an accomplice to the organization's activities, but knowingly contributing to those activities in any way or making them possible, whether from within or from outside the organization. At p. 318, Justice MacGuigan said [in Ramirez] that \"[a]t bottom, complicity rests . . . on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it\". Those who become involved in an operation that is not theirs, but that they know will probably lead to the commission of an international offence, lay themselves open to the application of the exclusion clause in the same way as those who play a direct part in the operation. [48] Justice Yves de Montigny in Collins32 describes the mental element required for there to be complicity in crimes against humanity in the following manner: The mental element required to establish complicity in crimes against humanity has been characterized variously as \"shared common purpose\", \"personal and knowing participation or toleration of the crimes\", and participation in an organization knowing it commits crimes against humanity, when combined with a failure to stop the crimes or dissociate oneself. Knowledge [49] First, the panel notes the dazzling rise of the principal male claimant's career from XXXXX, when he began working in the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX as a XXXXX XXXXX, to working as XXXXX XXXXX XXXXX XXXXX XXXXX to the United Nations in less than five years, in addition to the tremendous responsibilities assigned to him at the XXXXX XXXXX since his arrival in XXXXX 2004, all of which shows the Congolese government's trust in him. It must be noted that the male claimant did not hesitate to represent his country, whether by replacing the XXXXX in his absence, by participating in the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX (Exhibit P-88).33 [50] The evidence has shown that the principal male claimant held a very high-level position, and represented his country and his government abroad on a daily basis. He was also entrusted with important matters that led him to meet with representatives of the international community. [51] Upon reading the principal male claimant's written testimony, it is obvious that he was aware of the violent acts committed by his government while he held his position. However, he claimed that these violent actions took place in the eastern part of the country and that he was allegedly informed only recently of what was also taking place elsewhere in the DRC. [52] Since the beginning of the hearing, the male claimant has stated that he feared his country's political police which, in addition to the intelligence services and the armed forces, were being used by President Kabila for his own personal ends, and were inflicting degrading treatment, torture and even death on the Congolese people. He was asked when these officers began to perpetrate such harm against the population. He replied that, to his knowledge, it began in October 2007. According to him, before then, this situation existed in the eastern portion of the country but, still to the best of his knowledge, it was not a factor in Kinshasa. [53] When asked whether he had been informed of the atrocities that had been committed against Tutsis in Kinshasa, the principal male claimant replied yes, and that this was why the Tutsis came to seek refuge with the ministry of human rights, in order to be protected and sent to sites. However, the male claimant stated that he had never been an eyewitness to anything and did not know who had done these things. [54] When confronted with Exhibit M-61,34 which reports the above-mentioned statements of a journalist who had returned from the DRC, the male claimant attempted to justify his ignorance of this missing page of the DRC's history, and more specifically of the capital where he lived, by claiming that he did not know whether this article had been published in Kinshasa and that he had never heard his president in the media. He alleged that he had not been informed that Tutsis were being hunted down at the time. The principal male claimant stressed that he knew only that the population was unhappy with the Tutsis and that he was unaware they were being hunted down and killed. According to the male claimant, he was unaware of the presence of Tutsis in the Kokolo camp. [55] The principal male claimant was confronted with his statement to the Immigration Officer when he was questioned at the port of entry (Exhibit A-2), in which he claimed that he had an interest in human rights and therefore wanted to work for the XXXXX XXXXX XXXXX XXXXX. The principal male claimant stated that he was interested in being a XXXXX XXXXX at this ministry and emphasized that he knew nothing of XXXXX XXXXX, nor was he interested in that field. The principal male claimant stated that he managed this ministry's XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX, and was unaware whether there was a budget to assist persons in need, who were instead taken care of on a day-to-day basis by the United Nations High Commissioner for Refugees. According to the male claimant, the ministry had made sites available where persons in need could assemble, in addition to publishing a leaflet explaining the possible recourse methods available to adversely affected citizens. According to the male claimant, XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX, he never discussed files with them and had no information, nor any clue, of the human rights abuses that were taking place in his country at the time. Thus, he also did not have an example to provide to the panel. When confronted with the implausibility of his statements, the male claimant reiterated that he had not heard of anything. [56] The male claimant is obviously trying to establish wilful blindness to attempt to justify his completely implausible ignorance of the events that enfolded the capital in 1998 and resulted in Tutsis still being hunted down even later, when the male claimant was working in DRC ministries, including the ministry of XXXXX XXXXX. Furthermore, the male claimant obviously tried to extricate himself from his awkward position by stating that, even though he was unaware of cases of human rights abuse in Kinshasa, this ignorance did not mean that there were no such cases. [57] The male claimant maintained that, even after he was promoted to the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX in XXXXX 2000, he dealt exclusively with XXXXX XXXXX. He emphasized that there were policy advisors for everything else. He claimed that, even though he testified that he attended meetings where XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX, he did not discuss international relations at his level. [58] However, the principal male claimant stated that he participated in XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. A document filed as Exhibit M-5835 states that the principal male claimant also attended an XXXXX conference XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX The male claimant has reiterated that, during his time in XXXXX XXXXX, he was uninterested in human rights, nor did he follow the political situation in his country, and that his contribution was limited to ensuring that XXXXX XXXXX XXXXX XXXXX. [59] The male claimant was asked whether, when Laurent-Désiré Kabila led the country, he took good care of citizens. The male claimant replied that he could not say yes 100 percent, but he noted that Kabila kept the streets clean and paid police officers. When asked to tell the panel whether the elder Kabila's government respected XXXXX XXXXX, the male claimant stated that what he knew about the XXXXX XXXXX situation had been set out in the white book (Exhibit P-86), but that neither he nor his family had been a victim. The male claimant stated that he did not listen to the radio or watch the television he purchased in 2001, and that he never read newspapers. When confronted with the fact that it was implausible that he worked at the ministry XXXXX XXXXX XXXXX and was unaware of anything and also did not inform himself, the male claimant stressed the long hours he worked at the ministry. [60] This alleged behaviour is absolutely incompatible with the male claimant's profile. For two and a half days, the panel heard an educated, curious and particularly erudite individual with undeniable charisma. In short, he is impressive. The panel cannot believe that he closed his eyes and ears to this degree regarding the situation in his country, particularly in the context of the duties that he carried out within a ministry XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. [61] The principal male claimant also indicated that he had subsequently joined the public service to obtain permanent employment status; otherwise he would not have been able to be assigned to XXXXX. Despite the position he held at the XXXXX XXXXX XXXXX XXXXX XXXXX, the male claimant reiterated that he had never heard of human rights violations in the DRC. The principal male claimant was confronted with Exhibit M-56, a 2007 United Nations report that states that 86 percent of human rights violations in the DRC are committed by the army and the police, and with the implausibility of his testimony to the effect that he had not been informed of this information. The male claimant replied that human rights abuses by rebel groups were widespread, and that this could not be the case with government officers because that was beyond comprehension. According to him, these must be isolated cases; otherwise, they had to be condemned. The male claimant emphasized the fact that he was not a member of the government or the armed forces, which, in his words, were untouchable. The male claimant stated that he was responsible for XXXXX XXXXX and that he was unable to read everything. He indicated that the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX ,they never discussed controversial files, a situation the panel finds implausible, even in an African context. [62] However, when asked to explain to the panel how he could replace the XXXXX 36 if he was not up-to-date on the other files, the principal male claimant stated that, if he needed information, he could obtain it from another colleague. He emphasized that his acting status did not authorize him to commit the DRC or to receive people, since he was simply expediting ongoing files. [63] When asked how he could discuss and establish XXXXX XXXXX XXXXX XXXXX, including the XXXXX budget, without knowing what was happening on the ground, the principal male claimant replied that the transitional government had been supported by the international community and that this government, which aspired toward peace, had sent him to XXXXX, thus avoiding answering the question at the same time. [64] Again, the panel finds it implausible that the principal male claimant could have carried out such high-level duties without being informed about what was happening in his own country. Regarding the period following the election of Joseph Kabila in 2006, the male claimant admitted that he had begun to consult a Web site when he was posted to XXXXX and that his anxieties increased by several notches after the massacres of the followers of the Bundu Dia Congo in February 2007 and the events with Jean-Pierre Bemba's guards the following March. [65] During the second session of the hearing, the male claimant adjusted his statements. He stated that he knew that there were serious violations of human rights within the country, but that things were not serious in Kinshasa. He added that the violations had been going on for a long time and that they had to be combatted, hence the presence of the ministry of human rights. The principal male claimant emphasized the weakness of the legal system, which was not playing its role, particularly with regard to members of the military who were untouchable. According to the male claimant, President Kabila uses militias that answer only to him. The male claimant stated that, before the elections, the violent acts were isolated cases caused by the nature of soldiers. [66] The panel does not believe the male claimant's allegations that he was truly unaware of the violence occurring in his country before October 2007, because the news articles he had read before then had not yet been confirmed by an Amnesty International report that supposedly destroyed his confidence in the existing XXXXX institutions. [67] The evidence has shown that the male claimant represented his country's government abroad and that he had to respond to its actions. It is not plausible that he did not know what was happening in his country. His explanations to the effect that he represented the Congolese state as an officer of the public service rather than of the Kabila government responsible for these atrocities does not hold water because he admitted that the Congolese state is made up of the government and its administration. Furthermore, the principal male claimant's meteoric career and his strategic position at the XXXXX XXXXX XXXXX in XXXXX, as well as the fact that his resignation was considered an act of treason,37 are evidence of a shared vision in accomplishing his government's objectives. [68] The panel would like to cite Justice Yvon Pinard in Omar v. Canada,38 in which he concluded that the ambassador of a foreign country can be judged to be complicit by association in the crimes committed by his country's government, which he represents, even if he lives abroad because of the close association with the government that appointed him to this position. [69] Considering the principal male claimant's lack of credibility regarding his ignorance of the crimes against humanity committed by his country's authorities, the panel finds that he was aware of the events and a had shared common purpose, which can be deduced from his voluntary association with the Congolese authorities and is sufficient to find him complicit by association.39 Position [70] It has been established in Canadian law that, when a person claiming refugee protection has not been identified as the direct perpetrator of a crime against humanity, he or she can still be subject to the exclusion clause because of complicity.40 The principles applied to determine the degree of participation required were established in Ramirez,41 Sivakumar42 and Moreno,43 and summarized by Justice Nadon in Mohammad.44 Case law decided that \"the closer one is to a position of leadership or command within an organization, the easier it will be to draw an inference of awareness of the crimes and participation in the plan to commit the crimes\".45 [71] The principal male claimant had a successful career from 1999 to 2008, rising to XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX, as he testified. His duties led him to represent his country at large-scale international organizations at a time when the DRC authorities were committing violent acts and human rights abuses against the civilian population. The principal male claimant has not established his ignorance of the crimes committed by the Congolese government that he represented abroad and for whose actions he had to answer.46 Therefore, it is reasonable to conclude that the principal male claimant had a \"personal and knowing awareness\" in the Congolese government's actions, which is the \"element required to establish complicity\". Dissociation [72] The male claimant testified that nothing would have happened to him if he had resigned from his position before his problems began in 2006. When he spoke before the XXXXX XXXXX XXXXX XXXXX XXXXX, he did not take advantage of the forum that was offered to him to denounce the violence in the XXXXX because, although he wrote his own speech, it was corrected by his Head of Mission. He did not resign until his own safety was threatened. [73] The panel is of the opinion that the words of Justice Décary in Harb47 apply to the current case, namely the following: As the Court noted in Bazargan at 286, membership in a group makes it easier to conclude that there was \"personal and knowing participation\" - which remains the first test - than when there was no membership, but the difference affects the evidence, not the principles. Counsel for the Respondent would like the Court to clarify what is meant by \"membership in a group\". I do not think this is necessary. The expression was used in Ramirez in the context of a member whom the Court described as \"active\". The expression suggests the existence of an institutional link between the organization and the person, accompanied by a more than nominal commitment to the organization's activities. As everything is a question of fact, at the end of the analysis I feel that it is better to speak in terms of participation in the group's activities than of membership in the group. [74] Justice Décary also stated in Harb:48 A simple denial - even if it was found credible, which it was not - cannot suffice to negate the presence of a common purpose. A plaintiff's actions can be more revealing than his testimony and the circumstances may be such that it can be inferred that a person shares the objectives of those with whom he is collaborating. [75] Upon examination of the evidence on file, the principal male claimant had \"personal and knowing awareness\"49 of the atrocities committed by the Congolese government and army through the duties he carried out. The evidence showed that the principal male claimant has always demonstrated his active, consistent and trusting support for his government, the ranks of which he joined voluntarily in XXXXX 1999. Once he had reached a high-level position, he did not take any action to dissociate himself from the government. On the contrary, he remained in place; he even continued to provide his services to the government until he feared for his own safety. Consequently, the panel finds that there are \"serious reasons for considering\"50 that the principal male claimant personally and knowingly participated in the DRC government's crimes by making himself complicit by association with these serious crimes against humanity. Although the principal male claimant obviously did not personally commit acts of violence against civilians, assuming important duties and responsibilities allows the Congolese government to perpetuate itself, and he did nothing to dissociate himself from the government. [76] The panel concludes that there are substantial grounds to believe that the principal male claimant was complicit in crimes against humanity and war crimes, and that he is excluded from the protection offered to \"Convention refugees\" and \"persons in need of protection\", under Article 1F(a) of the Convention. Consequently, the panel does not need to analyze the exclusion of the principal male claimant under Article 1F(c) of the Convention, and also does not need to process the principal male claimant's inclusion.51 Inclusion of the principal male claimant's family members, with the exception of the child named XXXXX XXXXX XXXXX [77] The male claimant's spouse testified that she fears to return to the DRC because of the problems her husband experienced at the XXXXX XXXXX XXXXX XXXXX. The principal female claimant stated that her country's authorities would persecute her and her children in the event that they return. The principal male claimant stated that his resignation [translation] \"for obvious reasons\", as mentioned in his letter to this effect,52 would be considered high treason because of the important tasks he carried out. [78] The panel finds that, in light of the situation prevailing in the DRC, which was detailed at length in the section regarding the exclusion of the principal male claimant and need not be repeated here, the fact that the principal male claimant resigned from his important duties so abruptly and without explanation to exile himself to Canada would put all of the members of this family in danger if they were to return to their country of citizenship. Therefore, the panel is of the opinion that the principal female claimant and seven of the eight children, who are citizens of the DRC, face a reasonable possibility of persecution and/or risks if they return to their country of citizenship. [79] Regarding the child XXXXX XXXXX XXXXX, an American citizen, the principal female claimant, who is also the designated representative, was asked whether she feared that anything would happen to her son if he returned to the United States. The principal female claimant responded that she did not. [80] Considering that his representative did not state any reason that could establish a fear of returning to this country, which is a signatory to the Convention, the panel concludes that no evidence has shown that there is a \"reasonable possibility\" that he will face persecution and/or risks if he returns to the United States of America. CONCLUSION [81] After analyzing all of the evidence, the panel determines that XXXXX XXXXX XXXXX is excluded from the Convention's protection. The panel finds that there are serious reasons for considering that XXXXX XXXXX XXXXX was complicit by association in crimes against humanity and war crimes, and that he is excluded from the protection offered to \"Convention refugees\" and \"persons in need of protection\" under Article 1F(a) of the Convention. [82] Regarding his spouse, XXXXX XXXXX XXXXX, and her children, XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX XXXXX and XXXXX XXXXX XXXXX, the panel determines that they are \"Convention refugees\" because of their membership in a particular social group, namely the family, and allows their claim for refugee protection. [83] Regarding the child XXXXX XXXXX XXXXX, the panel determines that he is neither a \"Convention refugee\",53 nor a \"person in need of protection\",54 and rejects his claim for refugee protection. Ruth Delisle Ruth Delisle, Lawyer September 23, 2009 Date REFUGEE PROTECTION DIVISION / EMPLOYMENT / MINISTER'S INTERVENTION / EXCLUSION / ART. 1F(A) / CRIMES AGAINST HUMANITY / VOLUNTARY REPATRIATION / ACCOMPLICE / MALE / NEGATIVE / PARTICULAR SOCIAL GROUP / FAMILY / WELL-FOUNDED FEAR OF PERSECUTION / POSITIVE / SPOUSE / RIGHT TO RETURN / CHILDREN / NEGATIVE / DEMOCRATIC REPUBLIC OF CONGO / UNITED STATES 1 Exhibit M-1: Notice of intention to intervene. 2 Exhibit A-2: Immigration documents and port-of-entry notes. 3 Section 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. 4 Subsection 2(1) of the Immigration Act, R.S.C., 1985, c. I-2, defines the term \"Convention refugee\" but excludes any person to whom the Convention does not apply pursuant to Article 1(E) or (F) thereof. Sections E and F of this Convention are incorporated into the Act. In this case, Article 1(F) of the Convention applies. It reads as follows: F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations. 5 Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.). 6 Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.); (1993), 21 Imm. L.R. (2d) 221 (F.C.A.). 7 ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, United Nations, Treaty Collection, volume 2187, page 3, entry into force July 1, 2002: Article 6 Genocide For the purpose of this Statute, \"genocide\" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. Article 7 Crimes against humanity 1. For the purpose of this Statute, \"crime against humanity\" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. 2. For the purpose of paragraph 1: (a) \"Attack directed against any civilian population\" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; (b) \"Extermination\" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; (c) \"Enslavement\" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children; (d) \"Deportation or forcible transfer of population\" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law, (e) \"Torture\" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions; (f) \"Forced pregnancy\" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy; (g) \"Persecution\" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity; (h) \"The crime of apartheid\" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime; (i) \"Enforced disappearance of persons\" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. 3. For the purpose of this Statute, it is understood that the term \"gender\" refers to the two sexes, male and female, within the context of society. The term \"gender\" does not indicate any meaning different from the above. Article 8 War crimes 1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 2. For the purpose of this Statute, \"war crimes\" means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i) Wilful killing; (ii) Torture or inhuman treatment, including biological experiments; (iii) Wilfully causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful confinement; (viii) Taking of hostages. (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; (vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion; (vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury; (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; (ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; (xi) Killing or wounding treacherously individuals belonging to the hostile nation or army; (xii) Declaring that no quarter will be given; (xiii) Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war; (xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; (xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war; (xvi) Pillaging a town or place, even when taken by assault; (xvii) Employing poison or poisoned weapons; (xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; (xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions; (xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123; (xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions; (xxiii) utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations; (xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions; (xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities. (c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (iii) Taking of hostages; (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (v) Pillaging a town or place, even when taken by assault; (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2(f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions; (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities; (viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; (ix) Killing or wounding treacherously a combatant adversary; (x) Declaring that no quarter will be given; (xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; (xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict; (f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups. 3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means. 8 Mugesera v. Canada (Minister of Citizenship and Immigration), [2004] 1 F.C.R. 3; 2003 F.C.A. 325. 9 Sivakumar v. R., [1996] 2 F.C. 872 (C.A.); (1996), 33 Imm. L.R. (2d) 113 (F.C.A.). 10 Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646 (C.A.); (1994), 24 Imm. L.R. (2d) 229 (F.C.A.). 11 Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66 (C.A.); (2000), 3 Imm. L.R. (3d) 169 (F.C.A.). 12 Exhibit M-61: Interview d'un journaliste de retour du Congo [interview with a journalist returning from the Congo], March 1, 1999. 13 Exhibit M-62: Immigration and Refugee Board of Canada, Democratic Republic of Congo, The August 1998 Rebellion and Affected Groups, December 1998. 14 Exhibit M-10: Amnesty International, Democratic Republic of Congo (DRC): Still under the gun: More child soldiers recruited, 2004; and Amnesty International, Democratic Republic of Congo: Children at war, creating hope for the future, 2006. 15 Exhibit M-53: United States Department of State, Congo, Democratic Republic of the - Country Reports on Human Rights Practices - 2004, 2005; and Exhibit M-54: United States Department of State, Congo, Democratic Republic of the - Country Reports on Human Rights Practices - 2005, 2006. 16 Exhibit P-1: Personal Information Form (PIF), question 31. 17 Exhibit M-11: Amnesty International, Democratic Republic of Congo: Torture and killings by state security agents still endemic, 2007; Exhibit M-15: Human Rights Watch, Statement by Human Rights Watch to the DRC Parliamentary Commission Investigating Events in Bas-Congo, 2007; Exhibit M-24: Human Rights Watch, World Report 2008 - Democratic Republic of Congo, 2008; Exhibit M-56: United States Department of State, Congo, Democratic Republic of the - Country Reports on Human Rights Practices - 2007, 2008; et Exhibit M-57: United States Department of State, 2008 Human Rights Report: Democratic Republic of the Congo - 2008 Country Reports on Human Rights Practices, 2009. 18 Supra, footnote 8. 19 Supra, footnote 9. 20 Supra, footnote 10. 21 Supra, footnote 11, pages 653-654. 22 Supra, footnote 12. 23 Exhibit M-70: Package of documents. 24 Supra, footnote 5. 25 Supra, footnote 6. 26 Supra, footnote 10. 27 Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.), pages 84-85. 28 Supra, footnote 10. 29 Sungu, Adrien Dambana v. M.C.I. (F.C.T.D., No. IMM-1020-01), Blanchard, November 22, 2002. 30 Supra, footnote 28. 31 Bazargan, Mohammad Hassan v. M.E.I. (F.C.T.D., No. A-51-93), Tremblay-Lamer, May 30, 1995. 32 Collins v. Canada (Minister of Citizenship and Immigration), 2005 F.C. 732, paragraph 24. 33 Exhibit P-88: Document entitled \"Compte rendu analytique provisoire de la 28ième Séance tenue au Palais des Nations, à Genève, le lundi 17 juillet 2006, à 10 heures\" [draft analytical report of the 28th session held at the Palais des Nations in Geneva on Monday, July 17, 2006, at 10:00 a.m.], Economic and Social Council, Substantive Session 2006, humanitarian affairs debate. 34 Supra, footnote 13. 35 Exhibit M-58: XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX, undated. 36 Exhibits P-22 and P-23: XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX 37 Exhibit P-1: Personal Information Form (PIF), question 31. 38 Omar, Idleh Djama v. M.C.I. (F.C., No. IMM-2452-03), Pinard, June 17, 2004, 2004 FC 861. 39 Supra, footnote 32. 40 Sivakumar v. R., [1996] 2 F.C. 872 (C.A.); (1996), 33 Imm. L.R. (2d) 113 (F.C.A.); Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646 (C.A.); (1994), 24 Imm. L.R. (2d) 229 (F.C.A.), pages 653-654; M.C.I. v. Bazargan, Mohammad Hassan (F.C.A., A-400-95), Marceau, Décary, Chevalier, September 18, 1996. 41 Supra, footnote 5. 42 Supra, footnote 10. 43 Supra, footnote 6. 44 Mohammad v. Canada (Minister of Citizenship and Immigration) (1995), 115 F.T.R. 161 (F.C.T.D.), page 178: 1. A person who commits a crime must be held responsible therefor. 2. A person may be responsible for a crime he or she did not personally commit, that is, as an accomplice. 3. The starting point for the existence of complicity is \"personal and knowing participation\" by the person in question. 4. Mere bystanders are not accomplices. 5. A person who aids in or encourages the commission of a crime may be responsible therefor. 6. A superior may be responsible for crimes committed by those under his or her command if the superior knew about them. 7. A person may be held responsible for crimes committed by others because of his or her close association with those who committed them. 8. The more important the position held by a person in an organization that has committed one or more crimes, the more likely his or her complicity. 9. A person who continues to hold a leadership position in such an organization with full knowledge that the organization is responsible for crimes may be considered an accomplice. 10. Evidence that the individual protested against the crime, tried to stop its commission or attempted to withdraw from the organization must be taken into consideration in determining whether he or she is responsible. 45 Zrig, Mohamed v. M.C.I. (F.C.T.D., No. IMM-601-00), Tremblay-Lamer, September 24, 2001. 46 Imama, Lofulo Bofaya v. M.C.I. (F.C.T.D., No. IMM-118-01), Tremblay-Lamer, November 6, 2001. 47 Harb, Shahir v. M.C.I. (F.C.A., No. A-309-02), Décary, Noël, Pelletier, January 27, 2003. 48 Idem. 49 Supra, footnote 5. 50 Supra, footnote 6. 51 Supra, footnote 11. 52 Supra, footnote 38. 53 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 54 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. --------------- --------------- --------------- --------------- RPD File No. / No de dossier de la SPR : MA8-00814 MA8-00815 MA8-00816 MA8-00817 MA8-00818 MA8-00819 MA8-00820 MA8-00821 MA8-00822 MA8-00823 33", "response": "## Analysis of Refugee Decision: MA8-00814\n\n### Key Issues\nust examine the following two questions: 1. Did the Congolese government commit crimes against humanity? 2. Was the principal male claimant complicit in acts committed by the DRC g\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: ciples of the United Nations. ANALYSIS Identity [17] To establish their identities, each of the claimants filed, among other documents, his or her diplomatic passport issued by the DRC, which were seized by Citizenship and Immigration Canada, except for their minor child named XXXXX XXXXX XXXXX, born in the United States as a re\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "Analyze the legal requirements established in this Federal legislation from the Canadian government:\n\n# Assisted Human Reproduction Act SC 2004, c 2 An Act respecting assisted human reproduction and related research Assented to 2004-3-29 Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: ## Short Title ### Short title 1 This Act may be cited as the Assisted Human Reproduction Act. ## Principles ### Declaration 2 The Parliament of Canada recognizes and declares that (a) the health and well-being of children born through the application of assisted human reproductive technologies must be given priority in all decisions respecting their use; (b) the benefits of assisted human reproductive technologies and related research for individuals, for families and for society in general can be most effectively secured by taking appropriate measures for the protection and promotion of human health, safety, dignity and rights in the use of these technologies and in related research; (c) while all persons are affected by these technologies, women more than men are directly and significantly affected by their application and the health and well-being of women must be protected in the application of these technologies; (d) the principle of free and informed consent must be promoted and applied as a fundamental condition of the use of human reproductive technologies; (e) persons who seek to undergo assisted reproduction procedures must not be discriminated against, including on the basis of their sexual orientation or marital status; (f) trade in the reproductive capabilities of women and men and the exploitation of children, women and men for commercial ends raise health and ethical concerns that justify their prohibition; and (g) human individuality and diversity, and the integrity of the human genome, must be preserved and protected. ## Interpretation and Application ### Definitions 3 The following definitions apply in this Act. *Agency* [Repealed, 2012, c. 19, s. 713] *assisted reproduction procedure* [Repealed, 2012, c. 19, s. 713] *chimera* means (a) an embryo into which a cell of any non-human life form has been introduced; or (b) an embryo that consists of cells of more than one embryo, foetus or human being. ( chimère) *consent* [Repealed, 2012, c. 19, s. 713] *controlled activity* [Repealed, 2012, c. 19, s. 713] *donor* means (a) in relation to human reproductive material, the individual from whose body it was obtained, whether for consideration or not; and (b) in relation to an in vitro embryo, a donor as defined in the regulations. (donneur) *embryo* means a human organism during the first 56 days of its development following fertilization or creation, excluding any time during which its development has been suspended, and includes any cell derived from such an organism that is used for the purpose of creating a human being. (embryon) *foetus* means a human organism during the period of its development beginning on the fifty-seventh day following fertilization or creation, excluding any time during which its development has been suspended, and ending at birth. (foetus) *gene* includes a nucleotide sequence, and an artificially created gene or nucleotide sequence. (gène) *genome* means the totality of the deoxyribonucleic acid sequence of a particular cell. (génome) *health reporting information* [Repealed, 2012, c. 19, s. 713] *human clone* means an embryo that, as a result of the manipulation of human reproductive material or an in vitro embryo, contains a diploid set of chromosomes obtained from a single — living or deceased — human being, foetus or embryo. (clone humain) *human reproductive material* means a sperm, ovum or other human cell or a human gene, and includes a part of any of them. (matériel reproductif humain) *hybrid* means (a) a human ovum that has been fertilized by a sperm of a non-human life form; (b) an ovum of a non-human life form that has been fertilized by a human sperm; (c) a human ovum into which the nucleus of a cell of a non-human life form has been introduced; (d) an ovum of a non-human life form into which the nucleus of a human cell has been introduced; or (e) a human ovum or an ovum of a non-human life form that otherwise contains haploid sets of chromosomes from both a human being and a non-human life form. ( hybride) in vitro embryo means an embryo that exists outside the body of a human being. (embryon in vitro) *licence* [Repealed, 2012, c. 19, s. 713] *Minister* means the Minister of Health. (ministre) *ovum* means a human ovum, whether mature or not. (ovule) *sperm* means a human sperm, whether mature or not. (spermatozoïde) *surrogate mother* means a female person who — with the intention of surrendering the child at birth to a donor or another person — carries an embryo or foetus that was conceived by means of an assisted reproduction procedure and derived from the genes of a donor or donors. (mère porteuse) ### Her Majesty bound 4 This Act is binding on Her Majesty in right of Canada or a province. ### Non-application 4.1 The Human Pathogens and Toxins Act does not apply in respect of sperm, ova and in vitro embryos to be used for the purpose of assisted human reproduction. ### Non-application 4.2 The Food and Drugs Act does not apply in respect of sperm and ova to be used for the purpose of assisted human reproduction. ## Prohibited Activities ### Prohibited procedures 5 (1) No person shall knowingly (a) create a human clone by using any technique, or transplant a human clone into a human being or into any non-human life form or artificial device; (b) create an in vitro embryo for any purpose other than creating a human being or improving or providing instruction in assisted reproduction procedures; (c) for the purpose of creating a human being, create an embryo from a cell or part of a cell taken from an embryo or foetus or transplant an embryo so created into a human being; (d) maintain an embryo outside the body of a female person after the fourteenth day of its development following fertilization or creation, excluding any time during which its development has been suspended; (e) for the purpose of creating a human being, perform any procedure or provide, prescribe or administer any thing that would ensure or increase the probability that an embryo will be of a particular sex, or that would identify the sex of an in vitro embryo, except to prevent, diagnose or treat a sex-linked disorder or disease; (f) alter the genome of a cell of a human being or in vitro embryo such that the alteration is capable of being transmitted to descendants; (g) transplant a sperm, ovum, embryo or foetus of a non-human life form into a human being; (h) for the purpose of creating a human being, make use of any human reproductive material or an in vitro embryo that is or was transplanted into a non-human life form; (i) create a chimera, or transplant a chimera into either a human being or a non-human life form; or (j) create a hybrid for the purpose of reproduction, or transplant a hybrid into either a human being or a non-human life form. ### Offers (2) No person shall offer to do, or advertise the doing of, anything prohibited by this section. ### Payment for prohibited act (3) No person shall pay or offer to pay consideration to any person for doing anything prohibited by this section. ### Payment for surrogacy 6 (1) No person shall pay consideration to a female person to be a surrogate mother, offer to pay such consideration or advertise that it will be paid. ### Acting as intermediary (2) No person shall accept consideration for arranging for the services of a surrogate mother, offer to make such an arrangement for consideration or advertise the arranging of such services. ### Payment to intermediaries (3) No person shall pay consideration to another person to arrange for the services of a surrogate mother, offer to pay such consideration or advertise the payment of it. ### Surrogate mother — minimum age (4) No person shall counsel or induce a female person to become a surrogate mother, or perform any medical procedure to assist a female person to become a surrogate mother, knowing or having reason to believe that the female person is under 21 years of age. ### Validity of agreement (5) This section does not affect the validity under provincial law of any agreement under which a person agrees to be a surrogate mother. ### Purchase of gametes 7 (1) No person shall purchase, offer to purchase or advertise for the purchase of sperm or ova from a donor or a person acting on behalf of a donor. ### Purchase or sale of embryos (2) No person shall (a) purchase, offer to purchase or advertise for the purchase of an in vitro embryo; or (b) sell, offer for sale or advertise for sale an in vitro embryo. ### Purchase of other reproductive material (3) No person shall purchase, offer to purchase or advertise for the purchase of a human cell or gene from a donor or a person acting on behalf of a donor, with the intention of using the gene or cell to create a human being or of making it available for that purpose. ### Exchanges included (4) In this section, “purchase” or “sell” includes to acquire or dispose of in exchange for property or services. ### Use of reproductive material without consent 8 (1) No person shall make use of human reproductive material for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its use for that purpose. ### Posthumous use without consent (2) No person shall remove human reproductive material from a donor’s body after the donor’s death for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its removal for that purpose. ### Use of in vitro embryo without consent (3) No person shall make use of an in vitro embryo for any purpose unless the donor has given written consent, in accordance with the regulations, to its use for that purpose. ### Gametes obtained from minor 9 No person shall obtain any sperm or ovum from a donor under 18 years of age, or use any sperm or ovum so obtained, except for the purpose of preserving the sperm or ovum or for the purpose of creating a human being that the person reasonably believes will be raised by the donor. ### Purpose 10 (1) The purpose of this section is to reduce the risks to human health and safety arising from the use of sperm or ova for the purpose of assisted human reproduction, including the risk of the transmission of disease. ### Distribution, etc. of gametes (2) Subject to subsection (3), no person shall distribute, make use of or import any of the following for the purpose of assisted human reproduction: (a) sperm that has been obtained from a donor and that is meant for the use of a female person other than a spouse, common-law partner or sexual partner of the donor; (b) an ovum that has been obtained from a donor and that is meant for the use of a female person other than the donor or the spouse, common-law partner or sexual partner of the donor; or (c) an ovum that has been obtained from a donor and that is meant for the donor’s use as a surrogate mother. ### Exception (3) Subsection (2) does not apply if (a) tests have been conducted in respect of the sperm or ovum in accordance with the regulations, and the sperm or ovum has been obtained, prepared, preserved, quarantined, identified, labelled and stored and its quality assessed in accordance with the regulations; and (b) the donor of the sperm or ovum has been screened and tested, and the donor’s suitability has been assessed, in accordance with the regulations. ### Testing, etc. in respect of gametes (4) No person shall, except in accordance with the regulations, engage in any activity described in paragraph (3)(a) or (b) in respect of any of the following with the intention of distributing or making use of it for the purpose of assisted human reproduction: (a) sperm described in paragraph (2)(a); (b) an ovum described in paragraph (2)(b); or (c) an ovum described in paragraph (2)(c). ### Definition of *common-law partner* (5) In this section, *common-law partner*, in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship at the relevant time, having so cohabited for a period of at least one year. 11 [Repealed, 2012, c. 19, s. 718] ### Reimbursement of expenditures 12 (1) No person shall, except in accordance with the regulations, (a) reimburse a donor for an expenditure incurred in the course of donating sperm or an ovum; (b) reimburse any person for an expenditure incurred in the maintenance or transport of an in vitro embryo; or (c) reimburse a surrogate mother for an expenditure incurred by her in relation to her surrogacy. ### Receipts (2) No person shall reimburse an expenditure referred to in subsection (1) unless a receipt is provided to that person for the expenditure. ### No reimbursement (3) No person shall reimburse a surrogate mother for a loss of work-related income incurred during her pregnancy, unless (a) a qualified medical practitioner certifies, in writing, that continuing to work may pose a risk to her health or that of the embryo or foetus; and (b) the reimbursement is made in accordance with the regulations. 13 [Repealed, 2012, c. 19, s. 720] 14 [Repealed before coming into force, 2012, c. 19, s. 720] 15 [Repealed before coming into force, 2012, c. 19, s. 720] 16 [Repealed before coming into force, 2012, c. 19, s. 720] 17 [Repealed before coming into force, 2012, c. 19, s. 720] 18 [Repealed before coming into force, 2012, c. 19, s. 720] 19 [Repealed before coming into force, 2012, c. 19, s. 720] ## Responsibility of Minister ### Assisted human reproduction policy 20 (1) The Minister is responsible for the policy of the Government of Canada respecting assisted human reproduction and any other matter that, in the opinion of the Minister, relates to the subject-matter of this Act. (2) [Repealed, 2012, c. 19, s. 721] 21 [Repealed, 2012, c. 19, s. 722] 22 [Repealed, 2012, c. 19, s. 722] 23 [Repealed, 2012, c. 19, s. 722] 24 [Repealed, 2012, c. 19, s. 722] 25 [Repealed, 2012, c. 19, s. 722] 26 [Repealed, 2012, c. 19, s. 722] 27 [Repealed, 2012, c. 19, s. 722] 28 [Repealed, 2012, c. 19, s. 722] 29 [Repealed, 2012, c. 19, s. 722] 30 [Repealed, 2012, c. 19, s. 722] 31 [Repealed, 2012, c. 19, s. 722] 32 [Repealed, 2012, c. 19, s. 722] 33 [Repealed, 2012, c. 19, s. 722] 34 [Repealed, 2012, c. 19, s. 722] 35 [Repealed, 2012, c. 19, s. 722] 36 [Repealed, 2012, c. 19, s. 722] 37 [Repealed, 2012, c. 19, s. 722] 38 [Repealed, 2012, c. 19, s. 722] 39 [Repealed, 2012, c. 19, s. 722] ## Administration and Enforcement 40 [Repealed before coming into force, 2012, c. 19, s. 724] 41 [Repealed before coming into force, 2012, c. 19, s. 724] 42 [Repealed before coming into force, 2012, c. 19, s. 724] 43 [Repealed before coming into force, 2012, c. 19, s. 724] ### Taking measures 44 (1) If the Minister has reasonable grounds to believe that this Act has been, or is likely to be, contravened, the Minister may take, or order any person to take, all reasonable measures that the Minister considers necessary to mitigate the effects of the contravention or to prevent the contravention. (2) and (3) [Repealed, 2012, c. 19, s. 725] ### Personal liability (4) No person who takes measures under this section, or who takes measures specified in an order made under this section, is personally liable either civilly or criminally in respect of any act or omission in the course of taking those measures unless it is established that the person acted in bad faith. ### Exception (5) Subsection (4) does not apply to a person who has committed a contravention of this Act. ### Statutory Instruments Act (6) For greater certainty, orders made under this section are not statutory instruments within the meaning of the Statutory Instruments Act. ### Definitions 45 The following definitions apply in sections 47 to 62 and 65. *information* means information that is recorded in any form. (document) *material* means an embryo or part of one, a foetus or part of one or any human reproductive material outside the body of a human being, or any other thing. (matériel) ### Designation of inspectors 46 (1) The Minister may designate persons or classes of persons employed by the government of Canada or of a province as inspectors for the purposes of the administration and enforcement of this Act. ### Certificates to be produced (2) An inspector shall be given a certificate in a form established by the Minister attesting to the inspector’s designation and, on entering any place or conveyance under subsection 47(1), the inspector shall, if so required, produce the certificate to the person in charge of that place or conveyance. ### Entry by inspectors 47 (1) Subject to section 48, an inspector may, for a purpose related to verifying compliance or preventing non-compliance with any of sections 8, 10 and 12, enter any place or conveyance in which the inspector has reasonable grounds to believe that there is any activity, material or information in respect of which any of those sections applies. ### Inspection (2) An inspector entering a place or conveyance may, for a purpose set out in subsection (1), (a) examine any material or information that is relevant to that purpose; (b) require any person in the place or conveyance to produce, in the manner and form requested by the inspector, any such material or information; (c) open and examine any receptacle or package that the inspector believes on reasonable grounds contains such material or information; (d) take, or require any person in the place or conveyance to produce, a sample of such material; and (e) conduct any test or analysis or take any measurement of such material. ### Examination of information (3) In carrying out an inspection, an inspector may, for a purpose set out in subsection (1), (a) examine and make copies of or extracts from any books, documents or other records that the inspector believes on reasonable grounds contain information that is relevant to that purpose; (b) require any person to produce such books, documents or other records for examination or copying; (c) use or cause to be used any computer system to examine information relevant to that purpose that is contained in or available to the computer system; (d) reproduce such information in the form of a printout or other intelligible output for examination or copying; and (e) use or cause to be used any copying equipment. ### Assistance and information to inspector (4) The owner or person in charge of a place entered by an inspector under subsection (1) and every person found in that place shall give the inspector all reasonable assistance and furnish them with any information that they may reasonably require. ### Warrant to enter dwelling-house 48 (1) Where a place referred to in subsection 47(1) is a dwelling-house, an inspector may not enter it without the consent of the occupant, except under the authority of a warrant issued under subsection (2). ### Authority to issue warrant (2) If, on ex parte application, a justice of the peace is satisfied by information on oath that (a) the conditions for entry described in subsection 47(1) exist in relation to a dwelling-house, (b) entry to the dwelling-house is necessary for a purpose related to verifying compliance or preventing non-compliance with any of sections 8, 10 and 12, and (c) entry to the dwelling-house has been refused or there are reasonable grounds for believing that entry will be refused, the justice of the peace may issue a warrant authorizing the inspector named in it to enter the dwelling-house, subject to any conditions that may be specified in the warrant. ### Use of force (3) In executing a warrant issued under subsection (2), the inspector named in it shall not use force unless the inspector is accompanied by a peace officer and the use of force has been specifically authorized in the warrant. ### Obstruction and false statements 49 (1) No person shall obstruct or hinder, or knowingly make any false or misleading statement either orally or in writing to, an inspector engaged in carrying out duties under this Act. ### Interference (2) Except with the authority of an inspector, no person shall remove, alter or interfere in any way with material or information seized under this Act. ### Seizure by inspector 50 (1) An inspector who enters a place or conveyance under section 47 may seize any material or information by means of which, or in relation to which, the inspector believes on reasonable grounds this Act has been contravened. ### Storage and removal (2) An inspector may direct that seized material or information be kept or stored in the place where it was seized or be removed to any other proper place. ### Application for restoration 51 (1) A person from whom material or information is seized may, within 60 days after the date of the seizure, apply to a provincial court judge within whose jurisdiction the seizure was made for an order of restoration, if the person sends to the Minister notice of their intention to do so. ### Order of restoration (2) The provincial court judge may order that seized material or information be restored immediately to the applicant if, on hearing the application, the judge is satisfied that (a) the applicant is entitled to possession of it; and (b) it will not be required as evidence in any proceedings under this Act. ### Order of later restoration (3) If, on hearing an application, a provincial court judge is satisfied that the applicant is entitled to possession of seized material or information but is not satisfied as regards paragraph (2)(b), the judge may order that the material or information be restored to the applicant (a) on the expiry of 180 days after the date of the seizure if no proceedings under this Act have been commenced before that time; or (b) on the final conclusion of proceedings under this Act. ### Exception (4) A provincial court judge may not make an order for the restoration of material or information if it has been forfeited by consent under subsection 52(2). ### Forfeiture 52 (1) If no application is made under subsection 51(1) for the restoration of seized material or information within 60 days after the date of the seizure, or an application has been made but on the hearing of the application no order of restoration is made, the material or information is forfeited to Her Majesty. ### Forfeiture with consent (2) Where an inspector has seized material or information and the owner or the person in whose possession it was at the time of the seizure consents in writing to its forfeiture, the material or information is forfeited to Her Majesty. ### Disposal (3) Subject to section 54, an inspector may dispose of material or information forfeited to Her Majesty in any manner that the designated officer, as defined in the regulations, directs. ### Search and seizure under warrant 53 (1) An inspector is a public officer for the purposes of the application of section 487 of the Criminal Code in respect of an offence under this Act. ### Where warrant not necessary (2) An inspector may exercise without a warrant any of the powers conferred by virtue of subsection (1) if the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practicable to obtain a warrant. ### Maintaining viable gametes and embryos 54 The designated officer, as defined in the regulations, shall make reasonable efforts to preserve any viable sperm, ovum or in vitro embryo that is seized under this Act or the Criminal Code. Any further measures shall be consistent with the consent of the donor or, if the consent cannot be obtained, shall be in accordance with the regulations. ### Designation of analysts 55 The Minister may designate any person as an analyst for the purpose of the administration and enforcement of this Act. ### Analysis and examination 56 (1) An inspector may submit to an analyst, for analysis or examination, any material or information seized by the inspector. ### Certificate or report (2) An analyst who has made an analysis or examination may issue a certificate or report setting out the results of the analysis or examination. ### Certificate of analyst 57 (1) Subject to subsections (2) and (3), in any prosecution for an offence under this Act, a certificate purporting to be signed by an analyst, stating that any material or information has been analysed or examined by the analyst and stating the results of the analysis or examination, is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate without proof of the signature or official character of the person appearing to have signed it. ### Requiring attendance of analyst (2) The party against whom a certificate of an analyst is produced under subsection (1) may, with leave of the court, require the attendance of the analyst for the purpose of cross-examination. ### Notice of intention to produce certificate (3) No certificate shall be admitted in evidence under subsection (1) unless, before the trial, the party intending to produce the certificate has given reasonable notice of that intention, together with a copy of the certificate, to the party against whom it is intended to be produced. ### Agreements for enforcement 58 The Minister may enter into agreements with any department or agency of the government of Canada or of a province or with any law enforcement agency with respect to the administration and enforcement of this Act. 59 [Repealed before coming into force, 2012, c. 19, s. 733] ## Offences ### Offence and punishment 60 A person who contravenes any of sections 5 to 7 and 9 is guilty of an offence and (a) is liable, on conviction on indictment, to a fine not exceeding $500,000 or to imprisonment for a term not exceeding ten years, or to both; or (b) is liable, on summary conviction, to a fine not exceeding $250,000 or to imprisonment for a term not exceeding four years, or to both. ### Offence and punishment 61 A person who contravenes any provision of this Act — other than any of sections 5 to 7 and 9 — or of the regulations or an order made under subsection 44(1) is guilty of an offence and (a) is liable, on conviction on indictment, to a fine not exceeding $250,000 or to imprisonment for a term not exceeding five years, or to both; or (b) is liable, on summary conviction, to a fine not exceeding $100,000 or to imprisonment for a term not exceeding two years, or to both. ### Court orders 62 A court that imposes a fine or term of imprisonment on a person in respect of an offence under this Act may (a) order the forfeiture and disposition, subject to section 54, of any material or information by means of which or in relation to which the offence was committed; or (b) on application by the Attorney General of Canada, order the person not to engage in any activity that, in the court’s opinion, may lead to the commission of an offence under this Act. ### Consent of Attorney General 63 A prosecution for an offence under this Act may not be instituted except with the consent of the Attorney General of Canada. ### Notice to interested authorities 64 The Minister may notify any interested authority, such as a professional licensing or disciplinary body established under the laws of Canada or a province, of the identity of a person who is charged with an offence under this Act or who there are reasonable grounds to believe may have acted in breach of any professional code of conduct. ## Regulations ### Regulations of Governor in Council 65 (1) The Governor in Council may make regulations for carrying into effect the purposes and provisions of this Act and, in particular, may make regulations (a) defining *donor*, in relation to an in vitro embryo; (b) for the purposes of section 8, respecting the giving of consent for the use of human reproductive material or an in vitro embryo or for the removal of human reproductive material; (c) respecting the tests to be conducted in respect of sperm and ova described in any of paragraphs 10(2)(a) to (c), and the obtaining, preparation, preservation, quarantining, identification, labelling and storage of, and the assessment of the quality of, the sperm and ova; (d) respecting the testing and screening of, and the assessment of the suitability of, donors described in paragraph 10(3)(b); (d.1) respecting the disposition of sperm and ova described in any of paragraphs 10(2)(a) to (c); (d.2) respecting the tracing of sperm and ova described in any of paragraphs 10(2)(a) to (c), including regulations that require (i) measures to be taken to identify persons who have distributed, made use of or imported the sperm or ova for the purpose of assisted human reproduction, or who are storing any of them for that purpose, (ii) the communication of information to the persons referred to in subparagraph (i), to the donors of the sperm and ova and to the persons who have undergone assisted human reproduction procedures in which the sperm or ova were used, (iii) measures to be taken to determine the nature, cause and extent of the risks to human health and safety, and (iv) measures to be taken in respect of the sperm and ova to reduce those risks; (d.3) respecting the reporting to the Minister of information with respect to an activity described in section 10; (e) respecting the reimbursement of expenditures for the purposes of subsection 12(1), including providing for the expenditures that may be reimbursed; (e.1) for the purposes of subsection 12(3), respecting the reimbursement of a loss of income; (f) to (m) [Repealed, 2012, c. 19, s. 737] (n) respecting the creation and maintenance of records by any person who (i) engages in an activity for which written consent is required under section 8, (ii) engages in an activity described in section 10, or (iii) makes a reimbursement under section 12; (o) to (q) [Repealed, 2012, c. 19, s. 737] (r) authorizing the Minister, in the manner set out in the regulations, to require any person described in paragraph (n) to provide to the Minister any records that the person is required by the regulations to create or maintain, and any additional information related to the activity described in subparagraph (n)(i), (ii) or (iii), and requiring that person to provide to the Minister those records and that information within the time and in the manner set out in the regulations; (s) to (w) [Repealed, 2012, c. 19, s. 737] (x) respecting the treatment and disposition of material or information seized under this Act or the Criminal Code ; (y) for the purposes of subsection 51(1), prescribing the information to be contained in the notice and the time and manner of sending it; (z) respecting the further measures referred to in section 54; (z.1) respecting the giving of consent for the purposes of section 54; (z.2) defining *designated officer* for the purposes of subsection 52(3) and section 54; (z.3) exempting any person from the application of section 10, conditionally or unconditionally, in the circumstances provided for in the regulations; and (z.4) exempting from the application of subsection 12(2), conditionally or unconditionally, in the circumstances provided for in the regulations, any person who reimburses expenditures referred to in the regulations. ### Incorporation by reference (2) The regulations may incorporate any document by reference, regardless of its source, either as it reads on a particular date or as it is amended from time to time. ### Documents in one language (3) Where a document that is available in both official languages has been incorporated by reference as amended from time to time, an amendment to one language version of that document is not incorporated until the corresponding amendment is made to the other language version. ### Statutory Instruments Act (4) A document does not become a regulation within the meaning of the Statutory Instruments Act merely because it is incorporated by reference. ### Proposed regulations to be laid before Parliament 66 (1) Before a regulation is made under section 65, the Minister shall lay the proposed regulation before each House of Parliament. ### Report by committee (2) A proposed regulation that is laid before Parliament shall be referred to the appropriate committee of each House, as determined by the rules of that House, and the committee may review the proposed regulation and report its findings to the House. ### Standing Committee on Health (2.1) The committee of the House of Commons referred to in subsection (2) shall be the Standing Committee on Health or, in the event that there is not a Standing Committee on Health, the appropriate committee of the House. ### Making of regulations (3) A regulation may not be made before the earliest of (a) 30 sitting days after the proposed regulation is laid before Parliament, (b) 160 calendar days after the proposed regulation is laid before Parliament, and (c) the day after the appropriate committee of each House of Parliament has reported its findings with respect to the proposed regulation. ### Explanation (4) The Minister shall take into account any report of the committee of either House. If a regulation does not incorporate a recommendation of the committee of either House, the Minister shall lay before that House a statement of the reasons for not incorporating it. ### Alteration (5) A proposed regulation that has been laid before Parliament need not again be so laid prior to the making of the regulation, whether it has been altered or not. ### Exceptions 67 (1) A regulation may be made without being laid before either House of Parliament if the Minister is of the opinion that (a) the changes made by the regulation to an existing regulation are so immaterial or insubstantial that section 66 should not apply in the circumstances; or (b) the regulation must be made immediately in order to protect the health or safety of any person. ### Notice of opinion (2) If a regulation is made without being laid before Parliament, the Minister shall lay before each House of Parliament a statement of the Minister’s reasons. 68 [Repealed, 2012, c. 19, s. 738] 69 [Repealed, 2012, c. 19, s. 738] 70 [Repealed, 2012, c. 19, s. 738] 71 [Repealed, 2012, c. 19, s. 738] ## Consequential Amendments ## Access to Information Act 72 [Amendment] 73 [Amendment] ## Financial Administration Act 74 [Amendment] ## Privacy Act 75 [Amendment] 76 [Repealed before coming into force, 2012, c. 19, s. 739] ## Public Service Superannuation Act 77 [Amendment] ## Coming into Force ### Order of Governor in Council * 78 The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council. * [Note: Act, other than sections 8, 12, 14 to 19, 21 to 59, 72 and 74 to 77, in force April 22, 2004, see SI/2004-49; sections 21 to 24, other than paragraphs 24(1)(a), (e) and (g), sections 25 to 39, 72, 74, 75 and 77 in force January 12, 2006, see SI/2005-42; section 8 in force December 1, 2007, see SI/2007-67; section 44 in force June 29, 2012, see 2012, c. 19, s. 740; sections 45 to 58 in force June 9, 2019, section 12 in force June 9, 2020, see SI/2019-38.]", "response": "## Analysis of LEGISLATION-FED: Assisted Human Reproduction Act\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nWhen applying this legislation to immigration cases, practitioners should consider both the explicit requirements and the underlying policy objectives. The provisions must be interpreted in light of the Canadian Charter of Rights and Freedoms, international obligations, and relevant jurisprudence. Particular attention should be paid to procedural fairness requirements and the proper exercise of discretionary authority."}
{"prompt": "What obligations does this Federal legislation from the Canadian government create for immigration processes?\n\n# Air Travellers Security Charge Act SC 2002, c 9, s 5 An Act to implement an air travellers security charge Assented to 2002-3-27 ## Short Title ### Short title 1 This Act may be cited as the Air Travellers Security Charge Act. ## Interpretation ### Definitions 2 The definitions in this section apply in this Act. *accredited representative* means a person who is entitled under the Foreign Missions and International Organizations Act to the tax exemptions specified in Article 34 of the Convention set out in Schedule I to that Act or in Article 49 of the Convention set out in Schedule II to that Act. (représentant accrédité) *Agency* means the Canada Revenue Agency continued by subsection 4(1) of the Canada Revenue Agency Act. (Agence) *air carrier* means a person who carries on a business of transporting individuals by air. (transporteur aérien) *air transportation service* means all of the transportation of an individual by air, by one or more air carriers, included in a continuous journey of the individual. (service de transport aérien) *assessment* means an assessment under this Act and includes a reassessment. (cotisation) *bank* means a bank as defined in section 2 of the Bank Act or an authorized foreign bank, as defined in that section, that is not subject to the restrictions and requirements referred to in subsection 524(2) of that Act. (banque) *charge*, except in the definition “security interest” and section 74, means a charge payable under section 11. (droit) *chargeable emplanement* means an embarkation by an individual at a listed airport on an aircraft operated by a particular air carrier, except if (a) the embarkation (i) is for the purpose of transferring from a particular flight to a connecting flight and (A) in the case of an air transportation service acquired in Canada, the particular flight included a chargeable emplanement by the individual, (B) the individual embarked on the particular flight outside Canada, or (C) the particular flight included an embarkation that, because of this subparagraph, is not a chargeable emplanement, (ii) is a reboarding of the aircraft to resume a direct flight, (iii) is a boarding of an aircraft that is being used to transport, on a direct flight, the individual to a destination in Canada that is not a listed airport, or (iv) results from the provision of emergency or ground services to an aircraft or its occupants; (b) the individual is (i) an accredited representative, (ii) an infant (other than an infant who has been issued a ticket that entitles the infant to occupy a seat for a part of the service that includes a chargeable emplanement), (iii) an employee (A) of the particular carrier, or of another air carrier that is a subsidiary wholly-owned corporation (in this subparagraph having the same meaning as in the Income Tax Act) of the particular carrier or of which the particular carrier is a subsidiary wholly-owned corporation, and (B) whose embarkation is in the course of that employment, or (iv) a prescribed individual; (c) the embarkation is (i) on an aircraft whose maximum certified take-off weight does not exceed 2 730 kg, (ii) on an aircraft referred to in subsection 56(1) of the Canada Transportation Act, (iii) in the course of a service listed in, or prescribed under, subsection 56(2) of the Canada Transportation Act, or (iv) in the course of an air ambulance service; or (d) the embarkation is made in prescribed circumstances. ( embarquement assujetti) *Commissioner* means the Commissioner of Revenue appointed under section 25 of the Canada Revenue Agency Act. (commissaire) *continental zone* means (a) Canada; (b) the United States (except Hawaii); and (c) the Islands of St. Pierre and Miquelon. ( zone continentale) *continuous journey* means a journey of an individual (a) for which one ticket is issued; or (b) for which two or more tickets are issued if (i) there is no stopover between any of the legs of the journey for which separate tickets are issued, (ii) all the tickets are issued by the same issuer or by two or more issuers through one agent acting on behalf of all such issuers, and (iii) evidence satisfactory to the Minister that there is no stopover between any of the legs of the journey for which separate tickets are issued is (A) maintained by the issuer or agent if the tickets are issued at the same time, or (B) submitted by the issuer or agent if the tickets are issued at different times. ( voyage continu) *data* means representations, in any form, of information or concepts. (données) *designated air carrier* means an air carrier that is authorized by the Canadian Transportation Agency under Part II of the Canada Transportation Act to operate a domestic service or an international service, but does not include an air carrier that provides services that include only emplanements that are described in paragraph (c) or (d) of the definition chargeable emplanement. (transporteur aérien autorisé) *fiscal half-year* means a fiscal half-year as determined under subsection 16(2). (semestre d’exercice) *fiscal month* means a fiscal month as determined under subsection 16(1). (mois d’exercice) *fiscal year* of a designated air carrier means the same period that is the carrier’s fiscal year under Part IX of the Excise Tax Act. (exercice) *Her Majesty* means Her Majesty in right of Canada. (Sa Majesté) *judge*, in respect of any matter, means a judge of a superior court having jurisdiction in the province in which the matter arises or a judge of the Federal Court. (juge) *listed airport* means an airport listed in the schedule. (aéroport désigné) *Minister* means the Minister of National Revenue. (ministre) *month* means a period beginning on a particular day in a calendar month and ending on (a) the day immediately before the day in the next calendar month that has the same calendar number as the particular day; or (b) if the next calendar month does not have a day that has the same calendar number as the particular day, the last day of that next calendar month. ( mois) *person* means an individual, partnership, corporation, trust or estate, or a body that is a society, union, club, association, commission or other organization of any kind whatever. (personne) *prescribed* means (a) in the case of a form or the manner of filing a form, authorized by the Minister; (b) in the case of the information to be given on or with a form, specified by the Minister; and (c) in any other case, prescribed by regulation or determined in accordance with rules prescribed by regulation. ( Version anglaise seulement) *record* means any material on which data are recorded or marked and which is capable of being read or understood by a person or a computer system or other device. (registre) *registered charity* has the same meaning as in subsection 248(1) of the Income Tax Act. (organisme de bienfaisance enregistré) *reporting period* means a reporting period as determined under section 16.1. (période de déclaration) *secured creditor* means (a) a particular person who has a security interest in the property of another person; or (b) a person who acts for or on behalf of the particular person with respect to the security interest and includes (i) a trustee appointed under a trust deed relating to a security interest, (ii) a receiver or receiver-manager appointed by the particular person or appointed by a court on the application of the particular person, (iii) a sequestrator, or (iv) any other person performing a function similar to that of a person referred to in any of subparagraphs (i) to (iii). ( créancier garanti) *security interest* means, for the purposes of the definition “secured creditor”, section 15 and subsection 75(3), any interest in property that secures payment or performance of an obligation and includes an interest created by or arising out of a debenture, mortgage, hypothec, lien, pledge, charge, deemed or actual trust, assignment or encumbrance of any kind whatever, however or whenever arising, created, deemed to arise or otherwise provided for. (garantie) *stopover* means the disembarkation of an individual from an aircraft other than a disembarkation (a) that is solely for the purpose of transferring to a connecting flight; (b) that is in the course of a direct flight if the individual reboards the aircraft to resume the flight; or (c) that results from the provision of emergency or ground services to an aircraft or its occupants. ( escale) *Tax Court* means the Tax Court of Canada. (Cour de l’impôt) ### Meaning of administration or enforcement of this Act 3 For greater certainty, a reference in this Act to *administration or enforcement of this Act* includes the collection of any amount payable under this Act. ### Deemed issuance of ticket 4 If no ticket is issued for all or part of a journey, and it is reasonable to consider that a ticket would ordinarily be issued by a person for the journey or for that part, as the case may be, such a ticket is, except for the purposes of paragraph 11(2)(c), deemed to have been issued by the person. ### Separate journeys deemed 5 A journey that would, if this Act were read without reference to this section, be a continuous journey of an individual that includes more than one chargeable emplanement by the individual at a particular listed airport is, despite any other provision of this Act, deemed (a) not to be a continuous journey; and (b) to be a series of separate continuous journeys each of which commences with the second and any subsequent chargeable emplanement from the particular listed airport. ### Associated persons 5.1 (1) For the purposes of this Act, a particular corporation is associated with another corporation if, by reason of subsections 256(1) to (6) of the Income Tax Act, the particular corporation is associated with the other corporation for the purposes of that Act. ### Corporations controlled by same person or group (2) For the purposes of this Act, a person other than a corporation is associated with a particular corporation if the particular corporation is controlled by the person or by a group of persons of which the person is a member and each of whom is associated with each of the others. ### Partnership or trust (3) For the purposes of this Act, a person is associated with (a) a partnership if the total of the shares of the profits of the partnership to which the person and all other persons who are associated with the person are entitled is more than half of the total profits of the partnership, or would be more than half of the total profits of the partnership if it had profits; and (b) a trust if the total of the values of the interests in the trust of the person and all other persons who are associated with the person is more than half of the total value of all interests in the trust. ### Association with third person (4) For the purposes of this Act, a person is associated with another person if each of them is associated with the same third person. ## Application ### Binding on Her Majesty 6 This Act is binding on Her Majesty in right of Canada or a province. ### Application to air transportation services 7 This Act applies in respect of (a) the acquisition, on or before March 31, 2002, of an air transportation service for which any consideration is paid or becomes payable after March 31, 2002 and that includes a chargeable emplanement (i) made after March 31, 2002, if the service is acquired in Canada, or (ii) made after May 31, 2002, if the service is acquired outside Canada; and (b) the acquisition after March 31, 2002 of an air transportation service that includes a chargeable emplanement (i) made after March 31, 2002, if the service is acquired in Canada, or (ii) made after May 31, 2002, if the service is acquired outside Canada. ## Administration and Officers ### Minister’s duty 8 The Minister shall administer and enforce this Act and the Commissioner may exercise the powers and perform the duties of the Minister under this Act. ### Officers and employees 9 (1) The officers, employees and agents that are necessary to administer and enforce this Act shall be appointed, employed or engaged in the manner authorized by law. ### Delegation of powers (2) The Minister may authorize an officer or agent or a class of officers or agents to exercise powers or perform duties of the Minister, including any judicial or quasi-judicial power or duty of the Minister, under this Act. ### Administration of oaths 10 Any officer, if designated by the Minister for the purpose, may administer oaths and take and receive affidavits, declarations and affirmations for the purposes of or incidental to the administration or enforcement of this Act, and every officer so designated has for those purposes all the powers of a commissioner for administering oaths or taking affidavits. ## Charge Payable ### Charge payable 11 (1) Every person who acquires from a designated air carrier all or part of an air transportation service that includes a chargeable emplanement shall pay to Her Majesty a charge as determined under this Act in respect of the service. ### Exceptions (1.1) No charge is payable in respect of an air transportation service that is acquired (a) by a person for the purpose of re-selling the service, if the person sells the service to another person before April 1, 2002 and makes full and final payment to the air carrier in respect of the service before May 1, 2002; or (b) by a registered charity from an air carrier for no consideration, if the service is donated by the charity to an individual for no consideration and in pursuit of its charitable purposes. ### When charge payable (2) The charge in respect of the air transportation service is payable (a) if any consideration is paid or payable for the service, at the time any consideration for the service is first paid or becomes payable; (b) if no consideration is paid or payable for the service, at the time a ticket is issued for the service; or (c) if no consideration is paid or payable for the service and no ticket is issued for the service, at the time of emplanement. ### Amount of charge if service acquired in Canada 12 (1) Subject to subsection (3), if an air transportation service is acquired in Canada, the amount of the charge in respect of the service is (a) $9.46 for each chargeable emplanement included in the service, to a maximum of $18.92, if (i) the service does not include transportation to a destination outside Canada, and (ii) tax under subsection 165(1) of the Excise Tax Act is required to be paid in respect of the service; (b) $9.94 for each chargeable emplanement included in the service, to a maximum of $19.87, if (i) the service does not include transportation to a destination outside Canada, and (ii) tax under subsection 165(1) of the Excise Tax Act is not required to be paid in respect of the service; (c) $16.08 for each chargeable emplanement included in the service, to a maximum of $32.16, if (i) the service includes transportation to a destination outside Canada and does not include transportation to a destination outside the continental zone, and (ii) tax under subsection 165(1) of the Excise Tax Act is required to be paid in respect of the service; (d) $16.89 for each chargeable emplanement included in the service, to a maximum of $33.77, if (i) the service includes transportation to a destination outside Canada and does not include transportation to a destination outside the continental zone, and (ii) tax under subsection 165(1) of the Excise Tax Act is not required to be paid in respect of the service; or (e) $34.42, if the service includes transportation to a destination outside the continental zone. ### Amount of charge if service acquired outside Canada (2) Subject to subsection (3), if an air transportation service is acquired outside Canada, the amount of the charge in respect of the service is (a) $16.08 for each chargeable emplanement by an individual on an aircraft used to transport the individual to a destination outside Canada but within the continental zone, to a maximum of $32.16, if (i) the service does not include transportation to a destination outside the continental zone, and (ii) tax under subsection 165(1) of the Excise Tax Act is required to be paid in respect of the service; (b) $16.89 for each chargeable emplanement by an individual on an aircraft used to transport the individual to a destination outside Canada but within the continental zone, to a maximum of $33.77, if (i) the service does not include transportation to a destination outside the continental zone, and (ii) tax under subsection 165(1) of the Excise Tax Act is not required to be paid in respect of the service; or (c) $34.42, if the service includes transportation to a destination outside the continental zone. ### Prescribed amount of charge (3) The amount of the charge in respect of a prescribed air transportation service is the lesser of (a) the amount that is determined in respect of the service under subsection (1) or (2), as the case may be, and (b) the amount that is prescribed, or determined in accordance with prescribed rules, in respect of the service. ### Air transportation service deemed to be acquired in Canada 13 (1) An air transportation service that is acquired outside Canada is deemed to have been acquired in Canada and not outside Canada if any consideration for the service is paid (a) by transmission from within Canada to a place outside Canada, by mail or electronic means, of cash, a cheque, a money order, a credit or debit card payment or any similar means of payment, to a ticket office, travel agency or air carrier or any representative of any of them; (b) by delivery of an amount to an agency located within Canada for transmission to a ticket office, travel agency, air carrier or any representative of any of them located outside Canada; or (c) by any other arrangement with a person outside Canada for the benefit or convenience of a person who is resident in Canada. ### Charter flights (2) If an air transportation service that begins in Canada is acquired outside Canada by a person in the course of a charter operation, the service is deemed to have been acquired in Canada and not outside Canada. ## Collection of Charge ### Duty of designated air carrier to collect charge 14 (1) Subject to subsections (2) and (3), every designated air carrier from whom all or part of an air transportation service is acquired by a person who is required by this Act to pay a charge in respect of that service shall, as an agent of Her Majesty, collect the charge not later than the time the charge becomes payable by the person. ### Multiple carriers — service acquired in Canada (2) If an air transportation service acquired in Canada is comprised of transportation of an individual by air by two or more designated air carriers, any charge that is payable in respect of the service shall be collected (a) if all of the tickets for the service are issued by a designated air carrier, by that carrier; or (b) in any other case, by the designated air carrier operating the aircraft on which the individual first makes a chargeable emplanement. ### Issuing carrier deemed to be supplier of service (3) If a ticket for an air transportation service acquired in Canada is issued to a person by a designated air carrier that does not provide any part of the air transportation service, the air transportation service is deemed to have been acquired by the person from that designated air carrier. ### Multiple carriers — service acquired outside Canada (4) If an air transportation service acquired outside Canada is comprised of transportation of an individual by air by two or more designated air carriers, any charge that is payable in respect of the service shall be collected by the designated air carrier operating the first aircraft that transports the individual to a destination outside Canada and on which the individual makes a chargeable emplanement included in the service. ### Joint and several or solidary liability (5) If a designated air carrier issues a ticket and accepts consideration on behalf of another designated air carrier for an air transportation service acquired outside Canada in respect of which the other carrier is required to collect a charge, those carriers are jointly and severally or solidarily liable for all obligations under this Act arising from, or as a consequence of, the acquisition of the service or any failure to collect or pay the charge. ### Trust for amounts collected 15 (1) Every person who collects an amount as or on account of a charge is deemed, for all purposes and despite any security interest (other than a prescribed security interest) in the amount, to hold the amount in trust for Her Majesty, separate and apart from the property of the person and from property held by any secured creditor of the person that, but for a security interest, would be property of the person, until the amount is paid to the Receiver General or withdrawn under subsection (3). ### Amounts collected before bankruptcy (2) Subsection (1) does not apply, at or after the time a person becomes a bankrupt (within the meaning of the Bankruptcy and Insolvency Act), to any amounts that, before that time, were collected or became collectible by the person as or on account of a charge. ### Withdrawal from trust (3) A person who holds amounts in trust by reason of subsection (1) may withdraw from the amounts any amount refunded by the person under section 32. ### Extension of trust (4) Despite any other provision of this Act, any other enactment of Canada (except the Bankruptcy and Insolvency Act), any enactment of a province or any other law, if at any time an amount deemed by subsection (1) to be held by a person in trust for Her Majesty is not remitted to the Receiver General or withdrawn in the manner and at the time provided under this Part, property of the person and property held by any secured creditor of the person that, but for a security interest, would be property of the person, equal in value to the amount so deemed to be held in trust, is deemed (a) to be held, from the time the amount was collected by the person, in trust for Her Majesty, separate and apart from the property of the person, whether or not the property is subject to a security interest, and (b) to form no part of the estate or property of the person from the time the amount was collected, whether or not the property has in fact been kept separate and apart from the estate or property of the person and whether or not the property is subject to a security interest and is property beneficially owned by Her Majesty despite any security interest in the property or in the proceeds thereof, and the proceeds of the property shall be paid to the Receiver General in priority to all security interests. ### No action for collection of charge 15.1 No person, other than Her Majesty, may bring an action or proceeding against any person for acting in compliance or intended compliance with this Act by collecting an amount as or on account of the charge. ## General Provisions Concerning Charges and Other Amounts Payable ## Fiscal Periods ### Determination of fiscal months 16 (1) The fiscal months of a designated air carrier shall be determined in accordance with the following rules: (a) if fiscal months of the carrier have been determined under subsection 243(2) or (4) of the Excise Tax Act for the purposes of Part IX of that Act, each of those fiscal months is a fiscal month of the carrier for the purposes of this Act; (b) if fiscal months of the carrier have not been determined under subsection 243(2) or (4) of the Excise Tax Act for the purposes of Part IX of that Act, the carrier may choose, at the time of registration under section 17, as their fiscal months for the purposes of this Act, fiscal months that meet the requirements set out in subsection 243(2) of the Excise Tax Act ; and (c) if paragraph (a) does not apply and the carrier has not chosen their fiscal months under paragraph (b), each calendar month is a fiscal month of the carrier for the purposes of this Act. ### Determination of fiscal half-years (2) The fiscal half-years of a designated air carrier shall be determined in accordance with the following rules: (a) the period beginning on the first day of the first fiscal month in a fiscal year of the carrier and ending on the earlier of the last day of the sixth fiscal month and the last day in the fiscal year is a fiscal half-year of the carrier; and (b) the period, if any, beginning on the first day of the seventh fiscal month and ending on the last day in the fiscal year of the carrier is a fiscal half-year of the carrier. ## Reporting Periods ### Reporting period — general 16.1 (1) Subject to this section, the reporting period of a designated air carrier is a fiscal month. ### Reporting period — semi-annual (2) On application in the prescribed form and manner by a designated air carrier, the Minister may, in writing, authorize the reporting period of that carrier to be a fiscal half-year in a particular fiscal year if (a) the carrier has been registered for a period exceeding twelve consecutive fiscal months; (b) the total of all charges and amounts collected or required to be collected under this Act by the carrier and any person associated with the carrier in the fiscal year ending immediately before the particular fiscal year did not exceed $120,000; (c) the total of all charges and amounts collected or required to be collected under this Act by the carrier and any person associated with the carrier in the particular fiscal year does not exceed $120,000; and (d) the carrier is in compliance with the Act. ### Deemed revocation (3) An authorization under subsection (2) is deemed to be revoked if the total of all charges and amounts collected or required to be collected under this Act by the carrier and any person associated with the carrier exceeds $120,000 in a fiscal year, which revocation is effective as of the first day after the end of the fiscal half-year in which the excess occurs. ### Revocation — other (4) The Minister may revoke an authorization if (a) the carrier requests in writing the Minister to do so; (b) the carrier fails to comply with the Act; or (c) the Minister considers that the authorization is no longer required. ### Notice of revocation (5) If the Minister revokes an authorization under subsection (4), the Minister shall send a notice in writing of the revocation to the carrier and shall specify in the notice the fiscal month for which the revocation becomes effective. ### Deemed reporting period on revocation (6) If a revocation under subsection (4) becomes effective before the last day of a fiscal half-year of a carrier that is authorized under subsection (2), the period beginning on the first day of the fiscal half-year and ending immediately before the first day of the fiscal month for which the revocation becomes effective is deemed to be a reporting period of the carrier. ## Returns and Payments of Charges and Other Amounts ### Registration 17 (1) Every designated air carrier that is required to collect a charge shall register with the Minister in the prescribed form and manner before the end of the first fiscal month in which the carrier collects or is required to collect charges. ### Returns and payments (2) Every designated air carrier that is registered or is required to register shall, not later than the last day of the first month after each reporting period of the carrier, (a) file a return with the Minister, in the prescribed form and manner containing all prescribed information, for that reporting period; (b) calculate, in the return, the total of (i) all charges required to be collected by the carrier during that reporting period other than such a charge that was collected by the carrier before that reporting period, (ii) all amounts each of which is a charge collected by the carrier during that reporting period at a time before the charge became payable under subsection 11(2) if the time at which the charge becomes so payable is after the end of that reporting period, and (iii) all other amounts collected as or on account of charges by the carrier during that reporting period that were not included in a calculation under subparagraph (i) or (ii) for a previous reporting period; and (c) pay an amount equal to that total to the Receiver General. ### Amount collected as charge by person not required to collect 18 Every person who collects an amount as or on account of a charge and who is not required to pay it to the Receiver General under subsection 17(2) shall, without delay, pay that amount to the Receiver General and report the matter to the Minister in the prescribed form and manner. ### Set-off of refunds 19 If, at any time, a designated air carrier files a return under section 17 in which the carrier reports an amount that is required to be paid under this Act by it and the carrier claims a refund payable to it under this Act at that time, in the return or in another return, or in a separate application filed under this Act with the return, the carrier is deemed to have paid at that time, and the Minister is deemed to have refunded at that time, an amount equal to the lesser of the amount required to be paid and the amount of the refund. ### Definition of electronic payment 20 (1) In this section, *electronic payment* means any payment to the Receiver General that is made through electronic services offered by a person described in any of paragraphs (2)(a) to (d) or by any electronic means specified by the Minister. ### Electronic payment (2) Every person that is required under this Act to pay an amount to the Receiver General shall, if the amount is $10,000 or more, make the payment by way of electronic payment, unless the person cannot reasonably pay the amount in that manner, to the account of the Receiver General at or through (a) a bank; (b) a credit union; (c) a corporation that is authorized under the laws of Canada or a province to carry on the business of offering its services as a trustee to the public; or (d) a corporation that is authorized under the laws of Canada or a province to accept deposits from the public and that carries on the business of lending money on the security of real property or immovables or investing in mortgages on real property or hypothecs on immovables. ### Small amounts owing 21 (1) If, at any time, the total of all unpaid amounts owing by a designated air carrier to the Receiver General under this Act does not exceed $2.00, the amount owing by the carrier is deemed to be nil. ### Small amounts payable (2) If, at any time, the total of all amounts payable by the Minister to a designated air carrier under this Act does not exceed $2.00, the Minister may apply those amounts against any amount owing, at that time, by the carrier to Her Majesty. However, if the carrier, at that time, does not owe any amount to Her Majesty, those amounts payable are deemed to be nil. ### Authority for separate returns 22 (1) A designated air carrier that engages in one or more activities in separate branches or divisions may file an application, in the prescribed form and manner, with the Minister for authority to file separate returns and applications for refunds under this Act in respect of a branch or division specified in the application. ### Authorization by Minister (2) On receipt of the application, the Minister may, in writing, authorize the designated air carrier to file separate returns and applications for refunds in relation to the specified branch or division, subject to any conditions that the Minister may at any time impose, if the Minister is satisfied that (a) the branch or division can be separately identified by reference to the location of the branch or division or the nature of the activities engaged in by it; and (b) separate records, books of account and accounting systems are maintained in respect of the branch or division. ### Revocation of authorization (3) The Minister may revoke an authorization if (a) the designated air carrier, in writing, requests the Minister to revoke the authorization; (b) the designated air carrier fails to comply with any condition imposed in respect of the authorization or any provision of this Act; (c) the Minister is no longer satisfied that the requirements of subsection (2) in respect of the designated air carrier are met; or (d) the Minister considers that the authorization is no longer required. ### Notice of revocation (4) If the Minister revokes an authorization, the Minister shall send a notice in writing of the revocation to the designated air carrier and shall specify in the notice the effective date of the revocation. ### Meaning of “electronic filing” 23 (1) For the purposes of this section, *electronic filing* means using electronic media in a manner specified in writing by the Minister. ### Electronic filing of return (2) A designated air carrier that is required to file with the Minister a return under this Act, and that meets the criteria specified in writing by the Minister for the purposes of this section, may file the return by way of electronic filing. ### Deemed filing (3) For the purposes of this Act, if a designated air carrier files a return by way of electronic filing, the return is deemed to be a return in the prescribed form filed with the Minister on the day the Minister acknowledges acceptance of it. ### Execution of returns, etc. 24 A return (other than a return filed by way of electronic filing under section 23) or other document made under this Act by a person that is not an individual shall be signed on behalf of the person by an individual duly authorized to do so by the person or the governing body of the person. If the person is a corporation or an association or organization that has duly elected or appointed officers, the president, vice-president, secretary and treasurer, or other equivalent officers, of the corporation, association or organization, are deemed to be so duly authorized. ### Extension of time 25 (1) The Minister may at any time extend, in writing, the time for filing a return or providing information under this Act. ### Effect of extension (2) If the Minister extends the time within which a person shall file a return or provide information under subsection (1), (a) the return shall be filed, or the information shall be provided, within the time so extended; (b) any amount payable that the person is required to report in the return shall be paid within the time so extended; (c) any interest payable under section 27 on the amount referred to in paragraph (b) shall be calculated as though the amount were required to be paid on the day on which the extended time expires; and (d) any penalty payable under section 53 in respect of the return shall be calculated as though the return were required to be filed on the day on which the extended time expires. ### Demand for return 26 The Minister may, on demand sent by the Minister, require a designated air carrier to file, within any reasonable time stipulated in the demand, a return under this Act for any period designated in the demand. ## Interest ### Compound interest on amounts not paid when required 27 (1) If a person fails to pay an amount to the Receiver General as and when required under this Act, the person shall pay to the Receiver General interest on the amount. The interest shall be compounded daily at the prescribed rate and computed for the period that begins on the first day after the day on or before which the amount was required to be paid and that ends on the day the amount is paid. ### Payment of interest that is compounded (2) For the purposes of subsection (1), interest that is compounded on a particular day on an unpaid amount of a person is deemed to be required to be paid by the person to the Receiver General at the end of the particular day, and, if the person has not paid the interest so computed by the end of the day after the particular day, the interest shall be added to the unpaid amount at the end of the particular day. ### Payment before specified date (3) If the Minister has served a demand that a person pay on or before a specified date all amounts payable by the person under this Act on the date of the demand, and the person pays the amount demanded on or before the specified date, the Minister shall waive any interest that would otherwise apply in respect of the amount demanded for the period beginning on the first day following the date of the demand and ending on the day of payment. ### Compound interest on amounts owed by Her Majesty 28 Interest shall be compounded daily at the prescribed rate on amounts owed by Her Majesty to a person and computed for the period beginning on the first day after the day on which the amount is required to be paid by Her Majesty and ending on the day on which the amount is paid or is applied against an amount owed by the person to Her Majesty. ### Application of interest provisions if Act amended 29 For greater certainty, if a provision of an Act amends this Act and provides that the amendment comes into force on, or applies as of, a particular day that is before the day on which the provision is assented to, the provisions of this Act that relate to the calculation and payment of interest apply in respect of the amendment as though the provision had been assented to on the particular day. ### Waiving or reducing interest 30 (1) The Minister may, on or before the day that is 10 calendar years after the end of a reporting period of a person, or on application by the person on or before that day, waive or reduce any interest payable by the person under this Act on an amount that is required to be paid by the person under this Act in respect of the reporting period. ### Interest where amounts waived or reduced (2) If a person has paid an amount of interest and the Minister has waived or reduced under subsection (1) any portion of the amount, the Minister shall pay interest at the prescribed rate on an amount equal to the portion of the amount that was waived or reduced beginning on the day that is 30 days after the day on which the Minister received a request in a manner satisfactory to the Minister to apply that subsection and ending on the day on which the portion is refunded to the person. ## Administrative Charge under the Financial Administration Act ### Dishonoured instruments 30.1 For the purposes of this Act and section 155.1 of the Financial Administration Act, any charge that becomes payable at any time by a person under the Financial Administration Act in respect of an instrument tendered in payment or settlement of an amount that is payable under this Act is deemed to be an amount that becomes payable by the person at that time under this Act. In addition, Part II of the Interest and Administrative Charges Regulations does not apply to the charge and any debt under subsection 155.1(3) of the Financial Administration Act in respect of the charge is deemed to be extinguished at the time the total of the amount and any applicable interest under this Act is paid. ## Refunds ### Statutory recovery rights 31 Except as specifically provided under this Act or the Financial Administration Act, no person has a right to recover any money paid to Her Majesty as or on account of, or that has been taken into account by Her Majesty as, an amount payable under this Act. ### Refund of charge if service not provided 32 (1) A designated air carrier may refund or credit an amount to a person if (a) the carrier collected the amount from the person as or on account of a charge in respect of an air transportation service acquired by the person; (b) the person was required by this Act to pay a charge in respect of the service; and (c) the service (i) was not used by any person before all rights to be provided the transportation by air included in the service expired, or (ii) was used only partially before all rights to be provided the transportation by air included in the service expired if the part that was used would not, by itself, be subject to a charge. ### Refund of charge collected in error (2) A designated air carrier that has collected from a person an amount as or on account of a charge in excess of the charge that was collectible by the carrier from the person may refund or credit the excess to that person. ### Issuance of document evidencing refund (3) A designated air carrier that refunds or credits an amount to a person in accordance with subsection (1) or (2) within two years after the day the amount was collected shall, within a reasonable time, issue to the person a document containing information specified by the Minister. ### Deduction of refund (4) A designated air carrier that has refunded or credited an amount under subsection (1) or (2) within two years after the day the amount was collected and that has issued to a person a document in accordance with subsection (3) may deduct the amount of the refund or credit from the amount payable by the carrier under subsection 17(2) for the reporting period of the carrier in which the document is issued to the person, to the extent that the amount of the charge has been included by the carrier in determining the amount payable by the carrier under subsection 17(2) for the reporting period or a preceding reporting period of the carrier. ### Payment in error 33 (1) The Minister may pay a refund to a person (a) if the person paid an amount in excess of the amount that was payable by that person under this Act; or (b) if the person has paid to a designated air carrier an amount as or on account of a charge (i) in respect of an air transportation service that was not used by any person before all rights to be provided the transportation by air included in the service expired, or (ii) in respect of an air transportation service that was used only partially before all rights to be provided the transportation by air included in the service expired if the part that was used would not, by itself, be subject to a charge. ### Amount of refund (2) The amount of a refund payable by the Minister is, if paragraph (1)(a) applies, the amount of the excess referred to in that paragraph and, if paragraph (1)(b) applies, the amount paid as or on account of the charge. ### Restriction (3) A refund under this section in respect of an amount shall not be paid to a person to the extent that (a) the amount was taken into account as an amount required to be paid by the person in respect of one of their reporting periods and the Minister has assessed the person for the period under section 39; or (b) the amount was an amount assessed under section 39. ### Application for refund (4) A refund of an amount shall not be paid to a person unless the person files with the Minister an application for the refund in the prescribed form and manner within two years after the person paid the amount. ### Restriction on refunds, etc. 34 (1) A refund of an amount under this Act shall not be paid to a person to the extent that it can reasonably be regarded that (a) the amount has previously been refunded, remitted, applied or paid to that person under this or any other Act of Parliament; (b) the person has applied for a refund, payment or remission of the amount under any other Act of Parliament; or (c) the amount has been or will be refunded to the person under section 32. ### Single application (2) Only one application may be made under this Act for a refund with respect to any matter. ### Restriction re trustees 35 If a trustee is appointed under the Bankruptcy and Insolvency Act to act in the administration of the estate of a bankrupt, a refund under this Act that the bankrupt was entitled to claim before the appointment shall not be paid after the appointment unless all returns required under this Act to be filed for reporting periods of the bankrupt ending before the appointment have been filed and all amounts required under this Act to be paid by the bankrupt in respect of those reporting periods have been paid. ### Overpayment of refunds, etc. 36 (1) If an amount is paid to, or applied to a liability of, a person as a refund under this Act and the person is not entitled to the amount or the amount paid or applied exceeds the refund or other payment to which the person is entitled, the person shall pay to the Receiver General an amount equal to the refund, payment or excess on the day the amount is paid to, or applied to a liability of, the person. ### Effect of reduction of refund, etc. (2) For the purpose of subsection (1), if a refund or other payment has been paid to a person in excess of the amount to which the person was entitled and the amount of the excess has, by reason of section 34, reduced the amount of any other refund or other payment to which the person would, but for the payment of the excess, be entitled, the person is deemed to have paid the amount of the reduction to the Receiver General. ## Records and Information ### Keeping records 37 (1) Every person who collects or is required to collect a charge shall keep all records that are necessary to determine whether they have complied with this Act. ### Minister may specify information (2) The Minister may specify in writing the form a record is to take and any information that the record must contain. ### Language and location of record (3) Unless otherwise authorized by the Minister, a record shall be kept in Canada in English or French. ### Electronic records (4) Every person required under this Act to keep a record who does so electronically shall ensure that all equipment and software necessary to make the record intelligible are available during the retention period required for the record. ### Inadequate records (5) If a person fails to keep adequate records for the purposes of this Act, the Minister may, in writing, require the person to keep any records that the Minister may specify, and the person shall keep the records specified by the Minister. ### General period for retention (6) Every person who is required to keep records shall retain them until the expiry of six years after the end of the year to which they relate or for any other period that may be prescribed. ### Objection or appeal (7) If a person who is required under this Act to keep records serves a notice of objection or is a party to an appeal or reference under this Act, the person shall retain every record that pertains to the subject-matter of the objection, appeal or reference until the objection, appeal or reference is finally disposed of. ### Demand by Minister (8) If the Minister is of the opinion that it is necessary for the administration or enforcement of this Act, the Minister may, by a demand served personally or by registered or certified mail, require any person required under this Act to keep records to retain those records for any period that is specified in the demand, and the person shall comply with the demand. ### Permission for earlier disposal (9) A person who is required under this Act to keep records may dispose of them before the expiry of the period during which they are required to be kept if written permission for their disposal is given by the Minister. ### Electronic funds transfer 37.1 For greater certainty, information obtained by the Minister under Part XV.1 of the Income Tax Act may be used for the purposes of this Act. ### Requirement to provide information 38 (1) Despite any other provision of this Act, the Minister may, by a notice served or sent in accordance with subsection (2.1), require a person resident in Canada or a person that is not resident in Canada but that carries on business in Canada to provide any information or record. ### Notice (2) The notice shall set out (a) a reasonable period of not less than 90 days for the provision of the information or record; (b) a description of the information or record being sought; and (c) the consequences under subsection (7) to the person of any failure to provide the information or record being sought within the period set out in the notice. ### Notice (2.1) A notice referred to in subsection (1) may be (a) served personally; (b) sent by registered or certified mail; or (c) sent electronically to a bank or credit union (as defined in subsection 123(1) of the Excise Tax Act) that has provided written consent to receive notices under subsection (1) electronically. ### Review of information requirement (3) If a person is served or sent a notice of a requirement under subsection (1), the person may, within 90 days after the day on which the notice is served or sent, apply to a judge for a review of the requirement. ### Powers on review (4) On hearing an application in respect of a requirement, a judge may (a) confirm the requirement; (b) vary the requirement if satisfied that it is appropriate in the circumstances to do so; or (c) set aside the requirement if satisfied that it is unreasonable. ### Requirement not unreasonable (5) For the purposes of subsection (4), a requirement to provide information or a record shall not be considered to be unreasonable solely because the information or record is under the control of or available to a person that is not resident in Canada, if that person is related, for the purposes of the Income Tax Act, to the person on which the notice of the requirement is served or to which that notice is sent. ### Time period not to count (6) The period between the day on which an application for the review of a requirement is made and the day on which the application is finally disposed of shall not be counted in the computation of (a) the period set out in the notice of the requirement; or (b) the period within which an assessment may be made under section 42. ### Consequence of failure (7) If a person fails to comply substantially with a notice served or sent under subsection (1) and the notice is not set aside under subsection (4), any court having jurisdiction in a civil proceeding relating to the administration or enforcement of this Act shall, on the motion of the Minister, prohibit the introduction by that person of any information or record described in that notice. ## Assessments ### Assessment 39 (1) The Minister may assess a person for any charge or other amount payable by the person under this Act and may, despite any previous assessment covering, in whole or in part, the same matter, vary the assessment, reassess the person assessed or make any additional assessments that the circumstances require. ### Liability not affected (2) The liability of a person to pay an amount under this Act is not affected by an incorrect or incomplete assessment or by the fact that no assessment has been made. ### Minister not bound (3) The Minister is not bound by any return, application or information provided by or on behalf of any person and may make an assessment despite any return, application or information provided or not provided. ### Refund on reassessment (4) If a person has paid an amount assessed under this section in respect of a reporting period and the amount paid exceeds the amount determined on reassessment to have been payable by the person in respect of that reporting period, the Minister shall refund to the person the amount of the excess and, for the purpose of section 28, the refund is deemed to have been required to be paid on the day on which the amount was paid to the Minister. ### Determination of refunds (5) In making an assessment, the Minister may take into account any refund payable to the person being assessed under this Act. If the Minister does so, the person is deemed to have applied for the refund under this Act on the day the notice of assessment is sent. ### Assessment of refund 40 (1) On receipt of an application made by a person for a refund under this Act, the Minister shall, without delay, consider the application and assess the amount of the refund, if any, payable to the person. ### Reassessment (2) The Minister may reassess or make an additional assessment of the amount of a refund despite any previous assessment of the amount of the refund. ### Payment (3) If on assessment under this section the Minister determines that a refund is payable to a person, the Minister shall pay the refund to the person. ### Restriction (4) A refund shall not be paid until the person has filed with the Minister all returns and other records of which the Minister has knowledge that are required to be filed under this Act, the Excise Tax Act, the Income Tax Act, the Excise Act, 2001, the Underused Housing Tax Act, the Select Luxury Items Tax Act, the Digital Services Tax Act and the Global Minimum Tax Act. ### Interest (5) If a refund is paid to a person, the Minister shall pay interest at the prescribed rate to the person on the refund for the period beginning on the day that is 30 days after the day on which the application for the refund is filed with the Minister and ending on the day on which the refund is paid. ### Notice of assessment 41 (1) After making an assessment under this Act, the Minister shall send to the person assessed a notice of the assessment. ### Payment of remainder (2) If the Minister has assessed a person for an amount, any portion of that amount then remaining unpaid is payable to the Receiver General as of the date of the notice of assessment. ### Limitation period for assessments 42 (1) Subject to subsections (2) to (4), no assessment in respect of any charge or other amount payable by a person under this Act shall be made more than four years after it became payable by the person under this Act. ### Exception where objection or appeal (2) A variation of an assessment, or a reassessment, in respect of any charge or other amount payable under this Act by a person may be made at any time if the variation or reassessment is made (a) to give effect to a decision on an objection or appeal; or (b) with the written consent of an appellant to dispose of an appeal. ### Exception where neglect or fraud (3) An assessment in respect of any matter may be made at any time if the person to be assessed has, in respect of that matter, (a) made a misrepresentation that is attributable to their neglect, carelessness or wilful default; or (b) committed fraud with respect to a return or an application for a refund filed under this Act. ### Exception where waiver (4) An assessment in respect of any matter specified in a waiver filed under subsection (5) may be made at any time within the period specified in the waiver unless the waiver has been revoked under subsection (6), in which case an assessment may be made at any time during the six months that the waiver remains in effect. ### Filing waiver (5) Any person may, within the time otherwise limited by subsection (1) for an assessment, waive the application of that subsection by filing with the Minister a waiver in the prescribed form specifying the period for which, and the matter in respect of which, the person waives the application of that subsection. ### Revoking waiver (6) Any person who has filed a waiver may revoke it by filing with the Minister a notice of revocation of the waiver in the prescribed form and manner. The waiver remains in effect for six months after the notice is filed. ## Objections to Assessment ### Objection to assessment 43 (1) Any person who has been assessed and who objects to the assessment may, within 90 days after the date of the notice of the assessment, file with the Minister a notice of objection in the prescribed form and manner setting out the reasons for the objection and all relevant facts. ### Issue to be decided (2) A notice of objection shall (a) reasonably describe each issue to be decided; (b) specify in respect of each issue the relief sought, expressed as the change in any amount that is relevant for the purposes of the assessment; and (c) provide the facts and reasons relied on by the person in respect of each issue. ### Late compliance (3) Despite subsection (2), if a notice of objection does not include the information required under paragraph (2)(b) or (c) in respect of an issue to be decided that is described in the notice, the Minister may, in writing, request the person to provide the information, and that paragraph is deemed to be complied with in respect of the issue if, within 60 days after the request is made, the person submits the information in writing to the Minister. ### Limitation on objections (4) Despite subsection (1), if a person has filed a notice of objection to an assessment (in this subsection referred to as the “earlier assessment”) and the Minister makes a particular assessment under subsection (8) as a result of the notice of objection, unless the earlier assessment was made in accordance with an order of a court vacating, varying or restoring an assessment or referring an assessment back to the Minister for reconsideration and reassessment, the person may object to the particular assessment in respect of an issue (a) only if the person complied with subsection (2) in the notice with respect to that issue; and (b) only with respect to the relief sought in respect of that issue as specified by the person in the notice. ### Application of subsection (4) (5) Subsection (4) does not limit the right of the person to object to the particular assessment in respect of an issue that was part of the particular assessment and not part of the earlier assessment. ### Limitation on objections (6) Despite subsection (1), no objection may be made by a person in respect of an issue for which the right of objection has been waived in writing by the person. ### Acceptance of objection (7) The Minister may accept a notice of objection even though it was not filed in the prescribed form and manner. ### Consideration of objection (8) On receipt of a notice of objection, the Minister shall, without delay, reconsider the assessment and vacate or confirm it or make a reassessment. ### Waiving reconsideration (9) If, in a notice of objection, a person who wishes to appeal directly to the Tax Court requests the Minister not to reconsider the assessment objected to, the Minister may confirm the assessment without reconsideration. ### Notice of decision (10) After reconsidering an assessment under subsection (8) or confirming an assessment under subsection (9), the Minister shall notify the person objecting to the assessment of the Minister’s decision by registered or certified mail. ### Extension of time by Minister 44 (1) If no objection to an assessment is filed under section 43 within the time limited under this Act, a person may make an application to the Minister to extend the time for filing a notice of objection and the Minister may grant the application. ### Contents of application (2) An application must set out the reasons why the notice of objection was not filed within the time limited under this Act for doing so. ### How application made (3) An application must be made by delivering or mailing, to the Chief of Appeals in a Tax Services Office of the Agency, the application accompanied by a copy of the notice of objection. ### Defect in application (4) The Minister may accept an application even though it was not made in accordance with subsection (3). ### Duties of Minister (5) On receipt of an application, the Minister shall, without delay, consider the application and grant or refuse it, and shall notify the person of the decision by registered or certified mail. ### Date of objection if application granted (6) If an application is granted, the notice of objection is deemed to have been filed on the day of the decision of the Minister. ### Conditions — grant of application (7) No application shall be granted under this section unless (a) the application is made within one year after the expiry of the time limited under this Act for objecting; and (b) the person demonstrates that (i) within the time limited under this Act for objecting, the person (A) was unable to act or to give a mandate to act in their name, or (B) had a bona fide intention to object to the assessment, (ii) given the reasons set out in the application and the circumstances of the case, it would be just and equitable to grant the application, and (iii) the application was made as soon as circumstances permitted it to be made. ## Appeal ### Extension of time by Tax Court 45 (1) A person who has made an application under section 44 may apply to the Tax Court to have the application granted after either (a) the Minister has refused the application; or (b) 90 days have elapsed after the application was made and the Minister has not notified the person of the Minister’s decision. ### When application may not be made (2) No application may be made after the expiry of 30 days after the decision referred to in subsection 44(5) was mailed to the person. ### How application made (3) An application must be made by filing in the Registry of the Tax Court, in accordance with the Tax Court of Canada Act, three copies of the documents delivered or mailed under subsection 44(3). ### Copy to the Commissioner (4) The Tax Court must send a copy of the application to the Commissioner. ### Powers of Tax Court (5) The Tax Court may dispose of an application by dismissing or granting it and, in granting it, the Court may impose any terms that it considers just or order that the notice of objection be deemed to be a valid objection as of the date of the order. ### When application to be granted (6) No application shall be granted under this section unless (a) the application under subsection 44(1) was made within one year after the expiry of the time limited under this Act for objecting; and (b) the person demonstrates that (i) within the time limited under this Act for objecting, the person (A) was unable to act or to give a mandate to act in their name, or (B) had a bona fide intention to object to the assessment, (ii) given the reasons set out in the application under this section and the circumstances of the case, it would be just and equitable to grant the application, and (iii) the application under subsection 44(1) was made as soon as circumstances permitted it to be made. ### Appeal to Tax Court 46 (1) Subject to subsection (2), a person who has filed a notice of objection to an assessment may appeal to the Tax Court to have the assessment vacated or a reassessment made after (a) the Minister has confirmed the assessment or has reassessed; or (b) 180 days have elapsed after the filing of the notice of objection and the Minister has not notified the person that the Minister has vacated or confirmed the assessment or has reassessed. ### No appeal (2) No appeal under subsection (1) may be instituted after the expiry of 90 days after notice that the Minister has reassessed or confirmed the assessment is sent to the person under subsection 43(10). ### Amendment of appeal (3) The Tax Court may, on any terms that it sees fit, authorize a person who has instituted an appeal in respect of a matter to amend the appeal to include any further assessment in respect of the matter that the person is entitled under this section to appeal. ### Extension of time to appeal 47 (1) If no appeal to the Tax Court under section 46 has been instituted within the time limited by that section for doing so, a person may make an application to the Tax Court for an order extending the time within which an appeal may be instituted, and the Court may make an order extending the time for appealing and may impose any terms that it considers just. ### Contents of application (2) An application must set out the reasons why the appeal was not instituted within the time limited under section 46 for doing so. ### How application made (3) An application must be made by filing in the Registry of the Tax Court, in accordance with the Tax Court of Canada Act, three copies of the application together with three copies of the notice of appeal. ### Copy to Deputy Attorney General of Canada (4) The Tax Court must send a copy of the application to the office of the Deputy Attorney General of Canada. ### When order to be made (5) No order shall be made under this section unless (a) the application is made within one year after the expiry of the time limited under section 46 for appealing; and (b) the person demonstrates that (i) within the time limited under section 46 for appealing, the person (A) was unable to act or to give a mandate to act in their name, or (B) had a bona fide intention to appeal, (ii) given the reasons set out in the application and the circumstances of the case, it would be just and equitable to grant the application, (iii) the application was made as soon as circumstances permitted it to be made, and (iv) there are reasonable grounds for the appeal. ### Limitation on appeals to the Tax Court 48 (1) Despite section 46, if a person has filed a notice of objection to an assessment, the person may appeal to the Tax Court to have the assessment vacated, or a reassessment made, only with respect to (a) an issue in respect of which the person has complied with subsection 43(2) in the notice and the relief sought in respect of the issue as specified by the person in the notice; or (b) an issue described in subsection 43(5) if the person was not required to file a notice of objection to the assessment that gave rise to the issue. ### No appeal if waiver (2) Despite section 46, a person may not appeal to the Tax Court to have an assessment vacated or varied in respect of an issue for which the right of objection or appeal has been waived in writing by the person. ### Institution of appeals 49 An appeal to the Tax Court under this Act shall be instituted in accordance with the Tax Court of Canada Act. ### Disposition of appeal 50 The Tax Court may dispose of an appeal from an assessment by (a) dismissing it; or (b) allowing it and (i) vacating the assessment, or (ii) referring the assessment back to the Minister for reconsideration and reassessment. ### References to Tax Court 51 (1) If the Minister and another person agree in writing that a question arising under this Act, in respect of any assessment or proposed assessment of the person, should be determined by the Tax Court, that question shall be determined by that Court. ### Time during consideration not to count (2) For the purpose of making an assessment of a person who agreed in writing to the determination of a question, filing a notice of objection to an assessment or instituting an appeal from an assessment, the time between the day on which proceedings are instituted in the Tax Court to have a question determined and the day on which the question is finally determined shall not be counted in the computation of (a) the four-year period referred to in subsection 42(1); (b) the period within which a notice of objection to an assessment may be filed under section 43; or (c) the period within which an appeal may be instituted under section 46. ### Reference of common questions to Tax Court 52 (1) If the Minister is of the opinion that a question arising out of one and the same transaction or occurrence or series of transactions or occurrences is common to assessments or proposed assessments in respect of two or more persons, the Minister may apply to the Tax Court for a determination of the question. ### Contents of application (2) An application shall set out (a) the question in respect of which the Minister requests a determination; (b) the names of the persons that the Minister seeks to have bound by the determination; and (c) the facts and reasons on which the Minister relies and on which the Minister based or intends to base assessments of each person named in the application. ### Service (3) A copy of the application shall be served by the Minister on each of the persons named in it and on any other person who, in the opinion of the Tax Court, is likely to be affected by the determination of the question. ### Determination by Tax Court of question (4) If the Tax Court is satisfied that a determination of a question set out in an application will affect assessments or proposed assessments in respect of two or more persons who have been served with a copy of the application and who are named in an order of the Tax Court under this subsection, it may (a) if none of the persons so named has appealed from such an assessment, proceed to determine the question in any manner that it considers appropriate; or (b) if one or more of the persons so named has or have appealed, make any order that it considers appropriate joining a party or parties to that appeal or those appeals and proceed to determine the question. ### Determination final and conclusive (5) Subject to subsection (6), if a question set out in an application is determined by the Tax Court, the determination is final and conclusive for the purposes of any assessments of persons named by the Court under subsection (4). ### Appeal (6) If a question set out in an application is determined by the Tax Court, the Minister or any of the persons who have been served with a copy of the application and who are named in an order of the Court under subsection (4) may, in accordance with the provisions of this Act, the Tax Court of Canada Act or the Federal Courts Act, as they relate to appeals from or applications for judicial review of decisions of the Tax Court, appeal from the determination. ### Parties to appeal (7) The parties who are bound by a determination are parties to any appeal from the determination. ### Time during consideration not counted (8) For the purpose of making an assessment of a person, filing a notice of objection to an assessment or instituting an appeal from an assessment, the periods described in subsection (9) shall not be counted in the computation of (a) the four-year period referred to in subsection 42(1); (b) the period within which a notice of objection to an assessment may be filed under section 43; or (c) the period within which an appeal may be instituted under section 46. ### Excluded periods (9) The period that is not to be counted in the computation of the periods described in paragraphs (8)(a) to (c) is the time between the day on which an application that is made under this section is served on a person under subsection (3) and (a) in the case of a person named in an order of the Tax Court under subsection (4), the day on which the determination becomes final and conclusive and not subject to any appeal; or (b) in the case of any other person, the day on which the person is served with a notice that the person has not been named in an order of the Tax Court under subsection (4). ## Enforcement ## Penalties ### Failure to file a return when required 53 Every person who fails to file a return for a reporting period as and when required under this Act shall pay a penalty equal to the sum of (a) an amount equal to 1% of the total of all amounts each of which is an amount that is required to be paid for the reporting period and was not paid on the day on which the return was required to be filed, and (b) the amount obtained when one quarter of the amount determined under paragraph (a) is multiplied by the number of complete months, not exceeding 12, from the day on which the return was required to be filed to the day on which the return is filed. ### Penalty — electronic payment 54 Every person that fails to comply with subsection 20(2) is liable to a penalty equal to $100 for each such failure. ### Waiving or cancelling penalties 55 (1) The Minister may, on or before the day that is 10 calendar years after the end of a reporting period of a person, or on application by the person on or before that day, waive or cancel any penalty payable by the person under section 53 in respect of the reporting period. ### Interest where amount waived or cancelled (2) If a person has paid an amount of penalty and the Minister waives or cancels that amount under subsection (1), the Minister shall pay interest on the amount paid by the person beginning on the day that is 30 days after the day on which the Minister received a request in a manner satisfactory to the Minister to apply that subsection and ending on the day on which the amount is refunded to the person. ### Failure to answer demand 56 Every person who fails to file a return as and when required under a demand issued under section 26 is liable to a penalty of $250. ### Failure to provide information 57 Every person who fails to provide any information or record as and when required under this Act is liable to a penalty of $100 for every failure unless, in the case of information required in respect of another person, a reasonable effort was made by the person to obtain the information. ### False statements or omissions 58 Every person who knowingly, or under circumstances amounting to gross negligence, makes or participates in, assents to or acquiesces in the making of a false statement or omission in a return, application, form, certificate, statement, invoice or answer (each of which is in this section referred to as a “return”) is liable to a penalty of the greater of $250 and 25% of the total of (a) if the false statement or omission is relevant to the determination of an amount payable under this Act by the person, the amount, if any, by which (i) the amount payable exceeds (ii) the amount that would be payable by the person if the amount payable were determined on the basis of the information provided in the return, and (b) if the false statement or omission is relevant to the determination of a refund or any other payment that may be obtained under this Act, the amount, if any, by which (i) the amount that would be the refund or other payment payable to the person if the refund or other payment were determined on the basis of the information provided in the return exceeds (ii) the amount of the refund or other payment payable to the person. ## Penalty Imposition ### Notice of imposed penalty 59 A penalty that a person is liable to pay under any of sections 56 to 58 may be imposed by the Minister by a notice served personally or by registered or certified mail to the person’s latest known address, which notice is deemed to be an assessment. ### When penalty becomes payable 60 The amount of penalty imposed on a person under section 59 is payable by the person to the Receiver General at the time it is imposed. ## Offences and Punishment ### Offence for failure to file return or to comply with demand or order 61 (1) Every person who fails to file or make a return as and when required under this Act or who fails to comply with an obligation under subsection 37(5) or (8) or section 38 or an order made under section 66 is guilty of an offence and, in addition to any penalty otherwise provided, is liable on summary conviction to a fine of not less than $1,000 and not more than $25,000 or to imprisonment for a term not exceeding 12 months, or to both. ### Saving (2) A person who is convicted of an offence under subsection (1) for a failure to comply with a provision of this Act is not liable to pay a penalty imposed under section 53, 56 or 57 for the same failure, unless a notice of assessment for the penalty was issued before the information or complaint giving rise to the conviction was laid or made. ### Offences for false or deceptive statement 62 (1) Every person commits an offence who (a) makes, or participates in, assents to or acquiesces in the making of, a false or deceptive statement in a return, application, certificate, record or answer filed or made as required under this Act; (b) for the purposes of evading payment of any amount payable under this Act, or obtaining a refund to which the person is not entitled under this Act, (i) destroys, alters, mutilates, conceals or otherwise disposes of any records of a person, or (ii) makes, or assents to or acquiesces in the making of, a false or deceptive entry, or omits, or assents to or acquiesces in the omission, to enter a material particular in the records of a person; (c) wilfully, in any manner, evades or attempts to evade compliance with this Act or payment of an amount payable under this Act; (d) wilfully, in any manner, obtains or attempts to obtain a refund to which the person is not entitled under this Act; or (e) conspires with any person to commit an offence described in any of paragraphs (a) to (d). ### Punishment (2) Every person who commits an offence under subsection (1) is guilty of an offence punishable on summary conviction and, in addition to any penalty otherwise provided, is liable to (a) a fine of not less than 50%, and not more than 200%, of the amount payable that was sought to be evaded, or of the refund sought, or, if the amount that was sought to be evaded cannot be ascertained, a fine of not less than $1,000 and not more than $25,000; (b) imprisonment for a term not exceeding 18 months; or (c) both a fine referred to in paragraph (a) and imprisonment for a term not exceeding 18 months. ### Penalty on conviction (3) A person who is convicted of an offence under subsection (1) is not liable to pay a penalty imposed under any of sections 53 and 56 to 58 for the same evasion or attempt unless a notice of assessment for that penalty was issued before the information or complaint giving rise to the conviction was laid or made. ### Stay of appeal (4) If, in any appeal under this Act, substantially the same facts are at issue as those that are at issue in a prosecution under this section, the Minister may file a stay of proceedings with the Tax Court and, on doing so, the proceedings before the Tax Court are stayed pending a final determination of the outcome of the prosecution. ### Failure to pay or collect charges 63 Every person who wilfully fails to pay or collect a charge as and when required under this Act is guilty of an offence punishable on summary conviction and liable, in addition to any penalty or interest otherwise provided, to (a) a fine not exceeding the aggregate of $1,000 and an amount equal to 20% of the amount of charge that should have been paid or collected; (b) imprisonment for a term not exceeding six months; or (c) both a fine referred to in paragraph (a) and imprisonment for a term not exceeding six months. ### General offence 64 Every person who fails to comply with any provision of this Act or the regulations made under this Act for which no other offence is specified in this Act is guilty of an offence punishable on summary conviction and liable to a fine not exceeding $1,000. ### Defence of due diligence 65 No person shall be convicted of an offence under this Act if the person establishes that they exercised all due diligence to prevent the commission of the offence. ### Compliance orders 66 If a person is convicted by a court of an offence for a failure to comply with a provision of this Act, the court may make such order as it deems proper in order to enforce compliance with the provision. ### Officers of corporations, etc. 67 If a person other than an individual commits an offence under this Act, every officer, director or agent of the person who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and liable on conviction to the punishment provided for the offence, whether or not the person has been prosecuted or convicted. ### Power to decrease punishment 68 Despite the Criminal Code or any other law, the court has, in any prosecution or proceeding under this Act, neither the power to impose less than the minimum fine fixed under this Act nor the power to suspend sentence. ### Information or complaint 69 (1) An information or complaint under this Act may be laid or made by any officer of the Agency, by a member of the Royal Canadian Mounted Police or by any person authorized to do so by the Minister and, if an information or complaint purports to have been laid or made under this Act, it is deemed to have been laid or made by a person so authorized by the Minister and shall not be called in question for lack of authority of the informant or complainant, except by the Minister or a person acting for the Minister or for Her Majesty. ### Two or more offences (2) An information or complaint in respect of an offence under this Act may be for one or more offences, and no information, complaint, warrant, conviction or other proceeding in a prosecution under this Act is objectionable or insufficient by reason of the fact that it relates to two or more offences. ### Territorial jurisdiction (3) An information or complaint in respect of an offence under this Act may be heard, tried or determined by any court, if the accused is resident, carrying on a commercial activity, found or apprehended or is in custody within the court’s territorial jurisdiction even though the matter of the information or complaint did not arise within that territorial jurisdiction. ### Limitation of prosecutions (4) An information or complaint under the provisions of the Criminal Code relating to summary convictions, in respect of an offence under this Act, may be laid or made within two years after the day on which the matter of the information or complaint arose. ## Inspections ### By whom 70 (1) A person authorized by the Minister to do so may, at all reasonable times, for any purpose related to the administration or enforcement of this Act, inspect, audit or examine the records, processes, property or premises of a person in order to determine whether that or any other person is in compliance with this Act. ### Powers of authorized person (2) Subject to subsection (3), the authorized person may, at all reasonable times, for any purpose related to the administration or enforcement of this Act (a) enter any place in which the authorized person reasonably believes the person keeps records or carries on any activity to which this Act applies; (b) require any person to give the authorized person all reasonable assistance, to answer all proper questions relating to the administration or enforcement of this Act and (i) to attend with the authorized person at a place designated by the authorized person, or by video-conference or by another form of electronic communication, and to answer the questions orally, and (ii) to answer the questions in writing, in any form specified by the authorized person; and (c) require any person to give the authorized person all reasonable assistance with anything the authorized person is authorized to do under this Act. ### Prior authorization (3) If any place referred to in subsection (2) is a dwelling-house, the authorized person may not enter that dwelling-house without the consent of the occupant, except under the authority of a warrant issued under subsection (4). ### Warrant to enter dwelling-house (4) A judge may issue a warrant authorizing a person to enter a dwelling-house subject to the conditions specified in the warrant if, on ex parte application by the Minister, a judge is satisfied by information on oath that (a) there are reasonable grounds to believe that the dwelling-house is a place referred to in subsection (2); (b) entry into the dwelling-house is necessary for any purpose related to the administration or enforcement of this Act; and (c) entry into the dwelling-house has been, or there are reasonable grounds to believe that entry will be, refused. ### Orders if entry not authorized (5) If the judge is not satisfied that entry into the dwelling-house is necessary for any purpose related to the administration or enforcement of this Act, the judge may, to the extent that access was or may be expected to be refused and that a record or property is or may be expected to be kept in the dwelling-house, (a) order the occupant of the dwelling-house to provide a person with reasonable access to any record or property that is or should be kept in the dwelling-house; and (b) make any other order that is appropriate in the circumstances to carry out the purposes of this Act. ### Definition of *dwelling-house* (6) In this section, *dwelling-house* means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes (a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passageway; and (b) a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence. ### Copies of records 71 A person who inspects, audits, examines or is provided a record under section 70 may make, or cause to be made, one or more copies of the record. ## Collection ### Definitions 72 (1) The following definitions apply in this section. *action* means an action to collect a charge debt of a person and includes a proceeding in a court and anything done by the Minister under any of sections 74 to 79. (action) *charge debt* means any amount payable by a person under this Act. (dette fiscale) *legal representative* of a person means a trustee in bankruptcy, an assignee, a liquidator, a curator, a receiver of any kind, a trustee, an heir, an administrator, an executor, a liquidator of a succession, a committee, or any other like person, administering, winding up, controlling or otherwise dealing in a representative or fiduciary capacity with any property, business, commercial activity or estate that belongs or belonged to, or that is or was held for the benefit of, the person or the person’s estate. (représentant légal) ### Debts to Her Majesty (1.1) A charge debt is a debt due to Her Majesty and is recoverable as such in the Federal Court or any other court of competent jurisdiction or in any other manner provided under this Act. ### Court proceedings (2) The Minister may not commence a proceeding in a court to collect a charge debt of a person in respect of an amount that may be assessed under this Act, unless when the proceeding is commenced the person has been or may be assessed for that amount. ### No actions after limitation period (2.1) The Minister may not commence an action to collect a charge debt after the end of the limitation period for the collection of the charge debt. ### Limitation period (2.2) The limitation period for the collection of a charge debt of a person (a) begins (i) if a notice of assessment in respect of the charge debt, or a notice referred to in subsection 80(1) in respect of the charge debt, is sent to or served on the person, after March 3, 2004, on the last day on which one of those notices is sent or served, (ii) if no notice referred to in subparagraph (i) in respect of the charge debt was sent or served and the earliest day on which the Minister can commence an action to collect that charge debt is after March 3, 2004, on that earliest day, and (iii) in any other case, on March 4, 2004; and (b) ends, subject to subsection (2.6), on the day that is 10 years after the day on which it begins. ### Limitation period restarted (2.3) The limitation period described in subsection (2.2) for the collection of a charge debt of a person restarts (and ends, subject to subsection (2.6), on the day that is 10 years after the day on which it restarts) on any day, before it would otherwise end, on which (a) the person acknowledges the charge debt in accordance with subsection (2.4); (b) the Minister commences an action to collect the charge debt; or (c) the Minister, under subsection 75(8) or 81(4), assesses another person in respect of the charge debt. ### Acknowledgement of charge debts (2.4) A person acknowledges a charge debt if the person (a) promises, in writing, to pay the charge debt; (b) makes a written acknowledgement of the charge debt, whether or not a promise to pay can be inferred from the acknowledgement and whether or not it contains a refusal to pay; or (c) makes a payment, including a purported payment by way of a negotiable instrument that is dishonoured, on account of the charge debt. ### Agent or legal representative (2.5) For the purposes of this section, an acknowledgement made by a person’s agent or legal representative has the same effect as if it were made by the person. ### Extension of limitation period (2.6) In computing the day on which a limitation period ends, there shall be added the number of days on which one or more of the following is the case: (a) the Minister has accepted and holds security in lieu of payment of the charge debt; (b) if the person was resident in Canada on the applicable date described in paragraph (2.2)(a) in respect of the charge debt, the person is nonresident; or (c) an action that the Minister may otherwise take in respect of the charge debt is restricted or not permitted under any provision of the Bankruptcy and Insolvency Act, of the Companies’ Creditors Arrangement Act or of the Farm Debt Mediation Act. ### Assessment before collection (3) The Minister may not take any collection action under sections 74 to 79 in respect of any amount payable by a person that may be assessed under this Act, other than interest under section 27, unless the amount has been assessed. ### Interest on judgments (4) If a judgment is obtained for any amount payable under this Act, including a certificate registered under section 74, the provisions of this Act by which interest is payable for a failure to pay an amount apply, with any modifications that the circumstances require, to the failure to pay the judgment debt, and the interest is recoverable in like manner as the judgment debt. ### Litigation costs (5) If an amount is payable by a person to Her Majesty because of an order, judgment or award of a court in respect of the costs of litigation relating to a matter to which this Act applies, sections 73 to 80 apply to the amount as if it were payable under this Act. ### Security 73 (1) The Minister may, if the Minister considers it advisable, accept security in an amount and a form satisfactory to the Minister for the payment of any amount that is or may become payable under this Act. ### Surrender of excess security (2) If a person who has furnished security, or on whose behalf security has been furnished, under this section requests in writing that the Minister surrender the security or any part of it, the Minister must surrender the security to the extent that its value exceeds, at the time the request is received by the Minister, the amount that is sought to be secured. ### Certificates 74 (1) Any amount payable by a person (in this section referred to as the “debtor”) under this Act that has not been paid as and when required under this Act may be certified by the Minister as an amount payable by the debtor. ### Registration in court (2) On production to the Federal Court, a certificate in respect of a debtor shall be registered in the Court and when so registered has the same effect, and all proceedings may be taken on the certificate, as if it were a judgment obtained in the Court against the debtor for a debt in the amount certified plus interest on the amount as provided under this Act to the day of payment and, for the purposes of those proceedings, the certificate is deemed to be a judgment of the Court against the debtor for a debt due to Her Majesty and enforceable as such. ### Costs (3) All reasonable costs and charges incurred or paid for the registration in the Federal Court of a certificate or in respect of any proceedings taken to collect the amount certified are recoverable in like manner as if they had been included in the amount certified in the certificate when it was registered. ### Charge on property (4) A document issued by the Federal Court evidencing a registered certificate in respect of a debtor, a writ of that Court issued pursuant to the certificate or any notification of the document or writ (which document, writ or notification is in this section referred to as a “memorial”) may be filed, registered or otherwise recorded for the purpose of creating a charge, lien or priority on, or a binding interest in, property in a province, or any interest in such property, held by the debtor, in the same manner as a document evidencing (a) a judgment of the superior court of the province against a person for a debt owing by the person, or (b) an amount payable or required to be remitted by a person in the province in respect of a debt owing to Her Majesty in right of the province may be filed, registered or otherwise recorded in accordance with the law of the province to create a charge, lien or priority on, or a binding interest in, the property or interest. ### Creation of charge (5) If a memorial has been filed, registered or otherwise recorded under subsection (4), (a) a charge, lien or priority is created on, or a binding interest is created in, property in the province, or any interest in such property, held by the debtor, or (b) such property or interest in the property is otherwise bound, in the same manner and to the same extent as if the memorial were a document evidencing a judgment referred to in paragraph (4)(a) or an amount referred to in paragraph (4)(b), and the charge, lien, priority or binding interest created is subordinate to any charge, lien, priority or binding interest in respect of which all steps necessary to make it effective against other creditors were taken before the time the memorial was filed, registered or otherwise recorded. ### Proceedings in respect of memorial (6) If a memorial is filed, registered or otherwise recorded in a province under subsection (4), proceedings may be taken in the province in respect of the memorial, including proceedings (a) to enforce payment of the amount evidenced by the memorial, interest on the amount and all costs and charges paid or incurred in respect of (i) the filing, registration or other recording of the memorial, and (ii) proceedings taken to collect the amount, (b) to renew or otherwise prolong the effectiveness of the filing, registration or other recording of the memorial, (c) to cancel or withdraw the memorial wholly or in respect of any of the property or interests affected by the memorial, or (d) to postpone the effectiveness of the filing, registration or other recording of the memorial in favour of any right, charge, lien or priority that has been or is intended to be filed, registered or otherwise recorded in respect of any property or interest affected by the memorial, in the same manner and to the same extent as if the memorial were a document evidencing a judgment referred to in paragraph (4)(a) or an amount referred to in paragraph (4)(b), except that, if in any such proceeding or as a condition precedent to any such proceeding, any order, consent or ruling is required under the law of the province to be made or given by the superior court of the province or by a judge or official of the court, a like order, consent or ruling may be made or given by the Federal Court or by a judge or official of the Federal Court and, when so made or given, has the same effect for the purposes of the proceeding as if it were made or given by the superior court of the province or by a judge or official of the court. ### Presentation of documents (7) If (a) a memorial is presented for filing, registration or other recording under subsection (4), or a document relating to the memorial is presented for filing, registration or other recording for the purpose of any proceeding described in subsection (6), to any official of a property registry system of a province, or (b) access is sought to any person, place or thing in a province to make the filing, registration or other recording, the memorial or document shall be accepted for filing, registration or other recording or the access shall be granted, as the case may be, in the same manner and to the same extent as if the memorial or document relating to the memorial were a document evidencing a judgment referred to in paragraph (4)(a) or an amount referred to in paragraph (4)(b) for the purpose of a like proceeding, except that, if the memorial or document is issued by the Federal Court or signed or certified by a judge or official of the Court, any affidavit, declaration or other evidence required under the law of the province to be provided with or to accompany the memorial or document in the proceedings is deemed to have been provided with or to have accompanied the memorial or document as so required. ### Sale, etc. (8) Despite any law of Canada or of a province, a sheriff or other person shall not, without the written consent of the Minister, sell or otherwise dispose of any property or publish any notice or otherwise advertise in respect of any sale or other disposition of any property pursuant to any process issued or charge, lien, priority or binding interest created in any proceeding to collect an amount certified in a certificate made under subsection (1), interest on the amount or costs, but if that consent is subsequently given, any property that would have been affected by such a process, charge, lien, priority or binding interest if the Minister’s consent had been given at the time the process was issued or the charge, lien, priority or binding interest was created, as the case may be, shall be bound, seized, attached, charged or otherwise affected as it would be if that consent had been given at the time the process was issued or the charge, lien, priority or binding interest was created, as the case may be. ### Completion of notices, etc. (9) If information required to be set out by any sheriff or other person in a minute, notice or document required to be completed for any purpose cannot, because of subsection (8), be so set out without the written consent of the Minister, the sheriff or other person shall complete the minute, notice or document to the extent possible without that information and, when that consent of the Minister is given, a further minute, notice or document setting out all the information shall be completed for the same purpose, and the sheriff or other person, having complied with this subsection, is deemed to have complied with the Act, regulation or rule requiring the information to be set out in the minute, notice or document. ### Application for an order (10) A sheriff or other person who is unable, because of subsection (8) or (9), to comply with any law or rule of court is bound by any order made by a judge of the Federal Court, on an ex parte application by the Minister, for the purpose of giving effect to the proceeding, charge, lien, priority or binding interest. ### Deemed security (11) If a charge, lien, priority or binding interest created under subsection (5) by filing, registering or otherwise recording a memorial under subsection (4) is registered in accordance with subsection 87(1) of the Bankruptcy and Insolvency Act, it is deemed (a) to be a claim that is secured by a security and that, subject to subsection 87(2) of that Act, ranks as a secured claim under that Act; and (b) to also be a claim referred to in paragraph 86(2)(a) of that Act. ### Details in certificates and memorials (12) Despite any law of Canada or of the legislature of a province, in any certificate in respect of a debtor, any memorial evidencing a certificate or any writ or document issued for the purpose of collecting an amount certified, it is sufficient for all purposes (a) to set out, as the amount payable by the debtor, the total of amounts payable by the debtor without setting out the separate amounts making up that total; (b) to refer to the rate of interest to be charged on the separate amounts making up the amount payable in general terms as interest at the prescribed rate under this Act applicable from time to time on amounts payable to the Receiver General, without indicating the specific rates of interest to be charged on each of the separate amounts or to be charged for any period; and (c) to refer to the penalty calculated under section 53 to be charged on the separate amounts making up the amount payable in general terms as a penalty under that section on amounts payable to the Receiver General. ### Garnishment 75 (1) If the Minister has knowledge or suspects that a person is, or will be within one year, liable to make a payment to another person who is liable to pay an amount under this Act (in this section referred to as a “debtor”), the Minister may, by notice in writing, require the person to pay without delay, if the money is immediately payable, and in any other case, as and when the money becomes payable, the money otherwise payable to the debtor in whole or in part to the Receiver General on account of the debtor’s liability under this Act. ### Garnishment of loans or advances (2) Without limiting the generality of subsection (1), if the Minister has knowledge or suspects that within 90 days (a) a bank, credit union, trust company or other similar person (in this section referred to as an “institution”) will loan or advance money to, or make a payment on behalf of, or make a payment in respect of a negotiable instrument issued by, a debtor who is indebted to the institution and who has granted security in respect of the indebtedness, or (b) a person, other than an institution, will loan or advance money to, or make a payment on behalf of, a debtor who the Minister knows or suspects (i) is employed by, or is engaged in providing services or property to, that person or was or will be, within 90 days, so employed or engaged, or (ii) if that person is a corporation, is not dealing at arm’s length with that person, the Minister may, by notice in writing, require the institution or person, as the case may be, to pay in whole or in part to the Receiver General on account of the debtor’s liability under this Act the money that would otherwise be so loaned, advanced or paid. ### Amounts payable to secured creditor (3) Despite any provision of this or any other Act (other than the Bankruptcy and Insolvency Act), any enactment of a province or any law, if the Minister has knowledge or suspects that a person is or will become, within 90 days, liable to make a payment to a debtor or to a secured creditor who has a right to receive the payment that, but for a security interest in favour of the secured creditor, would be payable to the debtor, the Minister may, by a notice in writing, require the person to pay without delay, if the moneys are immediately payable, and in any other case, as and when the moneys become payable, the moneys otherwise payable to the debtor or the secured creditor in whole or in part to the Receiver General on account of the debtor’s liability under this Act. On receipt of that letter by the person, the amount of those moneys that is required by that letter to be paid to the Receiver General becomes, despite any security interest in those moneys, the property of Her Majesty to the extent of that liability as assessed by the Minister and shall be paid to the Receiver General in priority to any such security interest. ### Effect of receipt (4) A receipt issued by the Minister for money paid as required under this section is a good and sufficient discharge of the original liability to the extent of the payment. ### Effect of requirement (5) If the Minister has, under this section, required a person to pay to the Receiver General on account of the liability under this Act of a debtor money otherwise payable by the person to the debtor as interest, rent, remuneration, a dividend, an annuity or other periodic payment, the requirement applies to all such payments to be made by the person to the debtor until the liability under this Act is satisfied, and operates to require payments to the Receiver General out of each such payment of any amount that is stipulated by the Minister in a notice in writing. ### Failure to comply (6) Every person who fails to comply with a requirement under subsection (1) or (5) is liable to pay to Her Majesty an amount equal to the amount that the person was required under that subsection to pay to the Receiver General. ### Other failures to comply (7) Every institution or person that fails to comply with a requirement under subsection (2) with respect to money to be loaned, advanced or paid is liable to pay to Her Majesty an amount equal to the lesser of (a) the total of money so loaned, advanced or paid, and (b) the amount that the institution or person was required under that subsection to pay to the Receiver General. ### Assessment (8) The Minister may assess any person for any amount payable under this section by the person to the Receiver General and, if the Minister sends a notice of assessment, sections 39 to 52 apply with any modifications that the circumstances require. ### Time limit (9) An assessment of an amount payable under this section by a person to the Receiver General shall not be made more than four years after the notice from the Minister requiring the payment was received by the person. ### Effect of payment as required (10) If an amount that would otherwise have been advanced, loaned or paid to or on behalf of a debtor is paid by a person to the Receiver General in accordance with a notice from the Minister issued under this section or with an assessment under subsection (8), the person is deemed for all purposes to have advanced, loaned or paid the amount to or on behalf of the debtor. ### Recovery by deduction or set-off 76 If a person is indebted to Her Majesty under this Act, the Minister may require the retention by way of deduction or set-off of any amount that the Minister may specify out of any amount that may be or become payable to that person by Her Majesty. ### Acquisition of debtor’s property 77 For the purpose of collecting debts owed by a person to Her Majesty under this Act, the Minister may purchase or otherwise acquire any interest in the person’s property that the Minister is given a right to acquire in legal proceedings or under a court order or that is offered for sale or redemption, and may dispose of any interest so acquired in any manner that the Minister considers reasonable. ### Money seized from debtor 78 (1) If the Minister has knowledge or suspects that a person is holding money that was seized by a police officer in the course of administering or enforcing the criminal law of Canada from another person who is liable to pay any amount under this Act (in this section referred to as the “debtor”) and that is restorable to the debtor, the Minister may in writing require the person to turn over the money otherwise restorable to the debtor, in whole or in part, to the Receiver General on account of the debtor’s liability under this Act. ### Receipt of Minister (2) A receipt issued by the Minister for money turned over is a good and sufficient discharge of the requirement to restore the money to the debtor to the extent of the amount so turned over. ### Seizure if failure to pay 79 (1) If a person fails to pay an amount as required under this Act, the Minister may in writing give 30 days notice to the person, addressed to their latest known address, of the Minister’s intention to direct that the person’s things be seized and disposed of. If the person fails to make the payment before the expiry of the 30 days, the Minister may issue a certificate of the failure and direct that the person’s things be seized. ### Disposition (2) Things that have been seized under subsection (1) shall be kept for 10 days at the expense and risk of the owner. If the owner does not pay the amount due together with all expenses within the 10 days, the Minister may dispose of the things in a manner the Minister considers appropriate in the circumstances. ### Proceeds of disposition (3) Any surplus resulting from a disposition, after deduction of the amount owing and all expenses, shall be paid or returned to the owner of the things seized. ### Exemptions from seizure (4) Anything of any person in default that would be exempt from seizure under a writ of execution issued by a superior court of the province in which the seizure is made is exempt from seizure under this section. ### Person leaving Canada or defaulting 80 (1) If the Minister suspects that a person has left or is about to leave Canada, the Minister may, before the day otherwise fixed for payment, by notice to the person served personally or sent by registered or certified mail addressed to their latest known address, demand payment of any amount for which the person is liable under this Act or would be so liable if the time for payment had arrived, and the amount shall be paid without delay despite any other provision of this Act. ### Seizure (2) If a person fails to pay an amount required under subsection (1), the Minister may direct that things of the person be seized, and subsections 79(2) to (4) apply, with any modifications that the circumstances require. ### Liability of directors 81 (1) If a corporation fails to pay any amount as and when required under this Act, the directors of the corporation at the time it was required to pay it are jointly and severally or solidarily liable, together with the corporation, to pay it and any interest that is payable on it under this Act. ### Limitations (2) A director of a corporation is not liable unless (a) a certificate for the amount of the corporation’s liability has been registered in the Federal Court under section 74 and execution for that amount has been returned unsatisfied in whole or in part; (b) the corporation has commenced liquidation or dissolution proceedings or has been dissolved, and a claim for the amount of the corporation’s liability has been proved within six months after the earlier of the date of commencement of the proceedings and the date of dissolution; or (c) the corporation has made an assignment or a bankruptcy order has been made against it under the Bankruptcy and Insolvency Act, and a claim for the amount of the corporation’s liability has been proved within six months after the date of the assignment or bankruptcy order. ### Diligence (3) A director of a corporation is not liable for a failure under subsection (1) if the director exercised the degree of care, diligence and skill to prevent the failure that a reasonably prudent person would have exercised in comparable circumstances. ### Assessment (4) The Minister may assess any person for any amount payable by the person under this section and, if the Minister sends a notice of assessment, sections 39 to 52 apply with any modifications that the circumstances require. ### Time limit (5) An assessment of any amount payable by a person who is a director of a corporation shall not be made more than two years after the person ceased to be a director of the corporation. ### Amount recoverable (6) If execution referred to in paragraph (2)(a) has issued, the amount recoverable from a director is the amount remaining unsatisfied after execution. ### Preference (7) If a director of a corporation pays an amount in respect of the corporation’s liability that is proved in liquidation, dissolution or bankruptcy proceedings, the director is entitled to any preference to which Her Majesty would have been entitled had the amount not been so paid, and if a certificate that relates to the amount has been registered, the director is entitled to an assignment of the certificate to the extent of the director’s payment, which assignment the Minister is empowered to make. ### Contribution (8) A director who satisfies a claim under this section is entitled to contribution from the other directors who were liable for the claim. ## Evidence and Procedure ### Sending by mail 82 (1) For the purposes of this Act and subject to subsection (2), anything sent by registered, certified or first class mail is deemed to have been received by the person to whom it was sent on the day it was mailed. ### Paying by mail (2) A person who is required under this Act to pay an amount is deemed not to have paid it until it is received by the Receiver General. ### Proof of service by mail 83 (1) If, under this Act, provision is made for sending by mail a request for information, a notice or a demand, an affidavit of an officer of the Agency, sworn before a commissioner or other person authorized to take affidavits, is evidence of the sending and of the request, notice or demand if the affidavit sets out that (a) the officer has knowledge of the facts in the particular case; (b) such a request, notice or demand was sent by registered or certified mail on a specified day to a specified person and address; and (c) the officer identifies as exhibits attached to the affidavit the post office certificate of registration of the letter or a true copy of the relevant portion of the certificate and a true copy of the request, notice or demand. ### Proof of personal service (2) If, under this Act, provision is made for personal service of a request for information, a notice or a demand, an affidavit of an officer of the Agency, sworn before a commissioner or other person authorized to take affidavits, is evidence of the personal service and of the request, notice or demand if the affidavit sets out that (a) the officer has knowledge of the facts in the particular case; (b) such a request, notice or demand was served personally on a named day on the person to whom it was directed; and (c) the officer identifies as an exhibit attached to the affidavit a true copy of the request, notice or demand. ### Proof of electronic delivery (2.1) If, under this Act, provision is made for sending a notice to a person electronically, an affidavit of an officer of the Agency, sworn before a commissioner or other person authorized to take affidavits, is evidence of the sending and of the notice if the affidavit sets out that (a) the officer has knowledge of the facts in the particular case; (b) the notice was sent electronically to the person on a named day; and (c) the officer identifies as exhibits attached to the affidavit copies of (i) an electronic message confirming that the notice has been sent to the person, and (ii) the notice. ### Proof of failure to comply (3) If, under this Act, a person is required to make a return, an application, a statement, an answer or a certificate, an affidavit of an officer of the Agency, sworn before a commissioner or other person authorized to take affidavits, setting out that the officer has charge of the appropriate records and that, after a careful examination and search of the records, the officer has been unable to find in a given case that the return, application, statement, answer or certificate has been made by that person, is evidence that in that case the person did not make the return, application, statement, answer or certificate. ### Proof of time of compliance (4) If, under this Act, a person is required to make a return, an application, a statement, an answer or a certificate, an affidavit of an officer of the Agency, sworn before a commissioner or other person authorized to take affidavits, setting out that the officer has charge of the appropriate records and that, after a careful examination of the records, the officer has found that the return, application, statement, answer or certificate was filed or made on a particular day, is evidence that it was filed or made on that day. ### Proof of documents (5) An affidavit of an officer of the Agency, sworn before a commissioner or other person authorized to take affidavits, setting out that the officer has charge of the appropriate records and that a document attached to the affidavit is a document or true copy of a document made by or on behalf of the Minister or a person exercising the powers of the Minister or by or on behalf of a person, is evidence of the nature and contents of the document. ### Proof of no appeal (6) An affidavit of an officer of the Agency, sworn before a commissioner or other person authorized to take affidavits, setting out that the officer has charge of the appropriate records and has knowledge of the practice of the Agency and that an examination of the records shows that a notice of assessment was mailed or otherwise sent to a person on a particular day under this Act and that, after a careful examination and search of the records, the officer has been unable to find that a notice of objection or of appeal from the assessment was received within the time allowed for an objection or appeal to be filed under this Act, is evidence of the statements contained in the affidavit. ### Presumption (7) If evidence is offered under this section by an affidavit from which it appears that the person making the affidavit is an officer of the Agency, it is not necessary to prove the signature of the person or that the person is such an officer, nor is it necessary to prove the signature or official character of the person before whom the affidavit was sworn. ### Proof of documents (8) Every document purporting to have been executed under or in the course of the administration or enforcement of this Act over the name in writing of the Minister, the Commissioner of Customs and Revenue, the Commissioner or an officer authorized to exercise the powers or perform the duties of the Minister under this Act is deemed to be a document signed, made and issued by the Minister, the Commissioner of Customs and Revenue, the Commissioner or the officer, unless it has been called into question by the Minister or a person acting for the Minister or for Her Majesty. ### Mailing or sending date (9) If a notice or demand that the Minister is required or authorized under this Act to send to a person is mailed, or sent electronically, to the person, the day of mailing or sending, as the case may be, is deemed to be the date of the notice or demand. ### Date electronic notice sent (9.1) For the purposes of this Act, if a notice or other communication in respect of a person, other than a notice or other communication that refers to the business number of a person, is made available in electronic format such that it can be read or perceived by a person or a computer system or other similar device, the notice or other communication is presumed to be sent to the person and received by the person on the date that an electronic message is sent, to the electronic address most recently provided before that date by the person to the Minister for the purposes of this subsection, informing the person that a notice or other communication requiring the person’s immediate attention is available in the person’s secure electronic account. A notice or other communication is considered to be made available if it is posted by the Minister in the person’s secure electronic account and the person has authorized that notices or other communications may be made available in this manner and has not before that date revoked that authorization in a manner specified by the Minister. ### Date electronic notice sent – business account (9.2) For the purposes of this Act, a notice or other communication in respect of a person that is made available in electronic format such that it can be read or perceived by a person or computer system or other similar device and that refers to the business number of a person is presumed to be sent to the person and received by the person on the date that it is posted by the Minister in the secure electronic account in respect of the business number of the person, unless the person has requested, at least 30 days before that date, in a manner specified by the Minister, that such notices or other communications be sent by mail. ### Date assessment made (10) If a notice of assessment has been sent by the Minister as required under this Act, the assessment is deemed to have been made on the day of sending of the notice of assessment. ### Proof of return (11) In a prosecution for an offence under this Act, the production of a return, an application, a certificate, a statement or an answer required under this Act, purporting to have been filed or delivered by or on behalf of the person charged with the offence or to have been made or signed by or on behalf of that person, is evidence that the return, application, certificate, statement or answer was filed or delivered by or on behalf of that person or was made or signed by or on behalf of that person. ### Proof of return — printouts (12) For the purposes of this Act, a document presented by the Minister purporting to be a printout of the information in respect of a person received under section 23 by the Minister shall be received as evidence and, in the absence of evidence to the contrary, is proof of the return filed by the person under that section. ### Proof of return — production of returns, etc. (13) In a proceeding under this Act, the production of a return, an application, a certificate, a statement or an answer required under this Act, purporting to have been filed, delivered, made or signed by or on behalf of a person, is evidence that the return, application, certificate, statement or answer was filed, delivered, made or signed by or on behalf of that person. ### Evidence (14) In a prosecution for an offence under this Act, an affidavit of an officer of the Agency, sworn before a commissioner or other person authorized to take affidavits, setting out that the officer has charge of the appropriate records and that an examination of the records shows that an amount required under this Act to be paid to the Receiver General has not been received by the Receiver General, is evidence of the statements contained in the affidavit. ### Probative force of copy (15) Any copy of an original record made under section 71 that is purported to be certified by the Minister or an officer to be a copy of the original record is evidence of the nature and content of the original record, and has the same probative force as the original record would have if it were proven in the ordinary way. ## Regulations ### Regulations 84 (1) The Governor in Council may make regulations prescribing any matter or thing that by this Act is to be or may be prescribed and generally to carry out the purposes and provisions of this Act. ### Amendments to the schedule (1.1) The Governor in Council may, by regulation, amend the schedule by adding, deleting or varying the reference to an airport. ### Effect (2) A regulation made under this Act has effect from the day it is published in the Canada Gazette or at any later time that may be specified in the regulation, unless it provides otherwise and (a) has a relieving effect only; (b) corrects an ambiguous or deficient enactment that was not in accordance with the objects of this Act; (c) is consequential on an amendment to this Act that is applicable before the day on which the regulation is published in the Canada Gazette ; or (d) gives effect to a budgetary or other public announcement, in which case the regulation shall not, unless paragraph (a), (b) or (c) applies, have effect before the day on which the announcement was made.", "response": "## Analysis of LEGISLATION-FED: Air Travellers Security Charge Act\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nWhen applying this legislation to immigration cases, practitioners should consider both the explicit requirements and the underlying policy objectives. The provisions must be interpreted in light of the Canadian Charter of Rights and Freedoms, international obligations, and relevant jurisprudence. Particular attention should be paid to procedural fairness requirements and the proper exercise of discretionary authority."}
{"prompt": "How does this Federal Court of Appeal of Canada decision affect immigration jurisprudence?\n\nGordon v. Canada Court (s) Database Federal Court of Appeal Decisions Date 2023-01-20 Neutral citation 2023 FCA 12 File numbers A-394-19 Decision Content Date: 20230120 Docket: A-394-19 Citation: 2023 FCA 12 CORAM: BOIVIN J.A. RENNIE J.A. ROUSSEL J.A. BETWEEN: ALLAN JAY GORDON AND JAMES ALLAN DEACUR Appellants and HIS MAJESTY THE KING Respondent Heard by online video conference hosted by the Registry on January 16, 2023. Judgment delivered at Ottawa, Ontario, on January 20, 2023. REASONS FOR JUDGMENT BY: BOIVIN J.A. CONCURRED IN BY: RENNIE J.A. ROUSSEL J.A. Date: 20230120 Docket: A-394-19 Citation: 2023 FCA 12 CORAM: BOIVIN J.A. RENNIE J.A. ROUSSEL J.A. BETWEEN: ALLAN JAY GORDON AND JAMES ALLAN DEACUR Appellants and HIS MAJESTY THE KING Respondent REASONS FOR JUDGMENT BOIVIN J.A. [1] Allan Jay Gordon and James Allan Deacur, the appellants, challenge the decision of Barnes J. of the Federal Court (the Judge), rendered on June 25, 2019 (Judge’s decision, 2019 FC 853). In his decision, the Judge dismissed the appellants’ actions in damages against the Government of Canada. [2] The appellants’ civil actions arise out of a Canada Revenue Agency (CRA) criminal investigation that began in 1995. That investigation followed a number of routine audits into scientific research and experimental development (SR&ED) tax credit claims, submitted on behalf of taxpayer clients of James A. Deacur and Associates Ltd. (JAD) in exchange for a contingency fee. The CRA investigation resulted in the indictment and prosecution of James Allan Deacur and Allan Jay Gordon on five counts of fraud, attempted fraud, and possession of the proceeds of crime. The preliminary hearing on these charges occurred over the course of almost 4 years between 1999 and 2003. The appellants were ultimately committed to stand trial; however, on September 24, 2004, the proceedings were stayed. [3] In March 2006, together with JAD, the appellants instituted proceedings before the Federal Court. They sought several million dollars in damages on the basis of multiple causes of action, including negligent investigation, breach of their rights under the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the Charter), misfeasance in public office, malicious prosecution, and intentional interference with contractual relations (Judge’s decision at para. 3). [4] The trial before the Judge took place between October 15, 2018, and December 20, 2018, followed by oral argument during the week of February 4, 2019. In total, 23 witnesses testified and 461 exhibits were produced. [5] In a 135-page decision, the Judge found that the CRA investigation was focused on the appellants’ use of backdating documents to claim SR&ED expenses, purportedly incurred in previous years (Judge’s decision at paras. 24-47). In some instances, this method involved the creation of a shell corporation and backdated contracts for the SR&ED. Sometimes, the wages of employees allegedly involved in SR&ED work were calculated after the fact according to JAD’s assessment of the fair market value for the labour. The Judge found that these methods, used in a variety of contexts and combinations, were indefensible and amounted to misrepresentation (Judge’s decision at paras. 77, 80-81, 83, 134, 258, 262). [6] The Judge recognized that the CRA investigators owed the appellants a duty of care (at paras. 141-66), but found that the investigation was not carried out in a manner that could be characterized as negligent and was not motivated by malice or any other improper purpose (Judge’s decision at paras. 243-44, 263). The Judge concluded that there was ample support for the investigation as a whole and that while there may have been some missteps during the investigation, the Judge observed that “there is no such thing as a perfect investigation” (Judge’s decision at paras. 270-73). The Judge thus dismissed the actions. [7] Unsatisfied with this outcome, the appellants ask our Court to set aside the Judge’s decision and render judgment in their favour. The appeal of the corporate appellant JAD was dismissed by Order of our Court on January 27, 2021, for failure to obtain legal representation. The appellants before our Court are accordingly Allan Jay Gordon and James Allan Deacur. [8] On appeal from a first instance decision of the Federal Court, the appellate standards of review apply: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 [Housen]. Following Housen, questions of law are reviewable for correctness, whereas questions of mixed fact and law as well as questions of fact are reviewable for palpable and overriding error. [9] Before our Court, the appellants raise a suite of issues, contesting the Judge’s findings at every turn. Although some of these issues are framed as questions of law, when the substance of the appellants’ arguments is reviewed, they are all questions of fact or mixed fact and law. As such, the issues in this appeal may be distilled into a single question: Did the Judge make any palpable and overriding errors in his assessment of the evidence? [10] The appellants allege that the Judge’s misunderstanding of the legal requirements for a valid SR&ED tax credit claim led him to disregard or fail to give sufficient weight to evidence that demonstrated that the CRA investigation was unfounded, negligently conducted, or motivated by an improper objective, namely, the personal financial gain of individual CRA investigators. [11] In essence, the appellants contend that the procedures set out in the Taxation Operations Manual (TOM) 11 for CRA investigations were not properly followed. The appellants also argue that certain claims they prepared were accepted by CRA auditors on appeal, either before or after the preliminary inquiry took place, thus validating their method of claiming SR&ED tax credits. The appellants similarly rely on what they characterize as the prior approval of their method of claiming SR&ED credits by a law firm that was later involved in the prosecution of the appellants. The appellants further allege that the CRA’s preferred method of valuing labour costs was flawed and therefore, the CRA investigation into suspected inflated wages was negligent. According to the appellants, the Judge erred in misapprehending these facts and the evidence supporting them, leading him to dismiss their arguments without substantive engagement on his part. [12] I cannot agree. [13] The Judge’s analysis demonstrates a thorough and careful assessment of the evidentiary record before him. Based on this record, the Judge found that the appellants had not met the burden of demonstrating that the investigation was legally unsound or that CRA officials acted unlawfully, maliciously, or negligently in the conduct of the investigation (Judge’s decision at para. 277). In particular, the Judge emphasized the competence and fairness of the lead investigator, contrary to the appellants’ assertions otherwise (Judge’s decision at paras. 4, 13-15). With respect to the argument in connection with the TOM 11 for CRA investigations, the Judge rightly noted that the TOM 11 “is a set of guidelines that have no binding legal effect and their breach is not evidence per se of a wrongful prosecution or negligence” (Judge’s decision at para. 168). The Judge also considered and rejected the appellants’ contention that the investigation into inflated wages could be isolated from the way that JAD documented and presented claims to the CRA (at paras. 72-76, 82-83). The Judge found that there is little dispute as to what actually occurred during the investigation at issue: despite the passage of over twenty years, the CRA investigation was well documented and, beyond the appellants’ bare assertions, there are few factual disagreements in the record. [14] In addition, much of the evidence relied on by the appellants before our Court was comprehensively and explicitly addressed by the Judge in his detailed analysis of the parties’ submissions. The Judge considered the appellants’ evidence that the CRA validated their method of backdating records to establish a value for SR&ED claims (Judge’s decision at paras. 85-112). The Judge found that there was never any express endorsement of the methods used by the appellants and that the outcome of those cases did not amount to a repudiation of the criminal investigation (Judge’s decision at para. 96). The appellants failed to direct this Court to any evidence demonstrating otherwise. [15] On this basis, I also cannot conclude that it was an error for the Judge to dismiss each of the appellants’ claims, with more or less detailed analysis, including those asserted under the Charter and that for misfeasance in public office (Judge’s decision at paras. 244, 269). Not only did the Judge find that there was not sufficient evidence to prove the appellants’ claim in negligence, the Judge found that the investigation, while imperfect, was nonetheless conducted diligently and based on substantial evidentiary support. Hence, as the Judge found, the evidence could not establish a Charter violation or misfeasance. [16] In conclusion, it is recalled that a trial judge’s findings of fact are owed a great deal of deference. Palpable and overriding error is a very high standard, which recognizes the privileged position of the trial judge in hearing witness testimony first-hand (Housen at paras. 12-14). In this case, the Judge made thoughtful findings as to the credibility of various witnesses as well as findings of fact where testimony conflicted, to which deference is owed. Also, as the respondent underscores, it is a well-established principle that a judge is presumed to have considered all of the evidence (Housen at para. 46, 72; Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, 387 C.R.R. (2d) 1 at para. 67). In light of these principles and the failure of the appellants to demonstrate a palpable and overriding error, I am of the view that there is no reason to disturb the Judge’s findings. [17] For all of these reasons, I would accordingly dismiss the appeal, with costs payable by the appellants to the respondent. \"Richard Boivin\" J.A. \"I agree. Donald J. Rennie J.A.\" \"I agree. Sylvie E. Roussel J.A.\" FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-394-19 STYLE OF CAUSE: ALLAN JAY GORDON AND JAMES ALLAN DEACUR v. HIS MAJESTY THE KING PLACE OF HEARING: By online video conference DATE OF HEARING: January 16, 2023 REASONS FOR JUDGMENT BY: BOIVIN J.A. CONCURRED IN BY: RENNIE J.A. ROUSSEL J.A. DATED: January 20, 2023 APPEARANCES: Allan Jay Gordon ON HIS OWN BEHALF James Allan Deacur ON HIS OWN BEHALF Wendy Linden Rishma Bhimji Kieran Woods For The Respondent SOLICITORS OF RECORD: A. François Daigle Deputy Attorney General of Canada For The Respondent", "response": "## Analysis of Court Decision: Gordon v. Canada\n\n### Key Issues\ne appellants raise a suite of issues, contesting the Judge’s findings at every turn. Although some of these issues are framed as questions of law, when the substance of the appella\n\n### Standard of Review\nons of law are reviewable for correctness, whereas questions of mixed fact and law as well as questions of fact are reviewable for palpable and overriding error. [9] Before our Cou\n\n### Legal Analysis\nThe court's analysis focuses on: annot agree. [13] The Judge’s analysis demonstrates a thorough and careful assessment of the evidentiary record before him. Based on this record, the Judge found that the appellants had not met the burden of demonstrating that the investigation was legally unsound or that CRA officials acted unlawfully, maliciously, or negligent\n\n### Precedential Value\nAs a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation."}
{"prompt": "What legal tests are applied in this Refugee Protection Division decision from the Immigration and Refugee Board of Canada?\n\nRPD File No./No de dossier de SPR: VA6-02821 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXXX XXXXX XXXXX Demandeur(e)(s) d'asile Date(s) of Hearing 12 December 2007 and Date(s) de l'audience 05 February 2008 Place of Hearing Lieu de l'audience Videoconferencing held in Toronto, ON Fait par vidéoconférence à Date of Decision 29 February 2008 Date de la décision Panel Tribunal Counsel for the Conseil(s) du / de la / des Claimant(s) Nil mandeur(e)(s) d'asile Tribunal Officer Jonathan Joshi-Koop Agent(e) des tribunaux Designated NIl Représentant(e)(s) Representative(s) Désigné(e)(s) Counsel for the Minister Nil Conseil du ministre Reasons and Decision [1] XXXXX XXXXX XXXXX claimant, came to Canada from the Republic of Turkey on July 29, 2006, and several days later made a claim to be in need of refugee protection under the Immigration and Refugee Protection Act, (\"the Act\").1 He says that he is a Convention refugee on account of his nationality and political opinion, and that he faces a risk to his life, or of cruel and unusual treatment or punishment, and a danger of torture, in Turkey. [2] The hearing of this claim began on December XXXXX, 2007. The interpreter became ill during the hearing and the matter was put over for completion on February 5, 2008. On that date the claimant appeared representing himself and indicated that he no longer wished to be represented by anyone else. The panel canvassed with him whether he wished to continue at that point, and that he did understand that he had the right to be represented by counsel. The panel is satisfied that the claimant did understand that he had the right to be represented by counsel and that he did wish to continue on February 5, 2008, without counsel, but by representing himself. The hearing continued, and was completed, that day. [3] During the hearing on February 5, 2008, the claimant indicated that he had additional evidence which he wished to put in front of the panel. The panel agreed to accept all of the material the claimant wished to produce. This included the originals of two letters or call-up notices going to the issue of military service.2 [4] As received, the material submitted post-hearing by the claimant includes documents which appear to be in Turkish, but are not in English or French, and as such do not comply with the rules of the Refugee Protection Division.3 The panel is returning that material to the claimant and has not relied on it, one way or another, in reaching this decision. The claimant has a duty, in representing himself, to comply with all of the requirements of the law. The panel will not excuse him from such requirements simply because he has chosen to represent himself. Identity and Citizenship [5] The claimant travelled to Canada as a seaman. He has a genuine Turkish passport issued in his name, which was seized by the Canadian immigration authorities, which contained a valid Canadian visa.4 Copies of various other documents going to personal identity were also entered into evidence.5 The panel is satisfied with the claimant's personal identity, and that he is a citizen of the Republic of Turkey. Determination [6] These are the reasons for the decision that XXXXX XXXXX XXXXX is not in need of refugee protection. Circumstances [7] The circumstances supporting the claimant's application for refugee protection are summarised in his Personal Information Form.6 There are two bases to the claim: a history of arrest and detention which the claimant alleges he experienced in Turkey; and his decision that he will not serve in the Turkish military. Arrests and Detentions [8] The claimant says that he is of Kurdish and Alevi background, and as such attended demonstrations and celebrations from time to time. On three of these occasions he was arrested and detained - in XXXXX 2003, in XXXXX 2005, and in XXXXX 2006. In XXXXX, 2003, he was picked up by the police on the street because he was wearing a T-shirt that had the name of an Alevi organisation, the Haci Bektas Veli Association, and kept 5 - 6 hours, during which he was beaten. In XXXXX, 2005, the claimant was one of those arrested \"in the chaos\" which followed a police intervention; he was kept overnight, questioned and beaten. In XXXXX, 2006, he was \"among those protestors\" arrested; he says that the police became aware that he had been arrested the previous year, detained him for about 24 hours, questioned and beat him. When he was released, although he was not charged with anything, the police said that they would be \"watching\" him. Military Service [9] The claimant says that, as a Kurdish and Alevi person, he cannot agree to serve in the Turkish armed forces. As military service is mandatory in Turkey, this will result in his being charged and imprisoned. In support of this arm of his claim, the claimant submitted various documents which appear to show that he is subject to call-up in Turkey.7 [10] The claimant did not raise the question of military service, and his wish to avoid it, at the initial interview which launched his claim for refugee protection, or in his Personal Information Form. He was asked about this, since he raised it at his hearing. He gave several reasons for the omission: (a) the interpreter who helped him with the Personal Information Form said it was not such a big issue that it should be mentioned; (b) that he did not tell the immigration officer because he was afraid of state officials; and (c) that he did not know that he had to tell the officer about his objection to military service. Analysis [11] The panel does not accept the claimant's explanations for omitting any reference to his objection to military service from his interview with an immigration officer at the port of entry, and from his Personal Information Form. The panel expects that a person who fears a risk of persecution, or to his life, or of cruel and unusual treatment or punishment, or a danger of torture, and seeks protection from Canada for those risks and dangers, will tell a representative of Canada all of the reasons for his fear. [12] The panel notes as well that the instructions in Question 31 of the Personal Information Form are very clear: \"...set out in chronological order all the significant events and reasons that have led you to claim refugee protection in Canada.\"8 The reasons given by the claimant for failing to comply with these instructions, as set out in points [10] (a) - (c) above, do not constitute explanations which the panel can rely on to excuse the claimant from the requirement to have disclosed the basis of his claim in a timely manner. [13] The panel concludes that the objection to military service which the claimant alleged at his hearing has been fabricated, or made up, after completing the Personal Information Form, in order to bolster the claim for protection. The panel does not accept, or believe, that the claimant has an objection to military service in Turkey which would form a basis for his claim to refugee protection. He may be subject to call-up at this point in time, in Turkey, but the panel does not believe that the claimant has a fear of military service in Turkey which could or would go to form a fear of persecution, or of a risk to life, or of cruel and unusual treatment or punishment, or of a danger of torture. [14] This leaves the claimant's allegations with respect to the history of three arrests and detentions. However, because the panel has found that the claimant has manufactured one arm of his claim, one of the two bases of his claim for protection in Canada, the panel finds that it cannot rely on this other arm of his claim either. That is, the claimant's testimony in general is neither reliable nor credible, and as such it cannot support his claim on any arm, or basis. [15] It is possible, however, that the claimant fabricated one arm of his claim (military service) and that the other arm (three arrests and detentions) is, at least more or less, true. The basis for such a finding by the panel does not exist, in the presence of a prior finding of lack of credibility, but the panel's responsibility is to determine future risk even in the case of opportunist or false claims. [16] Even if, however, the panel had found that the claimant had successfully established that there were three occasions on which he had been arrested and detained, this would not be sufficient to demonstrate more than a mere possibility of persecution, or a risk to life, or of cruel and unusual treatment or punishment, or a danger of torture, in Turkey, today, in the circumstances as alleged by the claimant. In XXXXX 2003 he was stopped by police because of the T-shirt he was wearing; they took him in, questioned him, beat him up and released him. In XXXXX 2005 he was arrested a second time in a chaotic scene at a demonstration, taken in, questioned and beaten. The third time, in XXXXX 2006, he was picked up again at a demonstration, questioned and beaten. Throughout these years the claimant worked continuously in an occupation which required international travel on a Turkish passport, without difficulty or hindrance. The panel does not consider that this history is sufficient, by itself, to raise more than a mere possibility of persecution, or a risk to life, or of cruel and unusual treatment or punishment, or a danger of torture. [17] This leaves only the claimant's ethnicity and religion. The panel accepts that the claimant is a Kurdish person of Alevi background from Turkey. This however is insufficient for a finding that he is in need of refugee protection. In Turkey today, people are not in need of refugee protection simply because of their ethnic and religious background as Alevi Kurds. Conclusion [18] The claimant XXXXX XXXXX XXXXX is not in need of refugee protection, under section 96, or under section 97, of the Act, and accordingly his claim for protection is rejected. (signed) \"Carolyn McCool\" 29 February 2008 Date (day/month/year) REFUGEE PROTECTION DIVISION / RELIGIOUS BELIEF / FREEDOM OF RELIGION / CREDIBILITY / RELIGIOUS PRACTICE / MALE / NEGATIVE / CHINA 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Post-hearing Exhibit 13. 3 Copies of this material remain in Post-hearing Exhibit 13. 4 Exhibit 2, (un-paginated.). 5 Exhibits 4 and 6: copies of resident identity card, household register, and various other documents. 6 Exhibit 1. 7 Exhibits 11 and 12, and Post-hearing Exhibit 13. 8 Exhibit 1. Bold in original. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : RPD.15.7 (October 2007) Disponible en français RPD File No./Dossier: VA6-02821 5 RPD File No./Dossier: VA6-02821 1", "response": "## Analysis of Refugee Decision: VA6-02821\n\n### Key Issues\nntion; he was kept overnight, questioned and beaten. In XXXXX, 2006, he was \"among those protestors\" arrested; he says that the police became aware that he had been arrested the pr\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: bjection to military service. Analysis [11] The panel does not accept the claimant's explanations for omitting any reference to his objection to military service from his interview with an immigration officer at the port of entry, and from his Personal Information Form. The panel expects that a person who fears a risk of persecu\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "Explain the purpose and application of this section of Anti-terrorism Act:\n\n# Anti-terrorism Act SC 2001, c 41 An Act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities, in order to combat terrorism Assented to 2001-12-18 ### Preamble WHEREAS Canadians and people everywhere are entitled to live their lives in peace, freedom and security; WHEREAS acts of terrorism constitute a substantial threat to both domestic and international peace and security; WHEREAS acts of terrorism threaten Canada’s political institutions, the stability of the economy and the general welfare of the nation; WHEREAS the challenge of eradicating terrorism, with its sophisticated and trans-border nature, requires enhanced international cooperation and a strengthening of Canada’s capacity to suppress, investigate and incapacitate terrorist activity; WHEREAS Canada must act in concert with other nations in combating terrorism, including fully implementing United Nations and other international instruments relating to terrorism; WHEREAS the Parliament of Canada, recognizing that terrorism is a matter of national concern that affects the security of the nation, is committed to taking comprehensive measures to protect Canadians against terrorist activity while continuing to respect and promote the values reflected in, and the rights and freedoms guaranteed by, the Canadian Charter of Rights and Freedoms ; AND WHEREAS these comprehensive measures must include legislation to prevent and suppress the financing, preparation, facilitation and commission of acts of terrorism, as well as to protect the political, social and economic security of Canada and Canada’s relations with its allies; NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: ## Short Title ### Short title 1 This Act may be cited as the Anti-terrorism Act. # PART 1 ## Criminal Code 2 to 23 [Amendments] ## Consequential Amendment 23.1 [Amendment] # PART 2 ## Official Secrets Act 24 to 30 [Amendments] ## Consequential Amendments 31 to 42 [Amendments] # PART 3 ## Canada Evidence Act 43 and 44 [Amendments] ## Consequential Amendments 45 and 46 [Amendments] # PART 4 ## Proceeds of Crime (Money Laundering) Act 47 to 75 [Amendments] ## Consequential Amendments 76 to 86 [Amendments] # PART 5 ## Amendments to Other Acts 87 to 112 [Amendments] # PART 6 ## Registration of Charities — Security Information 113 The Charities Registration (Security Information) Act is enacted as follows: ## Amendments to the Income Tax Act 114 to 118 [Amendments] # PART 7 ## Coordinating, Review and Commencement Provisions ## Coordinating Amendments 119 to 144 [Amendments] ## Review and Report ### Review 145 (1) Within three years after this Act receives royal assent, a comprehensive review of the provisions and operation of this Act shall be undertaken by such committee of the Senate, of the House of Commons or of both Houses of Parliament as may be designated or established by the Senate or the House of Commons, or by both Houses of Parliament, as the case may be, for that purpose. ### Report (2) The committee referred to in subsection (1) shall, within a year after a review is undertaken pursuant to that subsection or within such further time as may be authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be, submit a report on the review to Parliament, including a statement of any changes that the committee recommends. ## Coming into Force ### Coming into force * 146 (1) Subject to subsection (2), the provisions of this Act, other than sections 1, 24, 25, 47, 48, 76 to 86 and 119 to 145, and the provisions of any Act that are enacted by this Act come into force on a day or days to be fixed by order of the Governor in Council. ### Part 6 (2) Part 6 comes into force on a day to be fixed by order of the Governor in Council. * [Note: Sections 1, 24, 25, 47, 48, 76 to 86 and 119 to 145 in force on assent December 18, 2001; sections 2 to 23.1, 26 to 46, 49 to 51, 53, 65 and 66, subsections 67(1) and (4) to (9), sections 68 to 73, 75 and 87 to 118 in force December 24, 2001, see SI/2002-16; section 52, subsections 67(2) and (3) and section 74 in force June 12, 2002, see SI/2002-86; sections 54 to 57, 58, 59 to 64 in force January 6, 2003, see SI/2002-164.]", "response": "## Analysis of LEGISLATION-FED: Anti-terrorism Act\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nWhen applying this legislation to immigration cases, practitioners should consider both the explicit requirements and the underlying policy objectives. The provisions must be interpreted in light of the Canadian Charter of Rights and Freedoms, international obligations, and relevant jurisprudence. Particular attention should be paid to procedural fairness requirements and the proper exercise of discretionary authority."}
{"prompt": "How does this Federal Court of Appeal of Canada decision affect immigration jurisprudence?\n\nPublic Service Alliance of Canada v. Canada (Senate) Court (s) Database Federal Court of Appeal Decisions Date 2023-05-24 Neutral citation 2023 FCA 111 File numbers A-265-21 Decision Content Date: 20230524 Docket: A-265-21 Citation: 2023 FCA 111 CORAM: RIVOALEN J.A. ROUSSEL J.A. GOYETTE J.A. BETWEEN: PUBLIC SERVICE ALLIANCE OF CANADA Applicant and SENATE OF CANADA Respondent Heard at Ottawa, Ontario, on May 16, 2023. Judgment delivered at Ottawa, Ontario, on May 24, 2023. REASONS FOR JUDGMENT BY: RIVOALEN J.A. CONCURRED IN BY: ROUSSEL J.A. GOYETTE J.A. Date: 20230524 Docket: A-265-21 Citation: 2023 FCA 111 CORAM: RIVOALEN J.A. ROUSSEL J.A. GOYETTE J.A. BETWEEN: PUBLIC SERVICE ALLIANCE OF CANADA Applicant and SENATE OF CANADA Respondent REASONS FOR JUDGMENT RIVOALEN J.A. [1] This is an application for judicial review of the arbitral award rendered on September 9, 2021 (2021 FPSLREB 103) by the Federal Public Sector Labour Relations and Employment Board (the Board) established pursuant to section 50 of the Parliamentary Employment and Staff Relations Act, R.S.C. 1985, c. 33 (2nd Supp) (the Act). [2] In its decision, the Board rejected the applicant’s proposal seeking a new appendix to the collective agreement between the bargaining unit composed of all employees of the Building Operations Section and the Material Management and Logistics Section (the bargaining unit) and the Senate of Canada. The proposal consisted of a Memorandum of Understanding that included a lump sum payment of $2,500 to each member of the bargaining unit for general damages to compensate for the stress, aggravation, and pain and suffering experienced related to the employer’s implementation of the Phoenix pay system. The applicant justified the proposal in an attempt to mirror an agreement between tens of thousands of employees from the core public administration and the Treasury Board (2020 Phoenix settlement agreement). [3] The parties agree that the standard of review of the Board’s decision is reasonableness. The question before the Court is whether the arbitral award was reasonable within the meaning of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov]. [4] The applicant submits that the arbitral award is unreasonable and must be set aside. The applicant says that the Board rejected its proposal for the lump sum payment of $2,500 on the erroneous basis that it was not convinced that the implementation issues experienced by members employed by the Senate of Canada were sufficiently widespread to justify an award of damages when compared to the issues experienced by the employees of the core public administration. [5] The applicant raises four principal arguments. [6] First, the applicant submits that the Board failed to grasp the distinction that, in the 2020 Phoenix settlement agreement reached between the Treasury Board and the applicant, there was no requirement for the applicant’s members to provide evidence of stress, aggravation, or pain and suffering related to a specific Phoenix-related pay problem in order to receive general damages of $2,500. According to the applicant, while the employees working at the Senate of Canada did not experience the same serious or widespread pay problems as those experienced by employees of the core public administration, they nonetheless experienced stress and should be entitled to the same damages award. [7] Next, the applicant contends that the Board committed a retrospective parsing of the data that was before it. The applicant argues that at the relevant time, there was evidence before the Board that employees of the Senate of Canada experienced pay problems and that members of the bargaining unit would not have known whether those problems were associated with the Phoenix pay system. [8] In addition, during oral submissions, the applicant took the Court to the record and relied on evidence from the Standing Senate Committee on National Finance that the impacts of the Phoenix pay system varied across departments of the core public administration and that those departments responded differently to the challenges. For example, Correctional Service Canada transferred its pay services to the Miramichi Pay Centre and experienced significant pay problems, whereas Statistics Canada retained its compensation advisors and was able to mitigate the problem associated with the Phoenix pay system. [9] Finally, as it did before the Board, the applicant points to employees working for the Canada Revenue Agency (CRA) who received the lump sum payment of $2,500 without having experienced any Phoenix-related pay problems. The applicant argues that, in its analysis on this point, the Board improperly treated general damages as if they were part of total compensation. [10] Going further, the applicant now stresses that the issue before the Board was whether the employees of the bargaining unit would have experienced the same stress, aggravation, or pain and suffering about the potential for serious pay problems that employees of the core public administration had experienced. [11] I am of the view that the applicant’s arguments cannot stand. I see no basis to conclude that the Board’s decision was unreasonable. [12] Under the judicial review framework set out in Vavilov, a reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov at para. 85). The burden is on the party challenging a decision to show that it is unreasonable, a conclusion that requires showing that the decision contains a serious flaw. In addition, the reviewing court must refrain from reweighing and reassessing the evidence considered by the decision maker. Reviewing courts must also ordinarily refrain from deciding the issue that was before the decision maker and must respect the decision maker’s role and expertise (Vavilov at paras. 75, 83, 100, 125). [13] The Board, in this case, had wide authority—under the interest arbitration process—to resolve matters referred to it, determine the appropriate terms and conditions of employment, and impose those terms via a binding award. This Court has recognized that interest arbitrators are afforded wide discretion to settle the terms of the parties’ collective agreement, and the decisions they make are almost always policy determinations and rarely involve legal issues. Additionally, this Court has recognized that the need for finality, which animates the need for deference in labour cases generally, is particularly acute in interest arbitration cases (Laurentian Pilotage Authority v. Pilotes du Saint-Laurent Central Inc., 2018 FCA 117, 299 A.C.W.S. (3d) 235 at paras. 60-61, 63). [14] As its reasons disclose, the Board took into account the factors set out in section 53 of the Act. It weighed the evidence and considered the proposals made by the parties. At paragraphs 82 to 85 of its reasons, the Board set out a coherent and rational basis for its decision to reject the proposal for a lump sum payment of $2,500 to each member of the bargaining unit. While the Board recognized that the employees of the Senate of Canada were not able to escape all the frustrations associated with the Phoenix pay system, it determined that the employer was responsive. [15] Weighing all considerations, the Board acknowledged that it had more evidence before it on the Phoenix-related pay issues than a differently constituted Board had in its previous decision in Public Service Alliance of Canada v. House of Commons (2021 FPSLREB 45). However, the Board was not prepared to establish the precedent of matching the 2020 Phoenix settlement agreement in the arbitral award and did not accept that matching a damage award designed to compensate employees for the specific problems that occurred in the Treasury Board’s jurisdiction was justified by a comparability argument. The Board found that the applicant had not provided evidence of problems of similar or substantial extent to those experienced in the core public administration. [16] The Board was not convinced by the situation of the CRA employees, noting at paragraph 84 of its reasons that these employees received a smaller general economic increase for 2020 than that awarded by the Board in its arbitral decision. It was within the Board’s ambit to consider total compensation in conducting its comparability analysis with respect to the employees of the Canada Revenue Agency. [17] In response, the evidence submitted by the respondent before the Board was that it implemented efficient and flexible mechanisms to mitigate against any negative impacts the Phoenix pay system caused to its employees. [18] In addition, the respondent offered extensive reasons for opposing the lump sum payment proposal. It outlined the history of the Phoenix implementation in the core public administration and provided reasons why that history differed considerably from that experienced by employees of the Senate of Canada. The respondent noted that in the July 2018 report of the Standing Senate Committee on National Finance, the office of the Auditor General of Canada observed that in June 2017, there was over $520 million in outstanding pay for public servants due to errors caused by the Phoenix pay system. As of January 2018, there were 633,000 pay action requests pending, representing an increase of 28% from the data collected in June 2017. [19] As previously mentioned, the Board considered and weighed the proposals from both sides, as it was required to do. There was no evidence before it that any of the applicant’s members working at the Senate of Canada had experienced stress, aggravation, or pain and suffering from Phoenix-related pay problems, let alone problems of similar or substantial extent to those experienced by the employees of the core public administration. [20] Furthermore, there was evidence before the Board of the grievances and lawsuits filed by employees of the core public administration because of the Phoenix-related pay issues, which culminated in the 2020 Phoenix agreement reached between the Treasury Board and the applicant. As part of that agreement, the applicant agreed to withdraw all related grievances, unfair labour practices, and litigation, and agreed not to support or pursue new litigation with regard to these matters. [21] There was no evidence of any grievances or lawsuits commenced on behalf of members employed by the Senate of Canada. [22] With all of this context in mind, and being of the view that the applicant has not met its burden, I cannot find that the arbitral award is unreasonable. [23] I see no serious flaw in the Board’s reasoning, based on the record that was before it and the positions taken by both parties in the arbitral dispute. The arbitral award is based on an internally coherent and rational chain of analysis that is justified in relation to the record and the Board’s authority under the Act. [24] The applicant is asking this Court to reweigh the evidence that was before the Board, which is not its role. I see no reason to intervene. [25] For these reasons, I would dismiss the application for judicial review with costs. \"Marianne Rivoalen\" J.A. “I agree. Sylvie E. Roussel J.A.” “I agree. Nathalie Goyette J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-265-21 STYLE OF CAUSE: PUBLIC SERVICE ALLIANCE OF CANADA v. SENATE OF CANADA PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: May 16, 2023 REASONS FOR JUDGMENT BY: RIVOALEN J.A. CONCURRED IN BY: ROUSSEL J.A. GOYETTE J.A. DATED: MAY 24, 2023 APPEARANCES: Andrew Astritis Simcha Walfish For The Applicant Carole Piette Jean-Michel Richardson For The Respondent SOLICITORS OF RECORD: Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l. Ottawa, Ontario For The Applicant Emond Harnden LLP/s.r.l. Ottawa, Ontario For The Respondent", "response": "## Analysis of Court Decision: Public Service Alliance of Canada v. Canada (Senate)\n\n### Key Issues\ninced that the implementation issues experienced by members employed by the Senate of Canada were sufficiently widespread to justify an award of damages when compared to the issues\n\n### Standard of Review\n3] The parties agree that the standard of review of the Board’s decision is reasonableness. The question before the Court is whether the arbitral award was reasonable within the me\n\n### Legal Analysis\nThe court's analysis focuses on: applicant argues that, in its analysis on this point, the Board improperly treated general damages as if they were part of total compensation. [10] Going further, the applicant now stresses that the issue before the Board was whether the employees of the bargaining unit would have experienced the same stress, aggravation, or pai\n\n### Precedential Value\nAs a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation."}
{"prompt": "Analyze the requirements set out in this Federal regulations from the Canadian government:\n\n# Hatchery Regulations CRC, c 1023 Regulations Respecting the Improvement of Poultry Stock and the Eradication of Disease in Poultry Stock Enabling authority: HEALTH OF ANIMALS ACT [Repealed, SOR/2022-218, s. 4]", "response": "## Analysis of REGULATIONS-FED: Hatchery Regulations\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\n- # Hatchery Regulations CRC, c 1023 Regulations Respecting the Improvement of Poultry Stock and the Eradication of Disease in Poultry Stock Enabling authority: HEALTH OF ANIMALS ACT [Repealed, SOR/2022-218, s. 4]\n\n### Application to Immigration Cases\nThese regulations provide specific implementation details for broader legislative frameworks. Practitioners should ensure strict compliance with procedural requirements, timelines, and documentation standards. The regulations must be interpreted consistent with their enabling legislation and may be subject to challenge if they exceed the authority granted by the statute."}
{"prompt": "What administrative law principles are applied in this Federal Court of Canada decision?\n\nManjarres Chavez v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2023-07-21 Neutral citation 2023 FC 1007 File numbers IMM-9373-21 Decision Content Date: 20230721 Docket: IMM-9373-21 Citation: 2023 FC 1007 Ottawa, Ontario, July 21, 2023 PRESENT: The Honourable Madam Justice Elliott BETWEEN: RONALD ENRIQUE MANJARRES CHAVEZ YOSWALL ANDRES MANJARRES GUTIERREZ VIVIANA CARRILLO ALZATE CHRISTOPHER MANJARRES CARILLO JACOB JOSE MANJARRES CARRILLO ROGER JUNIOR CARRILLO ALZATE JANES CARRILLO ALZATE LUISA MARGARITA HINCAPIE GARCIA MONICA INES VEGA CAMACHO YULIETH MARGARITA CARRILLO VEGA HELEN TATIANA CARRILLO VEGA, AND JANYS SOFIA CARRILLO VEGA Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I. Overview [1] The Applicants seek judicial review of a November 23, 2021 decision [Decision] of the Refugee Protection Division [RPD] rejecting their claims for refugee protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. [2] For the reasons that follow, this application will be dismissed. II. Background [3] The Applicants, Ronald Enrique Manjarres Chavez, his wife Viviana Carrillo Alzate, and 10 members of their family, including their children, are all citizens of Colombia. [4] In August 2014, Ms. Alzate, who held a security position at the international airport in Santa Marta, conducted a seizure of packages identified to be narcotics. These narcotics belonged to Los Pachencas, a local and regional narco-paramilitary group that controls drug trafficking routes in the Caribbean. [5] Ms. Alzate began receiving threats and demands from Los Pachencas to conspire with them by allowing future narcotic packages to be trafficked through the airport. In March 2016, she fled Colombia with her husband, Mr. Chavez, and their children to the United States (US). [6] In March 2018, Mr. Chavez’ nephew was approached by Los Pachencas demanding to know where Ms. Alzate was, and he soon fled Colombia to the US as well. [7] In October 2018, Los Pachencas began threatening Ms. Alzate’s brothers, one of whom worked in security at the Santa Marta Port Authority, to conspire with them. Both brothers fled with some of their immediate family to the US in November 2018. [8] The Applicants arrived in Canada between January and April 2019 and sought refugee protection. [9] The children and stepchildren of Ms. Alzate’s brothers who remained in Colombia have continued to be threatened and extorted by Los Pachencas in Santa Marta. III. Decision under Review [10] The RPD accepted the Applicants’ claims as largely credible and found that they were targeted by Los Pachencas as alleged. [11] The RPD concluded that the Applicants are not persons in need of protection under subsection 97(1) of IRPA on the basis that they have a viable Internal Flight Alternative (IFA) in Tunja, Colombia. [12] Based on the country condition evidence in the National Documentation Package (NDP) for Colombia, the RPD found that Los Pachencas mostly operate out of Santa Marta and their sphere of influence is limited to the same area. The RPD did not find objective evidence to show that Los Pachencas have the means to locate a target in Tunja, which is located 815 kilometres away from Santa Marta, nor that they would expend their limited connections with authorities to locate the Applicants in Tunja. [13] The RPD also found that Los Pachencas are no longer interested in locating Ms. Alzate or Mr. Chavez’ nephew, since several years have passed since they last received threats. While the RPD acknowledged that Los Pachencas’ motivation to locate Ms. Alzate’s brothers may be stronger based on the continued threats against their children and stepchildren, the RPD did not find that the brothers’ relocation to Tunja would amount to a subsection 97(1) risk. [14] As such, the RPD found on a balance of probabilities, that Los Pachencas do not have the means or motivation to locate the Applicants in Tunja such that they face a section 97(1) risk should they return to Colombia. IV. Issues and Standard of Review [15] The Applicants submit that the RPD’s IFA analysis is unreasonable. [16] First, the Applicants argue that the RPD erred in finding that Los Pachencas do not have the ability to track the Applicants to Tunja. [17] Second, the Applicants argue that the RPD erred in assessing Los Pachencas’ interest in the Applicants. [18] The parties agree that the applicable standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 23. [19] A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision: Vavilov at para 85. [20] The onus is on the Applicants to demonstrate that the Decision suffers shortcomings such that it no longer bears the hallmarks of reasonableness, namely justifiability, transparency, and intelligibility: Vavilov at paras 99-100 and 125. V. Analysis A. IFA Test [21] The two-prong test for determining whether refugee claimants have a viable IFA is well-established: Thirunavukkarasu v Canada (Minister of Employment and Immigration), [1994] 1 FC 589 (CA) [Thirunavukkarasu]. [22] The Applicants only challenge the RPD’s assessment of the first prong of the IFA test. [23] The first prong of the IFA test requires the RPD to be satisfied on a balance of probabilities that there is no serious possibility of the claimants being subject to persecution in the proposed IFA: Thirunavukkarasu at para 9. Once the RPD identifies a proposed IFA, claimants bear the burden of showing the IFA does not exist by establishing that they face a serious possibility of persecution on a balance of probabilities: Henao v Canada (Citizenship and Immigration), 2020 FC 84 at paras 10 and 16. B. Did the RPD err in finding that Los Pachencas do not have the ability to track the Applicants to Tunja? [24] The Applicants argue that the RPD erred in finding no serious possibility of persecution in Tunja by misconstruing or ignoring the country condition evidence for Colombia. [25] The RPD acknowledged the Applicants’ claim that Los Pachencas would use their connections with authorities to track targets to areas outside of Santa Marta, their primary area of operation. The RPD noted that the articles submitted by counsel specifically mentioning Los Pachencas and their connections with authorities were limited to the area of Santa Marta or the Department of Magdalena, or when connections to authorities were used to access high-level information about counter-narcotics activities. However, the RPD found that “the NDP is silent on Los Pachencas’ connections with the authorities”. The RPD also found that there was “no evidence” of Los Pachencas using any connections to track low-level targets, such as the Applicants, across Colombia to areas outside of their usual operations. [26] The RPD similarly found that while evidence demonstrated that criminal groups are able to track victims across the country through alliances, the evidence did not support that Los Pachencas specifically have a criminal network in Tunja. The RPD noted that the only documented alliance between Los Pachencas and another national criminal group had ceased. [27] Finally, the RPD pointed to instances of some of the Applicants or their family members relocating to other areas of Colombia, during which they continued to receive threats from Los Pachencas but were not found by them, as indicative of Los Pachencas’ lack of ability to track the Applicants outside their area of influence. [28] The Applicants quote extensively from documentary sources in the NDP, which detail the collusion between paramilitary groups or new armed groups and Colombian authorities. The Applicants also emphasize an excerpt from a Response to Information Request [RIR] stating “criminal groups are ‘definitely’ able to track targeted individuals” across the country, and another document stating that alliances between paramilitaries are in constant flux. [29] The Applicants argue that the RPD engaged in a pattern of unreasonably discounting the general evidence detailing the ability of criminal, paramilitary, or new armed groups to track their targets to areas outside of their influence. The Applicants submit that since Los Pachencas fall within the definitions of criminal, paramilitary, or new armed groups, the RPD ought to have considered the evidence specific to Los Pachencas in the context of the general evidence about these groups’ means. [30] The Applicants take particular issue with the RPD’s statements that the NDP is “silent” on Los Pachencas’ connections with authorities and that there is “no evidence” that they would use connections to pursue low-level targets across Colombia. With respect to the latter statement, the Applicants also argue that the RPD imported an “unreasonable standard”, asserting that the abundance of homicides in Colombia results in only high-level cases being newsworthy. [31] The Applicants submit that these statements clearly demonstrate a misunderstanding or ignorance of the evidence. The Applicants rely on Chauhdry v Canada (Minister of Citizenship and Immigration), 1998 CanLII 8322 (FC) [Chauhdry] to argue that the RPD cannot find a viable IFA in the absence of sufficient evidence solely on the basis that a claimant has not fulfilled their onus of proof. [32] The Respondent counters that it was open for the RPD to find insufficient evidence of Los Pachencas’ relationship with Colombian authorities or of any criminal network in Tunja through which they could track the Applicants based on the evidence. [33] The Respondent asserts that the Applicants’ reliance on the RPD’s specific statements to demonstrate that evidence was ignored is misplaced, noting that none of the evidence pointed to by the Applicants was either critical or contradictory to the RPD’s conclusions. Further, the Respondent challenges the Applicant’s reliance on specific NDP evidence, such as the general statement that criminal groups are “definitely” able to track targets across the country. The Respondent points out that this statement was an introduction to more group-specific information, which the RPD did consider regarding Los Pachencas. [34] Reviewing the Decision as a whole and the evidence that was before the RPD, I find that the RPD conducted a reasonable analysis of the documentary evidence. [35] It was open to the RPD to weigh the evidence specific to Los Pachencas, or lack of, to draw an inference that they do not have the means to track the Applicants to Tunja, or that they would not use their connections to authorities to track the Applicants as low-level targets. [36] As the Respondent submits, decision-makers benefit from the presumption that they considered all the evidence before them and need not cite every piece of evidence: Rahal v Canada (Citizenship and Immigration), 2012 FC 319 at paras 38-39, citing Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1999] 1 FC 53 (FCTD) at paras 16-17. [37] While I agree that the RPD’s statement that the NDP was “silent” on Los Pachencas’ lacks nuance, as the Applicants themselves point out, technically this statement is not incorrect. Further, the Applicants have not persuaded me that the evidence they cite squarely contradicts the RPD’s finding with respect to Los Pachencas’ connections with authorities being limited to the areas of Santa Marta or the Department of Magdalena. [38] I have considered the RIR excerpt relied on by the Applicants states that criminal groups are “definitely” able to track targets across Colombia specifically contained information about Los Pachencas on this topic. The RIR goes on to state: The Senior Analyst stated that Los Pachenca are \"very focused\" on the Atlantic Coast and in urban centres such as Barranquilla, Cartagena, and Medellín, and they can \"easily\" track targets in those areas (Senior Analyst 8 July 2021). The same source indicated that it is \"not known\" whether Los Pachenca have a \"particular network\" in Bogotá but added that this would not be a barrier to finding someone, since it is \"relatively easy\" to hire a tracker in the capital city (Senior Analyst 8 July 2021). Further and corroborating information about Los Pachenca's ability to track their targets could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. [Emphasis added] [39] Again, the RPD’s conclusion that there was “no evidence” that Los Pachencas could or would use their connections to track their targets to Tunja does not contradict the aforementioned NDP evidence. [40] Based on a holistic review of the reasons, I find the RPD’s IFA analysis was linked to and consistent with the documentary evidence. The analysis is transparent and intelligible and the RPD’s conclusions were reasonably available to it. Though the Applicants understandably disagree with those conclusions, that alone is not sufficient to warrant this Court’s intervention on judicial review. [41] The onus was on the Applicants to prove their specific claim that there is a serious risk they would face persecution in Tunja by Los Pachencas’ ability to track them there through their connections with authorities. The RPD simply found insufficient evidence to support this specific allegation. It is not the function of this Court to re-weigh the evidence before the RPD. [42] In their Reply, the Applicants submitted that the RPD unreasonably imported a higher burden of proof by requiring specific evidence of the particular agent of persecution using their connections in the ways feared by the Applicants. As acknowledged above, I agree that the RPD’s reasons on their face appear to apply a strict approach to the assessment of evidence by using statements such as “silent” and “no evidence”. However, my reading of the reasons does not suggest that the RPD applied a heightened burden of proof. [43] I find this Court’s analysis in Adeleye v Canada (Citizenship and Immigration), 2022 FC 81 [Adeleye] instructive on this point. In Adeleye, the refugee claimant similarly advanced specific allegations that the existence of bribery allowed their agents of persecution to track her personal information. In upholding the Refugee Appeal Division’s [RAD] finding that the claimant did not adduce sufficient evidence to support this specific claim, the Court stated: 29 In this case, Ms. Adeleye was not alleging that corruption in Nigeria generally was a concern. She specifically claimed that bribery had allegedly allowed her agents of persecution to trace her banking transactions, her mobile phone history and her driver's licence in order to find her. Ms. Adeleye herself focused her allegations on these particular incarnations of bribery and corruption in Nigeria. It was thus amply reasonable for the RAD to look, in the country documentary evidence, for materials relating to these particular uses of bribery and corruption to access information to which a requester is not entitled. It found none, and determined that Ms. Adeleye's assertions that her banking transactions, mobile phone or driver's licence could be reliably used to track her were speculative. It was Ms. Adeleye's burden to provide sufficient evidence to support her claim on the bribery front, but she failed to do so. [Emphasis added] [44] For the reasons set out above, I find that it was similarly reasonable for the RPD to find insufficient evidence establishing the Applicants’ specific allegations. C. Did the RPD err in assessing Los Pachencas’ interest in the Applicants? [45] The Applicants also argue that the RPD unreasonably found that Los Pachencas’ are no longer interested in the Applicants to an extent that amounts to a subsection 97(1) risk. [46] In arriving at the conclusion that Los Pachencas are no longer interested in Ms. Alzate, the RPD relied on the fact that six years had passed since they threatened her and that she would no longer work at the Santa Marta airport, which would reduce their motivation in targeting her. The RPD also noted that Ms. Alzate’s parents were forcibly displaced from their farmland to Santa Marta, allegedly by Los Pachencas, but found no allegation that these actions were connected to Los Pachencas’ past interest in Ms. Alzate. The RPD also noted over three years have passed since Mr. Chavez’ nephew last received a threat from Los Pachencas, and that his parents have continued to live in Santa Marta without incident. [47] With respect to Ms. Alzate’s brothers, the RPD considered that their children and stepchildren in Colombia continue to pay extortion to Los Pachencas. However, the RPD noted in light of its findings about Los Pachencas’ means that they lived in Cali without being found by Los Pachencas in 2019. The RPD also placed weight on how the children and stepchildren have not moved from Santa Marta despite these threats. Similar to Ms. Alzate, the RPD found that her brother who worked at the Port would no longer do so upon return, hence reducing Los Pachencas’ motivation to target him. [48] The Applicants argue that the RPD made a plausibility finding based on speculation when it found that Los Pachencas are no longer interested in the Applicants since their parents in Santa Marta have not been approached. The Applicants explain that Los Pachencas’ pattern of threats revolve around family members who live with the Applicants or who were present during threats, rather than extended family members like parents, who have never been approached. [49] The Applicants submit that the level of Los Pachencas’ interest in Ms. Alzate and her brothers was evident by the threats the Applicants and their family members received, which continued over many years. The Applicants also take issue with the RPD’s characterization of the Applicants as “low-level” targets, highlighting that Los Pachencas’ interest in Ms. Alzate and her brother who worked at the Port Authority stemmed from their interest in surpassing counternarcotic activity. [50] The Applicants also challenge the RPD’s reliance on the instances where family members relocated to other areas of Colombia and were not found by Los Pachencas, stressing that it was due to Los Pachencas’ cyclical level of interest in the Applicants. [51] The Applicants further assert that the proposed IFA of Tunja in this case is unrealistic, as it would require the Applicants to hide their whereabouts from family members, namely the children and stepchildren of Ms. Alzate’s brothers, who remain targets of Los Pachencas in Santa Marta. The Applicants submit that an IFA is not viable under the first prong of the test if claimants are required to hide their whereabouts from their family: Zamora Huerta v Canada (Citizenship and Immigration), 2008 FC 586 at para 29 [Huerta]; Ali v Canada (Citizenship and Immigration), 2020 FC 93 at para 49 [Ali]. [52] The Respondent disputes that the RPD made any plausibility findings. The Respondent maintains that the RPD’s assessment was based on the sufficiency of evidence and that its findings stemmed from reasonable inferences based on the facts before it. The Respondent argues that the Applicants seek to have the Court reweigh evidence. [53] With respect, I am not persuaded by the Applicants’ submissions. Before the RPD, beyond their Basis of Claim narratives that cite their continued fear, there was no evidence contradicting the RPD’s specific findings about Los Pachencas’ interest in the Applicants since their departure from Colombia. [54] I note that these narratives claim that Los Pachencas continue to threaten Ms. Alzate’s brother’s children and stepchildren in Colombia with extortion demands, and that these threats began as a result of Los Pachencas’ interest in Ms. Alzate’s brothers. However, based on my findings above with respect to the RPD’s assessment of Los Pachencas’ means, and the evidence on the record, it was not unreasonable for the RPD to place weight on the children and stepchildren’s temporary move to Cali without being found. [55] I note also that the Applicants mischaracterize the RPD’s finding in this respect, as the reliance on the children and stepchildren’s move to Cali pertained more so to the RPD’s conclusions about Los Pachencas’ means, rather than their interest in the Applicants. It was also reasonable for the RPD to note they have not left Santa Marta despite the resumption of these threats upon their return from Cali. [56] Based on the record, the arguments the Applicants now raise were not before the RPD. For example, the Applicants did not explain in their submissions that Los Pachencas’ interest in the Applicants or their family members was cyclical. The Applicants’ written submissions also do not purport that the Applicants would have to hide their whereabouts from their family members in Colombia if they returned to Tunja. [57] This distinguishes the case at bar from Ali, where there were submissions before the RAD that the claimants would be unable to safely contact their family members if they returned to Pakistan: at para 48. I also find Huerta distinguishable because the RAD in that case specifically found that an IFA existed “provided [the claimant] took reasonable precautions and not reveal her new location to relatives and friends”: at para 29. The RPD made no such statement here. [58] I agree with the Respondent that the Applicants’ arguments amount to asking the Court to reweigh evidence. I do not find that the Applicants have raised a reviewable error. The Applicants cannot fault the RPD for failing to address certain possibilities or failing to make certain inferences from the evidence when these allegations were not part of the record: see Saliu v Canada (Citizenship and Immigration), 2021 FC 167 at paras 57-58. [59] Finally, with respect to the Applicants’ two main arguments before this Court, I turn back to Adeleye, which reminds reviewing courts of the importance of deference when conducting a reasonableness review of decisions that turn heavily on factual findings: 25 The RAD's conclusions on the existence of an IFA are essentially factual: they are based on ample documentary evidence, and they go to the very heart of its expertise in matters of immigration and refugee protection. It is well established that the RAD takes advantage of the specialized knowledge of its members to assess evidence relating to facts that fall within its area of expertise. In such circumstances, the standard of reasonableness requires the Court to show great deference to the RAD's findings. It is not the task of a reviewing court to reweigh the evidence on the record, or to reassess the RAD's findings of fact and substitute its own (Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 at para 55). Rather, it must consider the reasons as a whole, together with the record (Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 53), and limit itself to determining whether the conclusions are irrational or arbitrary. [60] Considering the RPD’s thorough analysis of the evidence, and the lack of errors or omissions in its reasoning that are critical or that squarely contradict the record, I cannot find that the conclusions in the Decision are “irrational or arbitrary”. The Applicants have not demonstrated that there are “shortcomings or flaws” which are “sufficiently central or significant to render the decision unreasonable”: Vavilov at para 100. VI. Conclusion [61] The RPD’s Decision concluding that the Applicants have a viable IFA in Tunja is reasonable. [62] The application for judicial review is therefore dismissed. [63] There is no question for certification. JUDGMENT IN IMM-9373-21 THIS COURT’S JUDGMENT is that: The application is dismissed. There is no serious question of general importance for certification. \"E. Susan Elliott\" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-9373-21 STYLE OF CAUSE: RONALD ENRIQUE MANJARRES CHAVEZ, YOSWALL ANDRES MANJARRES GUTIERREZ, VIVIANA CARRILLO ALZATE, CHRISTOPHER MANJARRES CARILLO, JACOB JOSE MANJARRES CARRILLO, ROGER JUNIOR CARRILLO ALZATE, JANES CARRILLO ALZATE, LUISA MARGARITA HINCAPIE GARCIA, MONICA INES VEGA CAMACHO, YULIETH MARGARITA CARRILLO VEGA, HELEN TATIANA CARRILLO VEGA, AND, JANYS SOFIA CARRILLO VEGA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: February 9, 2023 JUDGMENT AND REASONS: ELLIOTT J. DATED: JULY 21, 2023 APPEARANCES: Lisa Winter-Card For The Applicants Rachel Beaupre For The Respondent SOLICITORS OF RECORD: Lisa Winter-Card Barrister and Solicitor Welland, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent", "response": "## Analysis of Court Decision: Manjarres Chavez v. Canada (Citizenship and Immigration)\n\n### Key Issues\nthey return to Colombia. IV. Issues and Standard of Review [15] The Applicants submit that the RPD’s IFA analysis is unreasonable. [16] First, the Applicants argue that the RPD er\n\n### Standard of Review\nn to Colombia. IV. Issues and Standard of Review [15] The Applicants submit that the RPD’s IFA analysis is unreasonable. [16] First, the Applicants argue that the RPD erred in find\n\n### Legal Analysis\nThe court's analysis focuses on: nts submit that the RPD’s IFA analysis is unreasonable. [16] First, the Applicants argue that the RPD erred in finding that Los Pachencas do not have the ability to track the Applicants to Tunja. [17] Second, the Applicants argue that the RPD erred in assessing Los Pachencas’ interest in the Applicants. [18] The parties agree th\n\n### Precedential Value\nThis Federal Court decision has persuasive value for similar cases before the court and provides guidance to the Immigration and Refugee Board on the proper interpretation of law and procedural requirements. While not binding on other Federal Court judges, it establishes a precedent that will often be followed for consistency."}
{"prompt": "Analyze this Refugee Protection Division decision from the Immigration and Refugee Board of Canada and explain how it applies refugee definition:\n\nRPD File No. / N° de dossier de la SPR : TA6-15683 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXXX XXXXX Demandeur(e)(s) d'asile Date(s) of Hearing July 2, 2008 Date(s) de l'audience Place of Hearing TORONTO Lieu de l'audience Date of Decision August 11, 2008 Date de la décision Panel Edward Bosveld Tribunal Counsel for the Claimant(s) Lisa Rosenblatt Barrister and Solicitor Conseil(s) du / de la / des demandeur(e)(s) d'asile Tribunal Officer S. Indrasigamany Agent(e) des tribunaux Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre XXXXX XXXXX, a citizen of Pakistan, claims refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act1 (IRPA). ALLEGATIONS The specifics of the claim are set out in the narrative to the claimant's Personal Information Form2 (PIF), the following is a summary. The claimant is an adherent of the Ahmadi faith. Throughout her life, she and her family have suffered as a result of her religious affiliation. Her husband's cousin was murdered, a brother-in-law beaten, and another brother-in-law murdered. Her husband's XXXXX was sabotaged, and her children were harassed and discriminated against. She suffered frequent verbal abuse for her faith, and was sometimes prevented from attending at her mosque or offering prayers uninterrupted. On two occasions, she was accosted by assailants who treated her in a disrespectful and threatening manner. She fled to Canada in XXXXX of 2006. DETERMINATION I find that the claimant is neither a Convention refugee nor a person in need of protection, because the risk she faces in Pakistan is that of discrimination and harassment, not persecution. ANALYSIS Identity The claimant's identity as a Pakistani national is established by her testimony and by the personal identity documents filed, including her Pakistani passport and National Identity Card3. Her identity as a member of the Ahmadi faith is established by her testimony and by the Ahmadi certificate filed.4 Credibility Taken as a whole, I found the claimant's testimony to be credible. She answered questions in a forthright and spontaneous manner. She did not embellish or overstate, even when testifying about portions of her claim that might have seemed weaker than other areas. While there were some minor inconsistencies and contradictions, these did not affect the material aspects of her claim. Persecution vs. Discrimination or Harassment The determinative issue in this claim is whether the claimant faces persecution on account of her religion if she returns to Pakistan, or whether what she faces is in fact discrimination, harassment, or both. The claimant is Ahmadi, and there is ample objective evidence before the Board about the poor treatment of Ahmadis in Pakistan. Although Ahmadis consider themselves to be Muslims, Pakistan's constitution and laws forbid them from referring to themselves as such. Pakistan's penal code not only has general blasphemy provisions, but also specific articles forbidding Ahmadis to propagate their faith or to use Muslim terminology in reference to various religious figures and places of worship.5 In practice, these laws are used to target and harass some Ahmadis.6 Between 1984 and December of 2004, an estimated 4000 cases were brought against Ahmadis under the blasphemy laws.7 Approximately thirty-five percent of all blasphemy cases lodged are against Ahmadis,8 quite out of proportion to their presence in the general population, which is two percent or less.9 False blasphemy charges are commonly filed against Ahmadis, as well as other religious minorities, for personal or economic reasons.10 Appeals courts have overturned all blasphemy convictions, though until such a ruling the accused is required to remain in prison, generally in poor conditions.11 Perhaps encouraged by the government's discriminatory approach toward Ahmadis, Pakistani society often treats them poorly as well. They suffer educational, employment, and economic discrimination,12 and in some instances violence.13 In many cases, Ahmadis cannot count on police protection, and police may in fact collude with anti-Ahmadi elements.14 Do the general conditions faced by Ahmadis in Pakistan give the claimant an objective basis for a well-founded fear of persecution? The fact that oppressive laws exist, and are used to target and harass some Ahmadis, does not in itself establish that all members of the group have good grounds for fearing persecution.15 The laws are clearly discriminatory, but it is the implementation of the laws that must be considered in determining whether persecution is occurring or seriously possible. Since even professing the Ahmadi faith is considered to be illegal and blasphemous, each Ahmadi could, in theory, face the death penalty under Pakistan's penal code.16 There is no evidence of such executions; rather, the evidence is that appeals courts have overturned all blasphemy convictions. The claimant testified that she was able to regularly attend an Ahmadi mosque, as well as go house-to-house, providing information about Ahmadi meetings which took place at the home of a local Ahmadi leader. She experienced harassment on the way to the mosque, and when providing information, but was not prosecuted. I have no doubt that Pakistan's laws, which are clearly discriminatory toward all Ahmadis, do give rise to persecution in some, perhaps many, instances. However, I do not have sufficient evidence to conclude that the implementation of such laws create a situation where each and every Ahmadi suffers persecution or faces the serious possibility of such. It therefore seems prudent to review Ahmadi claimants' fears of persecution on an individual, case-by-case basis,17 and I turn to the specifics of the claimant's case. The claimant's PIF details a number of acts of alleged persecution. In 1974, her husband's cousin was murdered during a period of anti-Ahmadi violence, while her brother-in-law was badly beaten. After that time, her husband's XXXXX XXXXX was sabotaged by neighbouring landowners. In their neighbourhood, the family was subject to verbal abuse and threats and feared for their safety, causing them to relocate in 1983 to the Ahmadi-majority city of XXXXX. After moving to XXXXX, the family experienced more difficulties. The claimant's children were verbally abused and harassed at school, and her son was accosted by another student with a knife, though he was not injured due to the intervention of other students. While the claimant did not provide dates for these incidents, it would seem they occurred between 1983, when the family moved to XXXXX, and 1990, when the affected son moved to Germany and was accepted as a Convention refugee there. In 1996, another son was arrested by police after a local mullah filed a complaint that the son and his friends were conspiring to harm him. The son was arrested, charged with a criminal offence, and jailed. He was released on bail and in 1998 fled to South Africa, where he was accepted as a Convention refugee. While all of this information is informative background material, it does not in itself assist in establishing the claim. The acts of violence against cousin and brother-in-law, as well the difficulties the claimant's immediate family suffered afterward, happened more than 30 years ago. The incidents of harassment in XXXXX happened between twenty and twenty-five years ago, while her son's arrest happened more than a decade ago. Circumstances in Pakistan have changed repeatedly and dramatically since that time18, and these acts of violence and harassment from many years ago do not assist the Board in determining whether the claimant would have a well-founded fear of persecution upon her return. The next instance of alleged persecution occurred in 2003, when the claimant's brother-in-law was murdered in the city of XXXXX, after receiving numerous threats from local extremists. No one has been arrested, and the victim's lands were seized and his family forced to leave the village where they lived. This incident, though unfortunate, does nothing to support the claimant's case. There is no evidence that the victim was Ahmadi, though perhaps this is implied by inclusion of the incident in her PIF. Even if I assume that he was Ahmadi, I am left with the murder of an Ahmadi relative, some years ago, in a different city than the one she lived in. The claimant has not suggested that her family has been specifically targeted. It is not enough to point to persecution suffered by a family member unless such persecution is likely to affect the claimant directly,19 and the claimant has not established such a connection. The most relevant incidents of alleged persecution are two instances where the claimant was accosted, as well as the claimant's difficulty in attending her mosque. The claimant alleges that two women came to her door and asked for a drink of water. When she opened the door, they began to verbally abuse her and pull her hair. When she screamed for help, they left. Although the claimant wasn't certain when this happened, it seems from her PIF and her oral testimony that it occurred somewhere between 2003 and 2005. On another date in the same time period, she was accosted by a mullah in the street, who verbally abused her and pulled off her headscarf, an act very insulting to those of her faith. Other mullahs were present and some threw stones, though she did not suggest that she was struck or injured. It is possible for an incident of mistreatment to be harassment and discrimination, and yet not be serious enough to constitute persecution.20 Although the line between harassment and persecution is difficult to draw, I find that in these instances the claimant did not suffer a serious degree of harm or a serious violation of her human rights. While these two incidents were undoubtedly demeaning and frightening, they constitute harassment but not persecution. The claimant also testified about her difficulties in attending her mosque. She would attempt to attend her mosque for Friday prayers, but sometimes would suffer verbal abuse from people who had gathered outside the mosque. On other occasions, she was not able to reach the mosque, and had to turn back because of the presence of Muslim extremists. Nonetheless, she testified that she was able to attend at the mosque three or four times per month. While in the mosque, she found it difficult to concentrate on her prayers because she feared the mosque might be attacked, and because a nearby Sunni mosque loudly broadcast anti-Ahmadi messages over its loudspeakers. Freedom of religion is recognized as a fundamental human right by the Universal Declaration of Human Rights.21 According to the UNHCR Handbook, persecution for reasons of religion can take various forms, including prohibition of membership in a religious community or of worship, or serious measures of discrimination imposed upon persons because they practice their religion. 22 In this claim, a line must again be drawn between harassment and persecution. I find that the claimant was harassed because of her religion, but not persecuted. I accept that she practiced her religion in the face of considerable adversity. She was subjected to verbal abuse and in some cases was unable to attend her place of worship. However, her testimony also made it clear that she was able to participate extensively in the life of her religious community. She distributed information about religious meetings, participated in those meetings, and regularly attended at an Ahmadi mosque. She testified that other members of her family were similarly involved. She even had plans to go on a pilgrimage to an Ahmadi gathering in the United Kingdom, and obtained a British visa for that purpose. In the end she did not attend, but that was for financial reasons, not because she was prohibited. The claimant did not have perfect freedom to practice her religion, but the difficulties she experienced in doing so amount to harassment, and were not serious enough to constitute persecution. Though the incidents of mistreatment do not, when considered individually, constitute persecution, I have also considered whether the relevant incidents could be regarded as persecutory if considered together.23 I find that, even taken cumulatively, they do not constitute persecution. Over a period of two or more years, she was accosted twice; in one incident her headscarf was pulled off, in the other incident water was thrown in her face. She was also regularly prevented from attending her place of worship, and her worship was sometimes disrupted. These are all unfortunate incidents; however, even when considered together, they are not of such a serious nature that they rise to the level of persecution.24 The definition of a Convention refugee is forward-looking. Even though I have found that the claimant did not suffer persecutory acts while in Pakistan, I have also considered whether there is a serious possibility that she might suffer such acts upon her return. The claimant testified that if she were to return to Pakistan, she would experience the same abuse, the same fear, and the same misery as she did in the past. As I have found that she did not establish relevant past incidents of persecution, it follows that similar treatment in the future would also not amount to persecution. Given the situation of Ahmadis in Pakistan, it is almost a certainty that the claimant will be subject to discrimination and harassment upon return to Pakistan, and that is regrettable. However, I must consider whether there is a serious possibility of persecution, and I find that there is not. The claimant has not established on a balance of probabilities that she faces a risk to life or a risk of cruel and unusual punishment or treatment in Pakistan. As noted above, the claimant herself anticipates, upon return, more of the treatment she previously experienced. She was asked if she would be physically attacked upon return, and she replied only that this would be possible. If her assessment is correct, she faces a possibility of harm, but has not established that it is more likely than not. As such, I find that she is not a person in need of protection as defined in Section 97(1) of the IRPA. CONCLUSION The claimant was found to be a citizen of Pakistan and an adherent of the Ahmadi faith. I found that if she returns to Pakistan, she faces a serious possibility of discrimination and harassment, but not of persecution. For the reasons set out above, I find that XXXXX XXXXX is neither a Convention refugee nor a person in need of protection, and therefore reject her claim. \"EDWARD BOSVELD\" EDWARD BOSVELD August 11, 2008 Date REFUGEE PROTECTION DIVISION / RELIGION / RELIGIOUS BELIEF / HARASSMENT / FREEDOM OF RELIGION / DISCRIMINATION / FEMALE / NEGATIVE / PAKISTAN 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Exhibit C-1. 3 Exhibit R/A-2. 4 Exhibit C-2. 5 Exhibit R/A-1, National Documentation Package, Pakistan, item 12.6, RIR PAK100057.E., 31 August 2005. 6 Exhibit R/A-1, NDP 12. 25, RIR PAK102653.E., 26 November 2007. 7 Exhibit R/A-1, NDP 12.6. 8 Exhibit R/A-1, NDP 12.25 9 Exhibit R/A-1, NDP 12.1 10 Exhibit R/A-1, NDP 12.6 11 Exhibit R/A-1, NDP 12.25 12 Exhibit R/A-1, NDP 12.6 13 Exhibit C-3, Item 4, U.K. Home Office Report on Religious Freedom, April 2008, p. 11. 14 Ibid. 15 Butt, Abdul Majid (Majeed) v. S.G.C. (F.C.T.D., no. IMM-1224-93), Rouleau, September 8, 1993. 16 Exhibit C-3, Item 12, Pakistan: The Land of Religious Apartheid and Jackboot Justice, Asian Centre for Human Rights, August 2007, p. 111. 17 Ahmad, Irfan v. M.C.I. (F.C.T.D., no. IMM-2725-96), Joyal, July 4, 1997. 18 Exhibit R/A-1, Item 2.1. 19 Tomov, Nikolay Harabam v. M.C.I. (F.C., no. IMM-10058-04), Mosley, November 9, 2005; 2005 FC 1527. 20 Moudrak, Vanda v. M.C.I. (F.C.T.D. no. IMM-1480-97), Teitelbaum, April 1, 1998. 21 Universal Declaration of Human Rights. G.A. res 217A (III), U.N. Doc. A/810 at 71 (1948). 22 Handbook on Procedures and Criteria for Determining Refugee Status, Office of the United Nations High Commissioner for Refugees, Geneva, 1992, paragraph 72. 23 Madelat, Firouzeh v. M.E.I., Mirzabeglui, Maryam v. M.E.I. (F.C.A. nos. A-537-89 and A-538- 89), MacGuigan, Mahoney, Linden, January 28, 1991. 24 Naikar, Muni Umesh v. M.E. I. (F.C.T.D., no. 93-A-120), Joyal, June 17, 1993. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : TA6-15683 7 RPD.15.7 (October 2007) Disponible en français", "response": "## Analysis of Refugee Decision: TA6-15683\n\n### Key Issues\nto be credible. She answered questions in a forthright and spontaneous manner. She did not embellish or overstate, even when testifying about portions of her claim that might have\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: harassment, not persecution. ANALYSIS Identity The claimant's identity as a Pakistani national is established by her testimony and by the personal identity documents filed, including her Pakistani passport and National Identity Card3. Her identity as a member of the Ahmadi faith is established by her testimony and by the Ahmadi\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "Analyze this Refugee Protection Division decision from the Immigration and Refugee Board of Canada and explain how it applies refugee definition:\n\nRPD File No. / N° de dossier de la SPR: TA6-14652 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXXX XXXXX XXXXX XXXXX Demandeur(e)(s) d'asile Date(s) of Hearing February 27, 2008 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision March 6, 2008 Date de la décision Panel Diane L. Tinker Tribunal Counsel for the Claimant(s) Carla Sturdy Barrister & Solicitor Conseil(s) du / de la / des demandeur(e)(s) d'asile Tribunal Officer T. Smith Agent(e) des tribunaux Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre XXXXX XXXXX XXXXX XXXXX (the claimant) is a citizen of the People's Republic of China. She claims to have a well-founded fear of persecution at the hands of the Communist regime and in particular, the Public Security Bureau, by reason of her religious beliefs as a member of an underground Christian church. In addition, she claims to be a person in need of protection because she would be subjected personally to a risk to her life or to a risk of cruel and unusual treatment or punishment or to a danger of torture in the People's Republic of China. ALLEGATIONS: The claimant alleges that she was not allowed to further her education upon completion of middle school in 1999 because she was a girl. The claimant stated that she obtained employment in 2000 and gave most of her money to her parents but was able to save a little. The claimant alleges that in XXXXX 2006, she had asked her parents for some money in order for her to go to school. The claimant maintains that her parents refused and thus, she maintains she became severely depressed. In XXXXX 2006, the claimant stated that a good friend of hers noticed her depression and thus told her about the miracles of Jesus and eternal life. After one discussion with her friend, the claimant decided to attend the underground Christian church with her. The claimant stated that she attended the underground Christian church in the People's Republic of China until XXXXX, 2006, when the Public Security Bureau raided it. The claimant stated that she was able to escape and go into hiding. While in hiding, the claimant maintains that she learned that the Public Security Bureau was looking to arrest her. The claimant therefore made arrangements to leave the country. The claimant alleges that she arrived in Canada on October 15, 2006 and filed for refugee protection a few days later. DETERMINATION: I find that the claimant is neither a Convention refugee nor a person in need of protection. ANALYSIS: Identity: The claimant's oral testimony and the supporting documentation1 filed establish her identity as a national of the People's Republic of China. I find, on a balance of probabilities, that the claimant is not, nor has ever been, a member of an underground Christian church in the People's Republic of China and is not, nor has ever been, a Christian. The claimant alleges that she decided to attend the underground Christian church with her friend, in XXXXX 2006, after only one conversation about Christianity, even though she had no prior knowledge of it. The claimant indicated that she knew that the underground Christian church was illegal prior to her attending and maintained that if caught, she thought she would be locked up for the rest of her life. I find, on a balance of probabilities, that it is not plausible that the claimant would attend an illegal organization after only one discussion, having no prior knowledge of the religion (other than the one discussion) and perceived the consequences of getting caught as incarceration for life. Moreover, the claimant had been saving money to go to school and thus could have gone on saving money in order to have enough to attend, as she had already waited seven years. Furthermore, the claimant maintains that the members of the underground Christian church, pledged 50 yuan each per month in order for her to go to school on her very first attendance, which I also do not find plausible, as there is nothing to indicate that the claimant at this time was going to continue her attendance at this church. The claimant stated that on the day of the raid by the Public Security Bureau, she was acting as a lookout at the back of the premises where the church service was being held and that her other friend, Ms. XXXXX, whose home the service was in, was the lookout at the front. The claimant maintains that she received a telephone call from Ms. XXXXX at the same time all the members from the service were running out the back door. The claimant indicated that Ms. XXXXX had told her the Public Security Bureau was approaching and to leave. The claimant stated that she then left and after her, Ms. XXXXX left. However, the claimant indicated that Ms. XXXXX was arrested. The claimant thus indicated that she was the second last person to leave, as Ms. XXXXX went back into the house to turn off the lights. When asked as to why Ms. XXXXX would do this if, as the claimant indicated, there was an escape plan, the claimant stated that Ms. XXXXX wanted to turn off the lights so that it was more difficult for the Public Security Bureau to find the believers. I reject this explanation, as all of the believers had already left. Furthermore, as there had been an escape plan in effect, as per the claimant, then someone inside the house would have been responsible to turn off the lights. The claimant's explanation was that the person was in a hurry to leave. I reject this explanation. The claimant maintained that this church had been in existence since 2003 without incident and had indicated that there was an escape plan. Furthermore, I reject the claimant's testimony that Ms. XXXXX, who was the last person to leave was arrested, as well as two others, but not the claimant, who maintains she was the second last to leave, would have been arrested as well. The claimant's explanation was that perhaps she ran faster than others. I reject this explanation, as the claimant maintained that the fellow believers ran in all different directions and thus would have no idea if she ran faster than others. In summary, I find, on a balance of probabilities, that due to a number of implausibilities, that the claimant is not, nor has ever been, a member of an underground Christian church in the People's Republic of China. The claimant provided a photocopy of a summons2 at the hearing. I give this document no weight, as it is a photocopy only and it was provided only on the day of the hearing, although it was dated XXXXX, 2006. Furthermore, country documentation3 obtained from independent sources indicate that there is a flourishing trade of fraudulent documents, including identity documents and summonses, used by refugee claimants. I further find, on a balance of probabilities, that the claimant is not, nor ever was, a Christian. The claimant produced a Certificate of Baptism4 and a church letter5 to corroborate her attendance at church here in Canada. The church letter indicates that the claimant has been attending the XXXXX XXXXX XXXXX, a Pentecostal church, since XXXXX, 2006. The panel notes that the claimant, who alleges to have arrived in Canada on a false passport, could not provide any evidence, such as a baggage tag, boarding pass, etc., to establish as to when she actually arrived. The claimant indicated that she had been attending this church on a regular basis. The claimant was asked by the panel Member a number of questions concerning the Pentecost. The claimant had been asked as to what religious holidays are observed by Christians. The claimant indicated Easter, Christmas and Good Friday. The claimant was asked if she wished to add to her answer and she replied in the negative. The claimant was then asked as to why she failed to mention the Pentecost, as she attended a Pentecostal church. The claimant indicated that she had never celebrated it. It was pointed out to the claimant that her church letter indicates she has been attending the XXXXX XXXXX XXXXX since XXXXX of 2006 and thus has been attending for over a year, therefore, she would have observed the Pentecost. The claimant stated that the Pastor mentioned it but never celebrated it. I reject this explanation, as the claimant attends a Pentecostal church and thus this religious day would have been observed. The claimant was asked four times to name the day that Jesus resurrected from the dead. The claimant initially had no answer, then said Christmas, then after Good Friday and then said the Pentecost. The panel Member indicated to the claimant that the day was called Easter. The claimant was then asked as to what the significance of Easter is to Christians. The claimant stated that was the day Jesus was resurrected and reborn. When asked if she wished to add to her answer, she replied in the negative. I find that the claimant does not possess some basic tenets of Christianity: Although Christ was resurrected on Easter, the claimant failed to state that he died on the cross for Christians' sins in order for humans to have eternal life, which is a cornerstone of Christianity. The claimant was asked as to what the role of the Holy Spirit was. The claimant stated that it was to protect countries if there were difficulties, which is incorrect. The correct answer is that the Holy Spirit is to lead Christians to wisdom and to have a greater understanding of the Holy Scriptures. The claimant also did not know where the Pentecost and Holy Spirit are found in The Bible, being the Book of Acts. The claimant was able to answer some questions about Christianity. However, I find, on a balance of probabilities, that the claimant is not, nor ever was, a Christian as a result of her limited knowledge of the Pentecost (although maintaining she attends a Pentecostal church on a regular basis) and her inability to name Easter or the significance of it to Christians, a cornerstone of Christianity. Any knowledge that the claimant has learned about Christianity could easily have been acquired here in Canada in order to manufacture her claim. In addition, having found the claimant was a not member of an underground Christian church in the People's Republic of China and is not being pursued by the Public Security Bureau, I also find, on a balance of probabilities, that she can return to the People's Republic of China without fear of persecution. In this regard, if the claimant wishes to become a Christian and practice this religion in the People's Republic of China, I find, on a balance of probabilities, that she can do so freely in a registered church as vast and increasing numbers of Chinese citizens now do without fear of persecution. Country documents6 indicate that there are tens of millions of Protestants in the People's Republic of China who attend registered churches and the number is growing. The Christian Science Monitor reported in a 2004 article that there are plans to build two Protestant churches in Beijing that will hold four to five thousand people. There is no evidence that registered church members are constrained from practicing their religion freely. In addition, there is evidence that house churches are discouraged but increasingly tolerated. The Christian Science Monitor noted the relaxation of authorities' treatment of unregistered Protestant churches in major cities. Furthermore, a Brock University professor undertook a fact finding mission to the People's Republic of China and noted that religious groups in Shanghai (where the claimants are from) have \"excellent\" relations with local authorities. In another scholarly study, it was noted that there appears to be a measure of acknowledgement by the Chinese government that Christianity is growing rapidly and may even be benefiting a \"spiritually hungry population\". However, another study indicated that the government believes that religions play a role in cushioning the societal transformations brought on by the People's Republic of China's accession to the World Trade Organization. I therefore find, on a balance of probabilities, that the claimant has failed to satisfy the burden of establishing a serious possibility that she would be subjected personally to a risk to her life or to a risk of cruel and unusual treatment or punishment or to a danger of torture by any authority in the People's Republic of China. CONCLUSION: I therefore determine that the claimant is neither a Convention refugees nor a person in need of protection. The Refugee Protection Division therefore rejects her claim. \"Diane L. Tinker\" Diane L. Tinker \"March 6, 2008\" Date REFUGEE PROTECTION DIVISION / ETHNIC ORIGIN / ARBITRARY ARREST AND DETENTION / UNREPRESENTED CLAIMANT / DISCLOSURE / TRANSLATION / NON COMPLIANCE WITH RULES / OMISSION / FACT / MILITARY SERVICE / PORT OF ENTRY / PERSONAL INFORMATION FORM / MALE / NEGATIVE / TURKEY 1 Exhibit C-3, photocopies of the claimant's resident identity card, hukou and graduation certificate. 2 Exhibit C-6, photocopy of summons. 3 ExhibitR/A-1, item 3.17, Information Request CHN100510.E, \"Reports of the manufacture, procurement, distribution and use of fraudulent documents.\" 4 Exhibit C-4, photocopy of above certificate. 5 Exhibit C-5, photocopy of above letter. 6 Exhibit R/A-1, item 12.9, Information Request CHN100387.E. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR: TA6-14652 5 RPD.15.7 (October 2007) Disponible en français", "response": "## Analysis of Refugee Decision: TA6-14652\n\n### Key Issues\nthe panel Member a number of questions concerning the Pentecost. The claimant had been asked as to what religious holidays are observed by Christians. The claimant indicated Easte\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: person in need of protection. ANALYSIS: Identity: The claimant's oral testimony and the supporting documentation1 filed establish her identity as a national of the People's Republic of China. I find, on a balance of probabilities, that the claimant is not, nor has ever been, a member of an underground Christian church in the Peo\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "Explain how this Federal Court of Appeal of Canada decision clarifies immigration law:\n\nChâteau d'Ivoire Stores Inc. v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2023-05-12 Neutral citation 2023 FCA 100 File numbers A-71-22 Decision Content Date: 20230512 Docket: A-71-22 Citation: 2023 FCA 100 CORAM: BOIVIN J.A. LOCKE J.A. LEBLANC J.A. BETWEEN: CHÂTEAU D'IVOIRE STORES INC. Appellant and THE ATTORNEY GENERAL OF CANADA Respondent Dealt with in writing without appearance of parties. Judgment delivered at Ottawa, Ontario, on May 12, 2023. REASONS FOR JUDGMENT BY: LOCKE J.A. CONCURRED IN BY: BOIVIN J.A. LEBLANC J.A. Date: 20230512 Docket: A-71-22 Citation: 2023 FCA 100 CORAM: BOIVIN J.A. LOCKE J.A. LEBLANC J.A. BETWEEN: CHÂTEAU D'IVOIRE STORES INC. Appellant and THE ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT LOCKE J.A. [1] This matter arises from a statutory appeal before the Federal Court that was brought by the appellant, Château d’Ivoire Stores Inc. (Château d’Ivoire), in respect of a decision of the Director and Chief Executive Officer (Director) of the Financial Transactions and Reports Analysis Centre (FINTRAC). The Director’s decision confirmed a notice of violation that imposed administrative monetary penalties on Château d’Ivoire pursuant to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17. [2] In this Court, Château d’Ivoire appeals an Order of the Federal Court (2022 FC 405, per Justice Peter G. Pamel), which dismissed its motion under Rules 317 and 318 of the Federal Courts Rules, S.O.R./98-106, for disclosure of certain documents. Château d’Ivoire had brought the motion after FINTRAC denied its request under Rule 317 to provide the documents because they had not been considered by the Director, the decision-maker of the impugned decision. [3] For convenience, I reproduce the text of Rule 317(1) here: Material in the Possession of a Tribunal Obtention de documents en la possession d’un office fédéral Material from tribunal Matériel en la possession de l’office fédéral 317 (1) A party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing a written request, identifying the material requested. 317 (1) Toute partie peut demander la transmission des documents ou des éléments matériels pertinents quant à la demande, qu’elle n’a pas mais qui sont en la possession de l’office fédéral dont l’ordonnance fait l’objet de la demande, en signifiant à l’office une requête à cet effet puis en la déposant. La requête précise les documents ou les éléments matériels demandés. [4] Rule 350 provides that Rules 317 to 319 apply, with such modifications as are necessary, to statutory appeals of the kind brought by Château d’Ivoire before the Federal Court in this case. [5] At the request of the parties, this appeal has been heard on the basis of the parties’ respective memoranda of fact and law, and without an oral hearing. [6] The gist of Château d’Ivoire’s argument before the Federal Court (and before this Court) is that, because the Director made her impugned decision by simply accepting a recommendation that she received from her FINTRAC staff, FINTRAC should have provided all of the documents in its possession that related to the notice of violation. Château d’Ivoire argues that the document production should not have been limited to the material that was provided to the Director because she effectively delegated her decision-making authority to her staff, and simply rubber-stamped the recommendation she received. Château d’Ivoire argues that the Director, and FINTRAC, should not be able to shield relevant documents from scrutiny by engaging in such an exercise of delegation. [7] The Federal Court concluded that Château d’Ivoire had provided little direct legal support for its position. It did concede at paragraph 23 that: [i]t would be rather Kafkaesque for an administrative decision-maker to be able to shield the material relevant to an application for judicial review or a statutory appeal by delegating decision-making authority to staff who would then simply place limited material before the decision-maker with a draft decision, ready to be signed without question. [8] However, the Federal Court continued by concluding that “there is no evidence to suggest that that is what happened in this case, and suggesting it does not make it so.” (paragraph 23). The Federal Court stated that the Director was entitled to rely on staff to review the matter and make a recommendation, and there was no evidence that, in doing so, she had delegated her decision-making authority. The Federal Court concluded that the evidence indicated in fact that the Director made the impugned decision herself. [9] The Federal Court referred to some of the abundant jurisprudence to the effect that a party requesting documents pursuant to Rule 317 is entitled only to relevant material that was before the decision-maker when the decision was made (e.g. 1185740 Ontario Ltd. v. Canada (Minister of National Revenue), 1998 CanLII 7910 at para. 11 (F.C.T.D.), aff’d [1999] F.C.J. No. 1432 at para. 3 (F.C.A.) (QL)). The Federal Court also noted that Rule 350 does not require a heightened standard of disclosure for statutory appeals: Athletes 4 Athletes Foundation v. Canada (National Revenue), 2020 FCA 41, [2020] F.C.J. No. 557 at para. 22. [10] The Federal Court acknowledged that Rule 317 may be broadened where a breach of procedural fairness is alleged, but it found that Château d’Ivoire had failed to establish the relevance of the documents in issue to the purported breach, which would be necessary for the Federal Court to exercise its discretion in this regard: Gagliano v Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities), 2006 FC 720, [2006] F.C.J. No. 917 at paras. 51-52, aff’d 2007 FCA 131, [2007] F.C.J. No. 467. [11] Château d’Ivoire argues that the Federal Court erred in law, and that a standard of correctness applies in this appeal. This suggests that Château d’Ivoire does not take issue with the Federal Court’s factual conclusions. However, many of Château d’Ivoire’s submissions suggest that it does not accept all of these conclusions. In any case, the standard of review in this appeal is as indicated by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235: correctness on questions of law (see paragraph 8), and palpable and overriding error on questions of fact or of mixed fact and law in which there is no extricable issue of law (see paragraphs 10 and 36). To the extent that Château d’Ivoire takes issue with any of the Federal Court’s factual findings, it must convince this Court that the Federal Court erred in making such findings in a way that is both palpable (i.e. obvious) and overriding (i.e. going to the core of the outcome): Canada v. South Yukon Forest Corporation, 2012 FCA 165, [2012] F.C.J. No. 669 at para. 46. [12] I agree with the Federal Court’s legal conclusion that the scope of document production under Rule 317 is generally limited to material that was before the decision-maker when the decision was made. I also agree that the Director was entitled to seek a recommendation from a FINTRAC staff member. I am not convinced that the Federal Court erred in law. [13] I am also not convinced that the Federal Court made a palpable and overriding error on any question of mixed fact and law. I agree with the Federal Court’s conclusion that the evidence in this case does not support any broader application of Rule 317. The Federal Court was entitled to conclude that the Director had made her own decision based on the documents that were provided to her, and had not delegated her decision-making authority (Galipeau v. Canada (Attorney General), 2015 FC 984, 257 A.C.W.S. (3d) 587). The evidence cited at length in Château d’Ivoire’s memorandum of fact and law does not compel a different conclusion. The Federal Court was also entitled to find that there was no indication of any effort to use delegation to shield documents from scrutiny. Finally, the Federal Court was entitled to find that there was no link of relevance between the alleged breach of procedural fairness and the documents sought by Château d’Ivoire. [14] Of course, nothing in this decision, or in the Federal Court’s Order under appeal here, is determinative on the issues that are to be considered in the statutory appeal of the Director’s decision. Château d’Ivoire remains entitled to argue its case, even though it is not entitled to compel production of the documents in question here. [15] I would dismiss the present appeal with costs. \"George R. Locke\" J.A. \"I agree. Richard Boivin J.A.\" \"I agree. \"René LeBlanc J.A.\" FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-71-22 STYLE OF CAUSE: CHÂTEAU D'IVOIRE STORES INC. v. THE ATTORNEY GENERAL OF CANADA MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR JUDGMENT BY: LOCKE J.A. CONCURRED IN BY: BOIVIN J.A. LEBLANC J.A. DATED: MAY 12, 2023 WRITTEN REPRESENTATIONS BY: Guy Du Pont, Ad.E. Léon H. Moubayed Matthias Heilke For The Appellant Benoît de Champlain Isabelle Mathieu-Millaire For The Respondent SOLICITORS OF RECORD: Davies Ward Phillips & Vineberg LLP Montréal, Quebec For The Appellant Shalene Curtis-Micallef Deputy Attorney General of Canada For The Respondent", "response": "## Analysis of Court Decision: Château d'Ivoire Stores Inc. v. Canada (Attorney General)\n\n### Key Issues\nhere, is determinative on the issues that are to be considered in the statutory appeal of the Director’s decision. Château d’Ivoire remains entitled to argue its case, even though\n\n### Standard of Review\nconclusions. In any case, the standard of review in this appeal is as indicated by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235: correctnes\n\n### Legal Analysis\nThe court's analysis focuses on: cial Transactions and Reports Analysis Centre (FINTRAC). The Director’s decision confirmed a notice of violation that imposed administrative monetary penalties on Château d’Ivoire pursuant to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17. [2] In this Court, Château d’Ivoire appeals an Ord\n\n### Precedential Value\nAs a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation."}
{"prompt": "Explain how this Refugee Appeal Division decision from the Immigration and Refugee Board of Canada interprets refugee law:\n\nRAD File / Dossier de la SAR : MC0-11253 MC0-11254 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal [REDACTED] [REDACTED] XXXX Personnes en cause Date of decision February 25, 2022 Date de la décision Panel Susan Brown Tribunal Counsel for the persons who are the subject of the appeal Julien Labrie-Masse Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellants [REDACTED] (Principal Appellant) and his spouse [REDACTED] are citizens of Sudan. The Principal Appellant fears the Sudanese authorities and the female Appellant was traumatized by female genital mutilation (FGM) and fears re-circumcision. [2] The Refugee Protection Division (RPD) found that the Appellants were not credible with respect to material aspects of their claims. The Appellants argue that the RPD erred in its analysis of their credibility and incorrectly applied the Gender Guideline.1 [3] Following my own review, I find that the Appellants did not credibly establish their claims. DECISION [4] I dismiss the appeal. The RPD was correct in finding that the Appellants are neither Convention refugees nor persons in need of protection. BACKGROUND [5] According to their Basis of Claim forms (BOCs)2 the Appellants were born in 1984 and 1995. At five years of age the female Appellant was circumcised. [6] At 11 years old the Principal Appellant was a trainee with the XXXX XXXX and at 13 years old he was in the Quran Association. He escaped from a camp associated with the Quran Association when he realized it was recruitment mechanism for the ruling party. When he was asked why he left, he said that his father was ill. [7] In XXXX 2000 the Principal Appellant was arrested for participating in a demonstration against national service and female circumcision. After XXXX XXXX he was released without trial. [8] In 2002 the Principal Appellant and others established the XXXX XXXX Association at XXXX University to help needy students financially, the Appellant the XXXX. On [REDACTED] 2002, the Principal Appellant and others were arrested by members of the security services after participating in a meeting with students about suspensions. He was beaten and released the same day after \"signing engagement and declaration.\" The University closed the Association for the safety of students. [9] On [REDACTED] 2004, the Principal Appellant participated in a lecture and march protesting the situation in Darfur and was arrested with many demonstrators by police forces. He was severely beaten and questioned about his relations with the armed movement of Darfur. He was released on the XXXX day. The Principal Appellant and others were tried before a judge, who adjourned for a month. The Principal Appellant was not summoned again and did not participate in any demonstrations. [10] When the Principal Appellant completed his university studies in XXXX 2006, he received telephone calls from unknown people saying they knew his movements and from friends in the ruling party asking him to join. He couldn't find a job. He went to South Sudan and was threatened in Juba by citizens while working for [REDACTED] in 2007. He could not find work anywhere in Sudan because political affiliation was a condition of employment. [11] The Principal Appellant found a job in Oman and paid an employee at the airport to facilitate his travel without a security screening. He worked in Oman for 10 years. He visited with his family in Saudi Arabia, United Arab Emirates or Egypt and rarely in Sudan \"because going in and out is a risk.\" [12] During high school and university, the female Appellant was fined, attacked and abused for wearing pants. She participated in a passive demonstration on XXXX XXXX against price increases and for the release of the [REDACTED] 2013, prisoners. She was gathered up with others by the campus police but escaped with two other students. [13] The Principal Appellant visited Sudan in XXXX 2018 to attend to his sick father and on leaving the hospital was taken to a government building forced to sign a \"commitment not to travel, assist security and testify about some merchants in crimes related to destabilizing security and undermining power, punishable by death, and [he] was threatened with death if [he] regressed or refused.\" He escaped the same day by skipping the security checks and entering safely directly with an airport employee. [14] In XXXX 2018 the Appellants travelled to the United States (US) for fertility treatments and the Principal Appellant lost his job. The Appellants cannot return to Sudan because of the problems of the Principal Appellant and the female Appellant will be circumcised again. The Appellants considered seeking asylum in the US but heard it was difficult and sought asylum in Canada on August 1, 2018. The female Appellant gave birth to XXXX XXXX on [REDACTED] XXXX. NEW EVIDENCE Some of the documents presented by the Appellants are accepted as new evidence [15] The Appellants' claims were heard on December 8, 2020, and the RPD gave its decision on December 14, 2020. The Appellants did not present any new evidence with their appeal record which was received on August 9, 2021. [16] On December 21, 2021, the RAD sent a notice to the Appellants and the Minister that it would be referencing the most recent National Documentation Package for Sudan3 and seeking any submissions by January 5, 2022. The Appellants asked for an extension of time until February 4, 2022, which was granted. [17] On January 7, 2022, the following documents were received from the female Appellant: A. Statement of the female Appellant dated [REDACTED] 2021, and certified translation;4 B. Pierre Tick, Sudan: after the criminalization of female circumcision, the challenge of law enforcement. May 4, 2020, www.la-croix.com;5 C. Siegfried Modola/Reuters, Sudan is moving towards criminalization of female circumcision, May 6, 2020, www.lemonde.fr;6 D. Unattributed, Sudan's midwives told to stop genital mutilation on mothers after birth, November 29, 2019, thejapantimes;7 E. Unattributed, Sudan: sexual violence as a weapon of massive repression in Khartoum (UN), December 21, 2021, news.un.org;8 F. Gregoire Sauvage, In Sudan, army uses rape to intimidate protestors, December 24, 2021, www.france24.com;9 G. UK in Sudan on Twitter, Statement of Sexual Violence Against Women During Protests, December 23, 2021, Twitter.10 [18] On February 4, 2022, additional written submissions were received from counsel for the Appellants attaching the documents sent in January, documents A-G.11 [19] As the Appellants did not make any submissions about the new evidence, I will assess it as a Rule 29 application. Section 110(4) of the Immigration Refugee Protection Act (IRPA) provides that an appellant may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. In Singh12 the Federal Court of Appeal dictates a narrow interpretation of section 110(4): the conditions set out therein must be met, and there is no room for discretion on the part of the RAD. If the section 110(4) threshold is met, then the new evidence must also meet jurisprudential requirements of credibility, relevance and newness.13 [20] There is a different test for the submission of new evidence under Rule 29. In deciding whether to admit new evidence under Rule 29, I must first consider any relevant factors including: (a) the document's relevance and probative value; (b) any new evidence the document brings to the appeal; and (c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record.14 If the evidence addresses all the Rule 29 factors, I must then determine whether it meets the subsection 110(4) legislative and jurisprudential requirements. [21] As the Appellants were invited by the RAD to make submissions, document A, the female Appellant's unsworn statement and the Appellants' counsel's additional submissions are admissible. [22] Documents B-D all predate the RPD decision, and document D was presented to the RPD and already forms part of the record.15 Since the documents were publicly accessible and sourced from the internet, I find that the section 110(4) threshold is not met and the documents are not admissible. [23] Documents E-G postdate both the RPD decision and the submission of the appeal record, and bring new evidence to the appeal about the use of sexual violence by security forces to supress protests in Khartoum in XXXX 2021. The female Appellant references the events in her statement. I find that these documents are admissible as new evidence. ANALYSIS [24] The RPD did not find the Appellants credible and identified issues with: the omission of the Principal Appellant's XXXX 2018 arrest from his original BOC; inconsistencies about his involvement with the Quran Association and National Congress Party; inconsistent evidence about his arrests; omission of reference to threatening telephone calls in his testimony; and contradictory evidence about fertility treatments in the US and gender of their children. [25] The RPD also found that the Principal Appellant did not establish a sur place claim based on his participation in demonstrations in Canada 2018 and 2019 or that the female Appellant cannot return to Sudan because she was circumcised and could be subject to FGM again. The RPD also found that the interests of the Appellants' Canadian-born children cannot be considered as they are not refugee claimants. [26] The Appellants argue the RPD erred in its analysis of their credibility and incorrectly applied the Gender Guideline. [27] I have reviewed the evidence on the record, including the transcript of the hearing on December 8, 2020, the Appellants' arguments, new evidence and additional submissions. As detailed below I find that RPD made some errors, but those errors were not determinative. I find that the RPD applied the Gender Guideline and was correct in finding that the Appellants did not establish, on a balance of probabilities, crucial elements of their claims. Analysis of credibility in refugee claims [28] The process of determining whether a claimant is a Convention refugee or a person in need of protection under the IRPA requires the RPD to decide whether they believe the claimant's evidence and how much weight to give that evidence. In determining this the RPD must assess the credibility of the claimant and the documentary evidence.16 The law \"imposes a duty upon RPD members to assess the credibility of refugee claimants.\"17 [29] The Federal Court18 has laid out the relevant principles in analyzing credibility in the context of refugee claims: * Refugee applicants are presumed to tell the truth, but this is a presumption rebuttable by the applicant's lack of credibility, e.g. where the evidence is inconsistent with sworn testimony or where the applicant's explanation for the inconsistencies is not satisfactory; * Even though they may be insufficient when taken individually or in isolation, the accumulation of contradictions, inconsistencies and omissions regarding crucial elements of a refugee claim can support a negative conclusion about an applicant's credibility; * A negative credibility finding cannot be based on minor contradictions that are secondary or peripheral to the refugee protection claim; * A lack of credibility concerning central elements of a refugee protection claim can extend and trickle down to other elements of the claim and be generalized to all of the documentary evidence presented to corroborate a version of the facts; * Credibility findings should not be made based strictly on the absence of corroborative evidence. Where corroborative evidence should reasonably be available to establish an essential element of a claim and there is no reasonable explanation for its absence, a decision maker can draw a negative inference of credibility based on the claimant's lack of effort to obtain such corroborative evidence; and * Conclusions can be drawn concerning an applicant's credibility based on implausibilities, common sense and rationality. Omission of 2018 arrest from original BOC [30] The Appellants' BOCs were received on August 1, 2018, there was no reference in the Principal Appellant's original BOC narrative to his return to Sudan in XXXX 2018 due to his father's illness or his alleged arrest on [REDACTED] 2018. In fact, the BOC says that he \"went to Republic of Egypt for my father and my mother treatments and I was spending my vacations in United Arab Emirates and rarely in Sudan because going in and out is a risk.\"19 [31] Less than two weeks before the RPD hearing on December 8, 2020, the Principal Appellant presented an amendment to his BOC narrative saying that he left Sudan for the last time in XXXX 2018 because his father had a severe accident while visiting his brother and he visited him in hospital. \"When I left the hospital, right at the exit, I was taken to a government building in Khartoum where I was forced to sign a commitment not to travel, assist security, and testify about some merchants in crimes related to destabilizing security and undermining power, punishable by death, and I was threatened with death if I regressed or refused. I escaped on the same day by skipping the security checks and entering safety directly with an airport employee.\"20 [32] When the RPD asked the Appellant why he did not mention that he was arrested in Sudan in XXXX 2018 he said, \"I was not aware that I am supposed to tell all those details at time...number one; number two, when we arrived at the shelter, we were in very bad condition and my wife health wise ....\"21 [33] The RPD noted that the Principal Appellant \"was precise with other allegations found in his extensive story to support his refugee claim. If it was the case that [the Principal Appellant] was arrested on [REDACTED] 2018, when he left Sudan secretly, [the RPD] would have expected him to say so at the first opportunity.\"22 The RPD did not find that the Principal Appellant's explanation for the omission reasonable. [34] The Appellants do not make any submissions about this finding other than a general submission that the weaknesses in the Principal Appellant's testimony are not fatal to the point of doubting that he was politically active.23 [35] The requirements for the completion of a BOC form are outlined in the RPD Rules24 and referenced in the Refugee Appeal Division (RAD) Rules.25 The BOC is intended to provide details about the reason refugee protection is being sought. The Federal Court \"has confirmed on numerous occasions that all the important facts and details of a claim must be included, and failing to do so can affect the credibility of all or part of a claimant's testimony.\"26 [31] This Court has confirmed on a number of occasions that all the important facts of a claim must appear in the PIF and that failing to mention them could affect the credibility of part or all of the testimony. Furthermore, the RPD is entitled to review the contents of the PIF before and after its amendment and may draw negative inferences about credibility if matters it considers important were added to the PIF by an amendment later (Taheri v. Canada (Minister of Citizenship and Immigration), 2001 FCT 886, [2001] F.C.J. No. 1252, at paragraphs 4 and 6; Grinevich v. Canada (Minister of Citizenship and Immigration), (1997) 70 A.C.W.S. (3d) 1059, [1997] F.C.J. No. 444). [32] It was open to the panel to gauge the principal applicant's credibility and to draw negative inferences about the disparities between her statements in the original PIF, in the interview notes, in the amended narrative of the PIF and in the viva voce testimony, for which the principal applicant provided no satisfactory, plausible or credible explanation in the circumstances (He v. Canada (Minister of Employment and Immigration), (1994), 49 A.C.W.S. (3d) 562, [1994] F.C.J. No. 1107). In this case, and the Court agrees with counsel for the respondent, the evidence shows that the applicants' story and narrative changed over the last two years.27 [36] A recent decision of the Federal Court says that \"[i]t is risky not to disclose in the initial BOC Form all of the facts and details that are important to a claim for refugee protection, even if these facts and details are later revealed in subsequent versions of the BOC Form. A convincing explanation will then be required to justify the delay in disclosing them .... While it is certainly open to a claimant for refugee protection to amend his or her BOC Form, these amendments, according to the case law of this Court, must generally be limited to minor or secondary details of the account forming the basis of the claim for refugee protection so as not to risk impugning the claimant's credibility.\"28 [37] I find this is an omission about a material element of the Appellants' claim and agree with the RPD that the Principal Appellant's explanation is not reasonable in the context of his 10-page, detailed BOC narrative and it results in a negative credibility finding. I note that the Principal Appellant's immigration forms29 did not reference the XXXX 2018 arrest although they were signed only XXXX months later on July 31, 2018. [38] Following my own review, I found contradictory evidence about the Principal Appellant's trips back to Sudan. As noted above he said in his BOC that he rarely returned to Sudan, met his family elsewhere and did not mention his XXXX 2018 visit. When questioned directly by the RPD how many times he returned to the Sudan between 2008 and 2018, he said that he returned three times.30 None of these trips back to Sudan are referenced the Principal Appellant's BOC narrative. This is not a determinative credibility finding as it was not put to the Principal Appellant for explanation but it does support the negative credibility conclusion. Inconsistent evidence about membership in Quran Association [39] The Principal Appellant gave the following evidence about his memberships: BOC Testimony Corroborative Evidence When I was 11 years old, I had school training in open camp (from XXXX pm to XXXXpm). We had a simple field exercises and we were known as 'XXXX XXXX.31 So when I was 11 years old, I was not in high school yet. It's a camp that belong to the Quran Association. We receive military training except for using weapons or arms.32 Appellant was a member of the National Congress Party, received training courses, participated in a number of camps and was a member of the ([REDACTED]) in schools until high school.33 I was in the 8th level of school, when I was 13 years old, I was in the Quran Association.34 RPD: ...so when did you join the Quran Association? Appellant: I was in Grade 5, elementary.35 When we finished school, we were gather in a camp for 40 days because we were outstanding student. After the camp attendance, I realized that it is a kind of recruitment to work with the political party. XXXX days later, I escaped from the camp...I let them know that I wasn't willing to work in the XXXX XXXX association anymore...36 RPD:...did you join the National Congress Party at any point? Appellant: When I was active at the Quran Association, the association itself was affiliated with the National Congress Party, and also when I was in the camp of [REDACTED] XXXX they would also - the belonged to the National Congress Party.37 [40] The RPD found the Principal Appellant's evidence about his membership in the Quran Association and the National Congress Party confusing. While the Principal Appellant is clear that he was a member of the XXXX XXXX when he was 11 years old and he was member of Quran Association when he either 11 years or 13 years, it is not clear when and if he joined the National Congress Party. The corroborative evidence definitively states that he was a member of the National Congress Party while the Principal Appellant testified that he was affiliated with the National Congress Party through the Quran Association and the XXXX XXXX. The BOC suggests that he was not a member of the National Congress Party because he says that after he completed his university in XXXX 2006, he \"received messages through friends who are still with the ruling party asking me to join them so I can insure my future or go to military training in order to find a job.\"38 [41] I find the Principal Appellant's evidence inconsistent and agree with the RPD that the evidence is confusing. That the Principal Appellant was being recruited to join the ruling party in 2006 is not consistent with his claim that he was considered a political opponent by the authorities. Inconsistent evidence about arrests [42] The Principal Appellant evidence about his arrests is inconsistent: BOC Amended BOC Immigration forms39 Corroborative evidence Testimony XXXX 2000 XXXX 2000 arrested and detained for XXXX XXXX40 Arrested in 2000 and detained for XXXX days Arrested for XXXX days in his last year of high school in 200041 XXXX 2000 arrested and put in prison in side a military camp ... for XXXX XXXX...42 2000 arrested and detained for XXXX days43 [REDACTED] 2002 [REDACTED] 2002, released the same day44 Not referenced. XXXX 2003 Not referenced Arrested in 2003 and detained for XXXX days End of XXXX 2003 arrested for XXXX XXXX45 [REDACTED] 2004 [REDACTED] 2004, released after XXXX days46 Not referenced. [REDACTED] 2004, arrested... for XXXX days then they took our address as a guarantee and released us.47 [REDACTED] 2004, arrested for XXXX days48 XXXX 2018 No reference XXXX 2018 taken to a government building49 Not referenced. [REDACTED] 2018, arrested by three officers of the state50 [43] In his BOC the Principal Appellant said the XXXX XXXX Association in XXXX University was established in 2002 and he was the XXXX and he and others were arrested by members of the security services on [REDACTED] 2002 \"as a result of participation in a meeting with students about suspending student because of material reasons...[t]hey were released the same day after signing engagement and declaration. The University decided to close the Association for the safety of students.\"51 [44] When the RPD asked the Principal Appellant how many times he was arrested and detained between 2001 and 2005, he said, \"twice: 2003 and 2004.\"52 The Principal Appellant said that he was arrested at the end of XXXX in 2003 because they were trying to restore the activities of the University of XXXX students' union which were opposed by the government. He testified that the interrogating officer referenced that he was active in the XXXX XXXX Association \"so it appears that -or I feel that they were against even the foundation of this association.\"53 [45] The RPD found that the Principal Appellant was inconsistent about the treatment of the XXXX XXXX Association by the authorities. I also note the Principal Appellant gave different reasons for the arrests (in 2002 it was for participation in a meeting about suspending students for nonpayment of fees and in 2003 it was for trying to restore the activities of the student union) and the absence of any reference to an arrest in 2002 in the immigration forms and to an arrest in 2003 in the BOC. [46] The RPD incorrectly found that the Principal Appellant referenced [REDACTED] 2003, as the date of the demonstration in Darfur in his testimony, I find that references in his testimony were all to [REDACTED] 2004. I note, however, that the Principal Appellant's immigration forms say that he was arrested in 2003 by the security forces of Sudan because \"he is a supporter of the Darfur cause.\"54 [47] The evidence about what happened after the Principal Appellant and others were released after being arrested at the Darfur demonstration on [REDACTED] 2004, is not clear: BOC Testimony Corroborative evidence The situation continued until the XXXX day, they released us with the place of residence as a guarantee. After many of us had a mock trial in XXXX Courthouse, XXXX XXXX...The Judge asked us if we wanted to postpone the hearing. We said: No. But he postponed the Court decision after one month. During that month, we didn't do any activity except going to the University to attend lectures and going back home. We hadn't been summoned again. RPD: What happened after XXXX days? Appellant: They held a court for us at XXXX XXXX, the XXXX XXXX, there was a court there...so the judge postponed the hearing because not all the people were present...the hearing was postponed was one month afterwards, they never called us again. RPD: So you were released after XXXX days...when was the trail? Appellant: After one month approximately...I attended the trail and -but the judge postpone the hearing because not all the people were present.55 This continued for XXXX days then they took our address as a guarantee and released us based on that. We received an order to attend at XXXX Court at XXXX XXXX and the judge...adjourned the case for a month and we were not called back.56 The situation continued until the third day, when they released us with the guarantee of our place of residence, and after that a court was held for a group of us in a mock trial in XXXX Court XXXX XXXX headed by Judge ... who asked us if we wanted to postpone, we answered no, but he postponed the ruling for a month...but we were not called again.57 [48] The RPD noted discrepancies in the evidence about whether there was a trial (the BOC and one statement refer to a \"mock trial\") and whether the hearing or the ruling was postponed (the BOC refers to postponing the \"Court decision\" and a statement to the \"postponed ruling\"). I also note that the Principal Appellant identified the reason for the postponement as \"not all the people were present\" which is not corroborated in the statements or referenced in his BOC. [49] The RPD made a negative credibility finding on the basis of this inconsistent evidence. [50] As detailed above the Principal Appellant did not reference the [REDACTED] 2004, arrest in his immigration forms. [51] As noted above the Appellants do not make any submissions about this finding other than a general submission that the weaknesses in the Principal Appellant's testimony are not fatal to the point of doubting that he was politically active.58 [52] Even though they may be insufficient when taken individually or in isolation, I find that this accumulation of contradictions, inconsistencies and omissions regarding crucial elements of the Principal Appellant's claim support a negative conclusion about his credibility. Omission of reference to telephone threats [53] In his BOC the Principal Appellant said that after he completed his university studies in XXXX 2006 that he \"was receiving calls from unknown people. They were telling me that they knew all my movements, my place, my addresses.\"59 The RPD made a negative credibility finding because the Principal Appellant failed to reference these calls in the hearing when asked about problems he faces in Sudan. I do not find this a determinative finding because the RPD did not question the Principal Appellant directly on this issue. Contradictory evidence about fertility treatments and gender of children [54] In their BOCs the Appellants say that they travelled to the US in [REDACTED] 2018 to have infertility treatments and that they were expecting a girl and feared FGM. The RPD noted that the female Appellant was pregnant when they entered the US and that she gave birth to XXXX XXXX. The RPD found that it could not adjudicate the claim on the possibility that they could have daughters in the future. Gender [55] The RPD stated in its decision that it considered the Appellants' claims in light of the Gender Guideline.60 [56] When the RPD asked the female Appellant why she could not go back to Sudan, she testified that she was afraid of returning to Sudan because she was told that she was pregnant with XXXX XXXX.61 In response to questions from her counsel the female Appellant also testified that she was circumcised at five years old and suffers monthly as a result, her mother was recircumcised after delivering her youngest brother and the whole issue is traumatic for her. She said that she fears that they will redo the circumcision and she does believe that she could survive in \"such a place where I faced a traumatic incident.\"62 [57] The RPD found that the objective evidence did not support the female Appellant's allegation of recircumcision. While the RPD agreed that FGM is a traumatic event it did not find that the female Appellant \"was traumatized to the point that she cannot return to Sudan, a country where she lived between 1995 and 2018.\" 63 [58] The Appellants argue that the RPD did not properly apply the Gender Guideline. Specifically, they submit that: the RPD devoted less than five minutes to questioning the female Appellant; the questions the RPD put to the female Appellant were trivial and reflected a superficial knowledge of her claim; the RPD did not undertake the procedures suggested in the Gender Guideline for victims of sexual violence64; and, the RPD did not allow the female Appellant the time she needed to provide testimony that she found painful to deliver. [59] Following my own review of the female Appellant's BOC and the questions posed by the RPD I find that she was afforded the opportunity to provide her testimony. The RPD asked about the allegations in her short BOC narrative, specifically her arrest in 2013 for not dressing appropriately and her fear of circumcision for her unborn daughters who turned out to be sons. The female Appellant does not identify a fear of recircumcision in her BOC. I also note, as detailed above, that the female Appellant was questioned at length by her own counsel about the trauma of her circumcision and her fear of recircumcision. Neither the female Appellant nor her counsel asked for the treatment of her testimony contemplated by section D.3 of the Gender Guideline. [60] The Appellants argue that the RPD did not take sufficient account of the trauma of her circumcision at five years old but I note that the Appellants did not present any psychological or medical evidence to corroborate their allegations and did not demonstrate that the female Appellant's trauma prevents her return to Sudan. [61] The RPD did err when it stated that there was not any documentary evidence of recircumcision. I note that the Appellants presented a November 29, 2019, news articles which stated: \"[i]n a practice known as reinfibulation, about a quarter of mothers are stitched up again after giving birth, according to a report this week by anti-FGM campaign group 28 Too Many.\"65 [62] I agree with the Appellants66 that the objective evidence is that the practice of FGM is prevalent in Sudan \"the country ranks fifth among counties practicing FGM/C worldwide.\" The same objective evidence says that girls are usually cut between 5 and 9 years old but abandonment of FGM is on the rise. Over 50% of women aged 15-49 believe that FGM/C should be abandoned with support higher in urban than rural areas.67 The Appellants submit that this trend \"does not affect the reality of FGM still being widespread in Sudan \"and the absence of a legal framework or political willingness to address the issue.\" 68 [63] I do not agree that there is an absence of a legal framework of political willingness to address the issue. The objective evidence69 reports that on July 13, 2020, the Sudanese Official Gazette published Law No. 12 of 2020, which amends 15 provisions of the Penal Code of 1991. According to Justice Minister Nasredeen Abdulbari, the new provisions are part of Sudan's efforts to eliminate all laws that violate human rights and \"demolish any kind of discrimination that was enacted by the old regime\" to enable the country to \"move toward equality of citizenship and a democratic transformation.\"70 The new law introduces an amendment to the penal code that criminalizes the act of FGM for the first time in the country's history. The law punishes FGM with imprisonment for up to three years, a fine, and the permanent closure of the site where the crime took place (Law No. 12, art. 2(a)(23), adding Penal Code art. 141(a)). Law No. 12 also increases the penalty for the crime of rape from imprisonment for a maximum of 10 years to life imprisonment. (Law No. 12, art. 2(a)(25), amending Penal Code art. 149.)71 [64] In her statement the female Appellant says the even if the law criminalizes circumcision that the \"tribe and clan stick to the tradition...they don't give up easily from their customs and traditions\" 72 but she does not reference any objective evidence to support her statement. [65] I find that, given the evidence of changing attitudes about FGM and the criminalization of the act of FGM, the Appellants have not established that there is more than a mere possibility that the female Appellant would face recircumcision in Sudan. [66] In her statement the female Appellant also submits that she cannot \"live in Khartoum or Kassala because there is no security or gender equality\". She says that as a single woman she will be deprived of her rights, being independent, freedom of opinion and \"I will be destined to be raped.\" 73 [67] The female Appellant's assertion that she is a single woman is not consistent with the evidence on the record that she is married the Principal Appellant since [REDACTED] 2014.74 The only objective evidence referenced by the female Appellant to support her submissions is to the events reported in the new evidence, documents E-G,75 about the use of sexual violence by security forces to supress protests in Khartoum in December 2021. [68] I find that the Appellants have not established the female Appellant's profile as someone who faces more that the mere possibility of gender-based persecution in Sudan. Sur place claim [69] The Principal Appellant presented photographs of his participation in a demonstration in Canada against the government of Sudan and said that expressed his opinion on social media, namely Facebook. The RPD found that there was insufficient evidence that the Principal Appellant's Facebook messages and activism in Canada have come to the attention of the Sudanese authorities or that he has been identified as a political opponent in Sudan. [70] The Appellants submit that nowhere in the Principal Appellant's BOC or his counsel's submissions did he make a sur place claim. The Appellants argue that the only question to be answered by the RPD is whether there is a risk, on a balance of probabilities, that the Principal Appellant would be intercepted upon his return to Sudan and subjected to cruel and unusual punishment. [71] The Appellants cite objective evidence that there is evidence that those who openly oppose the government from abroad will be likely be arrested on return.76 The same objective evidence concludes, \"when taken in the round, the evidence does not indicate that there is a clear and systematic pattern of ill-treatment of asylum seeking in general sole on the grounds of having claimed asylum ....\"77 [72] I agree with the RPD that the Principal Appellant did not credibly establish that he has been identified as a political opponent in Sudan, as detailed above, and he did not present any evidence that his activities in Canada have come to the attention of the Sudanese authorities. I find that the Principal Appellant did not establish that there is more than a mere possibility that he would be intercepted on his return to Sudan and risk harm from the Sudanese authorities. Best interests of the Appellants' children [73] The Appellants agree that their Canadian-born children are not refugee claimants. Any examination of their interests falls outside the jurisdiction of both the RPD and RAD.78 [74] The Appellants submit that the RPD should have considered whether the autism of one the children would result in their discrimination or persecution but do not reference any objective evidence to support their submission.79 [75] As discussed in a 2017 RAD decision,80 the IRPA does not give the RPD or the RAD the authority to make decisions based on humanitarian and compassionate grounds and Parliament has provided other means including pre-removal risk assessment or humanitarian considerations under section 25 of the IRPA. CONCLUSION [76] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) \"Susan Brown\" Susan Brown February 25, 2022 Date 1 Immigration and Refugee Board of Canada, Chairperson Guidelines 4:Women Refugee Claimants Fearing Gender-Related Persecution, Guideline issued by the Chairperson pursuant to section 65(3) of the Immigration Act, IRB, Ottawa, November 13, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act (Gender Guideline). 2 RPD-1, RPD Record, pages 14-50, Exhibits 2.1 and 2.2, BOC as amended by page 127, Exhibit 4. 3 RAD-1, National Documentation Package, Sudan, 30 July 2021. 4 P-3, Female Appellant submision, January 2022, pages 2 and 3. 5 Ibid., pages 4 and 5. 6 Ibid., pages 6 and 7. 7 Ibid., pages 8 and 9. 8 Ibid., page 10. 9 Ibid., pages 11-14. 10 Ibid., page 15. 11 P-4, Additional written submisions, February 2020. 12 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 13 Ibid., and Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 14 RAD Rules, rule 29(4). 15 RPD-1, RPD Record, page 182, Exhibit 4. 16 Legal Services, Immigration and Refugee Board, Assessment of Credibility in Claims for Refugee Protection, December 2020, Foreword. 17 I.P.P. v. Canada (Citizenship and Immigration), 2018 FC 123 (CanLII), para. 129. 18 Lawani v. Canada (Citizenship and Immigration), 2018 FC 924 (CanLII), paras. 21-26. 19 RPD-1, RPD Record, page 23, Exhibit 2.1, BOC narrative. 20 RPD-1, RPD Record, page 126, Exhibit 4. 21 Transcript of hearing on December 8, 2020, page 19. 22 RPD -1, RPD Record, page 8, RPD Decision, paras. 25 and 26. 23 P-2, Appellants' Record, page 13, Appellants' Memorandum, para. 41. 24 Refugee Protection Division Rules, SOR/2012256 (RPD Rules). 25 Refugee Appeal Division Rules, SOR/2012257 (RAD Rules). 26 Ogaulu v. Canada (Citizenship and Immigration), 2019 FC 547 at para. 18. 27 Zeferino v. Canada (Citizenship and Immigration), 2011 FC 456 at paras. 31 and 32. 28 Occilus v. Canada (Citizenship and Immigration), 2020 FC 374 (CanLII), at paras. 23 and 24, citing Hamidi v. Canada (Citizenship and Immigration), 2015 FC 243 at para. 27. 29 RPD-1, RPD Record, pages 81 and 85, Exhibit 1, Schedules A and 12. 30 Transcript of hearing of December 8, 2020, pages 14 and 15. 31 RPD-1, RPD Record, page 15, Exhibit 2.1, BOC narrative. 32 Transcript of hearing on December 8, 2020, page 4. 33 RPD-1, RPD Record, page 134, Exhibit 4. 34 RPD-1, RPD Record, page 16, Exhibit 2.1, BOC narrative. 35 Transcript of hearing on December 8, 2020, pages 4 and 5. 36 RPD-1, RPD Record, pages 16 and, Exhibit 2.1, BOC narrative. 37 Transcript of hearing on December 8, 2020, page 6. 38 RPD-1, RPD Record, page 20, Exhibit 2.1, BOC narrative. 39 RPD-1, RPD Record, pages 81 and 85, Exhibit 1, Schedules A and 12. 40 RPD-1, RPD Record, pages 17 and 18, Exhibit 2.1, BOC narrative. 41 RPD-1, RPD Record, page 134, Exhibit 4. 42 RPD-1, RPD Record, page 138, Exhibit 4. 43 Transcript of hearing on December 8, 2020, pages 7 and 8. 44 RPD-1, RPD Record, pages 18 and 19, Exhibit 2.1, BOC narrative. 45 Transcript of hearing on December 8, 2020, pages 10 and 11. 46 RPD-1, RPD Record, pages 19 and 20, Exhibit 2.1, BOC narrative. 47 RPD-1, RPD Record, pages 140 and 154, Exhibit 4 48 Transcript of hearing on December 8, 2020, pages 9, 11 and 12. 49 RPD-1, RPD Record, page 127, Exhibit 4, Amended BOC narrative. 50 Transcript of hearing on December 8, 2020, pages 18, 30-34. 51 RPD-1, RPD Record, pages 18 and 19, Exhibit 2.1, BOC narrative. 52 Transcript of hearing on December 8, 2020, page 10. 53 Transcript of hearing on December 8, 2020, page 11. 54 RPD-1, RPD Record, pages 81 and 85, Exhibit 1, Schedules A and 12. 55 Transcript of hearing on December 8, 2020, pages 11 and 12. 56 RPD-1, RPD Record, page 140, Exhibit 4. 57 RPD-1, RPD Record, page 154, Exhibit 4. 58 P-2, Appellants' Record, page 13, Appellants' Memorandum, para. 41. 59 RPD-1, RPD Record, page 21, Exhibit 2.1, BOC narrative. 60 RPD-1, RPD Record, page 8, RPD Reasons, paragraph 24. 61 Transcript of hearing on December 8, 2020, pages 21 and 22. 62 Transcript of hearing on December 8, 2020, pages 35-38. 63 RPD-1, RPD Record, page 11, RPD Reasons, paragraph 43. 64 Gender Guideline, section D.3. 65 RPD-1, RPD Record, page 182, Exhibit 4. 66 P-4, Additional written submissions, February 2022, page 2, para. 2. 67 RAD -1, National Documentation Package, Sudan, 30 July 2021, tab 5.10: ?Improved Understanding of FGM/C Abandonment among Sudanese Families in Khartoum and Kassala States. Chr. Michelsen Institute. Nafisa Bedri; Yussra Mohammed. September 2020, page 9. 68 P-4, Additional written submisions, February 2020, page 2, para 4. 69 RAD-1, National Documentation Package, Sudan, 30 July 2021, tab 9.3: ?Sudan: New Law Amending Penal Code Takes Effect. United States. Law Library of Congress. Global Legal Monitor. George Sadek. 23 July 2020. 70 Ibid., tab 9.3, page 1. 71 Ibid., tab 9.3, page 2. 72 P-3, Female Appellant submision, January 2022, page 2. 73 Ibid., page 2. 74 RPD-1, RPD Record, page 31, Exhibit 2.1, BOC form, question 5; page 37, Exhibit 2.2, BOC narrative; page 92, Exhibit 1, Generic Application, question 16. 75 P-3, Female Appellant submision, January 2022, pages 10-15. 76 RPD-1, RPD Record, Exhibit 3, National Documentation Package, Sudan, 31 March 2020, tab 14.5: ?Country Policy and Information Note. Sudan: Return of unsuccessful asylum seekers. Version 4.0. United Kingdom. Home Office. July 2018. page 22. 77 Ibid., tab 14.5, page 6. 78 X (Re), 2013 CanLII 94640 (CA IRB), para. 46. 79 P-2, Appellants' Record, page 11, Appellants' Memorandum, para. 31. 80 X (Re), 2017 CanLII 142905 (CA IRB), paras. 43, 56 and 57. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MC0-11253 MC0-11254 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français", "response": "## Analysis of Refugee Decision: MC0-11253\n\n### Key Issues\nlants credible and identified issues with: the omission of the Principal Appellant's XXXX 2018 arrest from his original BOC; inconsistencies about his involvement with the Quran As\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: gue that the RPD erred in its analysis of their credibility and incorrectly applied the Gender Guideline.1 [3] Following my own review, I find that the Appellants did not credibly establish their claims. DECISION [4] I dismiss the appeal. The RPD was correct in finding that the Appellants are neither Convention refugees nor pers\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "What are the implications of this Refugee Protection Division decision from the Refugee Law Lab Reporter for similar cases?\n\n2023 RLLR 120 Citation: 2023 RLLR 120 Tribunal: Refugee Protection Division Date of Decision: December 20, 2023 Panel: Kate Bilkevitch Counsel for the Claimant(s): N/A Country: Cameroon RPD Number: VC3-09637 Associated RPD Number(s): N/A ATIP Number: A-2024-00593 ATIP Pages: N/A DECISION [1] MEMBER: This is the decision of the Refugee Protection Division, the RPD, in the claim of [REDACTED] as a citizen of Cameroon, who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act. ALLEGATIONS [2] The claimant’s allegations are contained in his Basis of Claim form. To summarise only briefly, the claimant has a fear of persecution at the hands of the Cameroonian authorities because of his background as an anglophone and his perceived support of the separatist movement due to his employment as an XXXX in the conflict zone. DETERMINATION [3] I find that the claimant is a Convention refugee pursuant to section 96 of the Act. He has established a serious possibility of persecution should he return to Cameroon. ANALYSIS Identity [4] With respect to the issue of identity, the claimant’s identity as a national of Cameroon has been established by the sworn statement in his Basis of Claim form, his testimony, a copy of his national identity card, birth certificate, and a copy of his Cameroonian passport. There is a presumption that sworn testimony is true unless there is sufficient reason to doubt its truthfulness. A finding that the claimant lacks credibility may be based on the failure of the claimant’s account to stand up to scrutiny or unexplained inconsistencies, omissions, or contradictions. Further, the presumption of truthfulness does not apply to inferences or speculation for which there is no evidentiary basis. The claimant testified in a detailed manner. His testimony was straightforward, spontaneous, and consistent with his Basis of Claim narrative. The claimant elaborated in-depth on different aspects of the claim, such as his study and subsequent employment as an XXXX, his detention by the security forces in Cameroon, his escape and internal relocation in Cameroon, and his subsequent journey to Canada. I found the claimant overall credible in relation to his experiences in Cameroon in 2022. [5] Additionally, the claimant provided ample documentary evidence to substantiate his allegations of risk. For instance, the claimant adduced records demonstrating his education and employment, four (4) witness statements, medical certificates, and an arrest warrant. I have no reason to doubt the authenticity of these documents. Consequently, I give these documents full weight as I find them to be authentic, and they are probative of the issue at hand as they confirm the claimant’s allegations. Overall, I accept the following allegations on the balance of probabilities. The claimant worked as an XXXX in war-torn northwest Cameroon. He was arrested and detained twice in 2022, the first time in XXXX and the second time in XXXX of that year. The first time the claimant was arrested on suspicion of collaborating with a separatist on XXXX XXXX, 2022. The claimant worked on XXXX XXXX to the village that was used by separatists to launch their assaults from. [REDACTED] by the military, but the claimant made attempts to XXXX XXXX as his extended family and friends lived in that village and struggled without XXXX for several weeks. The claimant was detained and tortured for [REDACTED] XXXX XXXX. The claimant was released upon fee payment produced by his brother. The claimant was forced to sign an undertaking prior to his release. [6] The claimant had no problem with the authorities after his release and continued his work as an XXXX. However, on XXXX XXXX, 2022, he was stopped at a checkpoint and questioned about some XXXX XXXX and XXXX XXXX in his possession. The claimant explained to the military that these items were for a contract he had. However, he was perceived to be collaborating with a separatist who needed XXXX XXXX for their hideouts in the bush. The claimant was detained for XXXX XXXX and was set to be executed, like several of his cellmates. However, his former classmate was a guard in the detention centre, and out of compassion, the man assisted the claimant to escape. The claimant hid in another village for about [REDACTED] XXXX XXXX communicating with his wife by phone only. However, in late XXXX, his wife was informed that a warrant for the claimant’s arrest was issued. This led the claimant to decide to leave Cameroon for Nigeria. The claimant could not stay in Nigeria as the country frequently deported Cameroonian refugees back to Cameroon. As a result, he made the decision to travel to Canada, where he had family members. [7] Since his departure from Cameroon, the authorities visited the claimant’s brother and wife. Both were interrogated and asked about the claimant’s whereabouts. Based on the totality of the evidence before me, on a balance of probabilities, I accept that the claimant has been targeted by the Cameroonian authorities between XXXX and XXXX 2022. Nexus [8] In order to satisfy the definition of a Convention refugee found in section 96 of the Act, the claimant must establish that he or she has a well-founded fear of persecution by reason of race, religion, nationality, membership in a particular social group, or political opinion. In this case, I find the claimant’s allegations established a nexus to the Convention ground of political opinion or imputed political opinion. When considering the claimant’s past treatment by the authorities due to the fact that he had been perceived to collaborate with the separatists on two (2) separate occasions combined with his status as a failed anglophone asylum seeker from the northwest part of Cameroon, I find that the claimant has a well-founded fear of persecution based on his imputed political opinion. As such, I have assessed his claim under section 96 of the Act. Well-Founded Fear of Persecution [9] I find the claimant would face a forward-looking risk of persecution if returned to Cameroon. This persecution would take the form of physical violence, arbitrary arrest or detention, and psychological and physical abuse from the police authorities in Cameroon. I have accepted the claimant’s testimony that the Cameroonian authorities have already detained and abused him because of his perceived association with a separatist movement. The claimant was also accused by the authorities of helping anglophone separatists. In addition, the claimant is a young man who has now spent a significant amount of time abroad. If returned to Cameroon as a failed refugee claimant, this would also contribute to his profile as a person Cameroonian authorities would likely suspect of having an anti-government political opinion. I have based my findings on the following country condition information, which corroborate the claimant’s allegations and indicate that he would face a forward-looking risk. [10] At Tab 2.1 of the National Documentation Package for Cameroon, there is the U.S. Department of State report indicating that Cameroonian authorities have in the previous year been known to conduct arbitrary arrests or detentions, unlawful or arbitrary killings including extrajudicial killings by security forces, forced disappearance, torture, and cases of cruel, inhumane or degrading treatment or punishment. And this report also indicates there has been abuse and retaliation against family members for offences allegedly committed by an individual. Much of these abuses have been associated with the armed conflict between anglophone militant groups and the majority francophone government. Many unarmed civilians have been affected by this violence and the government is known to use excessive force on civilians. They are known to raid anglophone neighbourhoods in Cameroon while searching for suspected militants. [11] A report at tab 2.3 of the NDP confirms the conflict between government security forces and anglophone separatists has resulted in widespread civilian deaths and displacement. The same report indicates that anglophone activists have faced harassment, violence, and arrests for their activities. I find that the claimant, who worked as an electrician in the anglophone region of Cameroon and who is perceived to have ties to separatists would on a balance of probabilities be perceived as a person who holds anti-government views. A report at Tab 2.5 of the NDP confirms that government forces have committed widespread human rights abuses including extrajudicial and summary execution across Cameroon since the year of at least 2020. A report at Tab 13.2 indicates Cameroonian authorities have imposed restrictions on anglophone regions including curfews, bans on public meetings, and other restrictive measures. The same report indicates that anglophone Cameroonians who have been living abroad for some time have been arrested upon their return to the Yaoundé or Douala airports in Cameroon. Those arrested include failed asylum seekers. Failed asylum seekers who are anglophone have been imprisoned, harmed, and fined. [12] The claimant himself has already been detained and accused of supporting anglophone militants, and his refugee claim is based on these circumstances. I find these circumstances contribute to the risk he would face if he returned to Cameroon, as he would likely be targeted by police for questioning or abuse at the airport, not only due to his previous detention, but also as a failed asylum seeker. Ultimately, I find the claimant has established that he has been arrested, detained, and targeted by the Cameroon state on the basis of his perceived political opinion. I find the claimant, as someone who has already been identified by the state as a person who holds anti-government views and sympathising with the separatist cause faces a serious possibility of persecution if he returns to Cameroon. Given that there are no credibility issues with respect to the allegations of the claimant combined with the documentary evidence set out above, I find that the claimant’s subjective fear has an objective basis. State Protection and Internal Flight Alternative [13] As the state is the agent of persecution in this case, I find the state would not be able to provide meaningful or reasonable protection to the claimant. I find the presumption of state protection in this case has been clearly rebutted as the state is the agent that the claimant fears. Further, as the state is the agent of harm in this case, and given that the state has access to the entirety of its territory, I find that the claimant faces a serious possibility of persecution throughout Cameroon. As a result, there is no viable Internal Flight Alternative in all of Cameroon. CONCLUSION [14] For all of the foregoing reasons, I conclude that the claimant is a Convention refugee and I, therefore, accept his claim. This is the end of the decision. ——— REASONS CONCLUDED ———", "response": "## Analysis of Refugee Decision: 2023 RLLR 120\n\n### Key Issues\nthat there are no credibility issues with respect to the allegations of the claimant combined with the documentary evidence set out above, I find that the claimant’s subjective fea\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: should he return to Cameroon. ANALYSIS Identity [4] With respect to the issue of identity, the claimant’s identity as a national of Cameroon has been established by the sworn statement in his Basis of Claim form, his testimony, a copy of his national identity card, birth certificate, and a copy of his Cameroonian passport. There\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "Analyze this Federal Court of Appeal of Canada decision and explain its precedential value for immigration cases:\n\nSedghi v. Canada (Citizenship and Immigration) Court (s) Database Federal Court of Appeal Decisions Date 2023-10-10 Neutral citation 2023 FC 1601 File numbers IMM-7898-22 Decision Content Date: 20231010 Docket: IMM-7898-22 Citation: 2023 FC 1601 Ottawa, Ontario, October 10, 2023 PRESENT: The Honourable Madam Justice McVeigh BETWEEN: DARIUSH SEDGHI Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT UPON application for judicial review to set aside a decision of an officer of Citizenship and Immigration Canada (the “Officer”), dated August 8, 2022, in which the Officer refused the Applicant’s application for a Labour Market Impact Assessment exempt work permit under administrative code C11 pursuant to the International Mobility Program. The Officer found the Applicant failed to demonstrate his proposed business would generate significant economic, social or cultural benefits or opportunities for Canadian citizens or permanent residents under section 205(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRPR”); AND UPON reading the written submissions and hearing the oral representations of counsel for the parties; AND UPON reviewing the Certified Tribunal Record (“CTR”); AND UPON determining that this application should be granted for the following reasons: [1] The Applicant alleges the Officer erred by misconstruing publicly available guidance for visa officers under the C11 administrative code, known as “Entrepreneurs or self-employed individuals seeking only temporary residence – [R205(a) – C11] – International Mobility Program” (the “Guidelines”). The Applicant argues the Officer also erred by requiring the Applicant to meet requirements which were not set out in the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”), the IRPR or the Guidelines. [2] In the Global Case Management System (“GCMS”) notes, the Officer highlighted four points about the Applicant’s application: 1) the business premises, 2) the initial investment, 3) the hiring plan and 4) whether the company created a significant benefit. Under the Guidelines, the first three factors are all considerations that visa officers can assess to determine the last point; that is, whether the business establishes a significant benefit. As noted, the Officer ultimately denied the application on that basis, finding the proposed business would not create a significant benefit as required under section 205(a). [3] The Applicant alleges the Officer erred on several points in their decision, particularly their reasoning process on the first two considerations: the premises and the investment. I will also address the Applicant’s arguments concerning the interpretation and application of “significant benefit.” [4] First, the Applicant alleges the Officer erred by requiring him to lease physical premises, while rejecting any other type of office arrangement. In the GCMS notes, the Officer states, “An account statement for virtual office address at … has been provided. Given the generic needs for office space (for only himself at first), it is not known why the applicant has not secured a lease/physical premises where he will go to work.” [5] Upon review, the Applicant’s business plan does not specify that physical premises are required. Rather, pages 21-22 of his business plan state that, “Upon the approval of Mr. Dariush Sedghi’s work permit, the Company will search the local area to identify the best-suited premises for its specific operations. From its office, the Company will be able to reach potential clients nationwide, as the majority of its consulting activities can be conducted online.” From this wording, the business plan uses qualifying language when discussing the proposed office space, meaning that, even if the Officer presumed physical premises were required, the business plan clearly states the company will search for such space upon approval of the work permit. Second, the business plan never actually specifies what type of premises are needed (i.e. physical or virtual). Third, the business plan indicates a large portion of the company’s activities will be conducted online, which would suggest a virtual office is acceptable to some degree. [6] The Officer does not provide an explanation of their reasoning process on this point, despite implying the lack of premises is a negative factor in the application. In my view, the decision is unreasonable as the Officer has failed to provide their rationale for why the Applicant is required to lease a property, particularly given his business plan. [7] Second, in relation to finances, the Applicant argues the Officer erred in law by requiring the Applicant to have an initial investment amount in the form of liquid cash. The Applicant states liquidity is not mandated by the IRPA, the IRPR or the Guidelines. At the hearing, the Applicant argued he provided proof of his finances and they were more than adequate to be viable. The Applicant claims he submitted three forms of assets and has approximately $358,775.53 in liquid assets, even though the initial investment amount was only $200,000. Therefore, the Applicant argued he had more cash than is necessary. The Applicant’s affidavit states, “In addition, should the business in Canada require more cash, two of the fixed assets, namely Bahar Property, which is currently being rented, and the Mazandaran Villa, can also be liquidated which will provide an additional $323,289.00 CAD for further investment in Canada.” [8] The Applicant presented a second asset, the Adak Control Arya Company (Ltd.) (“Adak Control”) shares, of which he owns 80% and his wife owns 20%. The Applicant argues the Officer misinterpreted the Adak Control share valuation, however he did not provide an explanation for the 2012 valuation in his application. In the GCMS notes, the Officer acknowledged it was not immediately clear what the value of the shares was presently. [9] The third asset the Applicant provided was real estate, including property appraisals, title deeds and a rental agreement. The Applicant showed these properties were valued at more than $600,000 and could be liquidated. The Officer did not find the Applicant’s real estate constituted a positive factor given it was not representative of available liquid cash. The Applicant contends that, in any event, he has provided proof of sufficient financing with his liquid assets, even without the consideration of the other two fixed assets (one of which is rented and could be liquidated to provide additional investment funds). [10] As such, the Applicant argues the Officer’s reasoning is vague and ignores evidence about the liquidity of his equity investments. I agree that the Officer fails to explain why liquid assets are necessary for commencing the company and paying employees. As well, the Officer does not clarify why the Applicant’s real estate and subsequent rental agreement are insufficient to show the Applicant’s financial position. The reasoning is absent from the GCMS notes themselves, meaning there is no adequate justification for liquid cash as opposed to equity investments. [11] In determining whether the business presented a significant benefit under section 205(a), the Guidelines indicate that the criteria of the business premises, financial ability and hiring plan all should form part of the “significant business” analysis. [12] On a final note, the Applicant claims the Officer made an error of law and ignored evidence in their interpretation and application of “significant benefit.” The Applicant argues the Officer improperly concluded that the company would not be distinguishable in the marketplace, noting the identification of potential competitors is a routine practice. Additionally, the Applicant argues the Officer ignored evidence showing how the company would provide cultural, economic and social benefits. The Applicant said these benefits would include boosting efficiency in the manufacturing sector, improving the competition mix, providing high value training, transferring knowledge, creating jobs, contributing to Canadian tax revenues, ameliorating the impact of Covid-19 on manufacturing and contributing to the standard of living via foreign direct investment. [13] I note the submission letter from the Applicant’s immigration consultant (in the completed application package), on page 21 of the CTR, lists cultural benefits of the proposed business and states that: Enhancing cultural diversity in the Canadian manufacturing sector: Increasingly the Canadian manufacturing sector (ranging from manufacturers of furniture, doors and windows to medical devises, etc.) are coming from business immigrant community with diverse cultural backgrounds. The management consulting sector increasingly need to cope with such a transformational cultural change in Ontario and beyond. Coming from a Middle Eastern background and having worked with a variety of clients from various countries particularly in Asia, Mr Sedghi’s company will significantly contribute to filling the existing gap in the manufacturing consulting industry in Canada. [14] While this statement is not included within the business plan itself, it formed part of the application and would have been placed in front of the Officer and should have been considered as one factor and it appears it was not considered. [15] In conclusion, the issue of finances and business premises are significant parts of the decision, forming half of the rationale. Here, however, the Officer has failed to explain why their reasoning on these issues is justified. Thus, the lack of reasoning on these factors, which are material, render the decision unreasonable (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 100). I will grant this application. THIS COURT ORDERS THAT: The application for judicial review is granted and is sent back to be re-determined by a different officer. No question of general importance is certified. blank \"Glennys L. McVeigh\" blank Judge", "response": "## Analysis of Court Decision: Sedghi v. Canada (Citizenship and Immigration)\n\n### Key Issues\nwhy their reasoning on these issues is justified. Thus, the lack of reasoning on these factors, which are material, render the decision unreasonable (Canada (Minister of Citizensh\n\n### Standard of Review\nSedghi v. Canada (Citizenship and Immigration) Court (s) Database Federal Court of Appeal Decisions Date 2023-10-10 Neutral citation 2023 FC 1601 File numbers IMM-7898-22 Decision Content Date: 20231010 Docket: IMM-7898-22 Citation: 2023 FC 1601 Ottawa, Ontario, October 10, 2023 PRESENT: The Honourable Madam Justice McVeigh BETWEEN: DARIUSH SEDGHI Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT UPON application for judicial review to set aside a decision of an officer of Citizenship and Immigration Canada (the “Officer”), dated August 8, 2022, in which the Officer refused the Applicant’s application for a Labour Market Impact Assessment exempt work permit under administrative code C11 pursuant to the International Mobility Program. The Officer found the Applicant failed to demonstrate his proposed business would generate significant economic, social or cultural benefits or opportunities for Canadian citizens or permanent residents under section 205(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRPR”); AND UPON reading the written submissions and hearing the oral representations of counsel for the parties; AND UPON reviewing the Certified Tribunal Record (“CTR”); AND UPON determining that this application should be granted for the following reasons: [1] The Applicant alleges the Officer erred by misconstruing publicly available guidance for visa officers under the C11 administrative code, known as “Entrepreneurs or self-employed individuals seeking only temporary residence – [R205(a) – C11] – International Mobility Program” (the “Guidelines”). The Applicant argues the Officer also erred by requiring the Applicant to meet requirements which were not set out in the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”), the IRPR or the Guidelines. [2] In the Global Case Management System (“GCMS”) notes, the Officer highlighted four points about the Applicant’s application: 1) the business premises, 2) the initial investment, 3) the hiring plan and 4) whether the company created a significant benefit. Under the Guidelines, the first three factors are all considerations that visa officers can assess to determine the last point; that is, whether the business establishes a significant benefit. As noted, the Officer ultimately denied the application on that basis, finding the proposed business would not create a significant benefit as required under section 205(a). [3] The Applicant alleges the Officer erred on several points in their decision, particularly their reasoning process on the first two considerations: the premises and the investment. I will also address the Applicant’s arguments concerning the interpretation and application of “significant benefit.” [4] First, the Applicant alleges the Officer erred by requiring him to lease physical premises, while rejecting any other type of office arrangement. In the GCMS notes, the Officer states, “An account statement for virtual office address at … has been provided. Given the generic needs for office space (for only himself at first), it is not known why the applicant has not secured a lease/physical premises where he will go to work.” [5] Upon review, the Applicant’s business plan does not specify that physical premises are required. Rather, pages 21-22 of his business plan state that, “Upon the approval of Mr. Dariush Sedghi’s work permit, the Company will search the local area to identify the best-suited premises for its specific operations. From its office, the Company will be able to reach potential clients nationwide, as the majority of its consulting activities can be conducted online.” From this wording, the business plan uses qualifying language when discussing the proposed office space, meaning that, even if the Officer presumed physical premises were required, the business plan clearly states the company will search for such space upon approval of the work permit. Second, the business plan never actually specifies what type of premises are needed (i.e. physical or virtual). Third, the business plan indicates a large portion of the company’s activities will be conducted online, which would suggest a virtual office is acceptable to some degree. [6] The Officer does not provide an explanation of their reasoning process on this point, despite implying the lack of premises is a negative factor in the application. In my view, the decision is unreasonable as the Officer has failed to provide their rationale for why the Applicant is required to lease a property, particularly given his business plan. [7] Second, in relation to finances, the Applicant argues the Officer erred in law by requiring the Applicant to have an initial investment amount in the form of liquid cash. The Applicant states liquidity is not mandated by the IRPA, the IRPR or the Guidelines. At the hearing, the Applicant argued he provided proof of his finances and they were more than adequate to be viable. The Applicant claims he submitted three forms of assets and has approximately $358,775.53 in liquid assets, even though the initial investment amount was only $200,000. Therefore, the Applicant argued he had more cash than is necessary. The Applicant’s affidavit states, “In addition, should the business in Canada require more cash, two of the fixed assets, namely Bahar Property, which is currently being rented, and the Mazandaran Villa, can also be liquidated which will provide an additional $323,289.00 CAD for further investment in Canada.” [8] The Applicant presented a second asset, the Adak Control Arya Company (Ltd.) (“Adak Control”) shares, of which he owns 80% and his wife owns 20%. The Applicant argues the Officer misinterpreted the Adak Control share valuation, however he did not provide an explanation for the 2012 valuation in his application. In the GCMS notes, the Officer acknowledged it was not immediately clear what the value of the shares was presently. [9] The third asset the Applicant provided was real estate, including property appraisals, title deeds and a rental agreement. The Applicant showed these properties were valued at more than $600,000 and could be liquidated. The Officer did not find the Applicant’s real estate constituted a positive factor given it was not representative of available liquid cash. The Applicant contends that, in any event, he has provided proof of sufficient financing with his liquid assets, even without the consideration of the other two fixed assets (one of which is rented and could be liquidated to provide additional investment funds). [10] As such, the Applicant argues the Officer’s reasoning is vague and ignores evidence about the liquidity of his equity investments. I agree that the Officer fails to explain why liquid assets are necessary for commencing the company and paying employees. As well, the Officer does not clarify why the Applicant’s real estate and subsequent rental agreement are insufficient to show the Applicant’s financial position. The reasoning is absent from the GCMS notes themselves, meaning there is no adequate justification for liquid cash as opposed to equity investments. [11] In determining whether the business presented a significant benefit under section 205(a), the Guidelines indicate that the criteria of the business premises, financial ability and hiring plan all should form part of the “significant business” analysis. [12] On a final note, the Applicant claims the Officer made an error of law and ignored evidence in their interpretation and application of “significant benefit.” The Applicant argues the Officer improperly concluded that the company would not be distinguishable in the marketplace, noting the identification of potential competitors is a routine practice. Additionally, the Applicant argues the Officer ignored evidence showing how the company would provide cultural, economic and social benefits. The Applicant said these benefits would include boosting efficiency in the manufacturing sector, improving the competition mix, providing high value training, transferring knowledge, creating jobs, contributing to Canadian tax revenues, ameliorating the impact of Covid-19 on manufacturing and contributing to the standard of living via foreign direct investment. [13] I note the submission letter from the Applicant’s immigration consultant (in the completed application package), on page 21 of the CTR, lists cultural benefits of the proposed business and states that: Enhancing cultural diversity in the Canadian manufacturing sector: Increasingly the Canadian manufacturing sector (ranging from manufacturers of furniture, doors and windows to medical devises, etc.) are coming from business immigrant community with diverse cultural backgrounds. The management consulting sector increasingly need to cope with such a transformational cultural change in Ontario and beyond. Coming from a Middle Eastern background and having worked with a variety of clients from various countries particularly in Asia, Mr Sedghi’s company will significantly contribute to filling the existing gap in the manufacturing consulting industry in Canada. [14] While this statement is not included within the business plan itself, it formed part of the application and would have been placed in front of the Officer and should have been considered as one factor and it appears it was not considered. [15] In conclusion, the issue of finances and business premises are significant parts of the decision, forming half of the rationale. Here, however, the Officer has failed to explain why their reasoning on these issues is justified. Thus, the lack of reasoning on these factors, which are material, render the decision unreasonable (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 100). I will grant this application. THIS COURT ORDERS THAT: The application for judicial review is granted and is sent back to be re-determined by a different officer. No question of general importance is certified. blank \"Glennys L. McVeigh\" blank Judge\n\n### Legal Analysis\nThe court's analysis focuses on: of the “significant business” analysis. [12] On a final note, the Applicant claims the Officer made an error of law and ignored evidence in their interpretation and application of “significant benefit.” The Applicant argues the Officer improperly concluded that the company would not be distinguishable in the marketplace, noting\n\n### Precedential Value\nAs a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation."}
{"prompt": "What legal errors did the Federal Court of Appeal identify in this Federal Court of Appeal of Canada decision?\n\nAndrews v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2023-05-31 Neutral citation 2023 FCA 119 File numbers A-13-22 Decision Content Date: 20230531 Docket: A-13-22 Citation: 2023 FCA 119 CORAM: DE MONTIGNY J.A. LASKIN J.A. MACTAVISH J.A. BETWEEN: JILL ANDREWS Applicant and ATTORNEY GENERAL OF CANADA Respondent Heard at Ottawa, Ontario, on May 29, 2023 Judgment delivered at Ottawa, Ontario, on May 31, 2023 REASONS FOR JUDGMENT BY: LASKIN J.A. CONCURRED IN BY: DE MONTIGNY J.A. MACTAVISH J.A. Date: 20230531 Docket: A-13-22 Citation: 2023 FCA 119 CORAM: DE MONTIGNY J.A. LASKIN J.A. MACTAVISH J.A. BETWEEN: JILL ANDREWS Applicant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT LASKIN J.A. [1]The applicant, Ms. Andrews, seeks judicial review of a decision of the Federal Public Service Labour Relations and Employment Board (2021 FPSLRB 137). In its decision, the Board dismissed her application under section 61(b) of the Federal Public Sector Labour Relations Regulations, S.O.R./2005-79, for an extension of time to file a grievance against the termination of her employment. Subsection 61(b) authorizes the Board to grant an extension “in the interest of fairness”. [2]The applicant’s collective agreement set a 25-day time limit for filing a grievance, which, in her case, ran from January 31, 2020. The applicant applied to the Board for an extension on May 4, 2021, some 15 months after the deadline had passed. [3]The applicant based her application on what the Board described as “the well-known criteria” set out in Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1 at para. 75, for determining whether the Board should exercise its discretion under section 61(b). These criteria comprise (1) clear, cogent and compelling reasons for the delay; (2) the length of the delay; (3) the due diligence of the grievor; (4) balancing the injustice to the employee against the prejudice to the employer in granting an extension; and (5) the chance of success of the grievance. [4]In addressing the first four criteria, the main factor on which the applicant relied was that “[it had] taken [her] over two years (from March 18, 2019 to April 28, 2021) to do a complete review of the 1,975 pages of documents related to [her] employment case, and prepare comprehensive electronic documents”. Somehow, she misunderstood the process and mistakenly believed that these steps were necessary before a grievance could be filed. She also claims that she did not realize that there was a deadline for filing the grievance. [5]As authorized by section 22 of the Federal Public Sector Labour Relations and Employment Board Act, S.C. 2013, c. 40, s. 365, the Board decided the application based on the written material filed, without holding an oral hearing. In its reasons it reviewed the parties’ submissions on each of the Schenkman criteria, noting before doing so the statement in Martin v. Treasury Board (Department of Human Resources and Skills Development), 2015 PSLREB 39 at para. 70, that the criteria are not all necessarily of equal importance, and their weight in any particular case may differ. The Board concluded that, weighing the Schenkman criteria, it was not in the interest of fairness to grant an extension. The applicant seeks judicial review of that decision. [6]Before this Court, the applicant also seeks the admission of fresh evidence in support of her application, comprising 40 additional documents. She acknowledges that these documents were not themselves before the Board. However, she submits that the Board had before it some of the information the documents contain. [7]This Court summarized the law governing the admission of fresh evidence on judicial review in its decision in the companion application commenced by the applicant, Andrews v. Public Service Alliance of Canada, 2022 FCA 159, leave to appeal refused, 2023 CanLII 10480 (SCC), challenging the Board’s dismissal of her claim that her bargaining agent breached its duty of fair representation. As the Court there set out (at paras. 18-21), the general rule, subject only to limited exceptions, is that the only evidence that can be considered on judicial review is the evidence that was before the administrative decision-maker. Here, the applicant relies on the exception for “general background”, which the case law describes as evidence providing general background where that information might assist the court in understanding the issues relevant to the judicial review, but does not add new evidence on the merits. [8]In my view, the evidence the applicant seeks to adduce here does not come within the “general background” exception. Rather, the motion to adduce the 40 documents amounts to an attempt to reconstruct the specifics of the applicant’s interactions and communications with her employer and with her bargaining agent, so as to buttress her case on the merits. I note in addition that all of these documents were available to her when she filed her application and her reply with the Board. The applicant’s fresh evidence motion should therefore be dismissed, and the proposed fresh evidence struck from the record. [9]The applicant also submits that the Board breached its duty of procedural fairness and natural justice, and that its decision is accordingly reviewable on the standard of correctness. Under this rubric she argues that while the Board was correct in utilizing the Schenkman criteria to assess whether it should exercise its discretion to grant an extension, the Board “failed to correctly consider the overall circumstances of the matter, thus impacting its assessment and application of the Schenkman criteria to the facts of the matter”, and that “had the Board correctly considered the totality of the circumstances, it ought to have allowed [her application]” (Applicant’s memorandum at paragraphs 62-63). [10]Properly characterized, these submissions go not to procedural fairness and natural justice but to the merits of the Board’s decision. The standard of review applicable to the Board’s discretion to grant an extension of time under section 61(b) is reasonableness: Popov v. Canada (Attorney General), 2019 FCA 177 at para. 10. [11]Reasonableness is a deferential standard. It does not entitle a reviewing court to reweigh the evidence before the decision-maker, as the applicant would have this Court do. Rather, our role is limited to focusing on the decision actually made, and to ascertaining whether it is “based on an internally coherent and rational chain of analysis” and “justified in relation to the facts and law that constrain the decision maker”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 85. [12]As the applicant acknowledges, the Board applied the proper criteria in considering her application for an extension of time. In doing so, it considered the facts before it, and explained in its reasons its assessment of each criterion and its overall conclusion. In light of the Board’s process and its reasons, I cannot agree with the applicant that its decision was unreasonable. [13]I would, therefore, dismiss the application. At the hearing, the respondent withdrew the claim for costs included in the respondent’s memorandum. It follows that no costs should be awarded. [14]When this application was commenced, the style of cause named the respondent as Deputy Head – Department of Fisheries and Oceans. The parties are agreed that, having regard to rule 303(1) and (2) of the Federal Courts Rules, S.O.R/98-106, the proper respondent is the Attorney General of Canada. The style of cause should be amended accordingly, as reflected in these reasons and the Court’s judgment. “J.B. Laskin” J.A. “I agree. de Montigny J.A.” “I agree. Mactavish J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-13-22 STYLE OF CAUSE: JILL ANDREWS v. ATTORNEY GENERAL OF CANADA PLACE OF HEARING: OTTAWA, ONTARIO DATE OF HEARING: May 29, 2023 REASONS FOR JUDGMENT BY: LASKIN J.A. CONCURRED IN BY: DE MONTIGNY J.A. MACTAVISH J.A. DATED: mAY 31, 2023 APPEARANCES: Jill Andrews ON HER OWN BEHALF Chris Hutchison For The respondent SOLICITORS OF RECORD: Shalene Curtis-Micallef Deputy Attorney General of Canada FOR THE RESPONDENT", "response": "## Analysis of Court Decision: Andrews v. Canada (Attorney General)\n\n### Key Issues\nhe court in understanding the issues relevant to the judicial review, but does not add new evidence on the merits. [8]In my view, the evidence the applicant seeks to adduce here do\n\n### Standard of Review\nof the Board’s decision. The standard of review applicable to the Board’s discretion to grant an extension of time under section 61(b) is reasonableness: Popov v. Canada (Attorney\n\n### Legal Analysis\nThe court's analysis focuses on: oherent and rational chain of analysis” and “justified in relation to the facts and law that constrain the decision maker”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 85. [12]As the applicant acknowledges, the Board applied the proper criteria in considering her application for an extension\n\n### Precedential Value\nAs a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation."}
{"prompt": "What compliance obligations are created by this Federal regulations from the Canadian government?\n\n# Quebec Airport Zoning Regulations CRC, c 104 Regulations Respecting Zoning at Quebec Airport Enabling authority: AERONAUTICS ACT ## Short Title 1 These Regulations may be cited as the Quebec Airport Zoning Regulations. ## Interpretation 2 In these Regulations, *airport* means Quebec Airport, L’Ancienne Lorette, in the Province of Quebec; (aéroport) *airport reference point* means the point described in Part I of the schedule; (point de repère de l’aéroport) *approach surface* means an imaginary inclined plane the lower end of which is a horizontal line at right angles to the centre line of a strip and passing through a point at the strip end on the centre line of the strip; (surface d’approche) *horizontal surface* means an imaginary horizontal plane centering on and located 150 feet above the assigned elevation of the airport reference point; (surface horizontale) *Minister* [Revoked, SOR/93-401, s. 2] *strip* means a rectangular portion of the landing area of the airport, especially prepared for the take-off and landing of aircraft in a particular direction and being (a) 1,200 feet, including the runway, in the case of the runway designated as 12-30, and (b) 1,500 feet, including the runway, in the case of the runway designated as 06-24; ( bande) *transitional surface* means an imaginary inclined plane extending upward and outward from the outer lateral limits of a strip and its approach surface to an intersection with the horizontal surface or other transitional surfaces. (surface de transition) 3 For the purposes of these Regulations, the airport reference point is deemed to be 200 feet above sea level. ## Application 4 These Regulations apply to all lands, including public road allowances, adjacent to or in the vicinity of the airport, as more particularly described in Part II of the schedule. ## General 5 No person shall erect or construct, on any land to which these Regulations apply, any building, structure or object or any addition to any existing building, structure or object, the highest point of which will exceed in elevation at the location of the highest point any of the surfaces hereinafter set out that project immediately over and above the surface of the land at that location, namely, (a) a horizontal surface, the outer limits of which may be described as follows: BEGINNING at the intersection of the Northwesterly boundary of Highway No. 2 with the lot line between lots 113-30 and 114-10; THENCE, following the Northwesterly boundary of Highway No. 2 in a Southwesterly direction to its intersection with the Northwesterly production of the lot line between lots 124 and 123; THENCE, following the last mentioned lot line in a Southeasterly direction to its intersection with the parish line between the Parishes of L’Ancienne Lorette and Ste Foye; THENCE, following the last mentioned parish line in a Southwesterly direction to its intersection with the lot line between lot 22-1, Parish of Ste Foye, and lot 506, Parish of L’Ancienne Lorette; THENCE, following the same parish line in a Southeasterly direction to its intersection with the Northeasterly production of the parish line at the Southerly limit of lots 507 to 520; THENCE, following the last mentioned parish line to its intersection with the Northwesterly boundary of lot 6, Parish of Ste Foye; THENCE, in a Southwesterly direction to its intersection with the most Northerly corner of lot 521, Parish of L’Ancienne Lorette; THENCE, following the lot line between lots 521 and 522 in a Southwesterly direction to its intersection with the parish line between the Parishes of L’Ancienne Lorette and St. Félix; THENCE, following the last mentioned parish line in a Northwesterly direction, then in a Southerly direction, then in a Southwesterly direction to a point where there is an angle in the parish line at a corner of lot 533, Parish of L’Ancienne Lorette; THENCE, in a general Westerly direction to its intersection with the intersection of lot 556-23 with the parish line between the Parishes of L’Ancienne Lorette and St. Augustin; THENCE, following the last mentioned parish line in a Southwesterly direction to its intersection with the Southwesterly boundary of lot 564, Parish of L’Ancienne Lorette; THENCE, following the parish line between the Parishes of L’Ancienne Lorette and St. Augustin in a Northwesterly direction to a point on the Southerly boundary of Calvaire Lake; THENCE, following the last mentioned boundary in a general Southwesterly direction to a point on the parish line between the Parishes of L’Ancienne Lorette and St. Augustin; THENCE, following the last mentioned parish line and its production thereof in a Northwesterly direction to its intersection with the Northwesterly boundary of Highway No. 2; THENCE, following the last mentioned boundary in a Southwesterly direction to its intersection with the lot line between lots 612 and 615; THENCE, following the last mentioned lot line in a Northwesterly direction a distance of six hundred feet (600′) to a point; THENCE, following a line parallel to the Northwesterly boundary of Highway No. 2 in a Southwesterly direction to its intersection with the lot line between lots 616 and 620; THENCE, following the last mentioned lot line in a Northwesterly direction to its intersection with the Southeasterly boundary of the Canadian National Railway right-of-way; THENCE, following the last mentioned bound in a general Westerly direction to its intersection with the lot line between lots 621 and 624; THENCE, following the last mentioned lot line in a Northwesterly direction to its intersection with lot 649; THENCE, following the lot line between lots 649 and 622 in a Northeasterly direction to its intersection with the lot line between lots 649 and 652; THENCE, following the lot line between lots 649 and 652 and the lot line between lots 650 and 651 in a Northwesterly direction to its intersection with the Southeasterly boundary of lot 705; THENCE, following the lot line between lots 705 and 651 in a Northeasterly direction to its intersection with the lot line between lots 651 and 654; THENCE, in a Northwesterly direction to its intersection with the intersection of lot 703 with the lot line between lots 758 and 759; THENCE, in a general Northerly direction to its intersection with the intersection of the Northerly boundary of Notre Dame Road with the lot line between lots 744 and 749; THENCE, in a general Northeasterly direction to its intersection with the intersection of the Northeasterly boundary of Drolet Road with the concession line between Concessions I and II; THENCE, following the Northeasterly boundary of Drolet Road in a Northwesterly direction to its intersection with the parish line between the Parishes of St. Ambroise de la Jeune Lorette and L’Ancienne Lorette; THENCE following the last mentioned parish line in a Northeasterly direction to its intersection with the lot line between lots 330 and 333; THENCE, following the last mentioned lot line in a Southeasterly direction to its intersection with the Southerly boundary of the Hydro-Quebec right-of-way; THENCE, following the last mentioned boundary in a general Northeasterly direction to its intersection with the lot line between lots 260 and 261C; THENCE, following the last mentioned lot line in a Southeasterly direction to its intersection with the parish line between the Parishes of St. Ambroise de la Jeune Lorette and L’Ancienne Lorette; THENCE, following the last mentioned parish line in a Northeasterly direction to its intersection with the Northeasterly boundary of lot 289, Parish of L’Ancienne Lorette; THENCE, following the same parish line in a Southeasterly direction to its intersection with the Northwesterly boundary of Promenade Road; THENCE, following the northwesterly boundary of said road in a northeasterly direction to its intersection with the northwesterly production of the lot line between lots 239 and 240; THENCE, following the last mentioned lot line in a Southeasterly direction to its intersection with the Northwesterly boundary of St. Jean Baptiste Road; THENCE, following the same general direction to its intersection with the intersection of the Southeasterly boundary of St. Jean Baptiste Road with the lot line between lots 232 and 234; THENCE, following the last mentioned lot line in a Southeasterly direction to its intersection with the Northwesterly boundary of lot 98; THENCE, following the Southeasterly boundary of lots 232, 231 and 230 to its intersection with the Northwesterly boundary of lot 112-42; THENCE, following the lot line between lots 112 and 112-5 to 112-42 and its production in a Southeasterly direction to its intersection with the Southeasterly boundary of St. Paul Road; THENCE, following the Southeasterly boundary of said road in a Southwesterly direction to its intersection with the lot line between lots 113 and 116, 114; THENCE, following the last mentioned lot line in a Southeasterly direction to its intersection with the Northwesterly boundary of Highway No. 2 being the Point of Beginning, (b) the approach surfaces abutting each end of the strip designated as 12-30 and the strip designated as 06-24, and extending outward therefrom, the dimensions of which approach surfaces are six hundred (600) feet on each side of the centre line of the strip at the strip ends for strip 12-30, seven hundred and fifty (750) feet on each side of the centre line of the strip at the strip ends for strip 06-24 and two thousand (2,000) feet on each side of the projected centre line of the strip at the outer ends for strips 12-30 and 06-24, the said outer ends being two hundred (200) feet above the elevations at the strip ends, and measured horizontally ten thousand (10,000) feet from the strip ends and their abutting surfaces, and (c) the several transitional surfaces, each rising at an angle determined on the basis of a ratio of one (1) foot vertically for every seven (7) feet measured horizontally from the outer lateral limits of the strips and their abutting surfaces, as shown on Plan No. M-2440 (A, B, C) dated December 5, 1962, of record in the Department of Transport at Ottawa.", "response": "## Analysis of REGULATIONS-FED: Quebec Airport Zoning Regulations\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nThese regulations provide specific implementation details for broader legislative frameworks. Practitioners should ensure strict compliance with procedural requirements, timelines, and documentation standards. The regulations must be interpreted consistent with their enabling legislation and may be subject to challenge if they exceed the authority granted by the statute."}
{"prompt": "Analyze this Refugee Protection Division decision from the Refugee Law Lab Reporter and identify key legal issues:\n\n2023 RLLR 106 Citation: 2023 RLLR 106 Tribunal: Refugee Protection Division Date of Decision: February 3, 2023 Panel: Isis Van Loon Counsel for the Claimant(s): N/A Country: Lebanon RPD Number: VC2-02639 Associated RPD Number(s): N/A ATIP Number: A-2024-00593 ATIP Pages: N/A DECISION [1] MEMBER: This is a decision of the Refugee Protection Division in the claim of XXXX XXXX (ph), also known as XXXX XXXX, as a citizen of Lebanon who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act. In rendering my reasons, I have considered and applied the Chairperson’s guidelines on women refugee claimants fearing gender-related persecution as well as the Chairperson’s guideline on proceedings before the IRB involving sexual orientation, gender identity and expression, and sex characteristics to ensure that appropriate accommodations are made in questioning you, as well as the overall hearing process, and in assessing your claim. DETERMINATION [2] I find you are a Convention refugee as you have established a well-founded fear of persecution based on a Convention ground. ANALYSIS Identity [3] Your passport lists your first name as XXXX and your gender as male. However, you are a transgender woman and you prefer XXXX and the female pronouns. According to the CBSA notes, when you first came to Canada, you used the name XXXX in the past, and this is recorded in the XXXX 2022 interview with CBSA in Exhibit 1. I also note that the medical reports vary. Some use XXXX and some use XXXX, with the same last name. So, I find that your identity as a national of Lebanon is established by your testimony as well as the supporting documentation on file, which includes a certified true copy of your passport in Exhibit 1. [4] You told me that you were not sure if your father holds Armenian citizenship but that he might. And, in fact, during the break, you conferred with your brother, who said, no, he does not. I would be inclined to agree with you based on the Armenian law as well in Tab 3.1, the law of the Republic of Armenia on the citizenship of the Republic of Armenia states under article 1 that you are not allowed to hold citizenship simultaneously in Armenia and in another state. Article 11 states that any children born to Armenian parents are Armenian regardless of where they were born. However, you are a Lebanese citizen, and I am satisfied that even if — and this is a big if based on what you have told me — your father had held Armenian citizenship when you were born, you are not able to hold Armenian citizenship because holding citizenship in another state — because you hold citizenship in another state, Lebanon. [5] So, your allegations are set out in your Basis of Claim form and by your testimony. The following is an extremely brief summary. You are transgender and you fear persecution as a transgender women if you were to return to Lebanon. Credibility [6] A presumption before me is that what you tell me is true. However, this can be rebutted in appropriate circumstances, such as omissions, lack of detail, contradictions, et cetera. In your case, you provided detailed answers to my questions. You seem very well-aware of and well-informed. And I really found nothing to disbelieve you on. In fact, I accept what you have told me as credible. [7] Furthermore, you provided credible documentation in support of your claim, including Canadian medical documents reporting [REDACTED] XXXX XXXX over time in response to treatment. Upon review of the lab results, I find no reason to doubt their authenticity and, therefore, place significant weight on them as they serve to corroborate what you have been telling me. [8] So, I found you to be credible witness and you have backed it up with your documentation as well. So, I believe what you have alleged in support of your claim. Nexus [9] I find the persecution you face has a nexus to the Convention grounds. You have demonstrated a well-founded fear of persecution based on your membership in a particular social group, as a transgender woman. Therefore, I have assessed your claim under section 96. [10] Now, a well-founded fear of persecution must include both a subjective and an objective basis for that fear and it must be forward-looking. Based on your testimony, and supporting documents, as well as the country condition documents for Lebanon, I do find you have a well-founded fear of persecution for these reasons. [11] So, in terms of subjective fear, you came to Canada on XXXX XXXX of 2020 on a student visa. That student visa in Exhibit 1 shows it was valid until XXXX of 2024. You applied for asylum, signing your Basis of Claim form on January the 4th of 2022, while that student visa was still valid. You explained to me that you did not apply for asylum until over a year after your arrival because you thought at first that you would be able to apply to stay in Canada on a permit after graduation, but later, this felt too uncertain and risky to you to take a chance on that. You also told me that you sought out medical assistance with XXXX shortly after arriving in Canada and you were able to start XXXX XXXX within a few months of arriving. So, I find that you have adduced sufficient credible evidence to establish your subjective fear of returning to Lebanon. Objective Basis [12] I asked you what would happen if you went back to Lebanon to live as XXXX, and you said you would face legal as well as health issues. You said that it is not a good situation for transgender people in Lebanon. You said you had gone to doctors in Lebanon who refused to treat you when you were 17. You also told me that you researched the discrimination you would face in the workplace, that you have read news stories about that, and that you would not be able to have your state identity documents reflect your true gender. You told me that you would risk being killed, and, minimally, would suffer mentally, and that you had had a really difficult time when you were in Lebanon as well. And you told me quite clearly that you just simply would not be able to live as yourself in Lebanon. [13] There is abundant objective country evidence in the current National Documentation Package for Lebanon which confirms the situation for transgender women, such as yourself, in Lebanon. NDP 6.10, the Queer Refugee Hearings Program reported that while there are no specific stats, that LGBTQ activists estimate there are a couple of thousand transgender individuals in Lebanon and transgender women face systemic discrimination in education, employment, housing, and the provision of health care. They are also at greater risk of arbitrary arrest, which is often accompanied by physical violence by law enforcement officials. Trans women also face routine violence and the threat of violence by members of the public and they are denied police protection, which compromises their ability to live in safety and positions them in a perpetual state of precarity. This discrimination, which emanates from severe social stigma and isolation, is worsened by a lack of resources tailored for trans people’s needs and by their difficulty in obtaining identification documents that reflect their true gender and expression. [14] NDP 6.3 says many of the same things about the systemic discrimination and education, which you, in fact, described to me your experiences in education when you were in grade school, employment, housing, and the provision of health care, greater risk for arbitrary arrest. Now, while the Lebanese law does not specifically explicitly criminalize being trans, article 534 of the Penal Code punishes any sexual intercourse contrary to the order of nature with up to a year in prison. And the law has been regularly enforced to arrest transgender women who are misidentified as gay men. Trans people are also targeted under laws of violating public morality, incitement to debauchery, and secret prostitution. This is NDP 6.4. The most common patterns for arrests are based on individuals visually inscribed with non-normative gender looks or through collecting mobile data mostly accessed during the investigation without any written judicial authorization. [15] So, I mentioned a bit about the police targeting and violence, and a 2015 study identified anecdotal evidence from local trans women who reported either themselves or their friends had been arrested several times on the streets for masquerading as women and were often detained for long periods of time without receiving information or legal assistance. A 2019 report by Helem, Human Rights Watch, and MOSAIC found that transgender women are at greater risk of arbitrary arrest and physical violence at police checkpoints. That is NDP 6.9. In addition to the state, there is considerable non-state violations of the rights of LGBTQ people, including abuse, assault, and an absence of legal protection for these human rights violations, according to NDP 6.5. [16] So, I am satisfied that this ongoing systemic discrimination, harassment, and, in fact, violence, and other forms of mistreatment of transgender women both from state and non-state sources denies you your key human dignity and your core human rights to live and be who you are, and that, therefore, this amounts to persecution. Accordingly, I find that your fear of persecution in Lebanon is well-founded. State Protection and Internal Flight Alternative [17] In this case, a primary agent of persecution is the state, so the persecution that you would face if you return to Lebanon would be at the hands of the authorities. And accordingly, find there is no state protection available to you and the presumption of state protection is rebutted. [18] The state is in control of all of its territories and the mistreatment of transgender women is found across society throughout the country. Therefore, on the evidence before me, I find that you would face a serious possibility of persecution throughout Lebanon. There is no viable internal flight alternative where you could safely relocate given your particular circumstances. CONCLUSION [19] Based on all the evidence before me, I conclude that you are a Convention refugee, and therefore, I am accepting your claim. ——— REASONS CONCLUDED ———", "response": "## Analysis of Refugee Decision: 2023 RLLR 106\n\n### Key Issues\nface legal as well as health issues. You said that it is not a good situation for transgender people in Lebanon. You said you had gone to doctors in Lebanon who refused to treat y\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: based on a Convention ground. ANALYSIS Identity [3] Your passport lists your first name as XXXX and your gender as male. However, you are a transgender woman and you prefer XXXX and the female pronouns. According to the CBSA notes, when you first came to Canada, you used the name XXXX in the past, and this is recorded in the XXX\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "Analyze this Refugee Appeal Division decision from the Immigration and Refugee Board of Canada and explain its implications for refugee determination:\n\nRAD File / Dossier de la SAR : MC1-02576 MC1-02577 / MC1-02578 / MC1-02579 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal [REDACTED] [REDACTED] [REDACTED] [REDACTED][REDACTED] Personnes en cause Date of decision January 14, 2022 Date de la décision Panel Andrea Poole Tribunal Counsel for the persons who are the subject of the appeal Joseph W. Allen Conseil des personnes en cause Designated representative [REDACTED] Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] [REDACTED] (Principal Appellant, \"PA\"), his wife [REDACTED](Associate Appellant, \"AA\"), and [REDACTED], and [REDACTED] (Minor Appellants), citizens of Bangladesh, appeal a decision of the Refugee Protection Division (\"RPD\"), dated April 12, 2021, rejecting their claims for refugee protection under either section 96 or 97 of the Immigration and Refugee Protection Act (\"IRPA\"). The PA has been designated as the designated representative for the minor Appellants. [2] The Appellants' initial claim also included the PA's adult daughter O. The RPD determined that O was a forthright and credible witness who had established her claim for protection under Section 96 on the basis of her sexual orientation. In the same decision, the RPD found that a viable internal flight alternative (\"IFA\") existed for the PA, the Minor Appellants and the AA in either Chittagong or Khulna, Bangladesh, and refused their claims. It is from that determination that the Appellants, collectively, appeal. DECISION [3] I dismiss the appeal. I find that the RPD did not err in its decision that the Appellants are neither Convention refugees nor persons in need of protection. I further find that the determinative factor regarding the application of both section 96 and subsection 97(1) of the IRPA is the availability of an IFA in Bangladesh. I therefore dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugeed nor persons in need of protection.1 OVERVIEW [4] The PA was born, raised and educated in Bangladesh. He completed and graduated from high school and in 2004, established a [REDACTED] XXXX in Dhaka, Bangladesh, with his brother. The two were successful in their corporate endeavour and, in 2013, the PA began to purchase real estate, two properties of which were purchased outright by the PA, one of which was purchased jointly with the PA's brother. The PA claims that as their prosperity grew, political operatives from both the BNP Jubo Dal Party and its opposition party, the Awami League Chatra (AL)2 approached the brothers to, initially, request -- and subsequently demand - donations. The PA and his brother complied with the demands of both political parties. [5] Beginning in 2014, the PA and AA became aware of difficulties that their teenage daughter, O, was having in school as a result of her emerging sense of her sexual orientation as a lesbian. [6] On XXXX XXXX, 2015, the PA's brother acquired permanent residency status in the United States.3 [7] The PA claimed, in his Basis of Claim (\"BOC\") narrative that, in July 2016, he was visited at his offices by a party of imams, who accused the PA and AA of condoning O's sexual orientation. Upon hearing from the PA that, although he and the AA were trying to change O's mind regarding her sexual orientation, O appeared to be firm in her views, the imams slapped the PA and said that he and the AA should be stoned, before leaving the PA's offices. The PA claimed that in 2018, a group of imams returned to his offices and threatened him, with a gun, that he should allow the imams to take O to a women's madrassa. [8] The PA also claimed that his cousin, H, threatened to report O's sexual orientation to the police and, in the spring or summer of 2018, came to the PA's offices with a group composed of \"Muslim extremist\" and \"a few\" BNP Jubo Dal members, threatening to take O to a women's madrassa. The PA claims he paid the group a large amount of cash and, shortly thereafter, in XXXX 2018, the Appellants all left Bangladesh, travelling to the residence of the PA's brother in Texas. Shortly thereafter, the Appellants crossed over into Canada. [9] Shortly before the hearing, the PA submitted an amendment to his BOC wherein he claimed that, since his coming to Canada: (a) the PA's cousin, H, had worked for the AL in the recent elections where the AL candidate had been elected, (b) H had appropriated the PA's house in Dhaka where his offices were located, (c) Imam J had denounced O, the PA and the AA, (d) a relative had informed the PA that in XXXX 2020, unidentified imams had inquired as to the whereabouts of the PA and his family, and (e) the PA's cousin, H, contacted the PA in XXXX 2020, requesting that the PA legally transfer his businesses and properties to H. [10] At the hearing, the PA testified that he fears: (i) his cousin H, (ii) political operatives from both the AL and the BNP Jubo Dal, who have extorted money from him in the past, and (iii) Islamic extremists led by Imam J. [11] The RPD found that O had established her sexual orientation, was a person without recourse to police protection, for whom no viable IFA existed in Bangladesh and that there was a serious possibility O would be persecuted were she to return to Bangladesh and therefore was a Convention refugee under Section 96 of the IRPA. [12] Regarding the PA, the AA and the Minor Appellants (collectively, \"the Appellants\"), the RPD found that a viable IFA existed for them in either Khulna or Chittagong because the Appellants have not established that the three principal agents of persecution had either the ability or the interest in finding the Appellants in either of those two cities and that compelling reasons did not apply in this matter. The RPD also found that the PA had it within his power to defuse the interest of H by simply divesting and transferring his properties to H. [13] On appeal, the Appellants argue that the RPD erred in its analysis: (a) specifically erring when it found that the RPD did not take into account the familial relationship between the PA and his cousin - the agent of harm, H and erred in not taking into account that H would likely be able to leverage familial relations to eventually find the Appellants in the proposed IFAs, hereby forcing the Appellants to keep their new location secret from all relatives and family members, contrary to recent decision by the Federal Court; (b) the RPD erred in finding that the ownership of property is not a right (and thus the PA can vitiate H's pursuit by simply legally transferring his properties and businesses to H as, although that principle has been established with respect to Section 96, it has not been as clearly established with respect to Section 97; (c) The RPD erred in finding it reasonable that the Appellants could live separately from O; (d) The RPD erred in not taking into account that word of O's sexual orientation would follow the Appellants to any new location, compelling the PA to pay \"hush money\" and, in any event, objective evidence found in the National Documentation Package (NDP) corroborates the targeting of families of LGBT persons in Bangladesh; and (e) The RPD erred in not taking into account the likely lack of acceptable mental healthcare available to them in Bangladesh. DETERMINATIVE ISSUE [14] The determinative issue in this appeal is the availability of an IFA in Bangladesh for the Appellants. NEW EVIDENCE AND ORAL HEARING [15] The Appellants have disclosed no new evidence, pursuant to subsection 110(4) of the IRPA, and have not requested an oral hearing before the Refugee Appeal Division (\"RAD\").4 ROLE OF THE RAD [16] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it. The exception to this rule is where the RPD enjoys a meaningful advantage in assessing and weighing oral testimony. Unless specifically stated below, I have applied a correctness standard.5 ANALYSIS A viable IFA is present for the Appellants in Bangladesh [17] The Federal Court, in Rasaratnam, established a two-prong test for assessing the viability of an IFA: (a) the RAD must be satisfied that there is no serious possibility that the claimant would be persecuted and that the claimant would not be subject to a risk to life or of cruel and unusual treatment or punishment; and (b) it must not be unreasonable for the claimant to settle in the proposed place of refuge.6 Both prongs must be satisfied. Once the issue of a potential IFA has been raised and the potential IFA identified, the burden shifts to the Appellants to show that they do not have a viable IFA. The first prong of the IFA test [18] I find that there is not a serious possibility that the Appellants would be pursued by the alleged agents of persecution were they to relocate to either Khulna or Chittagong. Pursuit by Cousin H, his colleagues in BNP and AL, and Islamic extremists [19] The PA was asked at the hearing how the agents of persecution would find the Appellants were they to avoid Dhaka and go directly to one of the proposed IFAs. The PA alleged and testified that the Islamic extremists and Imam J, as well as the political extortionists of the BNP and AL would all be able to find the Appellants in the proposed IFA through the PA's Cousin H, who would: (a) be able to deploy his insider status as a family member to find out if the Appellants had returned to Bangladesh and determine where they were living, and (b) would promptly share this information with both the Islamic extremists and his colleagues in the BNP and AL. [20] I find, on the balance of probabilities, that the Appellants do not have a forward-facing fear of pursuit as - even though the Islamic extremists, the BNP and AL operatives may retain motivation to find and punish the Appellants, they lack the means to locate them, absent the cooperation of the PA's Cousin H. I further find that Cousin H lacks the motivation to pursue the Appellants to the proposed IFAs. The Appellants allege that Cousin H seeks the PA to pressure him to relinquish his land and that Cousin H would be sure to alert both the Islamic fundamentalists and Cousin H's own contacts in BNP and AL were the Appellants to return to Bangladesh. The RPD found that -- as the PA has testified that H has already seized most of the PA's properties and businesses -- H would be unlikely to waste his time pursuing the PA, even were he to learn of their return to Bangladesh. The RPD however also found that any potential pursuit by H could be pre-emptively defused by the PA transferring the remainder of his as-yet un-seized lands to H. The RPD found that the PA does not have a fundamental right to land ownership and that abandoning or transferring land \"to eliminate the risk of persecution would not violate their basic human rights.\"7 The RPD found that the Appellants have not established that Cousin H would maintain interest in the Appellants or their whereabouts, were H to acquire the PA's remaining lands. On appeal, the Appellants argue that the RPD erred in: (a) not taking into account the fact that Cousin H, as a family member, would be able to find out where the Appellants were living and (b) finding that the ownership of property is not a right as, although that principle has been established with respect to Section 96, it has not been as clearly established with respect to Section 97. [21] I have reviewed the record before me, including Kenguruka v. Canada, (where the Federal Court found that the threats of violence stemming from an inheritance claim did not constitute grounds for refugee protection), cited by the Appellants for the proposition that the Federal Court has not yet ruled on the question of property ownership under Section 97. I find that it is not unreasonable for the PA to abandon his remaining property not yet possessed by Cousin H in order to eliminate the future risk posed by him. I agree with the RPD that property ownership is not a fundamental right of the same weight as, for example, religion, and that the PA has no basic right to retain his property if this ownership is the proximate cause of his fear. The Federal Court in Malik found that forgoing a lawsuit was not equivalent to comprising an identity or a fundamental belief.8 Here, the Appellants have alleged and argued that the entire basis of the dispute with Cousin H is his desire to seize and appropriate the properties and business of the PA. The PA therefore has it within his power to eliminate his fear of Cousin H by ceding it directly to him, thereby doing away with Cousin H's interest in the Appellants. I should note that this approach is in accord with similar RAD decisions based on Section 97 claims.9 Were he to rid himself of the land there would no longer be any risk to him under Section 97 as Cousin H would no longer have any interest in him. I therefore find that the Appellants have not established that Cousin H would have the motivation to pursue them to the IFAs. Absent motivation on the part of Cousin H, the other agents of persecution lack the means to locate the Appellants. I therefore find that, collectively, the agents of persecution lack either the means or the motivation to find the Appellants in the IFAs. [22] The Appellants have also raised the argument that even were Cousin H to obtain the Appellant's land, he could use his position as a family member to find out where the Appellants were living and extort bribes by way of \"hush money\" from them in order to keep the secret of O's sexual orientation hidden. I find that this is speculative as the only motivation of Cousin H raised in the PA's BOC or at the hearing was Cousin H's desire to obtain legal title to the PA's land and businesses. The Appellants did not allege or disclose any evidence that Cousin H had ever contemplated extorting hush money from the Appellants, nor did the PA testify that Cousin H had ever raised the question of hush money. I find that the Appellants have not established that Cousin H has the intention, let alone the motivation, to extort hush money from the Appellants once he has possession and title to the PA's lands. I therefore find that the Appellants have not established that the IFAs fail on the first prong of the test. The second prong of the test [23] Every relocation entails hardship. The threshold is whether a given claimant will undergo great physical danger or undue hardship in travelling or staying in the proposed IFA.10 The Federal Court of Appeal, in Ranganathan, found that hardship associated with dislocation and relocation is not in itself sufficient to render an IFA unreasonable. The court in that decision set out: \"[A] very high threshold for the unreasonableness test. It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions. The absence of relatives in a safe place, whether taken alone or in conjunction with other factors, can only amount to such condition if it meets that threshold, that is to say if it establishes that, as a result, a claimant's life or safety would be jeopardized.\"11 The burden is on the Appellants to show that Khulna and Chittagong are unreasonable under this test. The psychological state of the PA, AA, and Minor Appellants [24] I find that the Appellants have failed to show how the proposed IFAs are unreasonable and therefore the proposed IFAs pass the second prong of the test. The RPD found that, having assessed the medical report concerning the mental health of the PA and AA, and having assessed the objective evidence in the NDP regarding the metal health facilities available in Bangladesh, the PA and AA's mental health would not render the proposed IFAs unreasonable, on a balance of probabilities. The Appellants argue that the proposed IFAs are not reasonable because it is not reasonable for the Appellants to be forced to live apart from their sibling/adult daughter, O, and, that the RPD failed to properly analyze the medical reports regarding the psychological impact of their daughter/sibling's sexual orientation on the Appellants which would be exacerbated were they to return to Bangladesh, no matter how otherwise acceptable the health-care system might be. [25] I have reviewed the record before me. O is an adult, having turned 19 in XXXX 2021. Being separated from adult family members is a hardship without question, but I find that it does not fall within the category of unreasonable hardship envisioned by the Federal Court of Appeal in Ranganathan. Moreover, the Appellants travel frequently, both to the United States of America to visit the PA's brother and business partner, and to other parts of the world. There is nothing to prevent O and the Appellants from meeting, either in Texas, the home state of the PA's brother or elsewhere where O's sexual orientation would not prove to be an obstacle. Regarding the question of the PA and AA's anxieties and overall mental health, I find that, having consulted the NDP for Bangladesh, they will be able to obtain treatment in the proposed IFAs as mental healthcare is offered by \"both government and private facilities, the vast majority being concentrated in urban areas, especially in metropolitan cities.\"12 Moreover, I also find that increased anxiety of the variety depicted in the medical reports, similarly does not rise to the level of unreasonableness envisioned by the Federal Court of Appeal in Ranganathan as the \"moderate\" level of anxiety experienced by the AA does not rise to the level of \"existence of conditions which would jeopardize the life and safety of a claimant.\" [26] For all these reasons, I find that the second prong of the test has not been met and that the Appellants have failed to show how the proposed IFAs of Chittagong and Khulna are unreasonable. CONCLUSION [27] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) Andrea Poole Andrea Poole January 14, 2022 Date 1 Immigration and Refugee Protection Act, (IRPA) S.C. 2001, c. 27, as amended, at para. 111(1)(a). 2 The two parties alternate in forming government and opposition according to the objective evidence in the National Documentation Package (NDP), for Bangladesh, (16 April 2021), Item 4.5, Immigration and Refugee Board of Canada, Response to Information Request, May 22, 2019. BGD106255.E. 3 Exhibit RPD-1, RPD Record, Exhibit 4, p. 435. 4 Exhibit P-2, Appellants' Record. 5 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157, at para. 103; see also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII), [2019] 2 FCR 597. 6 Rasaratnam v. Canada (Minister of Employment and Immigration), (1992) 1 F.C 706 (C.A.) 7 Exhibit RPD-1, RPD Reasons and Decisions, para. 43. 8 Malik v.Canada (Citizenship and Immigration), 2019 FC 955 (CanLII). 9 X (Re), 2021 CanLII 118183 (CA IRB), J. Lourenço. 10 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 F.C. 589 (C.A.). 11 Ranganathan v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA), [2001] 2 FC 164, at para. 15. 12 NDP for Bangladesh, (16 April 2021), Item 1.11, Country Policy and Information Note. Bangladesh: Medical and Healthcare issues. Version 1.0. United Kingdom Home Office, May, 2019, p. 15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MC1-02576 MC1-02577 / MC1-02578 / MC1-02579 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français", "response": "## Analysis of Refugee Decision: MC1-02576\n\n### Key Issues\nadesh: Medical and Healthcare issues. Version 1.0. United Kingdom Home Office, May, 2019, p. 15. --------------- ------------------------------------------------------------ ------\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: gue that the RPD erred in its analysis: (a) specifically erring when it found that the RPD did not take into account the familial relationship between the PA and his cousin - the agent of harm, H and erred in not taking into account that H would likely be able to leverage familial relations to eventually find the Appellants in t\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "How do these regulations affect immigration applications?\n\n# National Capital Commission Traffic and Property Regulations CRC, c 1044 Regulations Respecting the Property of the National Capital Commission and the Operation of Vehicles Thereon Enabling authority: NATIONAL CAPITAL ACT ## Short Title 1 These Regulations may be cited as the National Capital Commission Traffic and Property Regulations. ## Interpretation 2 (1) In these Regulations, *commercial vehicle* means a vehicle that (a) has attached thereto a truck or delivery body or other attachment for use in the delivery of goods, (b) is specially designed or equipped for the delivery of goods, (c) bears any sign or lettering advertising the business or wares of any person or organization or displays the name or device of any person or organization by whom the vehicle is owned or on whose behalf the vehicle is operated, other than the name or device of the Royal Canadian Mounted Police, a Department of the Government of Canada or of any corporation established to perform any function or duty on behalf of the Government of Canada, (d) is a tractor, or (e) is a bus, taxicab or other vehicle used or designed for the carrying of passengers for hire; ( véhicule commercial) *Commission* means the National Capital Commission; (Commission) *driveway* means that part of the property of the Commission designed and intended for the use of vehicles; (promenade) *liquor* means beer, wines, spirits or any other alcoholic beverages; (boisson) *motor vehicle* means a vehicle that is capable of being propelled or driven otherwise than by muscular power but does not include an over-snow vehicle; (véhicule automobile) *operator* means the driver or the person who is in actual physical control of the vehicle; (conducteur) *over-snow vehicle* means a vehicle that is capable of being propelled or driven otherwise than by muscular power, that runs on tracks or skis or on tracks and skis and that is designed for operation on snow or ice; (véhicule de type auto-neige) *park* means the standing of a vehicle, whether occupied or not, otherwise than momentarily or under circumstances that are not under the control of the person operating the vehicle; (laisser en stationnement) *peace officer* means a peace officer as defined in the Criminal Code and any person authorized by the Commission to enforce or carry out these Regulations; (agent de la paix) *vehicle* means a device in, or by means of, which a person or property is or may be transported upon a highway, except any such device used exclusively upon stationary rails or tracks. (véhicule) (2) For the purpose of these Regulations, a trailer is a separate vehicle and does not form part of the vehicle by which it is drawn. (3) Nothing in these Regulations shall be held to constitute a dedication of any driveway to the public. # PART I ## Operation of Vehicles ## Registration and Permits 3 No person shall operate a vehicle on a driveway unless (a) he holds all the licences and permits that he is required to hold in order to operate the vehicle in the province and municipality in which the driveway is situated; and (b) the vehicle is registered and equipped as required by the laws of the province and municipality in which the driveway is situated. ## Compliance with Provincial and Municipal Laws 4 (1) No person shall operate a vehicle, or cause or permit a vehicle that he has the right to control to be operated, on a driveway otherwise than in accordance with the laws of the province and municipality in which the driveway is situated. (2) No person shall park a vehicle on a driveway except in compliance with the laws of the province and municipality in which the driveway is situated. (3) In this section, the expression “laws of the province and municipality” does not include laws that are inconsistent with or repugnant to any of the provisions of these Regulations. ## Traffic Control, Parking and Speed Limit 5 (1) No person shall operate a vehicle on a driveway at a rate of speed, in kilometres per hour, that is greater than the speed posted. (2) Where no rate of speed is posted on a driveway, no person shall operate a vehicle on that driveway at a rate of speed greater than 60 kilometres per hour. (3) Notwithstanding subsections (1) and (2), where traffic on a driveway is controlled by a peace officer, every person operating a vehicle on that driveway shall do so at the rate of speed indicated by that peace officer. 6 No person shall operate or park a vehicle, or permit a vehicle under his control to remain parked, on property of the Commission otherwise than in accordance with the directions set out on a traffic sign or device erected under the authority of these Regulations and applicable to such person. 7 Except as expressly authorized by the Commission, no person shall park a vehicle on any property of the Commission other than in an area designated by a sign or device erected under the authority of these Regulations as an area in which parking is permitted. 8 Sections 5, 6 and 7 do not apply to (a) operators of police vehicles engaged in the chase of persons charged with or suspected, on reasonable grounds, of being violators of the law; and (b) operators of police vehicles, fire vehicles or ambulances who believe, on reasonable grounds, that the conduct that would otherwise be an offence is justified by an emergency. 9 The operator of a vehicle and the person in control of a parked vehicle on any property of the Commission shall obey all reasonable instructions given by any peace officer. ## Pedestrians 10 No pedestrian shall proceed onto property of the Commission at a place where a sign or device has been erected under the authority of these Regulations otherwise than in accordance with the instructions indicated by such sign or device. ## Commercial Vehicles 11 (1) No person shall operate a commercial vehicle on a driveway without the consent of the Commission. (2) Subsection (1) does not apply to (a) a person engaged in the delivery or collection of goods or persons to or from any property adjoining a driveway to which there is no other means of entry or exit if (i) the commercial vehicle operated by such person enters and leaves the driveway by the intersecting street that is nearest to that property, and (ii) the operation of the commercial vehicle on the driveway occurs between midnight and noon; (b) a person operating a commercial vehicle in the course of the business of the Commission; (c) a person operating a taxicab; (d) a person operating a commercial vehicle that (i) is being used as a camper van, and (ii) has no advertising displayed thereon; (e) a person operating a light van or pick-up truck that (i) is used for personal transportation only, (ii) has a gross registered weight not exceeding 5,000 pounds, and (iii) has no advertising, or lettering, other than the name of the owner thereof, displayed thereon; or (f) a person operating a commercial vehicle that has a gross registered weight not exceeding 8,000 pounds over the Portage Bridge between the City of Hull and Wellington Street in the City of Ottawa. ## Reporting of Accidents 12 Every operator, owner or person in charge of a vehicle that is involved in an accident on property of the Commission shall report the accident forthwith to a member of the Royal Canadian Mounted Police and furnish him with such information concerning the accident as he may require. ## General Prohibitions 13 No person shall operate (a) a motor vehicle on any property of the Commission other than a driveway unless authorized by the Commission; or (b) an over-snow vehicle on any property of the Commission that is not designated by a sign or device erected by order of the Commission as an area in which the operation of an over-snow vehicle is permitted. 14 (1) No person shall construct any private road, entranceway, gate or other structure or facility as a means of access to any driveway except with the consent in writing of the Commission and in accordance with such conditions as are specified by the Commission. (2) No person operating a vehicle shall enter upon a driveway except at a place at which public access to the driveway is provided. (3) Subsection (2) does not apply to prohibit entrance upon a driveway from any private road or entranceway constructed (a) on or before September 30, 1960; or (b) after September 30, 1960 with the consent in writing of the Commission. 15 [Repealed, SOR/2002-165, s. 1] 16 (1) No person shall ride a bicycle on property of the Commission other than a driveway or on a bicycle path set aside by the Commission for the purpose. (2) No person shall ride a bicycle on a driveway abreast of another bicycle or vehicle. 17 Unless authorized by the Commission, no person shall race any vehicle or animal on property of the Commission. 18 No person shall use any blasphemous or indecent language, or behave in an offensive manner, upon any property of the Commission. 19 No person shall throw, deposit or leave on a driveway any glass, nails, tacks or scraps of metal or other material that may be injurious to the tires of vehicles using the driveway. ## General 20 A peace officer, upon finding a vehicle parked contrary to these Regulations, may, at the expense of the owner thereof, cause that vehicle to be moved or taken to and placed or stored in a suitable place. 21 Except as provided by these Regulations, no person shall remove, alter or deface any traffic sign or device erected by the Commission. 22 (1) The Chairman, General Manager, Chief Engineer or Secretary of the Commission may order the erection on or removal from property of the Commission of traffic signs and devices. (2) The Superintendent of Gatineau Park may order the erection or removal of traffic signs and devices within the area of the Park. (3) Any traffic sign or device erected by order of a person mentioned in subsections (1) and (2) shall be deemed to be erected by order of the Commission. (4) Any traffic sign or device erected on property of the Commission shall, unless the contrary is established, be presumed to have been erected by order of the Commission. 23 [Repealed, SOR/95-445, s. 1] # PART II ## Protection of Commission Property 24 No person shall enter on property of the Commission other than property on which the public is permitted entry. 25 No person shall throw, deposit or leave any refuse or debris on property of the Commission other than in such places as are specifically designated for that purpose. 26 No person shall, without the authority of the Commission, (a) cut, break, injure, deface or defile any building, fence, bridge, sign, light or other work that is the property of the Commission; (b) cut, break, injure, deface or defile any rock, tree, shrub, plant, flower or turf on property of the Commission; (c) remove any thing described in paragraphs (a) and (b) or any soil, gravel or other part of the property of the Commission, or cause or permit such removal; or (d) have in his possession any property of the Commission. 27 No person shall disturb or injure, or cause or permit to be disturbed or injured, any wild animal or any bird, bird’s nest or bird’s eggs on property of the Commission. 28 No person shall throw stones or fire or discharge any missile, firearm, airgun, B.B. gun, fireworks or torpedo on any property of the Commission except in areas specifically designated by the Commission for that purpose. 29 No person, other than a peace officer engaged in the discharge of his duties, shall, without the written approval of the commission, carry any firearm or other weapon or any trap on property of the Commission otherwise than in a vehicle. 30 No person shall make, light or feed a fire on any property of the Commission not specifically designated for that purpose and no person shall leave a fire unattended. 31 No person shall bathe in any waters on property of the Commission except as permitted by the Commission, and no person shall make use of any property of the Commission for the purpose of bathing in waters not on property of the Commission, except in such places as are specifically designated for such use. 32 No person shall sell or offer or expose for sale any drink, goods or wares, or post or display any signs, placards, flags or advertising devices, or solicit subscriptions or contributions on or in any property of the Commission without first obtaining permission in writing from the Commission to do so. 33 No person shall expose on or in any property of the Commission any cards, dice, table, wheel or other device upon, with or by which any game of chance may be played, and no person shall play any such game upon, with or by such device on or in any property of the Commission. 34 No person shall play at golf, tennis, baseball, football or soccer on any property of the Commission except in those parts thereof that have been designated by the Commission for that purpose. 35 (1) No person shall hunt, take or kill any game or fish on property of the Commission except in those parts thereof that have been designated by the Commission for that purpose. (2) No person shall hunt, take or kill any game, or fish for any fish or engage in any activity relating to hunting or fishing in any designated area referred to in subsection (1) otherwise than in accordance with the laws of the province in which that area is situated. 36 No person shall have liquor in his possession on or in the property of the Commission other than in accordance with the laws of the province in which the Commission property is situated. 37 Except with the written approval of the Commission, no person shall obstruct any stream or body of water on the property of the Commission. 38 No person shall camp, picnic or erect a tent on any property of the Commission not specifically designated by the Commission for that purpose. 39 (1) The following definitions apply in this section. *Commission land* means real property or immovables owned by the Commission or under the control and management of the Commission. (terrain de la Commission) *domestic animal* means an animal of a species of vertebrates, other than fish, that has been domesticated by humans so as to live in a tame condition and depend on humans for survival. (animal domestique) *keeper* means the owner of a domestic animal or the person having charge of the animal, except where the owner or the person is a minor, in which case *keeper* means the father or mother of the minor or another adult responsible for the minor. (responsable) *leased recreational property* means Commission land, of which the Commission is the lessor, that is leased for recreational purposes to a municipality. (terrain récréatif loué) (2) Subject to subsection (3), no person who is the keeper of a domestic animal shall have the animal on Commission land except in accordance with the bylaws of the municipality in which the Commission land is situated. (3) Subsection (2) does not apply to (a) Commission land that is, by virtue of section 2 of the National Capital Commission Animal Regulations, subject to those Regulations; or (b) leased recreational property. # PART III ## Penalties 40 Every person who contravenes a provision of these Regulations is liable on summary conviction to a fine not exceeding $500 or to imprisonment for a term not exceeding six months, or to both. 41 and 42 [Repealed, SOR/95-445, s. 3]", "response": "## Analysis of REGULATIONS-FED: National Capital Commission Traffic and Property Regulations\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nThese regulations provide specific implementation details for broader legislative frameworks. Practitioners should ensure strict compliance with procedural requirements, timelines, and documentation standards. The regulations must be interpreted consistent with their enabling legislation and may be subject to challenge if they exceed the authority granted by the statute."}
{"prompt": "Analyze this Refugee Appeal Division decision from the Immigration and Refugee Board of Canada and explain its implications for refugee determination:\n\nRAD File / Dossier de la SAR : MC1-04814 MC1-04815 / MC1-04816 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal [REDACTED] [REDACTED] [REDACTED] [REDACTED] Personnes en cause Date of decision February 9, 2022 Date de la décision Panel Joseph W. Richards II Tribunal Counsel for the persons who are the subject of the appeal Annabel Busbridge Conseil des personnes en cause Designated representative [REDACTED] XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss these appeals. [2] [REDACTED] XXXX (the Principal Appellant or the PA), XXXX XXXX (the Associate Appellant or the AA), and [REDACTED] XXXX (the Minor Female Appellant or the MFA) are citizens of Kenya. The PA is the daughter of the AA and the mother of the MFA. [3] The Appellants fear harm at the hands of police officers and government agents who, in 2017, wanted the PA to poison Mr. XXXX, an independent political candidate for whose campaign the PA XXXX. The police officers threatened to kill the PA's entire family if she did not comply. The adult Appellants also allege that they were assaulted due to their affiliation to Mr. XXXX. These events occurred in late 2017, and prompted the Appellants to flee to the United States of America (USA) in early XXXX 2018. In late XXXX 2018, they arrived in Canada, irregularly. Mr. XXXX also now resides in Canada and was granted refugee protection in May 2021. [4] The Refugee Protection Division (RPD) found that the Appellants were nationals of Rwanda and Kenya, and that they failed to establish either section 96 or section 97 harm in both of these countries. [5] The Appellants submit that there was a breach of their right to procedural fairness because they were not afforded a meaningful opportunity to respond to the allegations regarding their Rwandan nationality, and because their former counsel (FC) was incompetent. They further maintain that they face section 96 and/or section 97 harm if returned to Rwanda or Kenya. [6] The determinative issue in this appeal is the Appellants' prospective risk of harm in Kenya. After reviewing all of the admissible evidence and submissions, I did not find a material breach of the Appellants' right to procedural fairness either by the FC or by the RPD Panel. The rules of natural justice have been met. Moreover, the Appellants failed to sufficiently establish a risk of prospective harm in Kenya. DECISION [7] I dismiss the appeals. The RPD was correct in finding that the Appellants are neither Convention refugees nor persons in need of protection. PROCEDURAL FAIRNESS AND NEW EVIDENCE The test for admitting new evidence [8] According to the law,1 I can only accept evidence that: (i) arose after the RPD decision; or (ii) was not reasonably available at the time of the decision; or (iii) that the Appellants could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [9] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.2 Selected portions of the new evidence are admissible [10] A focal aspect of this appeal is the Appellants' submissions regarding procedural fairness. They submit that they were not afforded an opportunity to meaningfully respond to the issue of their Rwandan nationality. They also contend that due to inadequate representation, several relevant documents were not submitted to the RPD. [11] As a result, the new evidence that they intend to rely upon can be broadly divided into two categories: (i) documents seeking to establish a procedural fairness infringement and (ii) documents going to the merits of the Appellants' refugee claims. I recognize that there is some overlap. For instance, the PA's affidavit seeks to explain both how the RPD's proceedings were unfair and how the other new documentation meets the legal test, mentioned above. [12] I find that the new evidence that falls into the first category is admissible, specifically: i. portions of the affidavit of the PA dated September 9, 2021 (paras. 6-20, 22-25, 27-29); ii. portions of the affidavit of the AA dated September 9, 2021 (paras. 5-6, 8-10); iii. the affidavit of the PA dated October 7, 2021; and iv. the letter to the Appellants' former counsel dated September 10, 2021 [13] Under the circumstances, I find that the Appellants could not reasonably have been expected to fully raise their procedural fairness argument prior to the RPD's decision. The aforementioned new evidence is credible as to source and circumstances (the documents are signed and dated), contain evidence that is relevant to the issue of procedural fairness, and are new. [14] The admissibility of the other new evidence (the remaining portions of the affidavits of the PA and AA, and the documents listed A to J in the Appellants' Record3) hinges on my decision regarding procedural fairness. These documents do not explain how the RPD proceedings were unfair and do not otherwise support their procedural fairness argument. Instead, they relate to the merits of the Appellants' refugee claims. An oral hearing is not permitted [15] Although I have admitted some new evidence, it does not raise a serious issue with respect to the credibility of the Appellants and would not, on its own, justify allowing or rejecting the refugee protection claim. Therefore, I am not permitted to hold an oral hearing, pursuant to subsection 110(6) of the Immigration and Refugee Protection Act (IRPA). The Appellants' right to procedural fairness was not materially breached [16] When procedural fairness is raised as an issue, the proper approach is to ask whether the requirements of natural justice in the particular circumstances of the case have been met.4 In a claim for refugee protection, procedural fairness ensures that claimants understand the proceedings, have a reasonable opportunity to tender any evidence that supports their claims, and are given a chance to persuade the RPD that their claim is well-founded. Indeed, an allegation of inadequate representation goes to the issue of the claimants' right to fully present their case. [17] A breach of procedural fairness does not necessarily result in relief in every case. For instance, according to the case law, if it is apparent that the decision-maker would have reached the same decision notwithstanding the breach of procedural fairness, and no purpose would be achieved by referring the matter to the RPD for re-determination, the decision should stand.5 [18] When inadequate representation is alleged, it must first be determined that counsel's actions or omissions constitute incompetence. Then, the claimant must establish that a miscarriage of justice resulted. Therefore, a finding of incompetence will only rise to the level of a breach of natural justice in extraordinary circumstances: it must be established that but for the conduct of counsel, the outcome of the RPD hearing would have been different.6 [19] After reviewing the evidence and submissions, I find that, on a balance of probabilities, the requirements of natural justice have been met in this case. I note the following facts, in particular: i. The Basis of Claim (BOC) form clearly indicates that claimants are responsible for providing supporting documentation. Claimants are also invited to provide a detailed description of whether they or their families have been harmed, mistreated, or threatened by any person or group.7 ii. The BOCs of the adult Appellants are accompanied by fulsome narratives, which detail an assault against the PA on XXXX XXXX, 2017, threats at gunpoint on XXXX XXXX, 2017, and a violent police encounter on XXXX XXXX, 2017. iii. The Appellants were reasonably aware that their status in Rwanda would be an issue during the RPD proceedings. The AA's BOC form indicates that her current status in Rwanda is \"citizen\" and her narrative states that she fears returning to Rwanda.8 The PA's BOC refers to the AA as possessing both Kenyan and Rwandan citizenship.9 At the RPD hearing, after making several amendments to their BOC on their own initiative, the adult Appellants affirmed that their BOCs were complete, true, and correct. The adult Appellants do not require the use of an interpreter, speak and understand the English language, and have extensive work and academic backgrounds.10 These facts, considered cumulatively, make the Appellants' explanation - that they believed that only grammatical changes to their BOCs were permissible at the RPD hearing - unreasonable. iv. The Appellants allege that they provided additional documentation to their FC at the second client meeting of April 30, 2021. The FC asserts that the decision to not disclose all of the documents to the Immigration and Refugee Board (IRB) was strategic, and borne out of suspicions of fraud. The FC triaged the provided documents, advising the Appellants to focus on those which directly support the allegations contained in their BOC forms. On May 5, 2021, the FC submitted twelve documents to the IRB.11 Under the circumstances, the FC's conduct was reasonable, and it did not constitute incompetence. For instance, this is not a case where the representative made assurances that all documentation would be submitted and failed to do so. It is also not a case where counsel did not submit any of the supporting documentation given to him, as such a decision could be construed as manifestly prejudicial to a claimant's interests. Instead, the Appellants' own evidence reveals that during the April 2021 client meeting, the FC canvassed and prioritized the documentation that directly referenced the Appellants. The Appellants blindly trusted the FC, and accepted his advice and strategic decisions.12 Five days later, the FC submitted selected documents to the IRB. Now, with the benefit of hindsight, the Appellants are objecting to the FC's decision-making. v. At the end of the RPD hearing, the FC spontaneously requested to submit post-hearing disclosure related to Mr. XXXX's political activities. The Panel granted this request.13 On May 21, 2021, this documentation was sent to the Tribunal.14 [20] To be clear, legal representatives enjoy a wide latitude in advocating for their clients. Different representatives adopt different strategies. A representative's conduct must be analyzed globally, without the benefit of hindsight, and should not descend into a microscopic inquiry. The key concern from the perspective of the rules of natural justice is whether the Appellants were able to fully present their case. [21] The FC's representation clearly focussed on the Appellants' risk of harm in Kenya, as it relates to political violence. This is consistent with the fact that the Appellants were referred to the FC by Mr. XXXX - an acquaintance of the PA, a client of the FC, and a Kenyan politician who was subjected to political violence. Indeed, the Appellants' allegations primarily relate to their connection to Mr. XXXX. [22] In contrast, the Appellants' status in Rwanda appears to have been a peripheral consideration. This approach may have been reasonable if the FC held the position that none of the Appellants were Rwandan nationals or if there was demonstrable evidence that returning to Rwanda was impossible (e.g. an ongoing civil war). However, the FC has long maintained the position that the AA is eligible for Rwandan citizenship. This admission means that he was aware that the status of the AA - and, by extension, the status of the PA and the MFA - would likely be canvassed by the Panel. I note that the FC was informed by the IRB, prior to the hearing, that the National Documentation Packages (NDPs) for both Kenya and Rwanda would be relevant.15 It is trite law that if a claimant has multiple countries of reference, then a risk of section 96 or section 97 harm in all of those countries must be established in order to successfully claim refugee protection. [23] At the RPD hearing, the FC did not attempt to elicit any testimony or make meaningful submissions regarding the legal status of each Appellant in Rwanda. Instead, his stated strategy was to emphasize the AA's affinity to and extended residency in Kenya. Such factors are largely irrelevant in determining whether Rwanda is a valid country of reference, and whether the Appellants face a well-founded fear of persecution or risk of section 97 harm there.16 [24] During the RPD hearing, the FC did give the PA another opportunity to explain why she believes that she cannot return to Rwanda. The FC also referred to the Appellants' prospective risk of harm in Rwanda in his closing submissions.17 However, the FC's failure to meaningfully engage with the threshold question - the Appellants' status in Rwanda - is a glaring omission pertaining to an important issue in the Appellants' claims. [25] For their part, the Appellants contend that they never even discussed the issue of Rwandan citizenship with the FC. The FC submits that it was discussed, which is the only reason why the Appellants showed him the AA's certificate of registration as a Kenyan citizen.18 Given that the Appellants all possess Kenyan passports, presenting a certificate of registration would only plausibly occur in the context of a discussion, however brief, regarding the AA's Rwandan origins. On a balance of probabilities, I find that the Appellants did discuss their status in Rwanda with the FC prior to the RPD hearing. [26] The issue of the Appellants' status in Rwanda involves the interpretation of Rwandan nationality laws. It is the type of issue that does not necessarily require further preparation by the refugee claimants themselves. Instead, claimants would necessarily rely on their legal representative to address this issue by consulting the relevant portions of the NDP and by advancing legal arguments on their behalf. [27] I find that the omissions of the FC constitute negligence as it pertains to the representation of the Appellants on the issue of their status in Rwanda. However, I do not find that the outcome of the RPD proceedings would have been different, but for the FC's negligence. Accordingly, a miscarriage of justice did not result. [28] I reach this conclusion for two primary reasons. First, even if it were determined that the Appellants were not Rwandan nationals, their claims would still have been rejected because they failed to establish a forward-facing risk of persecution in Kenya. Second, the Appellants were given ample opportunities at the RPD hearing to elaborate about their fear of returning to Rwanda. Credible and persuasive testimony in that regard would have cured any inadequacy in the legal representation vis-à-vis their status in Rwanda. [29] I realize that the Appellants are also of the view that if the FC had submitted additional documentation that was provided to him before the hearing, the outcome of the RPD hearing would have been different, in that a well-founded fear of persecution in Kenya would have been established. These documents included different lease agreements from the PA's husband, letters from the lawyers of the PA's father, and an affidavit and medical note from the AA's sister.19 However, the FC gave them legal and strategic advice regarding those documents, which the Appellants ultimately accepted. Given the profiles of the adult Appellants and their prior experience in changing representatives, I find that if they were unsatisfied with the FC's advice on April 30, 2021, they had more than a reasonable opportunity to request that the FC modify his strategy, seek a second opinion, attempt to postpone their RPD hearing, secure alternate representation, and/or represent themselves. Moreover, the Appellants have not established, on a balance of probabilities, that the FC's assessment of their documentary evidence itself constitutes incompetence. [30] In light of the adult Appellants' extensive BOC narratives, it was reasonable for the FC to focus on the most credible evidence directly tied to the Appellants' allegations. The FC's decision-making in this regard was indeed strategic in nature. Reviewing it without the benefit of hindsight, I find that the FC's assessment of the Appellants' documentation did not constitute inadequate representation. [31] The adult Appellants had a fulsome opportunity to present cogent oral evidence about their prospective risk of harm at the RPD hearing. They attested to the completeness of their BOC forms and testified that the PA's husband had been harassed by the police after the Appellants' departure. The PA testified that she is not involved in any political activities, nor does she have plans to be politically active in the future. The Panel specifically asked both the PA and AA to describe the basis for their forward-facing fear of persecution.20 [32] I appreciate that the Appellants feel that they were not adequately prepared by the FC for the RPD hearing, and that they were pressured by the FC to offer less than candid testimony. However, in light of the aforementioned facts, the profiles of the adult Appellants, and the clear instructions contained in the BOC forms, I find that the Appellants had a reasonable opportunity to fully present their case. For the same reasons, I also find that the FC's alleged mid-hearing warning about providing inconsistent testimony did not constitute coercion or undue pressure. Counsel are permitted to advise their clients about the consequences of their testimony; such communications are generally appropriate unless it can be established that the clients were pressured into providing false or misleading testimony. On a balance of probabilities, I find that the conduct of the FC, as alleged, did not meet that threshold. [33] Furthermore, I do not find that the questioning by the RPD panel infringed upon the Appellants' right to procedural fairness. Claimants are not entitled to advance notice of the Panel's exact questions. The time spent on a given issue may not align with a claimant's expectations, and may vary based on the nature of the claim, the determinative issues, and the quality of the evidence. After reviewing the conduct of the RPD Member, I have not found sufficient evidence to be satisfied, on a balance of probabilities, that the Appellants were unduly interrupted during their testimony or that they were otherwise discouraged or prevented from testifying truthfully, completely, and accurately. For instance, the Appellants provided robust answers to questions about their fear of returning to Rwanda and Kenya.21 [34] Overall, I am not tasked with deciding whether the Appellants received perfect representation or whether they have an expert knowledge of the law and RPD proceedings. Rather, the question before me is whether, in all of the circumstances, the FC and/or the RPD effectively inhibited the Appellants from reasonably presenting their entire case. I answer that question almost exclusively in the negative. The FC's negligence was limited to his failure to adequately advance an argument on the Appellants' status in Rwanda, however no miscarriage of justice resulted from that conduct. [35] Therefore, I conclude that the requirements of the rules of natural justice were met, in that the Appellants' right to procedural fairness was not materially breached. The remaining new evidence is inadmissible [36] The substantive content of the remaining new evidence (see para. 14, supra) arose prior to the RPD hearing. I have not found a material breach of the Appellants' right to procedural fairness. Therefore, there is no reasonable explanation why this documentation could not have been provided prior to the RPD's decision. An appeal to the Refugee Appeal Division (RAD) is not an opportunity to correct a deficient record. [37] As a result, none of the remaining new evidence is admissible. ANALYSIS [38] My role is to look at all of the evidence and decide if the RPD made the correct decision.22 Rwanda is a valid country of reference [39] The RPD found that, on a balance of probabilities, the Appellants are all Rwandan nationals.23 After my independent assessment of the evidence, I reach a slightly different conclusion, which ultimately has the same effect; Rwanda is a valid country of reference for all of the Appellants. [40] The term \"countries of nationality\" in section 96(a) of the IRPA includes potential countries of nationality. Where citizenship in another country is available, a claimant is expected to make attempts to acquire it. Thus, it is incumbent on a claimant to show, at the time of the hearing, that they have a well-founded fear of persecution (or risk of section 97 harm) in every country where it is within their control to acquire citizenship. In the refugee determination process, those countries are collectively referred to as \"countries of reference\". Therefore, depending on the circumstances, claimants can be construed as nationals of countries that they are not yet legally recognized as citizens of. [41] I note that the Appellants testified that they did not make inquiries with Rwandan authorities regarding their status in the country. [42] The objective country documentation is helpful in determining how particular nationality laws apply to the facts. This case presents some challenges because Rwandan citizenship law has undergone significant revisions since the nation became independent in 1962. [43] The evidence demonstrates that dual nationality is permitted. Any person who has one Rwandan parent is considered Rwandan. Those who were deprived of Rwandan nationality between November 1, 1959 and December 31, 1994 due to an acquired foreign nationality, can re-acquire their Rwandan nationality of origin, without application, upon their return. Moreover, all persons with Rwandan origin and their descendants have the right to acquire Rwandan nationality upon request.24 [44] Regardless of whether the AA renounced or was deprived of Rwandan citizenship after becoming a Kenyan national, the law allows her to re-acquire her status in Rwanda, through mere formalities. Based on the broad constitutional provisions protecting descendants of holders of Rwandan nationality of origin, both the PA and MFA are clearly eligible for Rwandan citizenship through attribution.25 [45] The Appellants cite various provisions of the Code de la nationalité rwandaise and assert that the PA is not Rwandan because children of a Rwandan mother and a non-Rwandan father can only claim Rwandan citizenship between the ages of 18 and 21 years old.26 However, those statutory provisions, enacted in 1963, have long been superseded by a nationality framework which takes a decidedly more generous approach to citizenship. For instance, it no longer matters whether a person's Rwandan origins are maternal or paternal.27 [46] The RPD drew an adverse credibility inference due to inconsistent evidence about the AA's status in Rwanda. The RPD correctly highlighted discrepancies between the BOC, the immigration forms, and the AA's testimony. The AA attributed the error to her first RPD counsel, an explanation which I find is unreasonable given the Appellants' profiles and their unequivocal affirmation at the beginning of the hearing that the BOC forms were accurate. The Appellants take the position that the AA's status in Rwanda has no bearing on the credibility of her story or on her subjective fear of returning to Kenya and Rwanda: as a result, the Panel's finding was illogical. [47] I disagree with the Appellants' position. Because of the lack of reasonable explanations for the discrepancies in question, a negative credibility finding is warranted. The RPD did not find that this inconsistency undermined the Appellants' overall credibility. The negative credibility finding does, nevertheless, impugn the trustworthiness of the Appellants' opinion regarding their status in Rwanda. In contrast, the RPD essentially found that the AA's testimony on this issue was unreliable, and so the BOC, by default, should be relied upon in finding that the AA is a citizen of Rwanda. [48] My independent assessment takes a slightly different, more nuanced approach. I find that both the Appellants' testimony and their BOC forms fail to credibly establish the Appellants' status in Rwanda. However, the uncontested biographical details in this case (e.g. the origins of each Appellant, and the AA's acquisition of Kenyan citizenship after her marriage) combined with the thorough and pertinent country documentation about nationality in Rwanda's NDP are sufficient to allow me to determine the relevant issue before me: per my analysis, above, Rwanda is a valid country of reference (or country of nationality) for each Appellant. [49] At the same time, there is insufficient credible evidence before me that the AA is currently a Rwandan citizen. The RPD was not required to make that precise finding, and it erred by doing so. The Appellants failed to establish a forward-facing risk of harm in Kenya [50] The RPD found that the Appellants failed to establish a prospective risk of harm in Rwanda and Kenya. After conducting my independent assessment, I agree with the RPD's conclusion; the Appellants have adduced insufficient credible and trustworthy evidence to establish a well-founded fear of persecution or risk of section 97 harm in Kenya. [51] As mentioned above, the PA is no longer politically active in Kenya and has not expressed any desire to be, if returned. The Appellants were threatened in 2017 by persons who wanted her to poison Mr. XXXX, a person who has since successfully obtained refugee protection in Canada. When asked whether she played a publicly visible role in Mr. XXXX's campaign, the PA responded that she mainly just [REDACTED] XXXX.28 Therefore, I disagree with the Appellants' argument that the RPD misconstrued or otherwise downplayed the PA's role in Mr. XXXX's campaign. [52] I have no reason to doubt that the events of XXXX, XXXX, and XXXX 2017, occurred as alleged. The RPD did not question their occurrence, and thus the RPD did not err by not referencing the supporting documentation. The RPD appropriately focussed its analysis on the Appellants' forward-facing risk. [53] The PA testified that her husband has had to relocate multiple times, and has been followed by police officers and unknown individuals who have inquired into the PA's whereabouts. The PA's father was similarly approached in XXXX 2019. When weighing this evidence against the gravity of the threats of 2017 and the continued presence and relative safety of several of the Appellants' close relatives in Kenya, I find that the Appellants failed to present sufficient credible and trustworthy evidence to establish a serious possibility of persecution or, on a balance of probabilities, a risk of section 97 harm, if they returned to Kenya. [54] Without a forward-facing risk of harm in Kenya, the Appellants do not meet the definition of Convention refugees or persons in need of protection. Because this finding is determinative of the present appeals, I need not consider the Appellants' risk of harm in Rwanda. CONCLUSION [55] I dismiss the appeals and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) Joseph W. Richards II Joseph W. Richards II February 9, 2022 Date 1 Subsection 110(4), Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended. 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 3 Exhibit P-1, Appellants' Record, at pp. 11-46. 4 Ching v. Canada (Citizenship and Immigration), 2015 FC 725, at para. 75: \"... the Supreme Court of Canada set out a list of factors affecting the duty of procedural fairness and emphasized that the content of the duty must be determined in the specific context of each case. The Court noted that the factors were not exhaustive and reiterated that procedural fairness is based on the principle that individuals affected by decisions should have the opportunity to present their case and to have decisions affecting their rights and interests made in a fair and impartial and open process \"appropriate to the statutory, institutional, and social context of the decision.\" 5 Roy v. Canada (Citizenship and Immigration), 2013 FC 768, at para. 34: \"While there is no need to establish a prejudice in order prove (sic) a breach of procedural fairness based on inadequate interpretation, the Applicant is required to demonstrate that the breach of procedural fairness was material to the Board's decision in order for this Court to intervene\" [citations omitted]. 6 Isugi v. Canada (Citizenship and Immigration), 2019 FC 1421 (CanLII), at paras. 26-27. 7 Exhibit RPD-1, RPD Record, Exhibit 2.1, PA's Basis of Claim (BOC) form, at pp. 10-11. 8 Exhibit RPD-1, RPD Record, Exhibit 2.2, AA's BOC form, at pp. 31, 36 at para. 4. 9 Exhibit RPD-1, RPD Record, Exhibit 2.1, PA's BOC form, at p. 16. 10 Exhibit RPD-1, RPD Record, Exhibit 1, Schedule A forms, at pp. 85, 93. 11 Exhibit RPD-1, RPD Record, Exhibit 5, at pp. 144-145. 12 Exhibit P-1, Appellants' Record, Affidavit of the PA, at p. 3, para. 10. 13 Transcript of the RPD Hearing, at p. 37, lines 23 - 41. 14 Exhibit RPD-1, RPD Record, Exhibit 5, at p. 202. 15 Exhibit RPD-1, RPD Record, at p. 224. 16 Exhibit I-1, Former counsel's response to allegations of inadequate representation, October 4, 2021, at para. 25. 17 Transcript of the RPD hearing, at p. 34, lines 6-8; p. 36, lines 13-29. 18 Exhibit I-1, Former counsel's response to allegations of inadequate representation, October 4, 2021, at para. 19. 19 Exhibit P-1, Appellants' Record, Affidavit of the PA, p. 3, para. 10. 20 Transcript of the RPD hearing, at p. 19, lines 40-43; p. 20, line 22. 21 Ibid., at pp. 16-20. 22 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 23 Exhibit RPD-1, RPD Record, Reasons and Decision, at paras. 6-10. 24 Exhibit RPD-1, RPD Record, Exhibit 4, National Documentation Package (NDP) for Rwanda (April 16, 2021), item 3.11, Rwanda, July 25, 2008, at p. 8 (Article 3); p. 9 (Article 6); p. 16 (Article 22). 25 Ibid., item 3.12, European University Institute. European Union Democracy Observatory on Citizenship, April 2020, at pp. 8, 12, 15-18. 26 Exhibit P-1, Appellants' Record, Affidavit of the PA, p. 5, at para. 25. 27 Exhibit RPD-1, RPD Record, Exhibit 4, NDP for Rwanda (April 16, 2021), item 3.12, European University Institute. European Union Democracy Observatory on Citizenship, April 2020. 28 Transcript of the RPD hearing, at p. 24. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MC1-04814 MC1-04815 / MC1-04816 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français", "response": "## Analysis of Refugee Decision: MC1-04814\n\n### Key Issues\nthe claim, the determinative issues, and the quality of the evidence. After reviewing the conduct of the RPD Member, I have not found sufficient evidence to be satisfied, on a bal\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: g new evidence is admissible. ANALYSIS [38] My role is to look at all of the evidence and decide if the RPD made the correct decision.22 Rwanda is a valid country of reference [39] The RPD found that, on a balance of probabilities, the Appellants are all Rwandan nationals.23 After my independent assessment of the evidence, I rea\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "What compliance obligations are created by this Federal regulations from the Canadian government?\n\n# Feed Grain Transportation and Storage Assistance Regulations CRC, c 1027 Regulations Prescribing Terms, Conditions and Rates of Payments Related to the Cost of Feed Grain Transportation and Storage, Made for the Benefit of Livestock Feeders in Eastern Canada, British Columbia, the Yukon Territory and the Northwest Territories Enabling authority: LIVESTOCK FEED ASSISTANCE ACT ## Short Title 1 These Regulations may be cited as the Feed Grain Transportation and Storage Assistance Regulations. ## Interpretation 2 In these Regulations, *Act* means the Livestock Feed Assistance Act; (Loi) *Board* [Repealed, SOR/89-521, s. 2] *British Columbia* [Repealed, SOR/89-521, s. 2] *livestock* [Repealed, SOR/89-521, s. 2] *mixed feed oats* means the grade of grain established under section 17 of the Off Grades of Grain and Grades of Screenings Order; (avoine à bétail mélangée) *No. 1 feed screenings* means the grade of screenings established under subsection 16(3) of the Off Grades of Grain and Grades of Screenings Order; (criblures de provende n o 1) *Prairie Region* [Repealed, SOR/89-521, s. 2] *sample feed grain* means the grade of grain established under section 19 of the Off Grades of Grain and Grades of Screenings Order. (grain à bétail sur échantillon) *Western Canada* [Repealed, SOR/80-846, s. 1] ## Designations 3 Rye, grain corn, No. 1 feed screenings and sample feed grain are hereby designated as feed grain for the purposes of the Act. 4 All that area of Ontario lying west of the meridian passing through the eastern boundary of the former city of Port Arthur as it existed on December 31, 1969 is hereby designated as a part of Eastern Canada for the purposes of the Act. 5 All classes of animals, including birds and fish, that are raised for food, for agricultural purposes or for the purpose of fur production are hereby designated as livestock for the purposes of the Act. ## Payments in Respect of Transportation 6 (1) Where a feed grain set out in the heading to column III of Schedule I, II or III is transported during the period beginning on January 1, 1993 and ending on March 31, 1993 to a destination set out in column II of an item of that Schedule in an area set out in column I of that item, the payment related to the cost of transportation of that feed grain shall be made by the Minister at the rate set out in column III of that item. (2) Where a feed grain set out in the heading to column III of Schedule I, II or III is transported after March 31, 1993 to a destination set out in column II of an item of that Schedule in an area set out in column I of that item, the payment related to the cost of transportation of that feed grain shall be made by the Minister at ninety per cent of the rate set out in column III of that item. (3) Notwithstanding subsection (2), where a feed grain set out in the heading to column III of Schedule IV is transported after January 31, 1994 to a destination set out in column II of an item of that Schedule in an area set out in column I of that item, the payment related to the cost of transportation of that feed grain shall be made by the Minister at the rate set out in column III of that item. (4) Notwithstanding subsection (2), where a feed grain set out in the heading to column III of Schedule V is transported after December 31, 1994 to a destination set out in column II of an item of that Schedule in an area set out in column I of that item, the payment related to the cost of transportation of that feed grain shall be made by the Minister at the rate set out in column III of that item. (5) Notwithstanding subsection (2), where a feed grain set out in the heading to column III of Schedule VI is transported after March 31, 1995 to a destination set out in column II of an item of that Schedule in an area set out in column I of that item, the payment related to the cost of transportation of that feed grain shall be made by the Minister at the rate set out in column III of that item. (6) Notwithstanding subsections (2) to (5), no payment related to the cost of transportation of a feed grain shall be made under these Regulations in respect of a feed grain transported after January 9, 1996. (7) No payment referred to in subsections (2) to (6) shall be made unless a request for the payment is received by the Minister before May 31, 1996. 7 (1) No payment related to the cost of transportation of feed grain by motor vehicle shall be made by the Minister unless (a) the owner of the motor vehicle was the owner or wholesale seller of the feed grain transported therein; or (b) the owner of the motor vehicle (i) was a licensed common carrier, and (ii) had issued a bill of lading that correctly set out the destination of the feed grain. (iii) [Repealed, SOR/81-561, s. 1] (2) [Repealed, SOR/80-846, s. 3] ## Payments in Respect of Storage 8 (1) Every payment related to the cost of feed grain storage in Eastern Canada shall be made by the Minister exclusively with respect to feed grain grown in Canada and stored in a vessel in Eastern Canada, except at the City of Thunder Bay. (2) The rate of payment related to the cost of feed grain storage referred to in subsection (1) is (a) $2.95 per tonne for wheat; (b) $5.20 per tonne for oats; and (c) $3.69 per tonne for barley. (3) No payment related to the cost of feed grain storage in Eastern Canada shall be made by the Minister if the feed grain could be stored in another available storage facility. ## Records 9 Every payment related to the cost of feed grain transportation or storage shall be made on the condition that the person who receives the payment (a) keeps books of account, records, bills of lading and invoices respecting the purchase and sale of feed grain; (b) retains all such books of account, records, bills of lading and invoices for six years after they are established; and (c) makes all such books of account, records, bills of lading and invoices available for inspection and audit by an authorized representative of the Minister during normal business hours. ## Conditions of Payment 10 (1) Subject to subsection (2), every payment related to the cost of feed grain transportation shall be made on the condition that the feed grain has been or will be fed to livestock at the destination in the area in respect of which the payment is made. (2) Where (a) feed grain has been or will be fed to livestock at a destination in an area other than the destination in the area in respect of which the payment referred to in subsection (1) is made, and (b) the cost of transportation to the first-mentioned destination is less than the rate for the destination in respect of which that payment is made, the payment shall be considered to be an overpayment to the extent of the difference between the cost of transportation and that rate. 11 Every payment related to the cost of feed grain storage shall be made on the condition that the feed grain has been or will be fed to livestock in Eastern Canada.", "response": "## Analysis of REGULATIONS-FED: Feed Grain Transportation and Storage Assistance Regulations\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nThese regulations provide specific implementation details for broader legislative frameworks. Practitioners should ensure strict compliance with procedural requirements, timelines, and documentation standards. The regulations must be interpreted consistent with their enabling legislation and may be subject to challenge if they exceed the authority granted by the statute."}
{"prompt": "What specific procedures does this Federal regulations from the Canadian government establish for immigration processes?\n\n# Narcotic Control Regulations CRC, c 1041 Narcotic Control Regulations Enabling authority: CONTROLLED DRUGS AND SUBSTANCES ACT 1 [Repealed, SOR/2019-169, s. 2] ## Interpretation ### Definitions 2 (1) The following definitions apply in these Regulations. *Act* means the Controlled Drugs and Substances Act. (Loi) *advertisement* includes any representation by any means for the purpose of promoting, directly or indirectly, the sale or other disposal of a narcotic. (publicité.) *common-law partner*, in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year. (conjoint de fait) *competent authority* means a public authority of a foreign country that is authorized under the laws of the country to approve the importation or exportation of narcotics into or from the country. (autorité compétente) *compound* includes a preparation. (composé) *designated criminal offence* means (a) an offence involving the financing of terrorism against any of sections 83.02 to 83.04 of the Criminal Code; (b) an offence involving fraud against any of sections 380 to 382 of the Criminal Code; (c) the offence of laundering proceeds of crime against section 462.31 of the Criminal Code; (d) an offence involving a criminal organization against any of sections 467.11 to 467.13 of the Criminal Code; or (e) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in any of paragraphs (a) to (d). ( infraction désignée en matière criminelle) *destroy* means, in respect of a narcotic, to alter or denature it to such an extent that its consumption is rendered impossible or improbable. (destruction) *diacetylmorphine (heroin)* includes the salts of diacetylmorphine. (diacétylmorphine (héroïne)) *hospital* means a facility (a) that is licensed, approved or designated by a province in accordance with the laws of the province to provide care or treatment to persons or animals suffering from any form of disease or illness; or (b) that is owned or operated by the Government of Canada or the government of a province and that provides health services. ( hôpital) *international obligation* means an obligation in respect of a narcotic set out in a convention, treaty or other multilateral or bilateral instrument that Canada has ratified or to which Canada adheres. (obligation internationale) *licensed dealer* means the holder of a licence issued under section 10.1. (distributeur autorisé) *methadone* includes the salts of methadone. (méthadone) *midwife* has the same meaning as in section 1 of the New Classes of Practitioners Regulations. (sage-femme) *narcotic* means (a) a controlled substance set out in the schedule; or (b) in respect of a midwife, nurse practitioner or podiatrist, a controlled substance set out in the schedule that the midwife, nurse practitioner or podiatrist may prescribe, possess or conduct an activity with, in accordance with sections 3 and 4 of the New Classes of Practitioners Regulations. (stupéfiant) *nurse practitioner* has the same meaning as in section 1 of the New Classes of Practitioners Regulations. (infirmier praticien) *pharmacist* means a person who is entitled under the laws of a province to practise pharmacy and who is practising pharmacy in that province. (pharmacien) *podiatrist* has the same meaning as in section 1 of the New Classes of Practitioners Regulations. (podiatre) *prescription* means an authorization given by a practitioner that a stated amount of a narcotic be dispensed for the person named in it or the animal identified in it. (ordonnance) *qualified person in charge* means the individual designated under subsection 9.2(1). (responsable qualifié) *Security Directive* means the Directive on Physical Security Requirements for Controlled Substances and Drugs Containing Cannabis, as amended from time to time and published by the Government of Canada on its website. (Directive en matière de sécurité) *senior person in charge* means the individual designated under section 9.1. (responsable principal) *test kit* means a kit (a) that contains a narcotic and a reagent system or buffering agent; (b) that is used during the course of a chemical or analytical procedure to test for the presence or quantity of a narcotic for a medical, laboratory, industrial, educational, law administration or enforcement, or research purpose; and (c) the contents of which are not intended or likely to be consumed by, or administered to, a person or an animal. ( nécessaire d’essai) *verbal prescription narcotic* means a narcotic that is contained in medication that may be prescribed verbally and that has the following characteristics: (a) it contains two or more medicinal ingredients that are not narcotics, in a recognized therapeutic dose; (b) it is not intended for parenteral administration; and (c) it does not contain diacetylmorphine (heroin), hydrocodone, methadone, oxycodone or pentazocine. ( stupéfiant d’ordonnance verbale) (2) [Repealed, SOR/2021-271, s. 3] 2.1 [Repealed, SOR/2016-230, s. 262] ## Possession ### Authorized persons 3 (1) A person is authorized to possess a narcotic if the person has obtained the narcotic in accordance with these Regulations, in the course of activities conducted in connection with the administration or enforcement of an Act or regulation, or from a person who is exempt under section 56 of the Act from the application of subsection 5(1) of the Act with respect to that narcotic, and the person (a) requires the narcotic for their business or profession and is (i) a licensed dealer, (ii) a pharmacist, or (iii) a practitioner who is registered and entitled to practise in the province in which they possess the narcotic; (b) is a practitioner who is registered and entitled to practise in a province other than the province in which they possess the narcotic for emergency medical purposes only; (c) is a hospital employee or a practitioner in a hospital; (d) has obtained the narcotic for their own use (i) from a practitioner, (ii) in accordance with a prescription that was not issued or obtained in contravention of these Regulations, or (iii) from a pharmacist under section 36; (e) is a practitioner of medicine who received the narcotic under subsection 68(1) or (2) and their possession is for the purpose of providing or delivering it to a person referred to in subsection 68(3); (f) is an agent or mandatary of a practitioner of medicine who received the narcotic under subsection 68(1) and their possession is for the purpose of providing or delivering it to a person referred to in subsection 68(2); (g) is employed as an inspector, a member of the Royal Canadian Mounted Police, a police constable, a peace officer or a member of the technical or scientific staff of the Government of Canada, the government of a province or a university in Canada and their possession is in connection with that employment; (h) is not a practitioner of medicine referred to in paragraph (e) or an agent or mandatary referred to in paragraph (f), is exempted under section 56 of the Act with respect to the possession of that narcotic and their possession is for a purpose set out in the exemption; or (i) is the Minister. ### Agent or mandatary (2) A person is authorized to possess a narcotic if the person is acting as the agent or mandatary of any person who is authorized to possess it in accordance with any of paragraphs (1)(a) to (e), (h) and (i). ### Agent or mandatary — person referred to in paragraph (1)(g) (3) A person is authorized to possess a narcotic if (a) the person is acting as the agent or mandatary of a person who they have reasonable grounds to believe is a person referred to in paragraph (1)(g); and (b) their possession of the narcotic is for the purpose of assisting that person in the administration or enforcement of an Act or regulation. ## Test Kits ### Authorized activities 4 A person may sell, possess or otherwise deal in a test kit if the following conditions are met: (a) a registration number has been issued for the test kit under section 6 and has not been cancelled under section 7; (b) the test kit bears, on its external surface, (i) the manufacturer’s name, (ii) the trade name or trademark, and (iii) the registration number; and (c) the test kit will be used for a medical, laboratory, industrial, educational, law administration or enforcement, or research purpose. ### Application for registration number 5 (1) The manufacturer of a test kit may obtain a registration number for it by submitting to the Minister an application containing (a) a detailed description of the design and construction of the test kit; (b) a detailed description of the narcotic and other substances, if any, contained in the test kit, including the qualitative and quantitative composition of each component; and (c) a description of the proposed use of the test kit. ### Signature and attestation (2) The application must (a) be signed and dated by the person authorized by the applicant for that purpose; and (b) include an attestation by that person that all of the information submitted in support of the application is correct and complete to the best of their knowledge. ### Additional information or document (3) The applicant must, not later than the date specified in the Minister’s written request to that effect, provide the Minister with any information or document that the Minister determines is necessary to complete the review of the application. ### Issuance of registration number 6 On completion of the review of the application for a registration number, the Minister must issue a registration number for the test kit, preceded by the letters “TK”, if the Minister determines that the test kit will only be used for a medical, laboratory, industrial, educational, law administration or enforcement, or research purpose and that it contains (a) a narcotic and an adulterating or denaturing agent in such a manner, combination, quantity, proportion or concentration that the preparation or mixture has no significant drug abuse potential; or (b) such small quantities or concentrations of a narcotic as to have no significant drug abuse potential. ### Cancellation of registration number 7 The Minister must cancel the registration number for a test kit if (a) the test kit is removed from the market by the manufacturer; (b) the Minister has reasonable grounds to believe that the test kit is used or is likely to be used for any purpose other than a medical, laboratory, industrial, educational, law administration or enforcement, or research purpose; or (c) the Minister has reasonable grounds to believe that the cancellation is necessary to protect public health or safety, including to prevent a narcotic from being diverted to an illicit market or use. ## Licensed Dealers ## Authorized Activities ### General 8 (1) A licensed dealer may produce, assemble, sell, provide, transport, send, deliver, import or export a narcotic if they comply with these Regulations and the terms and conditions of their dealer’s licence and any permit issued under these Regulations. ### Qualified person in charge present (2) A licensed dealer may conduct an activity in relation to a narcotic at their site only if the qualified person in charge or an alternate qualified person in charge is present at the site. ### Permit — import and export (3) A licensed dealer must obtain a permit in order to import or export a narcotic. ### Possession for export (4) A licensed dealer may possess a narcotic for the purpose of exporting it if they have obtained it in accordance with these Regulations. ### Opium poppy — production (5) A licensed dealer may cultivate, propagate or harvest opium poppy only for scientific purposes. 8.1 [Repealed, SOR/2019-169, s. 3] 8.2 [Repealed, SOR/2019-169, s. 3] 8.3 [Repealed, SOR/2019-169, s. 3] ## Dealer’s Licences ## Preliminary Requirements ### Eligible persons 9 The following persons may apply for a dealer’s licence: (a) an individual who ordinarily resides in Canada; (b) a corporation that has its head office in Canada or operates a branch office in Canada; or (c) the holder of a position that includes responsibility for narcotics on behalf of the Government of Canada or of a government of a province, a police force, a hospital or a university in Canada. ### Senior person in charge 9.1 An applicant for a dealer’s licence must designate only one individual as the senior person in charge, who has overall responsibility for management of the activities with respect to narcotics that are specified in the licence application. The applicant may designate themself if the applicant is an individual. ### Qualified person in charge 9.2 (1) An applicant for a dealer’s licence must designate only one individual as the qualified person in charge, who is responsible for supervising the activities with respect to narcotics that are specified in the licence application and for ensuring that those activities comply with these Regulations. The applicant may designate themself if the applicant is an individual. ### Alternate qualified person in charge (2) An applicant for a dealer’s licence may designate an individual as an alternate qualified person in charge, who is authorized to replace the qualified person in charge when that person is absent. The applicant may designate themself if the applicant is an individual. ### Qualifications (3) Only an individual who meets the following requirements may be designated as a qualified person in charge or an alternate qualified person in charge: (a) they work at the site specified in the dealer’s licence; (b) they (i) are entitled or, if applicable, registered and entitled by a provincial professional licensing authority or a professional association in Canada and entitled to practise a profession that is relevant to their duties, such as pharmacist, practitioner, pharmacy technician or laboratory technician, (ii) hold a diploma, certificate or credential awarded by a post-secondary educational institution in Canada in a field or occupation that is relevant to their duties, such as pharmacy, medicine, dentistry, veterinary medicine, pharmacology, chemistry, biology, pharmacy technician, laboratory technician, pharmaceutical regulatory affairs or supply chain management or security, or (iii) hold a diploma, certificate or credential that is awarded by a foreign educational institution in a field or occupation referred to in subparagraph (ii) and hold (A) an equivalency assessment as defined in subsection 73(1) of the Immigration and Refugee Protection Regulations, or (B) an equivalency assessment issued by an organization or institution that is responsible for issuing equivalency assessments and is recognized by a province; (c) they have sufficient knowledge of and experience with the use and handling of the narcotics specified in the dealer’s licence to properly carry out their duties; and (d) they have sufficient knowledge of the provisions of the Act and these Regulations that are applicable to the activities specified in the dealer’s licence to properly carry out their duties. ### Exception (4) An applicant for a dealer’s licence may designate an individual who does not meet any of the requirements of paragraph (3)(b) as a qualified person in charge or an alternate qualified person in charge if (a) no other individual working at the site meets those requirements; (b) those requirements are not necessary for the activities specified in the licence; and (c) the individual has sufficient knowledge — acquired from a combination of education, training or work experience — to properly carry out their duties. ### Ineligibility 9.3 An individual is not eligible to be a senior person in charge, a qualified person in charge or an alternate qualified person in charge if, during the 10 years before the day on which the dealer’s licence application is submitted, (a) in respect of a designated substance offence or a designated criminal offence or a designated offence as defined in subsection 2(1) of the Cannabis Act, the individual (i) was convicted as an adult, or (ii) was a young person who received an adult sentence, as those terms are defined in subsection 2(1) of the Youth Criminal Justice Act; or (b) in respect of an offence committed outside Canada that, if committed in Canada, would have constituted a designated substance offence or a designated criminal offence or a designated offence as defined in subsection 2(1) of the Cannabis Act, (i) the individual was convicted as an adult, or (ii) if they committed the offence when they were at least 14 years old but less than 18 years old, the individual received a sentence that was longer than the maximum youth sentence, as that term is defined in subsection 2(1) of the Youth Criminal Justice Act, that could have been imposed under that Act for such an offence. 9.4 [Repealed, SOR/2019-169, s. 3] 9.5 [Repealed, SOR/2019-169, s. 3] 9.6 [Repealed, SOR/2019-169, s. 3] 9.7 [Repealed, SOR/2019-169, s. 3] 9.8 [Repealed, SOR/2019-169, s. 3] 9.9 [Repealed, SOR/2019-169, s. 3] 9.91 [Repealed, SOR/2019-169, s. 3] 9.92 [Repealed, SOR/2019-169, s. 3] ## Issuance of Licence ### Application 10 (1) A person who intends to conduct an activity referred to in section 8 must obtain a dealer’s licence for each site at which they intend to conduct activities by submitting an application to the Minister that contains the following information: (a) if the licence is requested by (i) an individual, the individual’s name, (ii) a corporation, its corporate name and any other name registered with a province under which it intends to conduct the activities specified in its dealer’s licence or by which it intends to identify itself, and (iii) the holder of a position described in paragraph 9(c), the applicant’s name and the title of the position; (b) the municipal address, telephone number and, if applicable, the email address of the proposed site and, if different from the municipal address, its mailing address; (c) the name, date of birth, telephone number and email address of the proposed senior person in charge; (d) with respect to each of the proposed qualified person in charge and any proposed alternate qualified person in charge, (i) their name, date of birth, telephone number and email address, (ii) the title of their position at the site, (iii) the name and title of the position of their immediate supervisor at the site, (iv) if applicable, the profession they practise that is relevant to their duties, the name of the province that authorizes them to practise it and their authorization number, and (v) their education, training and work experience that are relevant to their duties; (e) the activities that are to be conducted and the narcotics in respect of which each of the activities is to be conducted; (f) if the licence is requested to manufacture or assemble a product or compound that contains a narcotic, other than a test kit, a list that includes, for each product or compound, (i) the brand name of the product or the name of the compound, (ii) the drug identification number that is assigned to the product under section C.01.014.2 of the Food and Drug Regulations, if any, (iii) the name of the narcotic in the product or compound, (iv) the strength per unit of the narcotic in it, the number of units per package and the number of packages, (v) if it is to be manufactured or assembled by or for another licensed dealer under a custom order, the name, municipal address and licence number of the other licensed dealer, and (vi) if the applicant’s name appears on the label of the product or compound, a copy of the inner label, as defined in section A.01.010 of the Food and Drug Regulations; (g) if the licence is requested in order to produce a narcotic other than a product or compound that contains a narcotic, (i) the name of the narcotic, (ii) the quantity that the applicant expects to produce under their licence and the period during which that quantity would be produced, and (iii) if it is to be produced for another licensed dealer under a custom order, the name, municipal address and licence number of the other licensed dealer; (h) if the licence is requested for an activity that is not described in paragraph (f) or (g), the name of the narcotic for which the activity is to be conducted and the purpose of the activity; (i) a detailed description of the security measures in place at the site, determined in accordance with the Security Directive; and (j) a detailed description of the method for recording information that the applicant proposes to use for the purpose of section 28. ### Documents (2) An application for a dealer’s licence must be accompanied by the following documents: (a) if the applicant is a corporation, a copy of (i) the certificate of incorporation or other constituting instrument, and (ii) any document filed with the province in which its site is located that states its corporate name and any other name registered with the province under which the applicant intends to conduct the activities specified in its dealer’s licence or by which it intends to identify itself; (b) individual declarations signed and dated by each of the proposed senior person in charge, and qualified person in charge and any proposed alternate qualified person in charge, attesting that the person is not ineligible for a reason specified in section 9.3; (c) a document issued by a Canadian police force in relation to each person referred to in paragraph (b), indicating whether, during 10 years before the day on which the application is submitted, the person was convicted as specified in subparagraph 9.3(a)(i) or received a sentence as specified in subparagraph 9.3(a)(ii); (d) if any of the persons referred to in paragraph (b) has ordinarily resided in a country other than Canada during the 10 years before the day on which the application is submitted, a document issued by a police force of that country indicating whether in that period that person was convicted as specified in subparagraph 9.3(b)(i) or received a sentence as specified in subparagraph 9.3(b)(ii); (e) declaration, signed and dated by the proposed senior person in charge, attesting that the proposed qualified person in charge and any proposed alternate qualified person in charge have the knowledge and experience required under paragraphs 9.2(3)(c) and (d); and (f) if the proposed qualified person in charge or any proposed alternate qualified person in charge does not meet the requirement of subparagraph 9.2(3)(b)(i), either (i) a copy of the person’s diploma, certificate or credential referred to in subparagraph 9.2(3)(b)(ii) or (iii), or (ii) a detailed description of the education, training and work experience that is required under paragraph 9.2(4)(c), together with supporting evidence, such as a copy of a course transcript or an attestation by the person who provided the training. ### Signature and attestation (3) The application must (a) be signed and dated by the proposed senior person in charge; and (b) include an attestation by that person that (i) all of the information and documents submitted in support of the application are correct and complete to the best of their knowledge, and (ii) they have the authority to bind the applicant. ### Additional information and documents (4) The applicant must, not later than the date specified in the Minister’s written request to that effect, provide the Minister with any information or document that the Minister determines is necessary to complete the review of the application. ### Issuance 10.1 Subject to section 10.3, on completion of the review of the licence application, the Minister must issue a dealer’s licence, with or without terms and conditions, that contains (a) the licence number; (b) the name of the licensed dealer, their corporate name or the title of the position they hold; (c) the activities that are authorized and the names of the narcotics in respect of which each activity may be conducted; (d) the municipal address of the site at which the dealer may conduct the authorized activities; (e) the security level at the site, determined in accordance with the Security Directive; (f) the effective date of the licence; (g) the expiry date of the licence, which must be not later than three years after its effective date; (h) any terms and conditions that the Minister has reasonable grounds to believe are necessary to (i) ensure that an international obligation is respected, (ii) ensure conformity with the requirements associated with the security level that is referred to in paragraph (e), or (iii) reduce a risk to public health or safety, including the risk of a narcotic being diverted to an illicit market or use; and (i) if the licensed dealer produces a narcotic, the quantity that they may produce and the authorized production period. ### Validity 10.2 A dealer’s licence is valid until the expiry date set out in the licence or, if it is earlier, the date of the suspension or revocation of the licence under section 16 or 17. ### Refusal 10.3 (1) The Minister must refuse to issue a dealer’s licence if (a) the applicant may not apply for a licence under section 9; (b) during the 10 years before the day on which the licence application is submitted, the applicant has contravened (i) a provision of the Act, the Cannabis Act or their regulations, or (ii) a term or condition of a licence or permit issued to the applicant under any regulations made under the Act or issued to the applicant under the Cannabis Act or its regulations; (c) during the 10 years before the day on which the licence application is submitted, the proposed senior person in charge or qualified person in charge or any proposed alternate qualified person in charge was convicted as specified in subparagraph 9.3(a)(i) or (b)(i) or received a sentence as specified in subparagraph 9.3(a)(ii) or (b)(ii); (d) an activity for which the licence is requested would contravene an international obligation; (e) an activity for which the licence is requested is the cultivation, propagation or harvesting of opium poppy other than for scientific purposes; (f) the applicant does not have in place at the site the security measures set out in the Security Directive in respect of an activity for which the licence is requested; (g) the method referred to in paragraph 10(1)(j) does not permit the recording of information as required by section 28; (h) the applicant has not complied with the requirements of subsection 10(4) or the information or documents that they have provided are not sufficient to complete the review of the licence application; (i) the Minister has reasonable grounds to believe that the applicant has submitted false or misleading information or false or falsified documents in or in support of the licence application; (j) information received from a competent authority or the United Nations gives the Minister reasonable grounds to believe that the applicant has been involved in the diversion of a narcotic to an illicit market or use or has been involved in an activity that contravened an international obligation; or (k) the Minister has reasonable grounds to believe that the issuance of the licence would likely create a risk to public health or safety, including the risk of a narcotic being diverted to an illicit market or use. ### Exceptions (2) The Minister must not refuse to issue a licence under paragraph (1)(b) or (i) if the applicant meets the following conditions, unless the Minister has reasonable grounds to believe that it is necessary to do so to protect public health or safety, including to prevent a narcotic from being diverted to an illicit market or use: (a) the applicant does not have a history of non-compliance with the Act, the Cannabis Act or their regulations; and (b) the applicant has carried out, or signed an undertaking to carry out, the necessary corrective measures to ensure compliance with the Act, the Cannabis Act and their regulations. ### Notice (3) Before refusing to issue a licence, the Minister must send the applicant a notice that sets out the Minister’s reasons and gives the applicant an opportunity to be heard. ## Renewal of Licence ### Application 11 (1) To apply to renew a dealer’s licence, a licensed dealer must submit to the Minister an application that contains the information and documents referred to in subsections 10(1) and (2). ### Signature and attestation (2) The application must (a) be signed and dated by the senior person in charge of the site specified in the application; and (b) include an attestation by that person that (i) all of the information and documents submitted in support of the application are correct and complete to the best of their knowledge, and (ii) they have the authority to bind the licensed dealer. ### Additional information and documents (3) The licensed dealer must, not later than the date specified in the Minister’s written request to that effect, provide the Minister with any information or document that the Minister determines is necessary to complete the review of the application. ### Renewal 11.1 (1) Subject to section 11.3, on completion of the review of the renewal application, the Minister must issue a renewed dealer’s licence that contains the information specified in section 10.1. ### Terms and conditions (2) When renewing a dealer’s licence, the Minister may, if he or she has reasonable grounds to believe that it is necessary to do so, add a term or condition to it or modify or delete one in order to (a) ensure that an international obligation is respected; (b) ensure conformity with the requirements associated with the security level specified in the licence or the new level required as a result of the licence renewal; or (c) reduce a risk to public health or safety, including the risk of a narcotic being diverted to an illicit market or use. ### Validity 11.2 A renewed dealer’s licence is valid until the expiry date set out in the licence or, if it is earlier, the date of the suspension or revocation of the licence under section 16 or 17. ### Refusal 11.3 (1) The Minister must refuse to renew a dealer’s licence if (a) the licensed dealer may no longer apply for a licence under section 9; (b) during the 10 years before the day on which the renewal application is submitted, the licensed dealer has contravened (i) a provision of the Act, the Cannabis Act or their Regulations, or (ii) a term or condition of a licence or permit issued to the dealer under a regulation made under the Act or issued to the dealer under the Cannabis Act or its regulations; (c) during the 10 years before the day on which the renewal application is submitted, the proposed senior person in charge or qualified person in charge or any proposed alternate qualified person in charge was convicted as specified in subparagraph 9.3(a)(i) or (b)(i) or received a sentence as specified in subparagraph 9.3(a)(ii) or (b)(ii); (d) an activity for which the renewal is requested would contravene an international obligation; (e) an activity for which the licence is requested is the cultivation, propagation or harvesting of opium poppy other than for scientific purposes; (f) the licensed dealer does not have in place at the site the security measures set out in the Security Directive in respect of an activity for which the renewal is requested; (g) the method referred to in paragraph 10(1)(j) does not permit the recording of information as required by section 28; (h) the licensed dealer has not complied with the requirements of subsection 11(3) or the information or documents that they have provided are not sufficient to complete the review of the renewal application; (i) the Minister has reasonable grounds to believe that the licensed dealer has submitted false or misleading information or false or falsified documents in or in support of the renewal application; (j) information received from a competent authority or the United Nations gives the Minister reasonable grounds to believe that the licensed dealer has been involved in the diversion of a narcotic to an illicit market or use or has been involved in an activity that contravened an international obligation; or (k) the Minister has reasonable grounds to believe that the renewal of the licence would likely create a risk to public health or safety, including the risk of a narcotic being diverted to an illicit market or use. ### Exceptions (2) The Minister must not refuse to renew a licence under paragraph (1)(b) or (i) if the licensed dealer meets the following conditions, unless the Minister has reasonable grounds to believe that it is necessary to do so to protect public health or safety, including to prevent a narcotic from being diverted to an illicit market or use: (a) the licensed dealer does not have a history of non-compliance with the Act or the Cannabis Act or their regulations; and (b) the licensed dealer has carried out, or signed an undertaking to carry out, the necessary corrective measures to ensure compliance with the Act, the Cannabis Act and their regulations. ### Notice (3) Before refusing to renew a licence, the Minister must send the licensed dealer a notice that sets out the Minister’s reasons and gives the dealer an opportunity to be heard. ## Amendment of Licence ### Application 12 (1) Before making a change affecting any information referred to in section 10.1 that is contained in their dealer’s licence, a licensed dealer must submit to the Minister an application to amend the licence that contains a description of the proposed amendment, as well as the information and documents referred to in section 10 that are relevant to the proposed amendment. ### Signature and attestation (2) The application must (a) be signed and dated by the senior person in charge of the site specified in the application; and (b) include an attestation by that person that (i) all of the information and documents submitted in support of the application are correct and complete to the best of their knowledge, and (ii) they have the authority to bind the licensed dealer. ### Additional information and documents (3) The licensed dealer must, not later than the date specified in the Minister’s written request to that effect, provide the Minister with any information or document that the Minister determines is necessary to complete the review of the application. ### Amendment 12.1 (1) Subject to section 12.3, on completion of the review of the amendment application, the Minister must amend the dealer’s licence. ### Terms and conditions (2) When amending a dealer’s licence, the Minister may, if he or she has reasonable grounds to believe that it is necessary to do so, add a term or condition to it or modify or delete one in order to (a) ensure that an international obligation is respected; (b) ensure conformity with the requirements associated with the security level specified in the licence or the new level required as a result of the amendment; or (c) reduce a risk to public health or safety, including the risk of a narcotic being diverted to an illicit market or use. ### Validity 12.2 An amended dealer’s licence is valid until the expiry date set out in the licence or, if it is earlier, the date of the suspension or revocation of the licence under section 16 or 17. ### Refusal 12.3 (1) The Minister must refuse to amend a dealer’s licence if (a) an activity for which the amendment is requested would contravene an international obligation; (b) an activity for which the licence is requested is the cultivation, propagation or harvesting of opium poppy other than for scientific purposes; (c) the licensed dealer does not have in place at the site the security measures set out in the Security Directive in respect of an activity for which the amendment is requested; (d) the method referred to in paragraph 10(1)(j) does not permit the recording of information as required by section 28; (e) the licensed dealer has not complied with the requirements of subsection 12(3) or the information or documents that they have provided are not sufficient to complete the review of the amendment application; (f) the Minister has reasonable grounds to believe that the licensed dealer has submitted false or misleading information or false or falsified documents in or in support of the amendment application; or (g) the Minister has reasonable grounds to believe that the amendment of the licence would likely create a risk to public health or safety, including the risk of a narcotic being diverted to an illicit market or use. ### Exceptions (2) The Minister must not refuse to amend a licence under paragraph (1)(f) if the licensed dealer meets the following conditions, unless the Minister has reasonable grounds to believe that it is necessary to do so to protect public health or safety, including to prevent a narcotic from being diverted to an illicit market or use: (a) the licensed dealer does not have a history of non-compliance with the Act, the Cannabis Act or their regulations; and (b) the licensed dealer has carried out, or signed an undertaking to carry out, the necessary corrective measures to ensure compliance with the Act, the Cannabis Act and their Regulations. ### Notice (3) Before refusing to amend a licence, the Minister must send the licensed dealer a notice that sets out the Minister’s reasons and gives the dealer an opportunity to be heard. ## Changes Requiring Prior Approval by Minister ### Application 13 (1) A licensed dealer must obtain the Minister’s approval before making any of the following changes by submitting a written application to the Minister: (a) a change affecting the security measures in place at the site specified in the dealer’s licence; (b) the replacement of the senior person in charge; (c) the replacement of the qualified person in charge; or (d) the replacement or addition of an alternate qualified person in charge. ### Information and documents (2) The licensed dealer must provide the Minister with the following with respect to a change referred to in subsection (1): (a) in the case of a change affecting the security measures in place at the site specified in the dealer’s licence, details of the change; (b) in the case of the senior person in charge, (i) the information specified in paragraph 10(1)(c), and (ii) the declaration specified in paragraph 10(2)(b) and the documents specified in paragraphs 10(2)(c) and (d); and (c) in the case of the qualified person in charge or an alternate qualified person in charge, (i) the information specified in paragraph 10(1)(d), and (ii) the declarations specified in paragraphs 10(2)(b) and (e) and the documents specified in paragraphs 10(2)(c), (d) and (f). ### Additional information and documents (3) The licensed dealer must, not later than the date specified in the Minister’s written request to that effect, provide the Minister with any information or document that the Minister determines is necessary to complete the review of the application. ### Approval 13.1 (1) Subject to section 13.2, on completion of the review of the application for approval of the change, the Minister must approve the change. ### Terms and conditions (2) When approving a change, the Minister may, if he or she has reasonable grounds to believe that it is necessary to do so, add a term or condition to the licence or modify or delete one in order to (a) ensure that an international obligation is respected; (b) ensure conformity with the requirements associated with the security level specified in the licence; or (c) reduce a risk to public health or safety, including the risk of a narcotic being diverted to an illicit market or use. ### Refusal 13.2 (1) The Minister must refuse to approve the change if (a) during the 10 years before the day on which the application for approval of the change is submitted, the proposed senior person in charge or qualified person in charge or any proposed alternate qualified person in charge was convicted as specified in subparagraph 9.3(a)(i) or (b)(i) or received a sentence as specified in subparagraph 9.3(a)(ii) or (b)(ii); (b) the licensed dealer has not complied with the requirements of subsection 13(3) or the information or documents that they have provided are not sufficient to complete the review of the application for approval of the change; (c) the Minister has reasonable grounds to believe that the licensed dealer has submitted false or misleading information or false or falsified documents in or in support of the application for approval of the change; or (d) the Minister has reasonable grounds to believe that the change would likely create a risk to public health or safety, including the risk of a narcotic being diverted to an illicit market or use. ### Exceptions (2) The Minister must not refuse to approve a change under paragraph (1)(c) if the licensed dealer has carried out, or signed an undertaking to carry out, the necessary corrective measures to ensure compliance with the Act, the Cannabis Act and their regulations, unless the Minister has reasonable grounds to believe that it is necessary to do so to protect public health or safety, including to prevent a narcotic from being diverted to an illicit market or use. ### Notice (3) Before refusing to approve a change, the Minister must send the licensed dealer a notice that sets out the Minister’s reasons and gives the dealer an opportunity to be heard in respect of them. ## Changes Requiring Notice to Minister ### Prior notice 14 (1) A licensed dealer must notify the Minister in writing before (a) manufacturing or assembling a product or compound that is not set out in the most recent version of the list referred to in paragraph 10(1)(f) that has been submitted to the Minister; or (b) making a change to a product or compound that is set out in the list, if the change affects any of the information that has previously been submitted. ### Information and list (2) The notice must contain the information referred to in paragraph 10(1)(f) that is necessary to update the list and be accompanied by the revised version of the list. ### Notice — five days 14.1 A licensed dealer must notify the Minister in writing within five days after a person ceases to act as the qualified person in charge or an alternate qualified person in charge. ### Notice — 10 days 14.2 (1) A licensed dealer must notify the Minister in writing within 10 days after one of the following changes occurs: (a) a person ceases to act as the senior person in charge; or (b) the licensed dealer ceases to manufacture or assemble a product or compound that is set out in the most recent version of the list referred to in paragraph 10(1)(f) that has been submitted to the Minister. ### Information and list (2) A notice submitted under paragraph (1)(b) must specify which information referred to in paragraph 10(1)(f) is being changed and be accompanied by the revised version of the list. ### Notice of cessation of activities 14.3 (1) A licensed dealer that intends to cease conducting activities at their site — whether on or before the expiry of their licence — must notify the Minister in writing to that effect at least 30 days before ceasing those activities. ### Content of notice (2) The notice must be signed and dated by the senior person in charge and contain the following information: (a) the expected date of the cessation of activities at the site; (b) a description of the manner in which any remaining narcotics on the site as of that date will be disposed of by the licensed dealer, including (i) if some or all of them will be sold or provided to another licensed dealer that will be conducting activities at the same site, the name of that dealer, (ii) if some or all of them will be sold or provided to another licensed dealer that will not be conducting activities at the same site, the name of that dealer and the municipal address of their site, and (iii) if some or all of them will be destroyed, the date on which and the municipal address of the location at which the destruction is to take place; (c) the municipal address of the location at which the licensed dealer’s documents will be kept after activities have ceased; and (d) the name, municipal address, telephone number and, if applicable, the email address of a person who the Minister may contact for further information after activities have ceased. ### Update (3) After having ceased to conduct the activities, the licensed dealer must submit to the Minister a detailed update of the information referred to in subsection (2) if it differs from what was set out in the notice. The update must be signed and dated by the senior person in charge. ## Changes to Terms and Conditions of Licence ### Addition of or modification to term or condition 15 (1) The Minister may, at any time other than at the issuance, renewal or amendment of a dealer’s licence, add a term or condition to it or modify one if the Minister has reasonable grounds to believe that it is necessary to do so to (a) ensure that an international obligation is respected; (b) ensure conformity with the requirements associated with the security level specified in the licence; or (c) reduce a risk to public health or safety, including the risk of a narcotic being diverted to an illicit market or use. ### Notice (2) Before adding a term or condition to a licence or modifying one, the Minister must send the licensed dealer a notice that sets out the Minister’s reasons and gives the dealer an opportunity to be heard. ### Urgent circumstances (3) Despite subsection (2), the Minister may add a term or condition to a licence or modify one without prior notice if the Minister has reasonable grounds to believe that it is necessary to do so to protect public health or safety, including to prevent a narcotic from being diverted to an illicit market or use. ### Urgent circumstances — notice (4) The addition or modification of a term or condition that is made under subsection (3) takes effect as soon as the Minister sends the licensed dealer a notice that (a) sets out the reasons for the addition or modification; (b) gives the dealer an opportunity to be heard; and (c) if applicable, specifies the corrective measures that must be carried out and the date by which they must be carried out. ### Deletion of term or condition 15.1 (1) The Minister may delete a term or condition of a dealer’s licence that the Minister determines is no longer necessary. ### Notice (2) The deletion takes effect as soon as the Minister sends the licensed dealer a notice to that effect. ## Suspension and Revocation of Licence ### Suspension 16 (1) The Minister must suspend a dealer’s licence without prior notice if the Minister has reasonable grounds to believe that it is necessary to do so to protect public health or safety, including to prevent a narcotic from being diverted to an illicit market or use. ### Notice (2) The suspension takes effect as soon as the Minister sends the licensed dealer a notice that (a) sets out the reasons for the suspension; (b) gives the dealer an opportunity to be heard; and (c) if applicable, specifies the corrective measures that must be carried out and the date by which they must be carried out. ### Reinstatement of licence (3) The Minister must reinstate the licence if the Minister has reasonable grounds to believe that the suspension is no longer necessary. ### Revocation 17 (1) Subject to subsection (2), the Minister must revoke a dealer’s licence if (a) the licensed dealer is no longer eligible to apply for a licence under section 9; (b) the licensed dealer requests the Minister to do so or informs the Minister of the loss or theft of the licence or the actual or potential unauthorized use of the licence; (c) the licensed dealer ceases to conduct activities at their site before the expiry of their licence; (d) the licensed dealer does not take the corrective measures specified in an undertaking or notice; (e) the licensed dealer has contravened (i) a provision of the Act, the Cannabis Act or their regulations, or (ii) a term or condition of a licence or permit issued to the dealer under a regulation made under the Act or issued to the dealer under the Cannabis Act or its regulations; (f) during the 10 years before the day on which the application is submitted, the senior person in charge, the qualified person in charge or any alternate qualified person in charge was convicted as specified in subparagraph 9.3(a)(i) or (b)(i) or received a sentence as specified in subparagraph 9.3(a)(ii) or (b)(ii); (g) the Minister has reasonable grounds to believe that the licensed dealer submitted false or misleading information or false or falsified documents in or in support of an application relating to the licence; or (h) information received from a competent authority or the United Nations gives the Minister reasonable grounds to believe that the licensed dealer has been involved in the diversion of a narcotic to an illicit market or use. ### Exceptions (2) The Minister must not revoke a dealer’s licence for a ground set out in paragraph (1)(e) or (g) if the licensed dealer meets the following conditions, unless the Minister has reasonable grounds to believe that it is necessary to do so to protect public health or safety, including to prevent a narcotic from being diverted to an illicit market or use: (a) the licensed dealer does not have a history of non-compliance with the Act, the Cannabis Act or their regulations; and (b) the licensed dealer has carried out, or signed an undertaking to carry out, the necessary corrective measures to ensure compliance with the Act, the Cannabis Act and their regulations. ### Notice (3) Before revoking a licence, the Minister must send the licensed dealer a notice that sets out the Minister’s reasons and gives the dealer an opportunity to be heard. ### Return of licence 17.1 The licensed dealer must return the original of the licence to the Minister within 15 days after the effective date of the revocation. ## Import Permits ### Application 18 (1) A licensed dealer must submit to the Minister, before each importation of a narcotic, an application for an import permit that contains the following information: (a) their name, municipal address and dealer’s licence number; (b) with respect to the narcotic to be imported, (i) its name, as specified in the dealer’s licence, (ii) if it is a salt, the name of the salt, (iii) its quantity, and (iv) in the case of a raw material, its purity and its anhydrous content; (c) if the narcotic is contained in a product to be imported, (i) the brand name of the product, (ii) the drug identification number that has been assigned to the product under section C.01.014.2 of the Food and Drug Regulations, if any, and (iii) the strength per unit of the narcotic in the product, the number of units per package and the number of packages; (d) the name and municipal address of the exporter in the country of export from whom the narcotic is being obtained; (e) the name of the customs office where the importation is anticipated; and (f) each proposed mode of transportation and any proposed country of transit or transhipment. ### Signature and attestation (2) The application must (a) be signed and dated by the qualified person in charge or an alternate qualified person in charge; and (b) include an attestation by that person that all of the information submitted in support of the application is correct and complete to the best of their knowledge. ### Additional information and documents (3) The licensed dealer must, not later than the date specified in the Minister’s written request to that effect, provide the Minister with any information or document that the Minister determines is necessary to complete the review of the application. ### Issuance 18.1 Subject to section 18.4, on completion of the review of the import permit application, the Minister must issue to the licensed dealer an import permit that contains (a) the permit number; (b) the information set out in subsection 18(1); (c) the effective date of the permit; (d) the expiry date of the permit, being the earlier of (i) a date specified by the Minister that is not more than 180 days after its effective date, and (ii) the expiry date of the dealer’s licence; and (e) any terms and conditions that the Minister has reasonable grounds to believe are necessary to (i) ensure that an international obligation is respected, or (ii) reduce a risk to public health or safety, including the risk of a narcotic being diverted to an illicit market or use. ### Validity 18.2 An import permit is valid until the earliest of (a) the expiry date set out in the permit, (b) the date of the suspension or revocation of the permit under section 19 or 20, (c) the date of the suspension or revocation of the dealer’s licence under section 16 or 17, and (d) the date of the suspension or revocation of the export permit that applies to the narcotic to be imported and that is issued by the competent authority in the country of export. ### Return of permit 18.3 If an import permit expires, the licensed dealer must return the original of the permit to the Minister within 15 days after its expiry. ### Refusal 18.4 (1) The Minister must refuse to issue an import permit if (a) the licensed dealer is not authorized by their dealer’s licence to import the relevant narcotic or their licence will expire before the date of importation; (b) the Minister has reasonable grounds to believe that the importation would contravene an international obligation; (c) the licensed dealer does not have in place at the site the security measures set out in the Security Directive in respect of the importation; (d) the licensed dealer has not complied with the requirements of subsection 18(3) or the information or documents that they have provided are not sufficient to complete the review of the permit application; (e) the Minister has reasonable grounds to believe that the licensed dealer has submitted false or misleading information or false or falsified documents in or in support of the permit application; (f) the licensed dealer has been notified that their application to renew or amend their licence will be refused; (g) the Minister has reasonable grounds to believe that the importation would contravene the laws of the country of export or any country of transit or transhipment; or (h) the Minister has reasonable grounds to believe that the issuance of the permit would likely create a risk to public health or safety, including the risk of a narcotic being diverted to an illicit market or use. ### Notice (2) Before refusing to issue the import permit, the Minister must send the licensed dealer a notice that sets out the Minister’s reasons and gives the dealer an opportunity to be heard. ### Providing copy of permit 18.5 The holder of an import permit must provide a copy of the permit to the customs office at the time of importation. ### Declaration 18.6 The holder of an import permit must provide the Minister, within 15 days after the day of release of the narcotic specified in the permit in accordance with the Customs Act, with a declaration that contains the following information: (a) their name and the numbers of their dealer’s licence and the import permit that applies to the narcotic; (b) with respect to the narcotic, (i) its name, as set out in the dealer’s licence, (ii) if it is a salt, the name of the salt, and (iii) its quantity; (c) if the narcotic is contained in a product that they have imported, (i) the brand name of the product, (ii) the drug identification number that has been assigned to the product under section C.01.014.2 of the Food and Drug Regulations, if any, and (iii) the strength per unit of the narcotic in the product, the number of units per package and the number of packages; and (d) the name of the customs office from which the narcotic was released and the date of the release. ### Suspension 19 (1) The Minister must suspend an import permit without prior notice if (a) the dealer’s licence is suspended; (b) the Minister has reasonable grounds to believe that the suspension is necessary to protect public health or safety, including to prevent a narcotic from being diverted to an illicit market or use; or (c) the importation would contravene the laws of the country of export or any country of transit or transhipment. ### Notice (2) The suspension takes effect as soon as the Minister sends the licensed dealer a notice that (a) sets out the reasons for the suspension; (b) gives the dealer an opportunity to be heard; and (c) if applicable, specifies the corrective measures that must be carried out and the date by which they must be carried out. ### Reinstatement of permit (3) The Minister must reinstate the import permit if the Minister has reasonable grounds to believe that the suspension is no longer necessary. ### Revocation 20 (1) Subject to subsection (2), the Minister must revoke an import permit if (a) the licensed dealer requests the Minister to do so or informs the Minister of the loss or theft of the permit or the actual or potential unauthorized use of the permit; (b) the licensed dealer does not carry out the corrective measures specified by the Minister under paragraph 19(2)(c) by the specified date; (c) the licensed dealer has contravened a term or condition of the permit; (d) the Minister has reasonable grounds to believe that the licensed dealer submitted false or misleading information or false or falsified documents in or in support of the application for the permit; (e) information received from a competent authority or the United Nations gives the Minister reasonable grounds to believe that the licensed dealer has been involved in the diversion of a narcotic to an illicit market or use; or (f) the dealer’s licence has been revoked. ### Exceptions (2) The Minister must not revoke an import permit for a ground set out in paragraph (1)(d) or 17(1)(e) or (g) if the licensed dealer meets the following conditions, unless the Minister has reasonable grounds to believe that it is necessary to do so to protect public health or safety, including to prevent a narcotic from being diverted to an illicit market or use: (a) the licensed dealer does not have a history of non-compliance with the Act, the Cannabis Act or their regulations; and (b) the licensed dealer has carried out, or signed an undertaking to carry out, the necessary corrective measures to ensure compliance with the Act, the Cannabis Act and their regulations. ### Notice (3) Before revoking an import permit, the Minister must send the licensed dealer a notice that sets out the Minister’s reasons and gives the dealer an opportunity to be heard. ### Return of permit 20.1 If an import permit is revoked, the licensed dealer must return the original of the permit to the Minister within 15 days after the effective date of the revocation. ## Export Permits ### Application 21 (1) A licensed dealer must submit to the Minister, before each exportation of a narcotic, an application for an export permit that contains the following information and document: (a) their name, municipal address and dealer’s licence number; (b) with respect to the narcotic to be exported, (i) its name, as specified in the dealer’s licence, (ii) if it is a salt, the name of the salt, (iii) its quantity, and (iv) in the case of a raw material, its purity and its anhydrous content; (c) in the case of the exportation of a product that contains the narcotic, (i) the brand name of the product, (ii) the drug identification number that has been assigned to the product under section C.01.014.2 of the Food and Drug Regulations, if any, and (iii) the strength per unit of the narcotic in the product, the number of units per package and the number of packages; (d) the name and municipal address of the importer in the country of final destination; (e) the name of the customs office where the exportation is anticipated; (f) each proposed mode of transportation to be used and any proposed country of transit or transhipment; and (g) a copy of the import permit issued by the competent authority in the country of final destination that sets out the name of the importer and the municipal address of their site in that country. ### Signature and attestation (2) The application must (a) be signed and dated by the qualified person in charge or an alternate qualified person in charge; and (b) include an attestation by that person that, to the best of their knowledge, (i) the exportation does not contravene any requirement of the laws of the country of final destination or any country of transit or transhipment, and (ii) all of the information and documents submitted in support of the application are correct and complete. ### Additional information and documents (3) The licensed dealer must, not later than the date specified in the Minister’s written request to that effect, provide the Minister with any information or document that the Minister determines is necessary to complete the review of the application. ### Issuance 21.1 Subject to section 21.4, on completion of the review of the export permit application, the Minister must issue to the licensed dealer an export permit that contains (a) the permit number; (b) the information set out in paragraphs 21(1)(a) to (f); (c) the effective date of the permit; (d) the expiry date of the permit, being the earliest of (i) a date specified by the Minister that is not more than 180 days after its effective date, (ii) the expiry date of the dealer’s licence, and (iii) the expiry date of the import permit issued by the competent authority in the country of final destination; and (e) any terms and conditions that the Minister has reasonable grounds to believe are necessary to (i) ensure that an international obligation is respected, or (ii) reduce a risk to public health or safety, including the risk of a narcotic being diverted to an illicit market or use. ### Validity 21.2 An export permit is valid until the earliest of (a) the expiry date set out in the permit, (b) the date of the suspension or revocation of the permit under section 22 or 23, (c) the date of the suspension or revocation of the dealer’s licence under section 16 or 17, and (d) the date of the expiry, suspension or revocation of the import permit that applies to the narcotic to be exported and that is issued by the competent authority in the country of final destination. ### Return of permit 21.3 If an export permit expires, the licensed dealer must return the original of the permit to the Minister within 15 days after its expiry. ### Refusal 21.4 (1) The Minister must refuse to issue an export permit if (a) the licensed dealer is not authorized by their dealer’s licence to export the relevant narcotic or their dealer’s licence will expire before the date of export; (b) the Minister has reasonable grounds to believe that the exportation would contravene an international obligation; (c) the licensed dealer has not complied with the requirements of subsection 21(3) or the information or documents that they have provided are not sufficient to complete the review of the permit application; (d) the Minister has reasonable grounds to believe that the licensed dealer has submitted false or misleading information or false or falsified documents in or in support of the permit application; (e) the licensed dealer has been notified that their application to renew or amend their licence will be refused; (f) the Minister has reasonable grounds to believe that the exportation would not be in conformity with the import permit issued by the competent authority of the country of final destination; (g) the Minister has reasonable grounds to believe that the exportation would contravene the laws of the country of final destination or any country of transit or transhipment; or (h) the Minister has reasonable grounds to believe that the issuance of the permit would likely create a risk to public health or safety, including the risk of a narcotic being diverted to an illicit market or use. ### Notice (2) Before refusing to issue the export permit, the Minister must send the licensed dealer a notice that sets out the Minister’s reasons and gives the dealer an opportunity to be heard. ### Providing copy of permit 21.5 The holder of an export permit must provide a copy of the permit to the customs office at the time of exportation. ### Declaration 21.6 The holder of an export permit must provide the Minister, within 15 days after the day of export of the narcotic specified in the permit, with a declaration that contains the following information: (a) their name and the numbers of their dealer’s licence and the export permit that applies to the narcotic; (b) with respect to the narcotic, (i) its name, as specified in the dealer’s licence, (ii) if it is a salt, the name of the salt, and (iii) its quantity; (c) if the narcotic is contained in a product that they have exported, (i) the brand name of the product, (ii) the drug identification number that has been assigned to the product under section C.01.014.2 of the Food and Drug Regulations, if any, and (iii) the strength per unit of the narcotic in the product, the number of units per package and the number of packages; and (d) the name of the customs office from which the narcotic was exported and the date of export. ### Suspension 22 (1) The Minister must suspend an export permit without prior notice if (a) the dealer’s licence is suspended; (b) the Minister has reasonable grounds to believe that the suspension is necessary to protect public health or safety, including to prevent a narcotic from being diverted to an illicit market or use; or (c) the exportation would contravene the laws of the country of final destination or any country of transit or transhipment. ### Notice (2) The suspension takes effect as soon as the Minister sends the licensed dealer a notice that (a) sets out the reasons for the suspension; (b) gives the dealer an opportunity to be heard; and (c) if applicable, specifies the corrective measures that must be carried out by the dealer and the date by which the dealer must do so. ### Reinstatement of permit (3) The Minister must reinstate the export permit if the Minister has reasonable grounds to believe that the suspension is no longer necessary. ### Revocation 23 (1) Subject to subsection (2), the Minister must revoke an export permit if (a) the licensed dealer requests the Minister to do so or informs the Minister of the loss or theft of the permit or the actual or potential unauthorized use of the permit; (b) the licensed dealer does not carry out the corrective measures specified by the Minister under paragraph 22(2)(c) by the specified date; (c) the licensed dealer has contravened a term or condition of the permit; (d) the Minister has reasonable grounds to believe that the licensed dealer submitted false or misleading information or false or falsified documents in or in support of the application for the permit; (e) information received from a competent authority or the United Nations gives the Minister reasonable grounds to believe that the licensed dealer has been involved in the diversion of a narcotic to an illicit market or use; or (f) the dealer’s licence has been revoked. ### Exceptions (2) The Minister must not revoke an export permit for a ground set out in paragraph (1)(d) or 17(1)(e) or (g) if the licensed dealer meets the following conditions, unless the Minister has reasonable grounds to believe that it is necessary to do so to protect public health or safety, including to prevent a narcotic from being diverted to an illicit market or use: (a) the licensed dealer does not have a history of non-compliance with the Act, the Cannabis Act or their regulations; and (b) the licensed dealer has carried out, or signed an undertaking to carry out, the necessary corrective measures to ensure compliance with the Act, the Cannabis Act or their regulations. ### Notice (3) Before revoking an export permit, the Minister must send the licensed dealer a notice that sets out the Minister’s reasons and gives the dealer an opportunity to be heard. ### Return of permit 23.1 If an export permit is revoked, the licensed dealer must return the original of the permit to the Minister within 15 days after the effective date of the revocation. ## Identification ### Name 24 A licensed dealer must include their name, as set out in their dealer’s licence, on all the means by which they identify themself in regard to their activities in relation to narcotics, including labels, orders, shipping documents, invoices and advertising. ## Sale of Narcotics ### Sale to another licensed dealer 25 A licensed dealer may sell or provide a narcotic to another licensed dealer. ### Sale to pharmacist 25.1 (1) Subject to subsection (2), a licensed dealer may sell or provide a narcotic to a pharmacist. ### Exception — pharmacist named in notice (2) A licensed dealer must not sell or provide to a pharmacist who is named in a notice issued under subsection 48(1) the narcotics referred to in the notice. ### Retraction (3) Subsection (2) does not apply to a licensed dealer that has received a notice of retraction issued under section 49 in respect of a pharmacist named in a notice issued under subsection 48(1). ### Sale to practitioner 25.2 (1) Subject to subsections (2) and (3), a licensed dealer may sell or provide to a practitioner a narcotic other than diacetylmorphine (heroin). ### Exception — heroin (2) A licensed dealer may sell or provide diacetylmorphine (heroin) to the following practitioners: (a) a practitioner of medicine; (b) a practitioner of dentistry, if practising in a hospital that provides care or treatment to persons; or (c) a nurse practitioner. ### Exception — practitioner named in notice (3) A licensed dealer must not sell or provide to a practitioner who is named in a notice issued under subsection 59(1) the narcotics referred to in the notice unless the dealer has received a notice of retraction issued under section 60. ### Provision to hospital employee 25.3 (1) Subject to subsection (2), a licensed dealer may provide a narcotic to a hospital employee. ### Exception — heroin (2) A licensed dealer may provide diacetylmorphine (heroin) to a hospital employee only if that hospital provides care or treatment to persons. ### Sale to exempted person 25.4 A licensed dealer may sell or provide a narcotic to a person who is exempted under section 56 of the Act with respect to the possession of that narcotic. ### Sale to Minister 25.5 A licensed dealer may sell or provide a narcotic to the Minister. ### Written order 25.6 A licensed dealer may sell or provide a narcotic under any of sections 25 to 25.5 if (a) the dealer has received a written order that specifies the name and quantity of the narcotic to be supplied and is signed and dated (i) in the case of a narcotic to be provided to a hospital employee or a practitioner in a hospital, by the pharmacist in charge of the hospital’s pharmacy or by a practitioner authorized by the person in charge of the hospital to sign the order, and (ii) in any other case, by the person to whom the narcotic is to be sold or provided; and (b) the dealer has verified the signature, if it is unknown to them. ### Verbal order 25.7 (1) A licensed dealer may sell or provide a verbal prescription narcotic under sections 25 to 25.5 if (a) the dealer has received a verbal order that specifies the name and quantity of the narcotic to be supplied; and (b) in the case of the provision of the narcotic to a hospital employee or a practitioner in a hospital, the order has been placed by the pharmacist in charge of the hospital’s pharmacy or by a practitioner authorized by the person in charge of the hospital to place the order. ### Receipt (2) A licensed dealer that receives a verbal order from a pharmacist or practitioner must, within five working days after filling the order, obtain and keep a receipt that includes (a) the signature of the pharmacist or practitioner who received the narcotic; (b) the date on which the pharmacist or practitioner received the narcotic; and (c) the name and quantity of the narcotic. ### No further sale without receipt (3) If the licensed dealer has not obtained the receipt within five working days, the dealer must not sell or provide a narcotic to the pharmacist or practitioner in accordance with a further verbal order received from them until after obtaining the receipt. ## Packaging and Transportation ### Packaging — sale and provision 26 (1) A licensed dealer that sells or provides a narcotic, other than a preparation described in section 36, must securely package it in its immediate container, which must be sealed in such a manner that the container cannot be opened without breaking the seal. ### Packaging — transport and export (2) A licensed dealer that transports or exports a narcotic must ensure that its package is sealed in such a manner that the package cannot be opened without breaking the seal. ### Exception (3) Subsection (1) does not apply to a test kit that contains a narcotic and that has a registration number. ### Transport 26.1 (1) A licensed dealer must, in taking delivery of a narcotic that they have imported or in making delivery of a narcotic, (a) take any measures that are necessary to ensure the security of the narcotic while it is being transported; (b) subject to subsection (2), use a method of transportation that permits an accurate record to be kept of all handling of the narcotic as well as of the signatures of every person handling the narcotic until it is delivered to the consignee; (c) in the case of an imported narcotic, transport it directly to the site specified in their licence after it is released under the Customs Act; and (d) in the case of a narcotic that is to be exported, transport it directly from the site specified in their licence to the customs office where it will be exported. ### Exception (2) A licensed dealer may have a verbal prescription narcotic transported by a common carrier. ## Thefts, Losses and Suspicious Transactions ### Protective measures 27 A licensed dealer must take any measures that are necessary to ensure the security of any narcotic in their possession and any licence or permit in their possession. ### Theft or loss — licences and permits 27.1 A licensed dealer that becomes aware of a theft or loss of their licence or permit must provide a written report to the Minister within 72 hours after becoming aware of it. ### Theft or unexplainable loss — narcotics 27.2 A licensed dealer that becomes aware of a theft of a narcotic or of a loss of a narcotic that cannot be explained on the basis of normally accepted business activities must (a) provide a written report to a member of a police force within 24 hours after becoming aware of the theft or loss; and (b) provide a written report to the Minister within 72 hours after becoming aware of the theft or loss and include a confirmation that the report required under paragraph (a) has been provided. ### Suspicious transaction 27.3 (1) A licensed dealer must provide a written report containing the following information to the Minister within 72 hours after becoming aware of a transaction occurring in the course of their activities that they have reasonable grounds to suspect may be related to the diversion of a narcotic to an illicit market or use: (a) their name, municipal address, telephone number and, if the licensed dealer is a corporation, the position held by the individual making the report; (b) the name and municipal address of the other party to the transaction; (c) details of the transaction, including its date and time, its type, the name and quantity of the narcotic and, in the case of a product or compound, the quantity of every narcotic that it contains; (d) in the case of a product that contains the narcotic, other than a test kit, the drug identification number that is assigned to the product under section C.01.014.2 of the Food and Drug Regulations, if any; and (e) a detailed description of the reasons for those suspicions. ### Good faith (2) No civil proceedings lie against a licensed dealer for having provided the report in good faith. ### Non-disclosure (3) A licensed dealer must not disclose that they have provided the report or disclose details of it, with the intent to prejudice a criminal investigation, whether or not a criminal investigation has begun. ### Partial protection against self-incrimination 27.4 A report made under any of sections 27.1 to 27.3, or any evidence derived from it, is not to be used or received to incriminate the licensed dealer in any criminal proceeding against them other than a prosecution under section 132, 136 or 137 of the Criminal Code. ## Destruction of Narcotics ### Destruction at site 27.5 A licensed dealer that intends to destroy a narcotic at the site specified in their licence must ensure that the following conditions are met: (a) the licensed dealer obtains the prior approval of the Minister; (b) the destruction is carried out in the presence of two of the following persons, at least one of whom must be a person referred to in subparagraph (i): (i) the senior person in charge, the qualified person in charge or an alternate qualified person in charge, and (ii) a person who works for or provides services to the licensed dealer and holds a senior position; (c) the destruction is carried out in accordance with a method that complies with all federal, provincial and municipal environmental protection legislation applicable to the place of destruction; and (d) as soon as the destruction is completed, the person who carried out the destruction and each of the two persons referred to in paragraph (b) who were present at the destruction sign and date a joint declaration attesting that the narcotic was completely destroyed, to which each signatory must add their name in printed letters. ### Destruction elsewhere than at site 27.6 A licensed dealer that intends to destroy a narcotic elsewhere than at the site specified in their licence must ensure that the following conditions are met: (a) the licensed dealer obtains the prior approval of the Minister; (b) the licensed dealer takes any measures that are necessary to ensure the security of the narcotic while it is being transported in order to prevent its diversion to an illicit market or use; (c) the destruction is carried out by a person working for a business that specializes in the destruction of dangerous goods and in the presence of another person working for that business; (d) the destruction is carried out in accordance with a method that complies with all federal, provincial and municipal environmental protection legislation applicable to the place of destruction; and (e) as soon as the destruction is completed, the person who carried out the destruction provides the licensed dealer with a dated declaration attesting that the narcotic was completely destroyed and containing (i) the municipal address of the place of destruction, (ii) the name and quantity of the narcotic and, if applicable, the brand name and quantity of the product containing it or the name and quantity of the compound containing it, (iii) the method of destruction, (iv) the date of destruction, and (v) the names in printed letters and signatures of that person and the other person who was present at the destruction. ### Application for prior approval 27.7 (1) A licensed dealer must submit to the Minister an application that contains the following information in order to obtain the Minister’s prior approval to destroy a narcotic: (a) their name, municipal address and dealer’s licence number; (b) the proposed date of destruction; (c) the municipal address of the place of destruction; (d) a brief description of the method of destruction; (e) if the destruction is to be carried out at the site specified in the dealer’s licence, the names of the persons proposed for the purpose of paragraph 27.5(b) and information establishing that they meet the conditions of that paragraph; (f) the name of the narcotic and, if applicable, the brand name of the product containing it or the name of the compound containing it; and (g) the form and quantity of the narcotic or the product or compound containing it and, if applicable, the strength per unit of the narcotic in the product or compound, the number of units per package and the number of packages. ### Signature and attestation (2) The application must (a) be signed and dated by the qualified person in charge or an alternate qualified person in charge; and (b) include an attestation by that person that (i) the proposed method of destruction complies with all federal, provincial and municipal environmental protection legislation applicable to the place of destruction, and (ii) all of the information submitted in support of the application is correct and complete to the best of the signatory’s knowledge. ### Additional information and documents (3) The licensed dealer must, not later than the date specified in the Minister’s written request to that effect, provide the Minister with any information or document that the Minister determines is necessary to complete the review of the application. ### Approval 27.8 On completion of the review of the approval application, the Minister must approve the destruction of the narcotic unless (a) in the case of a destruction that is to be carried out at the site specified in the dealer’s licence, the persons proposed for the purpose of paragraph 27.5(b) do not meet the conditions of that paragraph; (b) the Minister has reasonable grounds to believe that the narcotic would not be destroyed; (c) the Minister has reasonable grounds to believe that the licensed dealer has submitted false or misleading information or false or falsified documents in or in support of the approval application; (d) the narcotic or a portion of it is required for the purposes of a criminal or administrative investigation or a preliminary inquiry, trial or other proceeding under any Act or its regulations; or (e) the Minister has reasonable grounds to believe that the approval would likely create a risk to public health or safety, including the risk of the narcotic being diverted to an illicit market or use. ## Documents ### Method of recording information 28 A licensed dealer must record any information that they are required to record under these Regulations using a method that permits an audit of it to be made at any time. ### Information — general 28.1 A licensed dealer must record the following information: (a) the name, form and quantity of any narcotic that the dealer orders, the name of the person who placed the order on the dealer’s behalf and the date of the order; (b) the name, form and quantity of any narcotic that the dealer receives, the name and municipal address of the person who sold or provided it and the date on which it was received; (c) in the case of a narcotic that the dealer sells or provides, (i) the brand name of the product or the name of the compound containing the narcotic and the name of the narcotic, (ii) the drug identification number that has been assigned to the product under section C.01.014.2 of the Food and Drug Regulations, if any, (iii) the form and quantity of the narcotic and, if applicable, the strength per unit of the narcotic in the product or compound, the number of units per package and the number of packages, (iv) the name and municipal address of the person to whom it was sold or provided, and (v) the date on which it was sold or provided; (d) the name, form and quantity of any narcotic that the dealer manufactures or assembles and the date on which it was placed in stock and, if applicable, the strength per unit of the narcotic in the product or compound, the number of units per package and the number of packages; (e) the name and quantity of any narcotic that the dealer uses in the manufacturing or assembling of a product or compound, as well as the brand name and quantity of the product or the name and quantity of the compound, and the date on which the product or compound was placed in stock; (f) the name, form and quantity of any narcotic in stock at the end of each month; (g) the name, form and quantity of any narcotic that the dealer delivers, transports or sends, the name and municipal address of the consignee and the date on which it was delivered, transported or sent; (h) the name, form and quantity of any narcotic that the dealer imports, the date on which it was imported, the name and municipal address of the exporter, the country of exportation and any country of transit or transhipment; and (i) the name, form and quantity of any narcotic that the dealer exports, the date on which it was exported, the name and municipal address of the importer, the country of final destination and any country of transit or transhipment. ### Verbal prescription narcotic 28.2 A licensed dealer that receives a verbal order for a verbal prescription narcotic and sells or provides it to a pharmacist, a practitioner or a hospital employee must immediately record (a) the name of the person who placed the order; (b) the date on which the order was received; and (c) the name of the person recording the order. ### Explainable loss of narcotic 28.3 A licensed dealer that becomes aware of a loss of a narcotic that can be explained on the basis of normally accepted business activities must record the following information: (a) the name of the lost narcotic and, if applicable, the brand name of the product or the name of the compound containing it; (b) the form and quantity of the narcotic and, if applicable, the form of the product or compound containing it, the strength per unit of the narcotic in the product or compound, the number of units per package and the number of packages; (c) the date on which the dealer became aware of the loss; and (d) the explanation for the loss. ### Destruction 28.4 A licensed dealer must record the following information concerning any narcotic that they destroy at the site specified in their licence: (a) the municipal address of the place of destruction; (b) the name, form and quantity of the narcotic and, if applicable, the brand name and quantity of the product containing the narcotic or the name and quantity of the compound containing the narcotic; (c) the method of destruction; and (d) the date of destruction. ### Annual report 28.5 (1) Subject to subsections (2) and (3), a licensed dealer must provide to the Minister, within three months after the end of each calendar year, an annual report that contains (a) the name, form and total quantity of each narcotic that they receive, produce, sell, provide, import, export or destroy during the calendar year, as well as the name and total quantity of each narcotic that they use to manufacture or assemble a product or compound; (b) the name, form and quantity of each narcotic in physical inventory taken at the site specified in their licence at the end of the calendar year; and (c) the name, form and quantity of any narcotic that has been lost or stolen in the course of conducting activities during the calendar year. ### Non-renewal or revocation within first three months (2) If a licensed dealer’s licence expires without being renewed or is revoked during the first three months of a calendar year, the dealer must provide to the Minister (a) within three months after the end of the preceding calendar year, the annual report in respect of that year; and (b) within three months after the expiry or revocation, a report in respect of the portion of the current calendar year during which the licence was valid that contains the information referred to in subsection (1), in which the quantity in physical inventory is to be calculated as of the date of expiry or revocation. ### Non-renewal or revocation after third month (3) If a licensed dealer’s licence expires without being renewed or is revoked after the first three months of a calendar year, the dealer must provide to the Minister, within three months after the expiry or revocation, a report in respect of the portion of the calendar year during which the licence was valid that contains the information referred to in subsection (1) for that period, in which the quantity in physical inventory is to be calculated as of the date of expiry or revocation. ### Retention period 29 A licensed dealer and a former licensed dealer must keep any document containing the information that they are required to record under these Regulations, including every declaration and a copy of every report, for a period of two years following the day on which the last record is recorded in the document and in a manner that permits an audit of the document to be made at any time. ### Location 29.1 The documents must be kept (a) in the case of a licensed dealer, at the site specified in their licence; and (b) in the case of a former licensed dealer, at a location in Canada. ### Quality of documents 29.2 The documents must be complete and readily retrievable and the information in them must be legible and indelible. ## Pharmacists ## Record of Narcotics Received ### General information 30 A pharmacist who receives a narcotic from a licensed dealer shall immediately enter the following in a book, register or other record maintained for such purposes: (a) the name and quantity of the narcotic received; (b) the date the narcotic was received; and (c) the name and address of the person from whom the narcotic was received. ## Sale of Narcotics ### Restriction 31 (1) No pharmacist shall sell or provide narcotics except in accordance with this section and sections 34 to 36 and 45. ### Exemption or written order or prescription (2) A pharmacist may sell or provide a narcotic to a person (a) if the person is exempted under section 56 of the Act with respect to the possession of that narcotic; (b) except in the case of diacetylmorphine (heroin), if the pharmacist has received a written order or prescription for the narcotic that is signed and dated by a practitioner and has verified the signature of the practitioner, if it is not known to them; or (c) in the case of diacetylmorphine (heroin), if the pharmacist has received a written order or prescription for the narcotic that is signed and dated by a practitioner of medicine or a nurse practitioner and has verified the signature of the practitioner, if it is not known to them. (2.1) [Repealed, SOR/2019-169, s. 6] ### Methadone (3) A pharmacist may sell or provide methadone to the following persons, in addition to the persons referred to in subsection (2): (a) a licensed dealer; (b) another pharmacist; (c) a hospital employee; or (d) a practitioner. (4) [Repealed, SOR/2018-147, s. 12] ### Prohibition — pharmacist or practitioner named in notice 32 Subject to section 33 and despite subsections 31(2) and (3) and sections 34 to 36, no pharmacist shall (a) sell or provide a narcotic, other than a verbal prescription narcotic, to a pharmacist named in a notice issued by the Minister under paragraph 48(1)(a); (b) sell or provide a verbal prescription narcotic, other than a preparation mentioned in section 36, to a pharmacist named in a notice issued by the Minister under paragraph 48(1)(b); (c) sell or provide a preparation mentioned in section 36 to a pharmacist named in a notice issued by the Minister under paragraph 48(1)(c); (d) dispense, sell or provide a narcotic, other than a verbal prescription narcotic, to a practitioner named in a notice issued by the Minister under subsection 59(1) or fill a prescription or order for a narcotic, other than a verbal prescription narcotic, from a practitioner named in such a notice; or (e) dispense, sell or provide a verbal prescription narcotic to a practitioner named in a notice issued by the Minister under subsection 59(1) or fill a prescription or order for a verbal prescription narcotic from a practitioner named in such a notice. ### Exception — notice of retraction 33 Section 32 does not apply to a pharmacist to whom the Minister has issued a notice of retraction of the notice (a) under section 49, in respect of a pharmacist named in a notice issued by the Minister under subsection 48(1); or (b) under section 60, in respect of a practitioner named in a notice issued by the Minister to under subsection 59(1). ### Verbal prescription narcotic 34 Subject to section 39, a pharmacist may dispense a verbal prescription narcotic on receipt of a verbal order or prescription given by a person whom the pharmacist has taken reasonable precautions to determine is a practitioner. ### Provision to hospital 35 (1) Subject to subsection (2), a pharmacist may provide a narcotic to an employee of a hospital or a practitioner in a hospital if the pharmacist receives a written order for the narcotic signed and dated by (a) the pharmacist in charge of the hospital’s pharmacy; (b) except in the case of diacetylmorphine (heroin), a practitioner who is authorized by the person in charge of the hospital to sign the order; or (c) in the case of diacetylmorphine (heroin), a practitioner of medicine or dentistry or a nurse practitioner who is authorized by the person in charge of the hospital to sign the order. ### Signature (2) Before providing a narcotic under subsection (1), the pharmacist receiving the order must know the signature on the order or verify it. ### Low-dose codeine preparation 36 (1) Subject to subsection (2), a pharmacist may, without a prescription, sell or provide a preparation containing not more than 8 mg or its equivalent of codeine phosphate per tablet or per unit in other solid form or not more than 20 mg or its equivalent of codeine phosphate per 30 mL in a liquid preparation if (a) the preparation contains (i) two additional medicinal ingredients other than a narcotic in a quantity of not less than the regular minimum single dose for one such ingredient or one-half the regular minimum single dose for each such ingredient, or (ii) three additional medicinal ingredients other than a narcotic in a quantity of not less than the regular minimum single dose for one such ingredient or one-third the regular minimum single dose for each such ingredient; and (b) there is legibly and conspicuously printed on the inner label and the outer label, as those terms are defined in section A.01.010 of the Food and Drug Regulations, a caution to the following effect: “This preparation contains codeine and should not be administered to children except on the advice of a physician, dentist or nurse practitioner.” ### Use other than for recognized medical or dental purpose (2) No pharmacist shall sell or provide a preparation referred to in subsection (1) if the pharmacist has reasonable grounds to believe that the preparation is to be used for purposes other than recognized medical or dental purposes. ### Maximum Quantity 37 A pharmacist must not use an order or prescription to dispense a narcotic after the quantity of the narcotic specified in the order or prescription has been dispensed. ## Records ### Written order or prescription 38 If, in accordance with a written order or prescription, a pharmacist dispenses a narcotic, other than dextropropoxyphene, the pharmacist must immediately enter in a book, register or other record maintained for such purposes (a) their name or initials; (b) the name, initials and municipal address of the practitioner who issued the order or prescription; (c) the name and municipal address of the person named in the order or prescription; (d) the name, form and quantity of the narcotic; (e) the date on which the narcotic was dispensed; and (f) the number assigned to the order or prescription. ### Verbal order or prescription 39 A pharmacist must, before dispensing a verbal prescription narcotic in accordance with a verbal order or prescription, make a written record of it that sets out (a) their name or initials; (b) the name, initials and municipal address of the practitioner who issued the order or prescription; (c) the name and municipal address of the person named in the order or prescription; (d) in accordance with the manner in which it is specified in the order or prescription, the name and quantity of the verbal prescription narcotic or the narcotic and the other medicinal ingredients contained in it; (e) the directions for use given with the order or prescription; (f) the date on which the verbal prescription narcotic was dispensed; and (g) the number assigned to the order or prescription. ### File by date and number 40 A pharmacist must maintain a special narcotic prescription file in which are filed, in sequence as to date and number, all written orders and prescriptions for narcotics that they have dispensed and the written record of all verbal prescription narcotics that they have dispensed in accordance with a verbal order or prescription. ### Retention period 40.1 A pharmacist must retain in their possession for a period of at least two years any records which they are required to keep by these Regulations. ## General Obligations of Pharmacist ### Providing information and assisting inspector 41 A pharmacist shall (a) furnish such information respecting the dealings of the pharmacist in any narcotic in such form and at such times as the Minister may require; (b) make available and produce to an inspector upon request his special narcotic prescription file together with any books, records or documents which he is required to keep; (c) permit an inspector to make copies of or to take extracts from such files, books, records or documents; and (d) permit an inspector to check all stocks of narcotics on his premises. ### Loss or theft — report 42 A pharmacist shall report to the Minister any loss or theft of a narcotic within 10 days of his discovery thereof. ### Loss or theft — protective measures 43 A pharmacist shall take all reasonable steps that are necessary to protect narcotics on his premises or under his control against loss or theft. ### Preparing narcotic – approval of formula 44 (1) No pharmacist shall prepare a narcotic unless the Minister has approved the formula thereof, and if such narcotic is a preparation described in section 36, has approved the label and the size of the container in which it will be sold. ### Record — preparation (2) A pharmacist who prepares a narcotic shall, in addition to all other records required to be kept, keep a record of the following: (a) the kind and quantity of any narcotic used in the preparation; (b) the name and quantity of the narcotic prepared; and (c) the date that the prepared narcotic was placed in stock. ### Definition of prepare (3) For the purposes of this section, “prepare” does not include the compounding of a narcotic pursuant to a prescription of a practitioner. ## Return or Emergency Sale ### Written order 45 (1) A pharmacist may, on receiving a written order for a narcotic (a) return the narcotic to the licensed dealer who sold or provided it to the pharmacist, if the order is signed and dated by the licensed dealer; or (b) sell or provide to another pharmacist the quantity of the narcotic that is specified in the order as being required for emergency purposes, if the order is signed and dated by the other pharmacist. ### Record (2) A pharmacist shall, immediately after returning, selling or providing a narcotic under subsection (1) or after receiving a narcotic under paragraph (1)(b) or subsection 65(4), enter the details of the transaction in a book, register or other record maintained for the purpose of recording such transactions. ### Notice to Minister (3) A pharmacist shall forthwith after removing, transporting or transferring a narcotic from his place of business to any other place of business operated by him notify the Minister setting out the details thereof. ## Communication of Information by Minister to Licensing Authority ### Contraventions by pharmacist 46 The Minister must provide in writing any factual information about a pharmacist that has been obtained under the Act or these Regulations to the provincial professional licensing authority that is responsible for the authorization of the person to practise their profession (a) in the province in which the pharmacist is or was entitled to practise if (i) the authority submits to the Minister a written request that sets out the pharmacist’s name and address, a description of the information being requested and a statement that the information is required for the purpose of assisting a lawful investigation by the authority, or (ii) the Minister has reasonable grounds to believe that the pharmacist has (A) contravened a rule of conduct established by the authority, (B) been convicted of a designated substance offence, or (C) contravened these Regulations; or (b) in a province in which the pharmacist is not entitled to practise, if the authority submits to the Minister (i) a written request that sets out the pharmacist’s name and address and a description of the information being requested, and (ii) a document that shows that (A) the pharmacist has applied to that authority to practise in that province, or (B) the authority has reasonable grounds to believe that the pharmacist is practising in that province without being authorized to do so. ## Notice of Prohibition of Sale ### Request by pharmacist 47 A pharmacist may make a written request to the Minister to send to the persons and authorities specified in subsection 48(3) a notice, issued under section 48, advising them of one or more of the following requirements: (a) recipients of the notice must not sell or provide a narcotic, other than a verbal prescription narcotic, to that pharmacist; (b) recipients of the notice must not sell or provide a verbal prescription narcotic, other than a preparation mentioned in section 36, to that pharmacist; and (c) the recipients of the notice must not sell or provide a preparation mentioned in section 36 to that pharmacist. ### Notice by Minister 48 (1) In the circumstances described in subsection (2), the Minister must send a notice to the persons and authorities specified in subsection (3) advising them that pharmacists practising in the notified pharmacies and licensed dealers must not sell or provide to the pharmacist named in the notice one or more of the following: (a) a narcotic, other than a verbal prescription narcotic; (b) a verbal prescription narcotic, other than a preparation mentioned in section 36; or (c) a preparation mentioned in section 36. ### Circumstances requiring a notice (2) The notice must be sent if the pharmacist named in the notice has (a) made a request to the Minister in accordance with section 47 to send the notice; (b) contravened a rule of conduct established by the provincial professional licensing authority of the province in which the pharmacist is practising and the authority has requested the Minister in writing to send the notice; or (c) been convicted of a designated substance offence or of a contravention of these Regulations. ### Recipients (3) The notice must be sent to (a) all licensed dealers; (b) all pharmacies within the province in which the pharmacist named in the notice is entitled to practice and is practising; (c) the provincial professional licensing authority of the province in which the pharmacist named in the notice is entitled to practise; (d) all pharmacies in an adjacent province in which an order from the pharmacist named in the notice may be filled; and (e) any provincial professional licensing authority in another province that has requested the Minister in writing to send the notice. ### Other circumstances (4) The Minister may send the notice described in subsection (1) to the persons and authorities specified in subsection (3) if the Minister has taken the measures specified in subsection (5) and has reasonable grounds to believe that the pharmacist named in the notice (a) has contravened a provision of the Act or these Regulations; (b) has, on more than one occasion, self-administered a narcotic, other than a verbal prescription narcotic, contrary to accepted pharmaceutical practice; (c) has, on more than one occasion, self-administered a verbal prescription narcotic, other than a preparation mentioned in section 36, contrary to accepted pharmaceutical practice; (d) has, on more than one occasion, provided or administered a narcotic, other than a verbal prescription narcotic, to a person who is a spouse, common-law partner, parent or child of the pharmacist, including a child adopted in fact, contrary to accepted pharmaceutical practice; (e) has, on more than one occasion, provided or administered a verbal prescription narcotic, other than a preparation mentioned in section 36, to a person who is a spouse, common-law partner, parent or child of the pharmacist, including a child adopted in fact, contrary to accepted pharmaceutical practice; or (f) is unable to account for the quantity of narcotic for which the pharmacist was responsible under these Regulations. ### Measures before sending notice (5) The measures that must be taken before sending the notice are that the Minister has (a) consulted with the provincial professional licensing authority of the province in which the pharmacist to whom the notice relates is entitled to practise; (b) given that pharmacist an opportunity to be heard; and (c) considered (i) the compliance history of the pharmacist in respect of the Act and its regulations, and (ii) whether the actions of the pharmacist pose a risk to public health or safety, including the risk of the narcotic being diverted to an illicit market or use. ### Notice of retraction 49 The Minister must provide the licensed dealers, pharmacies and provincial professional licensing authorities who were sent a notice under subsection 48(1) with a notice of retraction of that notice if (a) in the circumstance described in paragraph 48(2)(a), the requirements set out in subparagraphs (b)(i) and (ii) have been met and one year has elapsed since the notice was sent by the Minister; or (b) in a circumstance described in any of paragraphs 48(2)(b) and (c) and (4)(a) to (f), the pharmacist named in the notice has (i) requested in writing that a retraction of the notice besent, and (ii) provided a letter from the provincial professional licensing authority of the province, in which the pharmacist is entitled to practise, in which the authority consents to the retraction of the notice. 50 to 52 [Repealed, SOR/2003-134, s. 4] ## Practitioners ## Administer, Prescribe or Sell Narcotics ### Restriction 53 (1) No practitioner shall administer a narcotic to a person or animal, or prescribe, sell or provide a narcotic for a person or animal, except as authorized under this section. ### Conditions (2) Subject to subsection (4), a practitioner may administer a narcotic to a person or animal, or prescribe, sell or provide it for a person or animal, if (a) the person or animal is a patient under their professional treatment; and (b) the narcotic is required for the condition for which the person or animal is receiving treatment. (3) [Repealed, SOR/2018-37, s. 6] ### Heroin (4) A practitioner of dentistry or veterinary medicine shall not administer diacetylmorphine (heroin) to an animal or to a person who is not an in-patient or out-patient of a hospital providing care or treatment to persons, and shall not prescribe, sell or provide diacetylmorphine (heroin) for an animal or such a person. (5) [Repealed, SOR/2018-147, s. 16] ### Record of narcotics sold or provided 54 (1) A practitioner who sells or provides a narcotic to a person for self-administration or for administration to an animal shall, whether or not the practitioner charges for the narcotic, keep a record showing the name and quantity of the narcotic sold or provided, the name and address of the person to whom it was sold or provided and the date on which it was sold or provided, if the quantity of the narcotic exceeds (a) three times the maximum daily dosage recommended by the manufacturer or assembler of the narcotic for that narcotic; or (b) three times the generally recognized maximum daily therapeutic dosage for the narcotic if the manufacturer or assembler has not recommended a maximum daily dosage. ### Accessibility of record (2) The practitioner shall keep the record in a place, form and manner that will permit an inspector readily to examine and obtain information from it. ## General Obligations of Practitioner ### Requirements 55 A practitioner shall (a) furnish to the Minister any information that the Minister may require respecting (i) the use by the practitioner of narcotics received — including the administering, selling or providing of them to a person, (ii) the prescriptions for narcotics issued by the practitioner; and (iii) [Repealed, SOR/2018-147, s. 18] (b) produce to an inspector on request any records that these Regulations require the practitioner to keep; (c) permit an inspector to make copies of such records or to take extracts therefrom; (d) permit an inspector to check all stocks of narcotics on the practitioner’s premises; (e) retain in his possession for at least two years any record that these Regulations require him to keep; (f) take adequate steps to protect narcotics in his possession from loss or theft; and (g) report to the Minister any loss or theft of a narcotic within 10 days of the practitioner’s discovery of the loss or theft. 56 [Repealed, SOR/2010-221, s. 14] ## Communication of Information by Minister to Licensing Authority ### Contraventions by practitioner 57 The Minister must provide in writing any factual information about a practitioner that has been obtained under the Act or these Regulations to the provincial professional licensing authority that is responsible for the registration and authorization of the person to practise their profession (a) in the province in which the practitioner is or was registered and entitled to practise if (i) the authority submits to the Minister a written request that sets out the practitioner’s name and address, a description of the information being requested and a statement that the information is required for the purpose of assisting a lawful investigation by the authority, or (ii) the Minister has reasonable grounds to believe that the practitioner has (A) contravened a rule of conduct established by the authority, (B) been convicted of a designated substance offence, or (C) contravened these Regulations; or (b) in a province in which the practitioner is not registered and entitled to practise, if the authority submits to the Minister (i) a written request that sets out the practitioner’s name and address and a description of the information being requested, and (ii) a document that shows that (A) the practitioner has applied to that authority to practise in that province, or (B) the authority has reasonable grounds to believe that the practitioner is practising in that province without being authorized to do so. ## Notice of Prohibition of Sale ### Request by practitioner 58 A practitioner may make a written request to the Minister to send to licensed dealers and pharmacies a notice, issued under section 59, advising them of one or more of the following requirements: (a) recipients of the notice must not sell or provide a narcotic, other than a verbal prescription narcotic, to that practitioner; (b) recipients of the notice must not sell or provide a verbal prescription narcotic to the practitioner; (c) pharmacists practising in the notified pharmacies must not fill a prescription or order for a narcotic, other than a verbal prescription narcotic, written by that practitioner; or (d) pharmacists practising in the notified pharmacies must not fill a prescription or order for a verbal prescription narcotic from that practitioner. (e) [Repealed, SOR/2018-147, s. 20] (f) and (g) [Repealed, SOR/2013-119, s. 221] ### Notice by Minister 59 (1) In the circumstances described in subsection (2), the Minister must send a notice to the persons and authorities specified in subsection (3) advising them that (a) pharmacists practising in the notified pharmacies and licensed dealers must not sell or provide to the practitioner named in the notice a narcotic other than a verbal prescription narcotic or a verbal prescription narcotic; (b) pharmacists practising in the notified pharmacies must not fill a prescription or order from the practitioner named in the notice for a narcotic other than a verbal prescription narcotic or a verbal prescription narcotic; or (c) the prohibitions in both paragraphs (a) and (b) apply with respect to the practitioner named in the notice. ### Circumstances requiring a notice (2) The notice must be sent if the practitioner named in the notice has (a) made a request to the Minister in accordance with section 58 to send the notice; (b) contravened a rule of conduct established by the provincial professional licensing authority of the province in which the practitioner is practising and the authority has requested the Minister in writing to send the notice; or (c) been convicted of a designated substance offence or of a contravention of these Regulations. ### Recipients (3) The notice must be sent to (a) all licensed dealers; (b) all pharmacies within the province in which the practitioner named in the notice is registered and entitled to practise and is practising; (c) the provincial professional licensing authority of the province in which the practitioner named in the notice is registered and entitled to practise; (d) all pharmacies in an adjacent province in which a prescription or order from the practitioner named in the notice may be filled; and (e) any provincial professional licensing authority in another province that has requested the Minister in writing to send the notice. ### Other circumstances (4) The Minister may send the notice described in subsection (1) to the persons and authorities specified in subsection (3) if the Minister has taken the measures specified in subsection (5) and has reasonable grounds to believe that the practitioner named in the notice (a) has contravened a provision of the Act or these Regulations; (b) has, on more than one occasion, self-administered a narcotic, other than a verbal prescription narcotic, under a self-directed prescription or order or, in the absence of a prescription or order, contrary to accepted professional practice; (c) has, on more than one occasion, self-administered a verbal prescription narcotic under a self-directed prescription or order or, in the absence of a prescription or order, contrary to accepted professional practice; (d) has, on more than one occasion, prescribed, provided or administered a narcotic, other than a verbal prescription narcotic, to a person who is a spouse, common-law partner, parent or child of the practitioner, including a child adopted in fact, contrary to accepted professional practice; (e) has, on more than one occasion, prescribed, provided or administered a verbal prescription narcotic to a person who is a spouse, common-law partner, parent or child of the practitioner, including a child adopted in fact, contrary to accepted professional practice; or (f) is unable to account for the quantity of narcotic for which the practitioner was responsible under these Regulations. ### Measures before sending notice (5) The measures that must be taken before sending the notice are that the Minister has (a) consulted with the provincial professional licensing authority of the province in which the practitioner to whom the notice relates is registered and entitled to practise; (b) given that practitioner an opportunity to be heard; and (c) considered (i) the compliance history of the practitioner in respect of the Act and its regulations, and (ii) whether the actions of the practitioner pose a risk to public health or safety, including the risk of the narcotic being diverted to an illicit market or use. ### Notice of retraction 60 The Minister must provide the licensed dealers, pharmacies and provincial professional licensing authorities who were sent a notice under subsection 59(1) with a notice of retraction of that notice if (a) in the circumstance described in paragraph 59(2)(a), the requirements set out in subparagraphs (b)(i) and (ii) have been met and one year has elapsed since the notice was sent by the Minister; or (b) in a circumstance described in any of paragraphs 59(2)(b) and (c) and (4)(a) to (f), the practitioner named in the notice has (i) requested in writing that a retraction of the notice be sent, and (ii) provided a letter from the provincial professional licensing authority of the province in which the practitioner is registered and entitled to practise in which the authority consents to the retraction of the notice. 61 and 62 [Repealed, SOR/2003-134, s. 5] ## Hospitals ### General obligations 63 A person who is in charge of a hospital shall (a) keep or cause to be kept in a book, register or other record maintained for such purposes, (i) the name and quantity of any narcotic received, (ii) the name and address of the person from whom any narcotic was received and the date received, (iii) the name and quantity of any narcotic used in the making or assembling of a product or compound containing that narcotic, (iv) the name and quantity of any product or compound that was made or assembled and that contains that narcotic and the date on which the product or compound was made or assembled, (v) the name of the patient for whom a narcotic, other than dextropropoxyphene or a verbal prescription narcotic, was dispensed, (vi) the name of the practitioner ordering or prescribing a narcotic, other than dextropropoxyphene or a verbal prescription narcotic, and (vii) the date a narcotic, other than dextropropoxyphene or a verbal prescription narcotic was ordered or prescribed and the form and quantity thereof; (viii) to (x) [Repealed, SOR/2018-147, s. 23] (b) maintain the recorded information in such form as to enable an audit to be made from time to time for a period of not less than two years from the making thereof; (c) take all necessary steps to protect narcotics in the hospital against loss or theft, and report to the Minister any loss or theft of narcotics within 10 days of his discovery thereof. ### Providing information and assisting inspector 64 A person who is in charge of a hospital shall (a) furnish such information respecting the use of narcotics therein, in such form and at such times as the Minister may require; (b) produce to an inspector any books, records or documents required by these Regulations to be kept; (c) permit an inspector to make copies thereof or take extracts from such books, records and documents; and (d) permit an inspector to check all stocks of narcotics in the hospital. ### Selling, providing or administering narcotic 65 (1) No person in charge of a hospital shall permit a narcotic to be sold, provided or administered except in accordance with this section. ### Written order or prescription (2) On receipt of a written order or prescription signed and dated by a practitioner, the person in charge of a hospital may permit a narcotic, other than diacetylmorphine (heroin), to be administered to a person or an animal under treatment as an in-patient or out-patient of the hospital, or to be sold or provided for the person or to the person in charge of the animal. ### Verbal prescription narcotic (2.1) On receipt of a verbal prescription given by a practitioner, the person in charge of a hospital may permit a verbal prescription narcotic to be administered to a person or an animal under treatment as an in-patient or out-patient of the hospital, or to be sold or provided for the person or to the person in charge of the animal. ### Emergency — other hospital (3) Subject to subsection (5.1), the person in charge of a hospital may permit a narcotic to be provided, for emergency purposes, to a hospital employee or practitioner in another hospital on receipt of a written order signed and dated by a pharmacist in the other hospital or a practitioner authorized by the person in charge of the other hospital to sign the order. (3.1) [Repealed, SOR/2018-147, s. 24] ### Emergency — pharmacist (4) Subject to subsection (5.1), the person in charge of a hospital may permit a narcotic to be sold or provided, for emergency purposes, to a pharmacist on receipt of a written order signed and dated by the pharmacist. (5) [Repealed, SOR/2018-37, s. 7] ### Signature (5.1) No person in charge of a hospital shall permit a narcotic to be sold or provided under subsection (3) or (4) unless the signature of the pharmacist in the other hospital or of the practitioner authorized by the person in charge of the other hospital to sign an order is known to the person who sells or provides the narcotic or has been verified. (5.2) [Repealed, SOR/2018-147, s. 24] ### Research purposes (6) A person in charge of a hospital may permit a narcotic to be provided to a person who is exempted under section 56 of the Act with respect to the possession of the narcotic and who is employed in a research laboratory in the hospital for the purpose of research. ### Heroin (7) The person in charge of a hospital may permit diacetylmorphine (heroin) to be sold, provided or administered to a person under treatment as an in-patient or out-patient of the hospital on receipt of a written order or prescription signed and dated by a practitioner of medicine or dentistry or a nurse practitioner. 65.1 [Repealed, SOR/2018-147, s. 25] 65.2 [Repealed, SOR/2018-147, s. 25] 65.3 [Repealed, SOR/2018-147, s. 25] ## General 66 [Repealed, SOR/97-227, s. 3] ### Opium poppy 67 The Minister may, on application for it, issue a licence to any person who, in the opinion of the Minister, is qualified to produce opium poppy for scientific purposes, on any terms and conditions that the Minister considers necessary. ### Identification or analysis of narcotic 68 (1) Despite anything in these Regulations, a person may, for the purpose of identification or analysis of a narcotic, provide or deliver it to (a) a practitioner of medicine; or (b) an agent or mandatary of a practitioner of medicine, if the agent or mandatary is exempted under section 56 of the Act with respect to the possession of that narcotic for that purpose. ### Agent or mandatary of practitioner of medicine (2) An agent or mandatary of a practitioner of medicine who receives the narcotic must immediately provide or deliver it to (a) the practitioner; or (b) the Minister. ### Practitioner of medicine (3) A practitioner of medicine who receives the narcotic must immediately provide or deliver it (a) for the purpose of its identification or analysis, to a person who is exempted under section 56 of the Act with respect to the possession of that narcotic for that purpose; or (b) to the Minister. ### Records — person who is exempted or who has received a narcotic for the purpose of identification or analysis 69 Every person who is exempted under section 56 of the Act with respect to the possession of a narcotic — other than a person to whom a narcotic has been administered, sold, delivered or provided by a practitioner of medicine who is exempted under section 56 of the Act from the application of any subsection of section 53 with respect to that narcotic —, every practitioner of medicine who has received a narcotic under subsection 68(1) or (2) and every agent or mandatary of a practitioner of medicine who has received a narcotic under subsection 68(1) must (a) keep a record of the following information for a two-year period beginning on the day on which the record is made (i) the name and quantity of any narcotic purchased or received by them and the date on which it was purchased or received, (ii) the name and address of the person from whom the narcotic was purchased or received, and (iii) particulars of the use to which the narcotic was put; (b) provide any information respecting the narcotic that the Minister may require; and (c) permit access to the records that are required to be kept by these Regulations. ### Advertising 70 It is prohibited to (a) advertise a narcotic to the general public; (b) advertise a preparation referred to in section 36 in a pharmacy; or (c) publish any written advertisement respecting a narcotic unless that advertisement displays the symbol “N” in a clear and conspicuous colour and size in the upper left quarter of its first page. 71 [Repealed, SOR/2019-169, s. 25] ### Notification of application for order of restoration 72 (1) For the purpose of subsection 24(1) of the Act, notification of an application for an order of restoration must be given in writing to the Attorney General by registered mail and be mailed at least 15 days before the date on which the application is to be made to a justice. ### Content of notice (2) The notification must specify (a) the name of the justice to whom the application is to be made; (b) the time and place at which the application is to be heard; (c) details concerning the narcotic or other thing in respect of which the application is to be made; and (d) the evidence on which the applicant intends to rely to establish that they are entitled to possession of the narcotic or other thing referred to in paragraph (c). ### Communication of information by Minister to nursing statutory body 73 (1) The Minister may provide to a nursing statutory body any information concerning any member of that body that has been obtained under these Regulations or the Act. ### Non-application (2) Subsection (1) does not apply to a nurse practitioner. ### Definitions (3) The following definitions apply in this section. *member* means any person who is authorized by a nursing statutory body to practice nursing. (membre) *nursing statutory body* means any provincial professional licensing authority that, in accordance with the laws of that province, authorizes a person to practise nursing. (organisme régissant la profession d’infirmier) ### Exemption — member of police force 74 A member of a police force or a person acting under their direction and control who, in respect of the conduct of the member or person, is exempt from the application of subsection 4(2) or section 5, 6 or 7 of the Act by virtue of the Controlled Drugs and Substances Act (Police Enforcement) Regulations is, in respect of that conduct, exempt from the application of these Regulations.", "response": "## Analysis of REGULATIONS-FED: Narcotic Control Regulations\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nThese regulations provide specific implementation details for broader legislative frameworks. Practitioners should ensure strict compliance with procedural requirements, timelines, and documentation standards. The regulations must be interpreted consistent with their enabling legislation and may be subject to challenge if they exceed the authority granted by the statute."}
{"prompt": "What specific procedures does this Federal regulations from the Canadian government establish for immigration processes?\n\n# Fair Wages and Hours of Labour Regulations CRC, c 1015 Fair Wages and Hours of Labour Regulations Enabling authority: FAIR WAGES AND HOURS OF LABOUR ACT 1 [Repealed, SOR/99-362, s. 2] ## Interpretation 2 [Repealed, SOR/2013-204, s. 1] ## Notice 2.1 [Repealed, SOR/2013-204, s. 1] ## Application 3 [Repealed, SOR/2013-204, s. 1] ## Determination of Fair Wages 4 [Repealed, SOR/2013-204, s. 1] ## Schedule of Wage Rates 5 [Repealed, SOR/2013-204, s. 1] 6 [Repealed, SOR/2013-204, s. 1] ## Hours of Work 6.1 [Repealed, SOR/2013-204, s. 1] ## Provisions to Be Included in Contracts ## Fair Wages 7 [Repealed, SOR/2013-204, s. 1] 8 [Repealed, SOR/2013-204, s. 1] ## Non-discrimination 9 [Repealed, SOR/2013-204, s. 1] 10 [Repealed, SOR/99-362, s. 5] ## Withholding Payment 11 [Repealed, SOR/2013-204, s. 1] ## Subcontracts 12 [Repealed, SOR/2013-204, s. 1] ## Default 13 [Repealed, SOR/2013-204, s. 1] ## Books and Records 14 [Repealed, SOR/2013-204, s. 1] 15 [Repealed, SOR/2013-204, s. 1] ## General 16 [Repealed, SOR/2013-204, s. 1]", "response": "## Analysis of REGULATIONS-FED: Fair Wages and Hours of Labour Regulations\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nThese regulations provide specific implementation details for broader legislative frameworks. Practitioners should ensure strict compliance with procedural requirements, timelines, and documentation standards. The regulations must be interpreted consistent with their enabling legislation and may be subject to challenge if they exceed the authority granted by the statute."}
{"prompt": "What is the key legal reasoning in this Refugee Appeal Division decision from the Immigration and Refugee Board of Canada?\n\nRAD File / Dossier de la SAR : MC3-00542 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal [REDACTED] Personne en cause Date of decision June 14, 2024 Date de la décision Panel Daphnée Ouellet Tribunal Counsel for the person who is the subject of the appeal Angelica Pantiru Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Mikael Bélanger Karan Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal for the reasons that follow. [2] The Appellant, [REDACTED], is a citizen of Mexico, hailing from the State of Veracruz. There, he worked as a XXXX XXXX for the Secretariat of Public Security (Secretaría de Seguridad Pública - SSP) from late 2014 until his departure in early 2019. * Impugned Refugee Protection Division Decision [3] The Refugee Protection Division (RPD) found that the Appellant was excluded pursuant to s. 98 of the Immigration and Refugee Protection Act (IRPA) and Article 1F(a) of the Convention.1 It considered that the Minister had met its burden of showing that there were serious reasons for considering that the Appellant was complicit in proscribed acts, including unlawful arrests, torture and enforced disappearances amounting to crimes against humanity, by way of his voluntary, significant, and knowing contribution to the SSP in Veracruz. [4] In coming to this conclusion, the RPD reasoned that there was no requirement for crimes against humanity to be committed pursuant to or in furtherance of a State or organizational policy to commit such attack in Canadian law. * Intervention from the Minister via the Canadian Border Services Agency [5] The Minister, represented by the Canadian Border Services Agency (CBSA), intervened before the RPD and led the questioning with regard to the Appellant's excludability under Article 1F(a). It also intervened in this appeal with additional submissions from the CBSA.2 In summary, it agrees with the RPD's conclusion as to the Appellant's exclusion under Article 1F(a) of the Convention and it is also argued by the Minister that no requirement exists for the proscribed acts to be committed pursuant to or in furtherance of a State or organizational policy to commit such attack in Canadian law. The Minister asks that the Refugee Appeal Division (RAD) dismiss the appeal and confirm the Appellant's exclusion. * Grounds for Appeal [6] The RPD's exclusion findings are contested.3 It is argued that the RPD incorrectly concluded that the Appellant was complicit in committing crimes against humanity because it failed to analyse the essential elements on which this could be based pursuant to the Rome Statute, the Crimes Against Humanity and War Crimes Act (CAHWCA)4, and following the Court's jurisprudence in Verbanov5, setting out the requirement that crimes against humanity be committed pursuant to or in furtherance of a State or organizational policy. [7] The Appellant submits that some corrupt SSP officers and politicians colluded with the cartels, but that it was not committed pursuant to or in furtherance of a State or organizational policy. [8] The Appellant also argues that the funding and assistance by the United States to Mexican authorities since 2006, in the context of the war against drugs, shows that the policy was not aimed at the systemic violation of human rights, but rather aimed at the eradication of organized and cartel crime, and drug trafficking. According to the Appellant, concluding otherwise would be absurd because the United States cannot be held to support the systemic violation of human rights. * Determinative Issue [9] The determinative issue in this appeal relates to the exclusion under Article 1F(a) of the Convention. I will explain below why the RPD erred in its legal analysis, especially as it relates to the requirement for a State or organizational policy when assessing the Appellant's complicity in crimes against humanity. Nevertheless, I find that the RPD's overall conclusion was correct and that the Appellant is excluded. I will give my reasons below. BACKGROUND AND CHRONOLOGY OF EVENTS [10] The Appellant hails from Xalapa, Veracruz, where he completed his [REDACTED] XXXX and then worked as a XXXX. In 2014, the Appellant saw an online recruitment posting for XXXX XXXX and decided to apply. [11] He was first sent for XXXX training until XXXX 2014, and then worked as a XXXX XXXX for the Secretariat of Public Security (Secretaría de Seguridad Pública - SSP). He was posted to the [REDACTED] [REDACTED] for Veracruz ([REDACTED] [REDACTED] De Veracruz) from XXXX 2015 until XXXX2019. He was stationed in the XXXX XXXX ([REDACTED]), with field missions to XXXX and XXXX, Veracruz.6 [12] During his training in 2014, the Appellant heard about other XXXX XXXX being corrupt, being involved with organized crimes, the use of arbitrary detention and torture of detainees, as well as the disappearance of various individuals, including journalists.7 Some trainees chose to leave without facing consequences, but the Appellant chose to remain.8 He also heard of detainees being taken to the nearby zoo housing wild animals, including crocodiles, lions and jaguars, but he believes that the animals were no longer there during his time in training.9 Country reports on the situation in Veracruz during this period document rumours from the family members of disappeared persons who believed their relatives had been fed to these animals.10 11 12 [13] The Appellant fled Mexico after he faced problems for [REDACTED] [REDACTED] XXXX, and that he received threatening phone calls. He was advised by his superior to quit his job to avoid harm, and he fled to Canada in XXXX 2019. ANALYSIS [14] My role is to look at all the evidence and decide if the RPD made the correct decision. I conducted an independent review of the evidence, including the audio-recording of the RPD hearing. I therefore reviewed the decision by applying the correctness standard as I find that the RPD had no meaningful advantage.13 [15] On my own assessment, I find that the RPD erred in its legal analysis, as it relates to the requirement for a State or organizational policy when assessing the Appellant's complicity in crimes against humanity (see below - 1). Nevertheless, I find that the RPD did come to the correct conclusion regarding the Appellant's exclusion pursuant to Article 1F(a) of the Convention, and I will explain why (see below - 2). 1- The RPD Incorrectly Applied the Legal Test for Exclusion for Crimes against Humanity [16] The Appellant is challenging the RPD's assessment of his excludability, and more specifically the conclusion that a State or organizational policy is not part of the definition for crimes against humanity in Canadian law. On my own review, I agree with the Appellant that the policy requirement was a necessary element of the crime to be established in this case. I will explain. a) The legal framework for assessing exclusion for crimes against humanity [17] The RPD applied the framework set out by the Supreme Court of Canada in Mugesera14, and found that there was no requirement for the proscribed acts to be committed pursuant to or in furtherance of a State or organizational policy to commit such attack in Canadian law. [18] The RPD considered the Appellant's argument that the Rome Statute now imposes this requirement, as discussed in the decision of the Federal Court in Verbanov15, but determined that the Rome Statute was not a complete codification of international law and that it governs the International Criminal Court, a body which is complementary to national jurisdictions. It thus concluded that the test set out in Mugesera was still the applicable one in Canadian jurisdictions. [19] In my view, the RPD was not entirely wrong in stating that the test set out in Mugesera is still good law, especially regarding proscribed acts perpetrated before the signature of the Rome Statute. Recent case-law does confirm this.16 [20] What the RPD failed to consider or correctly understand here, however, is that there is an additional criterion - that has been incorporated into Canadian law through the CAHWCA and case-law - for acts that occurred after July 17, 1998.17 [21] This was particularly relevant, in the present case, given that the Appellant joined and was part of the SSP between 2014 and 2019. All potentially excludable acts - to which he might be found complicit - took place after the incorporation of the Rome Statute, through the CAHWCA, into Canadian law. [22] There is, in fact, a legal presumption included to the effect that the Rome Statute is an expression of customary international law featured in the CAHWCA which applies to situations that arose after the adoption of the Rome Statute. Indeed, section 6 (4) of the CAHWCA titled \"Interpretation - customary international law\", indicates that: For greater certainty, crimes described in articles 6 and 7 and paragraph 2 of article 8 of the Rome Statute are, as of July 17, 1998, crimes according to customary international law, and may be crimes according to customary international law before that date. This does not limit or prejudice in any way the application of existing or developing rules of international law. [emphasis added]18 [23] In Verbanov, Justice Grammond relied on this, and also referred to paragraph 223 of the Tadic19 Appeals Judgement of the International Criminal Tribunal for the former Yugoslavia (ICTY) to affirm that the definition of international crimes featured in the Rome Statute further supports the presumption articulated in section 6(4) of the CAHWCA that articles 6 to 8 of the Rome Statute are part of customary international law starting on July 17, 1998.20 [24] It seems to me that Canadian law is clear concerning acts that took place after that date. [25] The Minister argues in its intervention before the RAD that there has been no subsequent decision by the Federal Court, following Verbanov, other than the one cited by the Appellant, in the case of Jean-Baptiste21, where this issue was addressed in obiter. [26] I respectfully must disagree with the Minister here. First, the Minister's intervention does not address the above-mentioned presumption set out at section 6 (4) of the CAHWCA for acts committed after July 17, 1998, which is part of Canadian law. This was the very basis of the Court's decision in Verbanov, as mentioned. [27] Second, there are subsequent cases, both from this Board22 and the Federal Court23 which recognized the approach in Verbanov and the necessity to distinguish between acts perpetrated before and after July 17, 1998. What was reiterated in a recent decision, however, is that the policy requirement does not necessarily entail a formal written policy: the Verbanov decision does not stand for the proposition that the government's constitution or a formal written policy specifically endorsing human rights abuses must exist before a finding of crimes against humanity can be made. In fact, Justice Grammond said quite the opposite, concluding that \"this judgment should not be understood as shielding police officers from the accountability warranted by the commission of heinous crimes. Whether the torture of detainees is conducted pursuant to a State or organizational policy is an issue that must be decided on a case-by-case basis, according to the evidence.\"24 [28] This issue is particularly relevant to the present case, and I will return to it later, when examining whether the policy requirement is met, based on the evidence. [29] In its intervention, the Minister also seems to rely on recent Federal Court decisions in Wijenayake25 and Oworu26 to argue that an \"official policy\" was not deemed a requirement to establish complicity in crimes against humanity in those cases. It seems to me that these scenarios touched rather upon the previously-mentioned issue of determining whether the policy in question must be a formal or written policy - which the Verbanov case had already answered in the negative - while putting the emphasis on proving the existence of such a policy on a case-by-case basis [cf. above at para. 27.]. [30] In fact, in the excerpt cited above from the Oworu case, Justice Ahmed found the RAD's conclusion to be reasonable that the proscribed acts had been committed by police as a routine practice and in a widespread and systematic manner with impunity, indicating tacit endorsement of these practices.27 [31] Meanwhile, Wijenayake made no reference to Verbanov or the policy requirement, and the facts took place during the Sri Lankan civil war in a wide period spanning from 1992 until 2016; therefore, covering both periods before and after the Rome Statute came into force. In Wijenayake also, there appeared to be no debate regarding the existence of a policy to use torture by police and authorities more generally, as demonstrated in the country evidence cited by the Court.28 [32] In the latter case also, Justice Go found that the Board had conducted its analysis through the relevant legal framework and referenced both the CAHWCA and the Supreme Court of Canada's decision in Mugesera.29 Certainly, the Court did not state or imply at any point that the presumption set out at section 6 (4) of CAHWCA would be inapplicable to acts committed after July 17, 1998. [33] Further, in the two above-cited cases referenced by the Minister, the issue before the Federal Court was whether the person in question had been sufficiently complicit in proscribed acts, rather than any dispute regarding their qualification as international crimes. [34] For all these reasons, the Minister's argument that the Rome Statute requirement of the existence of a state or organizational policy does not apply in Canadian law has failed to convince me. [35] In my view, a government or state policy tacitly endorsing such actions, when committed in a widespread and systematic manner, could - in some cases - meet the requirement of the Rome Statute and, therefore, Canadian law, for the reasons which I have set out. I find that this is the case here, and I will examine it further below. [36] Finally, the Minister also relies on a citation from the Supreme Court of Canada in Ezokola30, to argue that a strict interpretation of crimes against humanity would be against the object and purpose of the Convention.31 This is not my reading of those paragraphs, which explicitly weigh the necessary balance to be struck between not creating safe havens for perpetrators of international crimes and promoting the humanitarian aim of the Refugee Convention.32 The Court, in fact, referred to paragraph 2 of the United Nations High Commissioner for Refugees (UNHCR) Guidelines on International Protection on the Application of the Exclusion Clauses, which explicitly makes the case for a restrictive interpretation of the exclusion clauses. 33 [37] It seems to me that balancing these objectives is what the Court also had in mind in Verbanov when assessing the evolution of international criminal law, whether customary or conventional, as applied in the Canadian context.34 [38] I find that the definition of crimes against humanity contained in the Rome Statute, via the Schedule contained in CAHWCA, was therefore appropriate to apply to the present case. As stated in Verbanov, this Board had found that international criminal law, and in particular the Rome Statute of the International Criminal Court (ICC) which the CAHWCA seeks to implement, has evolved since the backdrop against which Mugesera was decided, and that the existence of a State (or organizational) policy was a mandatory element of the concept of \"widespread or systematic attack\" in order to qualify certain acts as crimes against humanity.35 b) The existence of a state or organizational policy in the present case [39] As mentioned, the definition of \"crime against humanity\" in the Rome Statute, and particularly the definition of an \"attack directed against any civilian population\" as set out at Article 7(2)(a) includes the requirement that the attack be \"pursuant to or in furtherance of a State or organizational policy to commit such attack\".36 [40] Canadian case-law has already recognized that civilian detainees are part of an identifiable group (ie. a civilian population) for the purpose of crimes against humanity.37 [41] Moreover, when examining the meaning of \"State or organizational policy\" found at 7(2)(a) of the Rome Statute, the Federal Court in Verbanov stated as follows38: The meaning of policy was further defined through the following provision of the Elements of Crimes, a set of guidelines adopted by the Assembly of State Parties pursuant to article 9 of the Rome Statute: 3. [...] It is understood that \"policy to commit such attack\" requires that the State or organization actively promotes or encourage such an attack against a civilian population. [Footnote] A policy which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action. [42] However, as previously mentioned, there is no requirement that this policy be written or formal; it simply must be proven by the evidence on a case-by-case basis.39 [43] In the present case, the Minister had disclosed relevant and incriminating country evidence on this issue40, prior to the start of the RPD hearing, and the Appellant had multiple opportunities to be questioned on, and respond to, this information throughout the hearing. [44] This evidence - which the RPD also cited in its reasons - contains clear descriptions of the use of torture as a common place, widespread and systematic practice by police and other security forces throughout the country, starting well before the Appellant joined the SSP.41 It also shows an increase in these practices in the context of the war on drugs, after 2006.42 [45] Further, the RPD relied on the country evidence when finding that the State of Veracruz had the highest number of reported cases of torture and that the SSP as well as the Veracruz Civil Force - to which the applicant belonged - were directly implicated in at least hundreds of cases of enforced disappearances during the period of 2013-2018.43 [46] Moreover, the RPD cited country evidence regarding the fact that the former governor of the State of Veracruz between 2010 and 2016, Javier Duarte de Ochoa, had established a policy by the Minister of Public Safety of unlawful arrests, torture and enforced disappearances of persons believed to be linked to criminal groups.44 45 [47] The Appellant's argument, on appeal, appears to be that former governor Duarte (as other former governors of Veracruz) was merely a corrupt official that colluded with criminal organizations for his own personal gain.46 It is argued that this was not part of a policy. This argument does not appear to be based on actual expert evidence but rather counsel's own interpretation of the situation in Mexico given that there is no reference or citation to support this.47 [48] It seems to me that the above-cited country evidence, and other evidence on the record, rather establishes the existence of such a policy given the numerous actors involved and the widespread nature of these practices that were systematically endorsed and/or covered up with officials acting at all levels of government - including police forces, prosecutors, and the judiciary. [49] Similarly to the facts in Owuru, proscribed acts have been committed by police as a routine practice and in a widespread and systematic manner with impunity, indicating - at the very least - tacit endorsement of these practices.48 [50] For example, the country evidence on record reported that: \"From the beginning of 2007 through the end of 2015, the CNDH received 9,401 complaints of torture and ill-treatment\".49 Data on torture and ill-treatment in Mexico understate the incidence of these crimes because law enforcement agencies and judicial institutions that generate the data are often the same agencies accused of perpetrating or tolerating torture and ill-treatment. This leaves the victims reluctant to report crimes, and leaves the perpetrators well positioned to stymie any investigation. In 2012, the UN Committee Against Torture expressed concern about the \"allegations of complicity between public prosecutors and police investigators\" as well as about \"the reports that public prosecutors and, on occasion, judges themselves disregard defendants' claims that they have been tortured or classify the acts in question as constituting less serious offences.\" Similarly, the report of UN Special Rapporteur Juan Méndez on his April-May 2014 visit to Mexico identified the misclassification of torture as a structural flaw that fosters impunity.50 [51] The Appellant does not appear to specifically challenge this country evidence, but rather relies on a different tab of the National Documentation Package (NDP) for Mexico, showing that military personnel have been reported to perpetrate various crimes against the civilian population, in the context of the war on drugs.51 [52] However, on my own review of this document, I note that it clearly states: \"According to Mexico's 2019 National Survey on Victimization and Perceptions of Insecurity, the country's police forces continue to have lower levels of citizen trust and are viewed as more corrupt than Mexico's armed forces. Less than 60 percent of those surveyed trusted Mexico's state or municipal police forces, while more than 64 percent viewed them as corrupt. Mexican police forces also have a long history of perpetrating human rights violations. The use of torture among police forces is widespread, and police have participated in several documented cases of extrajudicial killings, arbitrary detentions, and forced disappearances.\"52 [53] But also: \"Forces at all levels are riddled with corruption, and citizens widely view police as ineffective in enforcing the law or even believe they enable crime.\"53 [54] Therefore, the arguments raised by the Appellant regarding the country evidence are not persuasive given that both the Mexican military and police forces could be committing abuses simultaneously. One does not exclude the other, and the evidence rather points to this. [55] I find that the evidence does establish a policy that was, at the very least, tacitly endorsed and carried out by diverse government actors on a wide scale, and at all levels - as set out by the above-cited excerpts. [56] The evidence relied upon by the RPD clearly sets out, for example, that: \"Veracruz's state apparatus has been tailored to create, protect and conceal criminal interests\".54 This is not the result of individual corrupt officials, but rather an issue that exists at a systemic level, and that has been implemented gradually and purposefully. [57] It also seems to me, as the Minister points out in their intervention before the RAD, that the Appellant's own testimony regarding the fact that he was specifically instructed by his superiors from the outset not to speak out against acts does establish a policy to cover up severe abuses -including the use of ill-treatment and torture of detainees and enforced disappearances by police - and that this was widely known, endorsed, and covered up at all levels.55 This is significant in the evaluation of the Appellant's complicity in these acts, as I will examine below, given this repeated confirmation that he was instructed to remain silent on such abuses from the start, and chose to continue supporting an organization with a criminal purpose, despite knowing this.56 [58] Finally, the Appellant appears to argue that Mexican authorities could not be perpetrating crimes against humanity because some of these policies were put in place and/or financed with the assistance of the United States in the context of the so-called war against drugs since 2006. As mentioned already, the country evidence sets out that some of these practices pre-date the 2006 war against drugs, but also, that the situation has greatly worsened since. In my view, this is not a persuasive argument from a legal standpoint given the compelling country evidence on the record. [59] On my own independent analysis of all the evidence, and for the reasons I have set out above, I find that the evidence does establish that a policy existed in which members of the SSP and security forces carried out acts of torture, ill-treatment, enforced disappearances, arbitrary arrests and detention on a widespread and systematic basis, against members of the civilian population - in particular civilian detainees - in Veracruz. There was also a policy silence imposed on members of the security forces, which the Appellant testified to, that actively encouraged the continuation and amplification of abuses on a widespread and systematic basis. 2- The Appellant is Excluded from Refugee Status [60] As the Minister correctly highlighted in their RAD intervention57, there has been no challenge to the RPD's conclusion regarding the fact that there were serious reasons for considering that he was complicit to numerous crimes committed by the SSP against the civilian population in Veracruz, and I have not identified any errors by the RPD on this point. [61] The RPD provided its reasons for finding that the Appellant had made a knowing, voluntary and significant contribution to crimes against humanity, as defined by international instruments.58 I agree with the RPD. [62] To summarize, the Appellant confirmed his direct involvement in the [REDACTED] [REDACTED] for several years on the basis of anonymous and/or unchecked information. I find that this was a significant contribution to the acts committed against these persons, during or following their arrest. [63] The Appellant further confirmed that he had knowledge of the fact that torture and enforced disappearances were used against these civilians in a widespread and systematic manner, and that a policy of silence against these abuses was enforced. [64] He also confirmed that he could have left the SSP after being aware of these crimes, and that some of his colleagues did, which led the RPD to conclude that his contribution was voluntary in nature. I agree. [65] These findings are uncontested on appeal, and I adopt them as my own. CONCLUSION [66] Overall, the RPD was correct in finding that the Appellant is excluded from refugee protection due to serious reasons for considering that he was complicit in crimes against humanity perpetrated by Mexican authorities, including the SSP and other security forces in Veracruz. DECISION [67] For the above reasons, I dismiss the appeal and confirm the decision of the RPD that the Appellant is excluded from protection by the combined effect of Article 1F of the Convention and s. 98 of IRPA. (signed) Daphnée Ouellet Daphnée Ouellet June 14, 2024 Date 1 Convention relating to the Status of Refugees, Geneva, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137 and Protocol relating to the Status of Refugees, New York, 31 January 1967, United Nations, Treaty Series, vol. 606, p. 267; accession of Canada to both on 4 June 1969 [Convention]. 2 Minister's Intervention Record, Memorandum of Intervention, at pp. 4-12. 3 Appellant's Record, Appellant's Memorandum, at pp. 4-16. 4 Crimes Against Humanity and War Crimes Act (CAHWCA), SC 2000, c 24. 5 Canada (Public Safety and Emergency Preparedness) v. Verbanov, 2021 FC 507 (CanLII). 6 Transcript of August 3, 2022, RPD Hearing, at pp. 32-33. 7 Ibid., at pp. 12-23. 8 Ibid., at p. 83. 9 Ibid. at pp. 53, 54, 59, 60. 10 Ibid. at p. 60. 11 RPD Record, M-20, The Intercept, May 20, 2018, Code Name Jaguar: How a Top Police Official Carried Out a Reign of Terror in Mexico, available online at: https://theintercept.com/2018/05/20/code-name-jaguar-how-a-top-police-official-carried-out-a-reign-of-terror-in-mexico/ 12 RPD Record, M-19, Business Insider, June 11, 2018, A former Mexican governor has been accused of involvement in forced disappearances, and it points to a sinister problem with Mexico's police. Available online at: https://www.businessinsider.com/javier-duarte-former-veracruz-mexico-governor-accused-disappearances-2018-6 13 Huruglica v. Canada (Citizenship and Immigration, 2016 FCA 93, [2016] 4 FCR 157; Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 14 Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 SCR 100. 15 Canada (Public Safety and Emergency Preparedness) v. Verbanov, 2021 FC 507 (CanLII). 16 Gupa v. Canada (Citizenship and Immigration), 2023 FC 157 (CanLII). 17 Ibid., at paras. 49-52. 18 Crimes Against Humanity and War Crimes Act (CAHWCA), SC 2000, c 24. 19 Prosecutor v. Dusko Tadic (Appeal Judgement), Case No. IT-94-1-A, ICTY, 15 July 1999. 20 Canada (Public Safety and Emergency Preparedness) v. Verbanov, 2021 FC 507 (CanLII), paras. 23-26. 21 Jean-Baptiste v. Canada (Citizenship and Immigration), 2021 FC 1362 (CanLII), at paras. 33-37. 22 See for example: Qazizada v. Canada (Public Safety and Emergency Preparedness), 2021 CanLII 88344 (CA IRB), at para. 13; Ahuday v Canada (Public Safety and Emergency Preparedness), 2024 CanLII 18564 (CA IRB), at para. 6; Massroua v. Canada (Citizenship and Immigration), 2024 CanLII 37033 (CA IRB), at para. 131: \"The period under review, December 2014 to May 2015, falls after the coming into force of the Rome Statute and the CAHWCA, which incorporates the Rome Statute, therefore the latter is applicable. The Rome Statute adopted as a necessary ingredient of crimes against humanity that the organization in question have a policy of committing the proscribed act(s).\" 23 Akinpelu v. Canada (Public Safety and Emergency Preparedness), 2024 FC 400 (CanLII), at paras. 41-43; Wardak v. Canada (Citizenship and Immigration), 2023 FC 422 (CanLII), at paras. 62-63; Gupa v. Canada (Citizenship and Immigration), 2023 FC 157 (CanLII), at para. 49. 24 Akinpelu v. Canada (Public Safety and Emergency Preparedness), 2024 FC 400 (CanLII), at para. 43, citing: Canada (Public Safety and Emergency Preparedness) v. Verbanov, 2021 FC 507 (CanLII), at para. 76 [emphasis added] 25 Wijenayake v. Canada (Citizenship and Immigration), 2022 FC 1224 (CanLII). 26 Oworu v. Canada (Citizenship and Immigration), 2022 FC 1035 (CanLII). 27 Ibid., at para. 38: \"While crimes are not committed by the NPF and the SARS pursuant to official policy, it is nonetheless established to be a routine practice, and the evidence does not support a conclusion that these acts are only carried by rogue actors. If that were the case, one would expect it to be a relatively uncommon occurrence with meaningful efforts to identify, punish and prevent such behaviour; conversely, the evidence establishes that while mechanisms exist for the investigation of police misconduct, practically speaking they are highly ineffective such that the police continue to carry out these activities in a widespread and systematic manner with impunity.\" 28 Wijenayake v. Canada (Citizenship and Immigration), 2022 FC 1224 (CanLII), at para. 23: \"torture is the most common method of criminal investigation, and that it is unapologetically used by Police Officers and endorsed by Senior Officers. There are no real repercussions for Officers who engage in torture, and \"[t]he consequences of all of the above are in inordinate escalation in acts of torture, their level of barbarity and concomitant brutality.\" 29 Ibid., at para. 19. 30 Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40 (CanLII), [2013] 2 SCR 678, at paras. 32-38. 31 Minister's Intervention Record, Memorandum of Intervention, p. 12, at para. 37. 32 Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40 (CanLII), [2013] 2 SCR 678, at para. 35. 33 UN High Commissioner for Refugees (UNHCR), Guidelines on International Protection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, HCR/GIP/03/05, 4 September 2003, https://www.refworld.org/policy/legalguidance/unhcr/2003/en/14733, at para. 2: The rationale for the exclusion clauses, which should be borne in mind when considering their application, is that certain acts are so grave as to render their perpetrators undeserving of international protection as refugees. Their primary purpose is to deprive those guilty of heinous acts, and serious common crimes, of international refugee protection and to ensure that such persons do not abuse the institution of asylum in order to avoid being held legally accountable for their acts. The exclusion clauses must be applied \"scrupulously\" to protect the integrity of the institution of asylum, as is recognised by UNHCR's Executive Committee in Conclusion No. 82 (XLVIII), 1997. At the same time, given the possible serious consequences of exclusion, it is important to apply them with great caution and only after a full assessment of the individual circumstances of the case. The exclusion clauses should, therefore, always be interpreted in a restrictive manner. [emphasis added]. 34 Canada (Public Safety and Emergency Preparedness) v. Verbanov, 2021 FC 507 (CanLII), at para. 49. 35 Ibid., at paras. 40-41. 36 Rome Statute of the ICC, Articles 7(1), 7(2)(a), Schedule to the CAHWCA 37 Canada (Public Safety and Emergency Preparedness) v. Verbanov, 2021 FC 507 (CanLII), at para. 60; citing: Khachatryan v. Canada (Citizenship and Immigration), 2020 FC 167; Sarwary v. Canada (Citizenship and Immigration), 2018 FC 437; Vaezzadeh v. Canada (Citizenship and Immigration), 2017 FC 845; Hadhiri; Talpur v. Canada (Citizenship and Immigration), 2016 FC 822. 38 Canada (Public Safety and Emergency Preparedness) v. Verbanov, 2021 FC 507 (CanLII), at para. 20. 39 Akinpelu v. Canada (Public Safety and Emergency Preparedness), 2024 FC 400 (CanLII), at para. 43, citing: Canada (Public Safety and Emergency Preparedness) v. Verbanov, 2021 FC 507 (CanLII), at para. 76. 40 In particular see: RPD Record, M-2, Open Society Foundations (OSF), Undeniable Atrocities: Confronting Crimes against Humanity in Mexico, 27 June 2016, also available online at: https://www.refworld.org/reference/countryrep/osi/2016/en/111338; M-11, International Crisis Group (ICG), Veracruz: Fixing Mexico's State of Terror, Latin America Report N°61, 28 February 2017, also available online at: https://www.refworld.org/reference/countryrep/icg/2017/en/115888; Business Insider, A former Mexican governor has been accused of involvement in forced disappearances, and it points to a sinister problem with Mexico's police, June 11, 2018. Available online at: https://www.businessinsider.com/javier-duarte-former-veracruz-mexico-governor-accused-disappearances-2018-6; 41 RPD Record, RPD Reasons, at para. 12: \"In 2003, the Committee Against Torture reported that torture in Mexico \"was not exceptional or occasional...to the contrary, the police commonly use torture and resort to it systematically as another method of criminal investigation.\" 42 Ibid., \"Reports of torture and other ill-treatment increased as violence spiralled in Mexico after 2006, as a result of the government's \"war on drugs\". Even if recent reports of a decline by the CNDH [National Human Rights.\" Commission] are correct, torture and ill-treatment remains widespread - 600 per cent higher in 2013 compared to 2003.\" 43 RPD Record, RPD Reasons, at paras. 13-14. 44 Ibid., at para. 15. 45 RPD Record, M-19, Business Insider, A former Mexican governor has been accused of involvement in forced disappearances, and it points to a sinister problem with Mexico's police, June 11, 2018. Available online at: https://www.businessinsider.com/javier-duarte-former-veracruz-mexico-governor-accused-disappearances-2018-6 46 Appellant's Record, Appellant's Memorandum, at paras. 31-33. 47 Ibid. 48 Oworu v. Canada (Citizenship and Immigration), 2022 FC 1035 (CanLII), at para. 38. 49 RPD Record, M-2, Open Society Foundations (OSF), Undeniable Atrocities: Confronting Crimes against Humanity in Mexico, 27 June 2016, https://www.refworld.org/reference/countryrep/osi/2016/en/111338, at p. 46. 50 Ibid. 51 Appellant's Record, Appellant's Memorandum, at paras. 34-43. 52 RPD Record, Exhibit 3, National Documentation Package, Mexico, 29 April 2022, tab 10.4: Police reform and security strategies in Mexico in the context of the war on drugs and U.S. support for these efforts. Washington Office on Latin America. Maureen Meyer. July 2020, at p. 2 [emphasis added]. 53 Ibid. [emphasis added]. 54 RPD Record, M-11, International Crisis Group (ICG), Veracruz: Fixing Mexico's State of Terror, Latin America Report N°61, 28 February 2017, also available online at: https://www.refworld.org/reference/countryrep/icg/2017/en/115888, at p. 1 [emphasis added]. 55 Transcript of August 3, 2022, RPD Hearing, at pp. 20, 57, 70, 78, 83. 56 Ibid. 57 Minister's Intervention Record, Memorandum of Intervention, p. 4, at para. 4. 58 RPD Record, RPD Reasons, at paras. 28-65. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MC3-00542 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français", "response": "## Analysis of Refugee Decision: MC3-00542\n\n### Key Issues\ned before the RPD and led the questioning with regard to the Appellant's excludability under Article 1F(a). It also intervened in this appeal with additional submissions from the C\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: hy the RPD erred in its legal analysis, especially as it relates to the requirement for a State or organizational policy when assessing the Appellant's complicity in crimes against humanity. Nevertheless, I find that the RPD's overall conclusion was correct and that the Appellant is excluded. I will give my reasons below. BACKGR\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "How does this Federal Court of Canada decision impact immigration procedures?\n\nOrtiz Celedon v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2023-12-18 Neutral citation 2023 FC 1718 File numbers IMM-528-22 Notes A correction was made on December 20, 2023 Decision Content Date: 20231218 Docket: IMM-528-22 Citation: 2023 FC 1718 Toronto, Ontario, December 18, 2023 PRESENT: The Honourable Mr. Justice Pentney BETWEEN: JORGE WILSON ORTIZ CELEDON IVETTE CECILIA ROMERO PRIETO SOFIA ORTIZ ROMERO Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS [1] The Applicants in this case are Jorge Wilson Ortiz Celedon (the Principal Applicant), his spouse Cecilia Romero Prieto, and their daughter Sofia Ortiz Romero. They are citizens of Columbia, who claimed refugee protection in Canada due to persecution from a criminal gang called Los Rastrojos. [2] The Refugee Protection Division (RPD) denied the Applicants’ claim. They seek judicial review of this decision. [3] The Applicants’ refugee claim is related to the experience of the Principal Applicant’s mother. She owned agricultural land in Colombia, and between 2001 and 2005, Los Rastrojos murdered some other local landowners for refusing to turn over their land. In April 2011, the group occupied his mother’s land, and she continued to receive threats after that. She eventually received protection from the Colombian government and was compensated for the loss of her land. The mother left Colombia and claimed refugee status in Spain, where one of her daughters lives. Two of the Principal Applicant’s brothers also fled to Spain where they made refugee claims. [4] The Principal Applicant and his family moved into another property owned by his mother. In January 2021, unknown persons came to that property, yelling and asking about the Principal Applicant’s mother. After this event, the Applicants left to stay with the wife’s sister before fleeing to the United States and eventually arriving in Canada. Seven days before leaving Colombia they made a denunciation to the Fiscalia but did not name the Los Rastrojos. There is no evidence that the Applicants have followed up on this complaint since they left Colombia. [5] The Applicants submitted a refugee claim after their arrival in Canada, claiming to fear persecution by the Los Rastrojos. The RPD assessed their claim under section 97 of the Immigration and Refugee Protection Act, S.C. 2001, c 27, because they had not established a nexus to a Convention ground. Their claim was dismissed because the RPD found they had failed to rebut the presumption of state protection, and they had an Internal Flight Alternative (IFA) in Colombia. [6] The Applicants submit that the RPD decision is unreasonable because: it failed to recognize the importance of land ownership in Colombia and thus did not examine the case in its proper context; the IFA conclusion is flawed because there is evidence that state protection is inadequate; and the RPD failed to consider the evidence about the means and motivation of the criminal group. [7] None of the Applicant’s arguments can succeed. The RPD decision is reasonable. [8] While the RPD acknowledged the mother’s experience of being dispossessed of her land at the hands of the Los Rastrojos, it also noted the protection and financial compensation she received from the government. Refugee law protects people, not their property, and forcible loss of land is not a recognized ground of protection under the Convention. The RPD did not ignore the context of the case. [9] The RPD decision examined the measures taken by Colombia to offer protection to its citizens from threats by criminal gangs. It outlined the various measures provided to the Principal Applicant’s mother, including a bullet proof vest, cellphone, secure transportation, and a bodyguard. The RPD also examined the objective country condition evidence on the practical availability of such measures, and concluded that reasonably effective state protection was available in Colombia. There is no basis to interfere in this determination. The RPD correctly noted that the law does not demand perfection; adequate protection is all that is required: Samuel v Canada (Citizenship and Immigration), 2008 FC 762 at para 32. In this case, the RPD’s conclusion that such measures were available to the Applicants is reasonable based on the evidence in the record. [10] The Applicants point to a statement in the country condition evidence that they suggest indicates state protection measures are not effective, particularly in rural areas. I am not persuaded that this one comment is enough to cast doubt over the decision. The RPD is presumed to have considered all of the evidence, unless there is a clear contradiction involving a key point, and it is not the role of a court on judicial review to re-weigh the evidence. [11] Turning to the IFA determination, the RPD’s finding that the Applicants had not demonstrated that the Los Rastrojos had the means and motivation to pursue them in the IFA locations is reasonable. The Applicants point to evidence cited by the RPD in support of their argument that the criminal group has alliances that would enable it to track them down in the IFA locations. Once again, this amounts to asking the Court to re-weigh the evidence. The RPD discussed the evidence in some detail, noting that there were indications that the group had lost power and influence, and may have disbanded. The fact that it preferred this evidence over the excerpts relied on by the Applicants is not unreasonable. There is no basis to interfere with the RPD’s findings on this point. [12] For these reasons, the application for judicial review will be dismissed. [13] There is no question of general importance for certification. JUDGMENT in IMM-528-22 THIS COURT’S JUDGMENT is that: The application for judicial review is dismissed. There is no question of general importance for certification. “William F. Pentney” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-528-22 STYLE OF CAUSE: JORGE WILSON ORTIZ CELEDON ET AL v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: toronto, ontario DATE OF HEARING: december 14, 2023 JUDGMENT AND REASONS: PENTNEY J. DATED: december 18, 2023 APPEARANCES: DANIEL L. WINBAUM For The Applicant SIMAROOP DHILLON For The Respondent SOLICITORS OF RECORD: Daniel L. Winbaum Barrister & Solicitor Windsor, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent", "response": "## Analysis of Court Decision: Celedon v. Canada (Citizenship and Immigration)\n\n### Key Issues\ne dismissed. [13] There is no question of general importance for certification. JUDGMENT in IMM-528-22 THIS COURT’S JUDGMENT is that: The application for judicial review is dismiss\n\n### Standard of Review\nOrtiz Celedon v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2023-12-18 Neutral citation 2023 FC 1718 File numbers IMM-528-22 Notes A correction was made on December 20, 2023 Decision Content Date: 20231218 Docket: IMM-528-22 Citation: 2023 FC 1718 Toronto, Ontario, December 18, 2023 PRESENT: The Honourable Mr. Justice Pentney BETWEEN: JORGE WILSON ORTIZ CELEDON IVETTE CECILIA ROMERO PRIETO SOFIA ORTIZ ROMERO Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS [1] The Applicants in this case are Jorge Wilson Ortiz Celedon (the Principal Applicant), his spouse Cecilia Romero Prieto, and their daughter Sofia Ortiz Romero. They are citizens of Columbia, who claimed refugee protection in Canada due to persecution from a criminal gang called Los Rastrojos. [2] The Refugee Protection Division (RPD) denied the Applicants’ claim. They seek judicial review of this decision. [3] The Applicants’ refugee claim is related to the experience of the Principal Applicant’s mother. She owned agricultural land in Colombia, and between 2001 and 2005, Los Rastrojos murdered some other local landowners for refusing to turn over their land. In April 2011, the group occupied his mother’s land, and she continued to receive threats after that. She eventually received protection from the Colombian government and was compensated for the loss of her land. The mother left Colombia and claimed refugee status in Spain, where one of her daughters lives. Two of the Principal Applicant’s brothers also fled to Spain where they made refugee claims. [4] The Principal Applicant and his family moved into another property owned by his mother. In January 2021, unknown persons came to that property, yelling and asking about the Principal Applicant’s mother. After this event, the Applicants left to stay with the wife’s sister before fleeing to the United States and eventually arriving in Canada. Seven days before leaving Colombia they made a denunciation to the Fiscalia but did not name the Los Rastrojos. There is no evidence that the Applicants have followed up on this complaint since they left Colombia. [5] The Applicants submitted a refugee claim after their arrival in Canada, claiming to fear persecution by the Los Rastrojos. The RPD assessed their claim under section 97 of the Immigration and Refugee Protection Act, S.C. 2001, c 27, because they had not established a nexus to a Convention ground. Their claim was dismissed because the RPD found they had failed to rebut the presumption of state protection, and they had an Internal Flight Alternative (IFA) in Colombia. [6] The Applicants submit that the RPD decision is unreasonable because: it failed to recognize the importance of land ownership in Colombia and thus did not examine the case in its proper context; the IFA conclusion is flawed because there is evidence that state protection is inadequate; and the RPD failed to consider the evidence about the means and motivation of the criminal group. [7] None of the Applicant’s arguments can succeed. The RPD decision is reasonable. [8] While the RPD acknowledged the mother’s experience of being dispossessed of her land at the hands of the Los Rastrojos, it also noted the protection and financial compensation she received from the government. Refugee law protects people, not their property, and forcible loss of land is not a recognized ground of protection under the Convention. The RPD did not ignore the context of the case. [9] The RPD decision examined the measures taken by Colombia to offer protection to its citizens from threats by criminal gangs. It outlined the various measures provided to the Principal Applicant’s mother, including a bullet proof vest, cellphone, secure transportation, and a bodyguard. The RPD also examined the objective country condition evidence on the practical availability of such measures, and concluded that reasonably effective state protection was available in Colombia. There is no basis to interfere in this determination. The RPD correctly noted that the law does not demand perfection; adequate protection is all that is required: Samuel v Canada (Citizenship and Immigration), 2008 FC 762 at para 32. In this case, the RPD’s conclusion that such measures were available to the Applicants is reasonable based on the evidence in the record. [10] The Applicants point to a statement in the country condition evidence that they suggest indicates state protection measures are not effective, particularly in rural areas. I am not persuaded that this one comment is enough to cast doubt over the decision. The RPD is presumed to have considered all of the evidence, unless there is a clear contradiction involving a key point, and it is not the role of a court on judicial review to re-weigh the evidence. [11] Turning to the IFA determination, the RPD’s finding that the Applicants had not demonstrated that the Los Rastrojos had the means and motivation to pursue them in the IFA locations is reasonable. The Applicants point to evidence cited by the RPD in support of their argument that the criminal group has alliances that would enable it to track them down in the IFA locations. Once again, this amounts to asking the Court to re-weigh the evidence. The RPD discussed the evidence in some detail, noting that there were indications that the group had lost power and influence, and may have disbanded. The fact that it preferred this evidence over the excerpts relied on by the Applicants is not unreasonable. There is no basis to interfere with the RPD’s findings on this point. [12] For these reasons, the application for judicial review will be dismissed. [13] There is no question of general importance for certification. JUDGMENT in IMM-528-22 THIS COURT’S JUDGMENT is that: The application for judicial review is dismissed. There is no question of general importance for certification. “William F. Pentney” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-528-22 STYLE OF CAUSE: JORGE WILSON ORTIZ CELEDON ET AL v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: toronto, ontario DATE OF HEARING: december 14, 2023 JUDGMENT AND REASONS: PENTNEY J. DATED: december 18, 2023 APPEARANCES: DANIEL L. WINBAUM For The Applicant SIMAROOP DHILLON For The Respondent SOLICITORS OF RECORD: Daniel L. Winbaum Barrister & Solicitor Windsor, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent\n\n### Legal Analysis\nThe court's analysis focuses on: n its proper context; the IFA conclusion is flawed because there is evidence that state protection is inadequate; and the RPD failed to consider the evidence about the means and motivation of the criminal group. [7] None of the Applicant’s arguments can succeed. The RPD decision is reasonable. [8] While the RPD acknowledged the\n\n### Precedential Value\nThis Federal Court decision has persuasive value for similar cases before the court and provides guidance to the Immigration and Refugee Board on the proper interpretation of law and procedural requirements. While not binding on other Federal Court judges, it establishes a precedent that will often be followed for consistency."}
{"prompt": "What specific procedures does this Federal regulations from the Canadian government establish for immigration processes?\n\n# Ottawa International Airport Zoning Regulations CRC, c 100 Regulations Respecting Zoning at Ottawa International Airport Enabling authority: AERONAUTICS ACT ## Short Title 1 [Repealed, SOR/2009-231, s. 7] ## Interpretation 2 [Repealed, SOR/2009-231, s. 7] 3 [Repealed, SOR/2009-231, s. 7] ## Application 4 [Repealed, SOR/2009-231, s. 7] ## General 5 [Repealed, SOR/2009-231, s. 7] ## Natural Growth 6 [Repealed, SOR/2009-231, s. 7] 7 [Revoked, SOR/79-897, s. 1]", "response": "## Analysis of REGULATIONS-FED: Ottawa International Airport Zoning Regulations\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nThese regulations provide specific implementation details for broader legislative frameworks. Practitioners should ensure strict compliance with procedural requirements, timelines, and documentation standards. The regulations must be interpreted consistent with their enabling legislation and may be subject to challenge if they exceed the authority granted by the statute."}
{"prompt": "Analyze the legal requirements established in this Federal legislation from the Canadian government:\n\n# Addition of Lands to Reserves and Reserve Creation Act SC 2018, c 27, s 675 An Act to facilitate the setting apart of lands as reserves for the use and benefit of First Nations and the addition of lands to reserves Assented to 2018-12-13 ## Short Title ### Short title 1 This Act may be cited as the Addition of Lands to Reserves and Reserve Creation Act. ## Interpretation ### Definitions 2 The following definitions apply in this Act. *band* has the same meaning as in subsection 2(1) of the Indian Act. (bande) *First Nation* means a band, or an Indigenous group that is party to a self-government agreement implemented by an Act of Parliament. (première nation) *governing body* in relation to a First Nation that is a band, means the council of the band, as defined in subsection 2(1) of the Indian Act, or, in relation to a First Nation that is an Indigenous group that is party to a self-government agreement implemented by an Act of Parliament, means the council, government or other entity that is referred to in the agreement as being authorized to act on behalf of the Indigenous group. (corps dirigeant) *interest*, in relation to lands in Canada elsewhere than in Quebec, means any estate, interest or right of any nature in or to the lands and includes an easement, a servitude, a lease and a licence, as defined in section 2 of the Federal Real Property and Federal Immovables Act. (intérêt) *Minister* means the Minister of Crown-Indigenous Relations. (ministre) *reserve* has the same meaning as in subsection 2(1) of the Indian Act. (réserve) *right*, in relation to lands in Quebec, means any right of any nature in or to the lands and includes a licence, as defined in section 2 of the Federal Real Property and Federal Immovables Act, and the rights of a lessee. (droit) 3 [Repealed, 2019, c. 29, s. 377] ## Setting Apart of Lands ### Setting lands apart 4 (1) The Minister may, by order, at the request of the governing body of a First Nation, set apart as a reserve any lands the title to which is vested in Her Majesty in right of Canada or for which Her Majesty in right of Canada has the administration and control. ### Interests or rights (2) Lands set apart as a reserve under this section are subject to any interest or right of a person or entity in or to the lands if (a) an agreement between the First Nation and Her Majesty in right of Canada — including an agreement in respect of which Part 2 of the Manitoba Claim Settlements Implementation Act applied, as that Part read immediately before its repeal, or in respect of which the Claim Settlements (Alberta and Saskatchewan) Implementation Act applied, as it read immediately before its repeal — contemplates the continuation of interests or rights of that kind, and any requirement of the agreement with respect to the continuation of the interest or right has been satisfied; (b) the interest or right has been granted or conceded to the person or entity under the Federal Real Property and Federal Immovables Act ; or (c) the interest or right is granted to the person or entity in accordance with section 5 or 6. ### Interest or right in reserve land (3) As of the time when the Minister sets apart any lands as a reserve under this section, an interest or right referred to in paragraph (2)(a) or (b) is deemed to be an interest or right in or to the lands in the reserve. ### Moneys paid to Her Majesty (4) Any moneys paid to Her Majesty in right of Canada as a result of an interest or right referred to in subsection (2) are deemed to be moneys collected, received or held by her Majesty for the use and benefit of the First Nation. ### Non-application of Statutory Instruments Act (5) The Statutory Instruments Act does not apply in respect of an order made under subsection (1). ### Designation 5 (1) If the governing body of a First Nation has requested that the Minister set apart certain lands as a reserve, the First Nation may designate, conditionally or unconditionally, any interest or right in or to the lands, including for the purpose of the replacement of an existing interest or right in or to those lands. The designation may be made either (a) before the title to the lands or the administration and control of the lands are transferred to Her Majesty in right of Canada; or (b) before the lands are set apart as a reserve under section 4. ### Application of Indian Act (2) Sections 39.1, 40.1 and 41 of the Indian Act apply in respect of a designation under subsection (1), any references to Minister in those sections being read as references to Minister, as defined in this Act. ### Power of Minister (3) On the acceptance by the Minister of a designation made under subsection (1), the Minister may grant the designated interest or right to a person or entity. ### Effect (4) If a designation made under subsection (1) is accepted by the Minister, the designation takes effect at the time the lands are set apart as a reserve under section 4. Any resulting grant of the designated right or interest, if the grant is made before the lands are set apart as a reserve, also takes effect at the time the lands are set apart as a reserve. ### Acts deemed to have been done under Indian Act (5) As of the time when the Minister sets apart any lands as a reserve under section 4, any designation made under subsection (1), and any resulting grant that was made under subsection (3), are deemed to have been designated or made, as the case may be, under the Indian Act. ### Issuance of permits by Minister 6 (1) If the governing body of a First Nation has requested that the Minister set apart certain lands as a reserve, the Minister may authorize, by permit, a person or entity for a period not exceeding one year or, with the consent of the governing body of the First Nation, for any longer period, to occupy, use or reside on any of those lands or exercise any other right on them, including for the purpose of replacing an existing interest or right of that person or entity in or to those lands. The permit may be issued either (a) before the title to the lands or the administration and control of the lands are transferred to Her Majesty in right of Canada; or (b) before the lands are set apart as a reserve under section 4. ### Effect (2) Permits issued under subsection (1) and the rights granted by those permits take effect at the time the lands are set apart as a reserve under section 4. ### Acts deemed to have been done under Indian Act (3) As of the time when the Minister sets apart any lands as a reserve under section 4, a permit issued under subsection (1) and any consent given under that subsection, are deemed to have been issued or given, as the case may be, under the Indian Act. ### Authorization — transfer or grant 7 (1) If the governing body of a First Nation has requested that the Minister set apart certain lands as a reserve and an Act of Parliament or a provincial legislature authorizes Her Majesty in right of a province, a municipal or local authority or a corporation to take or to use lands or any interest or right in lands without the consent of the owner, the Minister may authorize, with the consent of the governing body, a transfer or grant of any of the lands that the governing body has requested be set apart as a reserve, or any interest or right in or to those lands, to a province, authority or corporation, subject to any terms that may be prescribed by the Minister. The authorization may be made either (a) before the title to the lands or the administration and control of the lands are transferred to Her Majesty in right of Canada; or (b) before the lands are set apart as a reserve under section 4. ### Acts deemed to have been done under Indian Act (2) If the Minister has made an authorization under subsection (1), as of the time when the Minister sets apart any lands as a reserve under section 4, the Governor in Council is deemed to have consented to the taking or using of the lands under subsection 35(1) of the Indian Act and the authorization is deemed to have been made, and any terms prescribed by the Minister under subsection (1) are deemed to have been prescribed, under subsection 35(3) of that Act. ### Exchange 8 In the case where a First Nation has entered into an agreement that proposes that certain lands in the First Nation’s reserve be exchanged for lands that are to be set apart as a reserve, references to the Governor in Council in paragraph 39(1)(c) and section 40 of the Indian Act are to be read as references to the Minister if (a) the Minister has approved the terms of the exchange; and (b) the surrender made in respect of the exchanged lands is assented to by a majority of the electors of the First Nation in accordance with subparagraph 39(1)(b)(iii) of that Act.", "response": "## Analysis of LEGISLATION-FED: Addition of Lands to Reserves and Reserve Creation Act\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nWhen applying this legislation to immigration cases, practitioners should consider both the explicit requirements and the underlying policy objectives. The provisions must be interpreted in light of the Canadian Charter of Rights and Freedoms, international obligations, and relevant jurisprudence. Particular attention should be paid to procedural fairness requirements and the proper exercise of discretionary authority."}
{"prompt": "How does this Federal Court of Canada decision impact immigration procedures?\n\nWarner Bros. et al v. Tyler White dba Beast IPTV Court (s) Database Federal Court Decisions Date 2023-06-28 Neutral citation 2022 FC 907 File numbers T-1176-20 Decision Content Date: 20230628 Docket: T-1176-20 Citation: 2022 FC 907 Ottawa, Ontario, June 28, 2023 PRESENT: The Honourable Mr. Justice Lafrenière BETWEEN: WARNER BROS. ENTERTAINMENT INC. AMAZON CONTENT SERVICES LLC BELL MEDIA INC. COLUMBIA PICTURES INDUSTRIES, INC. DISNEY ENTERPRISES, INC. NETFLIX STUDIOS, LLC NETFLIX WORLDWIDE ENTERTAINMENT, LLC PARAMOUNT PICTURES CORPORATION SONY PICTURES TELEVISION INC. UNIVERSAL CITY STUDIOS PRODUCTIONS, LLLP Plaintiffs and TYLER WHITE DBA BEAST IPTV COLIN WRIGHT DBA BEAST IPTV Defendants ORDER AND REASONS I. Overview [1] On September 20, 2021, the Defendant, Mr. Tyler White, was found guilty of contempt for disobeying numerous provisions of an interim order issued by Justice Yvan Roy on November 17, 2020 [Interim Order] after pleading guilty to the charges levelled against him. [2] At the sentencing phase of the contempt proceedings, the parties presented evidence to be considered by this Court in determining a fit sentence for Mr. White’s conviction of contempt of court. [3] The Plaintiffs recommend that the Court impose upon Mr. White a sentence of incarceration for a period of 60 days in light of numerous aggravating factors that have been established at the hearing. They also request that Mr. White be required to pay their costs of the contempt proceedings fixed on a solicitor-client basis. [4] Mr. White submits that it would be grossly disproportionate to incarcerate him given his personal circumstances. He contends that a fine of $20,000 would be a more appropriate penalty, and that costs should be fixed at $20,000, with both amounts made payable over a two-year period. [5] The two issues to be determined before me are what is the appropriate sentence to be imposed on Mr. White and what costs award should be granted to the Plaintiffs. [6] As explained further below, I consider the Plaintiffs’ sentencing recommendation to be both reasonable and warranted in light of Mr. White’s blatant, defiant and obstructionist conduct that completely frustrated the fundamental purposes of the Interim Order and amounted to an affront to the administration of justice. [7] As for costs, I see no reason on the particular facts of this case why the customary practice in contempt cases, to impose costs on a solicitor-client basis, should not apply. II. Background Facts [8] The facts that gave rise to the contempt proceedings against Mr. White are set out in great detail in the decision of Justice Roy in Warner Bros Entertainment Inc et al v White (Beast IPTV), 2021 FC 53 [Warner Bros]. [9] In summary, the Plaintiffs commenced an action on October 2, 2020 against Mr. White and his co-defendant, Mr. Colin Wright, alleging that they infringed the Plaintiffs’ copyright in the Plaintiffs’ Works by developing, operating, maintaining, promoting, and selling subscriptions to the “Beast IPTV Service.” [10] The Plaintiffs brought an ex parte motion for an interim injunction, which was granted by Justice Roy on November 17, 2020. Justice Roy was satisfied that separate interim orders should issue against Mr. White and Mr. Wright after the Plaintiffs established: (1) a serious issue to be tried, (2) irreparable harm if the motion was not granted, and (3) the balance of convenience favoured the Plaintiffs. [11] The preamble to the Interim Order, entitled “Notice to the Defendant”, reads in part as follows: 2. This Order contains, inter alia, an “interim injunction”. The interim injunction orders you to cease engaging in certain specified activities, and authorizes an independent supervising solicitor, assisted notably by computer forensic experts, to take control of certain Internet domains, subdomains, servers, and hosting provider accounts, as further described in this Order, for a period of fourteen (14) days following the date of service of this Order upon you. This Order also orders you to provide certain information to the independent supervising solicitor and to the Plaintiffs’ solicitors. You are advised to read the terms of the interim injunction very carefully and to comply with them. 3. You are entitled to seek the advice of counsel before complying with the terms of the Order, provided that such advice is sought and obtained within a reasonable time not exceeding two (2) hours from the time the Order has been explained to you. If you are unable to pay for legal fees, legal aid may be available to you by contacting a legal aid office. 4. You are entitled to have the Plaintiffs’ solicitors, in the presence of the independent supervising solicitor who served you with a copy of this Order, explain to you what the Order means in plain, everyday language. 5. When the Order is explained to you, only the independent supervising solicitor, a process server and/or bailiff, a videographer, and Plaintiffs’ solicitors, plus such law enforcement officers as may be required, may enter your premises. However, after the Order has been explained, the persons designated in the terms of the Order, below, may participate in the enforcement of the Order, as described below. 6. You are required to permit entry onto the premises to the persons specified below on any business day starting at 8:00am, or earlier if necessary to enforce this Order, and until such time is reasonable and necessary to complete the execution of this Order, within fourteen days of the date of service of this Order upon you. 7. This is a civil proceeding and not a criminal one. You have the right to refuse entry to the premises for the execution of the Order, but if you refuse the Court may draw adverse inferences from your refusal, and you will be in breach (contempt) of a Court Order under Rule 466(b) of the Federal Courts Rules and subject to a fine and/or imprisonment under Rule 472 of the Federal Courts Rules. Copies of the Federal Courts Rules may be obtained on request to the Administrator of the Federal Court in Ottawa, Ontario (telephone 613- 922-4238) or at any local office. 8. You are entitled to remain silent and to refuse to answer questions other than the questions specified in the Order below. [12] The relevant provisions of the Interim Order required Mr. White: a. to disclose technical information about Beast IPTV Service (paragraph 2B of the Interim Order); b. to not communicate with third parties during the execution of the Interim Order for the purposes of interfering with the execution of the Interim Order, and to not conceal evidence (paragraphs 2I), 3A), 3B) i. of Interim Order); c. to disclose a variety of relevant financial information (paragraph 2J) of the Interim Order); and d. to authorize his financial providers to disclose information to the Plaintiffs (paragraph 2K of the Interim Order). [13] The Interim Order specifically prohibited Mr. White from communicating with Mr. Wright and other third parties within 48 hours of being served with the Interim Order (paragraph 3B) i. of the Interim Order) and from operating, maintaining, and/or updating the Beast IPTV Service and corresponding applications and domains (paragraph 2A of the Interim Order). [14] Paragraph 2M of the Interim Order further enjoined and restrained Mr. White, by himself or by any company, partnership, trust, entity, with which he is associated or affiliated, or person under his authority or control, from directly or indirectly selling, assigning, alienating, transferring, or otherwise disposing of his assets. [15] On November 24, 2020, Mr. White was personally served with the Interim Order at his residence in accordance with its terms. [16] The Interim Order provided that it would remain valid for a period of not more than 14 days, within such time the Plaintiffs were required to bring a motion to review the execution of the Order and consider any application to convert the interim relief into interlocutory relief. [17] At the time of service of the Interim Order, and during its execution, the terms of the Interim Order were explained to Mr. White by Mr. David Hutt, the Independent Supervising Solicitor (ISS) and by Plaintiffs’ counsel, including those relating to his right to consult with counsel, his obligations under the Interim Order, and the potential of an adverse inference being drawn in case of non-compliance. [18] Mr. White was informed by the ISS, in particular, that failure to comply with the provisions of the Interim Order would put him in breach of its terms and subject him to facing a motion for contempt of court, which could result in a fine and/or imprisonment. [19] Mr. White was given the opportunity to ask questions about the Interim Order. Mr. White was also informed that he was entitled to seek advice from his own counsel before deciding whether to comply with the Interim Order provided that such advice was sought and obtained within a reasonable time and did not exceed two (2) hours from the time the Interim Order had been explained. [20] During the execution of the Interim Order, Mr. White claimed to have no knowledge or involvement with the Beast IPTV Service. [21] Mr. White was provided an opportunity to contact a lawyer, but was unable to reach one during the window of time provided in the Interim Order. Eventually, someone from the execution team put Mr. White in touch with a lawyer, Mr. Barry Mason. After receiving some legal advice from Mr. Mason, Mr. White refused to permit entry to his residence or provide any information required by the Interim Order. [22] On November 25, 2020, Mr. White sought legal advice from another lawyer, Mr. Paul Lomic. That same day, Mr. White took the Beast IPTV Service offline, including the Beast IPTV.tv site and the web player accessible at watch.BeastIPTV.tv. [23] On November 30, 2020, Mr. White retained new counsel, Mr. Howard Knopf, who then proceeded to request an adjournment of the review motion scheduled for December 7, 2020. Justice Roy granted the adjournment request and ordered that the Interim Order would remain valid and be continued until a judgment on the review motion was rendered. III. Contempt Charges [24] The review motion was heard on December 18, 2020. On January 14, 2021, Justice Roy issued his decision in Warner Bros granting an interlocutory injunction and charging Mr. White and Mr. Wright with five counts of contempt of court pursuant to Rule 466(1)(b) of the Federal Courts Rules, SOR/98-106 [Rules], namely: Mr. White and Mr. Wright, disobeying paragraph 2B) of the Interim Orders, thereby constituting contempt of Court under Rule 466(1)(b) of the Federal Courts Rules, by refusing to disclose any of the technical information about the Beast IPTV Service as required at paragraphs 2B) of the Interim Orders, and by instead falsely claiming to have no knowledge of the Beast IPTV Service; Mr. White and Mr. Wright, disobeying paragraphs 2I), 3A) and 3B)i. of the Interim Order, thereby constituting contempt of Court under Rule 466(1)(b) of the Federal Courts Rules, by communicating with third parties with their phones or other electronic devices during the execution of the Interim Orders in order to interfere with the execution of the Interim Orders and conceal evidence, notably by instructing third parties to delete websites, infrastructure or evidence related to this proceeding; Mr. White and Mr. Wright disobeying paragraph 3B)i. of the Interim Orders, thereby constituting contempt of Court under Rule 466(1)(b) of the Federal Courts Rules, by communicating with one another and with third parties regarding the existence of this proceeding and of the Interim Order within forty-eight (48) hours after the service of the Interim Orders upon them; Mr. White and Mr. Wright disobeying paragraphs 2J) and 2K) of the Interim Orders, thereby constituting contempt of Court under Rule 466(1)(b) of the Federal Courts Rules, by refusing to disclose to the independent supervising solicitor and the Plaintiffs’ solicitor any of the financial information, as required at paragraphs 2J) of the Interim Orders, and by refusing to provide any consent to authorize financial institutions or other service providers to make such disclosures, as required at paragraphs 2K) of the Interim Orders; Mr. White and Mr. Wright disobeying paragraph 2A) of the Interim Orders, thereby constituting contempt of Court under Rule 466(1)(b) of the Federal Courts Rules, by: developing, operating, maintaining, promoting, providing support, selling subscriptions, or authorizing anyone to sell subscriptions to unauthorized IPTV services, including the Beast IPTV Service; developing, maintaining, updating, hosting, distributing, promoting or selling any software application that provides access to unauthorized IPTV services, including the Beast IPTV Service; operating, maintaining, updating, hosting, promoting or selling access to the Internet domains and subdomains through unauthorized IPTV services, including theBeast IPTV Service; by themselves or by their employees, representatives and agents, or by any company, partnership, trust, entity, or person under their authority or control, or with which they are associated or affiliated, and by failing to take the necessary steps to ensure that such persons would cease these activities after service of the Interim Orders upon the Defendants. IV. Contempt Hearing [25] The contempt hearing was scheduled for September 20, 2021. In early September 2021, Mr. White indicated he would be entering a plea of guilty with respect to the charges of contempt. The parties subsequently produced an Agreed Statement of Facts. [26] On September 20, 2021, Mr. White formally pleaded guilty to all the charges of contempt. The facts supporting the contempt charges, all admitted by Mr. White, are broken down below into three categories: A) Non-disclosure of Beast IPTV servers and domains; B) Non-disclosure of financial information and; C) Communications with others. A. Non-disclosure of Beast IPTV servers and domains [27] Mr. White acquired and paid for various servers and hosting services used in association with the Beast IPTV Service, including from server/hosting providers, Mach Host, Zenex 5ive, reliablesite, and Datapacket/DataCamp [the “Beast IPTV Servers”]. [28] At the time of the execution, Mr. White and six other individuals all had possession of, or access to, the identity, location and login credentials of the Beast IPTV Servers and possession of, or access to, the credentials to access the server/hosting provider accounts associated with the Beast IPTV Servers. The six other individuals were Mr. Wright, and individuals identified as “Q”, “Slip”, “Andrew”, “Sal” and “Jay Stevens”. [29] During the execution, Mr. White did not disclose to the ISS or to the Plaintiffs any information relating to the identity, location or login credentials of the Beast IPTV Servers or any other servers, nor the server/hosting provider accounts associated therewith. [30] At the time of the execution, Mr. White, Mr. Wright and Jay Stevens all had knowledge of at least some of the registrar accounts associated with the following domains used in association with the operation or promotion of the Beast IPTV Service [the “Beast IPTV Domains”]: BeastIPTV.tv Beasthosts.net Beasthosts.org Powergraphics.shop Powergraphicsiptv.shop Beasttv.io Beasttv.cc BeastIPTV.cc Beasthosts.com Beasthosting.org BeastIPTV.com Strikeforceseo.com [31] At the time of the execution, Mr. White, Mr. Wright and Jay Stevens all had possession of, or access to, the login credentials for the registrar accounts associated with the Beast IPTV Domains. [32] During the execution of the Interim Order, Mr. White did not disclose to the ISS or to the Plaintiffs, the registrar accounts and corresponding login credentials for the Beast IPTV Domains or any other domain or subdomain. B. Non-disclosure of financial information [33] At the time of the execution, Mr. White, Mr. Wright and Sal all had possession of, or access to, invoices relating to the Beast IPTV Servers. [34] During the execution, Mr. White did not disclose to the ISS or to the Plaintiffs the invoices associated with the Beast IPTV Servers. [35] At the time of execution, Mr. White and Mr. Wright both had control of, or access to, PayPal accounts associated with email addresses strkeforceseo@protonmail.com and beasthosts@protonmail.com [Beast IPTV PayPal Accounts], which were used in association with the operation of the Beast IPTV Service. [36] During the execution of the Interim Order, Mr. White did not identify or disclose any information to the ISS or to the Plaintiffs related to the Beast IPTV PayPal Accounts. [37] During the execution of the Interim Order, Mr. White did not disclose to the ISS or to the Plaintiffs the existence of any assets, revenues, or any financial documentation related to him or to the Beast IPTV Service. [38] During the execution of the Interim Order, Mr. White did not disclose the identity of any bank, financial institution, or other financial service provider responsible for any asset related to him or the Beast IPTV Service. [39] On September 3, 2021, Mr. White provided his written consent to authorize any bank, financial institution or other financial service provider to disclose to the Plaintiffs’ solicitors any information pertaining to assets that are directly or indirectly owned or controlled by him. C. Communications with others [40] At the time of service of the Interim Order and during the execution, Mr. White was informed that once he was served with the Interim Order, he could only use electronic devices under the supervision of the ISS. He was also informed that he should not be communicating about this matter with anyone for 48 hours, except with counsel for the purpose of seeking and obtaining legal advice. [41] During the morning of the execution, Mr. White breached the Interim Order by instructing a Beast IPTV server manager, known as Jay Stevens, to delete the powergraphicsiptv.shop and Beast IPTV.cc domains. [42] By 12:30 pm EST, the Beast IPTV.cc and powergraphicsiptv.shop domains had been suspended or otherwise taken offline. [43] Subsequent to Mr. White taking the Beast IPTV Service offline, a third party brought the service back online and changed the credentials needed to access the domain registrar. [44] In breach of the Interim Order, Mr. White also communicated with Mr. Wright within the first 48 hours of being served with the Interim Order about each having been served with the Plaintiffs’ claim and the Interim Order, and the difficulties each were having with respect to retaining a lawyer. [45] On November 25, 2020, Mr. White also breached the Interim Order by disclosing the existence of the proceeding and execution of the Interim Order with another third party associated with the Beast IPTV Service known as Sal. [46] At about 10:17 pm EST on November 25, 2020, Mr. White had a telephone conversation with Jay Stevens. During the 31-minute call, Mr. White rambled on about the execution of the Interim Order and how he planned to respond to the proceedings. V. Sentencing Hearing [47] At the parties’ request, the sentencing phase of the contempt proceeding was adjourned pending the adjudication of an appeal by Mr. White from the Judgment of Justice Roy dated January 14, 2021. The appeal was dismissed from the bench by the Federal Court of Appeal on February 23, 2022: White (Beast IPTV) v Warner Bros Entertainment Inc, 2022 FCA 34. [48] In accordance with my Order dated May 13, 2022, the Plaintiffs filed a sentencing hearing record that contains the parties’ affidavit evidence, the Agreed Statement of Facts, read-ins from the examination for discovery of Mr. White, and copies of the documents identified and/or authenticated in the Agreed Statement of Facts and the discovery read-ins. The evidence also includes the audio recording of the telephone conversation between Mr. White and Jay Stevens on November 25, 2020 referred to in paragraph 46 above. A. The Plaintiffs’ Evidence [49] The Plaintiffs rely on the affidavits of Mr. Jason Vallée Buchanan, Ms. Martine Guy, Mr. Anthony J. Martin and Mr. Andrew McGuigan for the purposes of sentencing. Both Mr. Martin and Mr. McGuigan were cross-examined at the sentencing hearing. [50] Their evidence can be summarized as follows. [51] Mr. Buchanan is a paralegal employed by the Plaintiffs’ solicitors of record. He identifies and attaches various documents to his affidavit, including Mr. White’s affidavit of documents affirmed April 16, 2021 and a copy of the confidential affidavit of Mr. White sworn on July 21, 2022 in relation to an earlier motion by Mr. White for leave to sell assets. [52] Ms. Guy is a legal assistant employed by the Plaintiffs’ solicitors of record. She explains in her original and supplemental affidavits how legal fees and disbursements pertaining to the contempt proceedings related to Mr. White are accounted for under the law firm’s internal file and how they are divided between the Motion Pictures Association [MPA] Plaintiffs and Bell Media Inc. [Bell Media]. Attached to her three affidavits are copies of the invoices sent to the Plaintiffs that relate to the contempt proceedings. [53] Mr. Martin is an investigator in the Corporate Security Department of BCE Inc. [BCE], the parent company of Bell Media. He states in his affidavit that media content piracy is “an age-old problem faced by rightsholders,” including the Plaintiffs. He explains how the rapid expansion of television piracy has caused significant harm to, and has attacked the viability of, copyright creators and owners in Canada, including Bell Media. From his experience, those who illegally reproduce and distribute infringing copies of protected works often go to great lengths to conceal their identity and the true nature of their activities to avoid the legal consequences of their actions. Mr. Martin states that Bell Media and its affiliates have invested a significant amount of dedicated resources in launching and prosecuting legal actions against individuals and businesses engaged in such forms of piracy. He then goes on to outline a history of non-compliance with court orders among the content piracy community in Canada. [54] Mr. McGuigan is the Director of the Global Content Protection department [GCP] of the Motion Picture Association-Canada [MPA-Canada], an affiliate of the MPA and was personally involved in the GCP’s efforts to investigate the allegedly infringing activities of Beast IPTV. [55] Mr. McGuigan explains that the online infrastructure of the Beast IPTV Service consisted of a number of domains and content delivery servers that were critical to its functionality. According to Mr. McGuigan, if the requested credentials were provided to the ISS at the time the Interim Order was executed on November 24, 2020, it would have been possible to lock the registrar accounts and shutdown servers, rendering the Beast IPTV Service inoperable and avoid any potential of them being taken over by a third party. [56] Mr. McGuigan describes in great detail how the GCP was monitoring the Beast IPTV Service during the execution of the Interim Order, and in the following days, for any activities or changes to the Beast IPTV Service related to these enforcement efforts. [57] On November 25, 2020, the GCP observed the Beast IPTV Service, including the core beastiptv.tv domain, had been taken offline. However, on the next day, the GCP observed that certain aspects of the Beast IPTV Service were functioning again, including the Beast IPTV reseller/admin portal, which is the control panel used to manage user accounts and subscriptions. [58] On December 1, 2020, the GCP was able to confirm through testing that subscribers were still able to access and view content through the Beast IPTV via a web-based player, the Beast IPTV Android Application, and the Beast IPTV Perfect Player media player. The GCP also became aware through the Beast IPTV Telegram group that subscribers were complaining about not being able to renew their subscriptions. [59] While the GCP initially suspected on December 5, 2020 that Beast IPTV administrators were manually renewing subscription via PayPal as a stop-gap measure in response to some issue with Beast IPTV payment portals, it became apparent by about December 10, 2020 that those administrators were covertly attempting to enroll some of Beast IPTV’s subscriber base into a new spin-off service. [60] Following the shutdown of the Beast IPTV Service, messages were posted on the domain beastsoftware.net, a domain that the GCP had identified as being associated with payment support for the Beast IPTV Service prior to the execution of the Interim Order. The GCP obtained a screenshot from a social media post on December 26, 2020 of what appears to be a message posted on a Beast IPTV website the previous day. An excerpt of the screenshot is reproduced below. [61] According to Mr. McGuigan, the message appears to be a tactic employed to retain whatever funds had already been collected by the service and/or to potentially encourage users to contact the parties directly at the email provided to facilitate the subscribers’ migration to an alternative service. A similar message was posted on the billing.beastsoftware.net domain on December 26, 2020. [62] Mr. McGuigan states that over the last several years, the GCP has observed a pattern of those involved in the operation of unauthorized IPTV services to attempt to circumvent its enforcement efforts by transitioning subscribers to an alternative unauthorized service using data associated with the targeted data. [63] He provides as an example an authorized IPTV service known as Vader Streams that was the subject of a GCP investigation beginning in 2018. On March 11, 2019, eight months before the execution of the Interim Order in the present case, the MPA-Canada sent a cease and desist letter to Mr. White demanding that he take immediate steps to address the extensive copyright infringement of television programs and motion pictures that was occurring by virtue of his operation of the Internet website “Vaders.cc.” Mr. White was specifically warned that multiple judgments and orders had been issued by Canadian courts that provide for injunctive relief and important damage awards in cases dealing with the unauthorized dissemination of works owned by the major motion picture studios and other rightsholders that MPA-Canada represented. [64] Mr. McGuigan had several conversations with Mr. White following service of the cease and desist letter. Mr. White admitted to Mr. McGuigan that he operated several re-seller sites for Vader Streams and agreed to shut them down. However, Mr. White denied having any ties with the Beast IPTV Service and indicated that he was no longer involved with the sale of subscriptions or with the operation of unauthorized IPTV services. [65] The Vader Streams service was effectively shut down by the summer of 2019 following the commencement of litigation in this Court. [66] During his examination for discovery, Mr. White admitted that the Beast IPTV subscriber base grew significantly by transferring a large portion of his prior Vader Streams customers onto the Beast IPTV Service after the shutdown. [67] Mr. McGuigan concludes his affidavit by noting that individuals and companies involved in the operation of unauthorized IPTV services targeted by the GCP’s enforcement efforts have been able to use data associated with the targeted services to facilitate the migration of subscribers to alternative services. As a result, disruptions to subscribers are minimized and the targeted acts of infringement are essentially shifted elsewhere, rather than actually being shut down. B. Mr. White’s Evidence [68] Mr. White filed his own affidavit, along with the affidavit of Karen Laroque. [69] Ms. Laroque is a litigation law clerk with the law firm representing Mr. White. Attached to her affidavit are documents showing the continued efforts made by Mr. White to comply with the financial disclosure provisions of the Interim Order. These include supplemental affidavits of documents provided to the Plaintiffs over the course of a year. Ms. Laroque was not cross-examined. [70] In his affidavit, Mr. White expresses remorse for his actions that led to contempt of the Court. He states that he now fully understands the importance of court orders and the requirement to obey them in all respects. [71] Mr. White states that while he does not offer any excuses for his failure to fully comply with the Interim Order, he claims that it was due in “significant measure” to his reliance on inadequate legal advice from Mr. Mason. Mr. White states that he refused to provide the required information after he was advised by Mr. Mason “that the team of lawyers could not do anything to [him] that day” and that he “did not need to take any actions and just wait until [he] found proper legal representation.” [72] Mr. White sets out in his affidavit some personal circumstances that he wishes the Court to consider in mitigation of the sentence, including his son’s medical condition, his guilty plea, and the fact that this is the first time he has been charged with civil contempt. [73] At the hearing, Mr. White repeated his apology to the Court. He acknowledged that his decision not to follow the court order was “serious” and was “a horrible error of judgment” on his part. He was then cross-examined extensively by Plaintiffs’ counsel. [74] Mr. White admitted in cross-examination that he was a registered member of the BlackHatWorld Forum going by the name “Activeits” and started a thread on March 14, 2018. entitled “How I make 1k a day or more” under the heading “Making Money.” [75] Although only a screenshot of page 4 of 5 of the thread was adduced in evidence, I infer from the title of the thread and the responses that are posted in the screenshot that Mr. White’s original post related to making money online by reselling IPTV subscriptions and that he was getting ready to share some tips online with like-minded people. The excerpts referred below, taken from the thread, are reproduced exactly as written. [76] On September 4, 2018, a member of the forum congratulated Mr. White for his work: “Looking forward for your step-to-step post! Good work on achieving 1k per day and I hope your keep on being successful!” However, on September 5, 2018, another member had this to say: “yeah proper jail time in the uk for this shit now. Get ready for some butt f*ucking.” On September 9, 2018, a third member posted a comment in the same vein. Watching an IPTV service (a legal one or illegal one) is not illegal in the US. Rebroadcasting copyright restricted content is though If you where to download and redistribute content you acquire from an illegal source, such as IPTV (but not limited to), and shared it, then that is illegal So what you were doing was safe IMO since you were not technically broadcasting anything, you were merely reselling subscriptions Are you now broadcasting? If so, even though there may be more profits, are you concerned about legal ramifications [77] Mr. White responded to the post on October 2, 2018. Apparently unfazed by the warnings, he bragged that he was not concerned about the legality of his actions and was well aware of potential consequences: No not concerned everything i do i do carefully i also recently found a payment gateway that actual accept credits cards and pays out in BTC or PP or anything i need they also can pay bills for me so i have no problems with tracing BTC is a mans best friend in this market also people have to remember that you do need to take precautions and also know the things that can happen if shit goes south just gotta play things smart there is a TON of money to be made in IPTV and I’m just getting started! Thanks for the support everyone! [78] On cross-examination, Mr. White admitted that he was holding at least $744,000 across several bank accounts at the time he was served with the Interim Order. He also admitted that immediately after the execution of the Interim Order, he went to the bank and withdrew $10,000 in hundred-dollar bills. [79] Mr. White also acknowledged that up to the date of the sentencing hearing, he had still not identified, nor disclosed, details of various investment accounts with WealthSimple and Questrade and a Coinbase cryptocurrency account, the existence of which the Plaintiffs were only able to identify by scouring the hundreds of pages of banking transaction records provided by Mr. White. C. Credibility of the Witnesses [80] Mr. White submits that the evidence of Mr. Martin and Mr. McGuigan is almost entirely hearsay, speculative or irrelevant and should be given little, if any, weight. I disagree. [81] Mr. Martin provides useful context to the Court to better understand the piracy problem faced by rightsholders in Canada, the harm such piracy has created to the viability of copyright creators and owners, and the significant amounts of dedicated resources these creators and owners have expended over the years in launching and prosecuting legal actions against individuals and businesses engaged in some forms of piracy. His evidence is well supported and not contentious. [82] As for Mr. McGuigan, I am satisfied that given his role as Director of the GCP and his personal involvement in the GCP’s efforts to investigate the infringing activities of the Beast IPTV Service, he was in a position to know the facts sworn in his affidavit to be true: see O’Grady v Canada (Attorney General), 2016 FC 9, aff’d 2016 FCA 221 at paras 18 to 20. There is no speculation on his part. In fact, much of his evidence is corroborated through documentary evidence and, in many cases, by Mr. White’s own admissions. Moreover, he was not shaken on cross-examination on any material point. [83] I find the evidence of these two witnesses both credible and reliable. [84] As for Mr. White, suffice it to say that he came across as a totally unreliable witness. He was evasive and vague throughout his entire testimony, as well as conveniently forgetful on any matters that might tend to incriminate him, even when confronted with incontrovertible evidence. [85] Plaintiffs’ counsel put to Mr. White a number of statements that he made to Jay Stevens regarding the legal advice that he received from Mr. Lomic. Counsel for Mr. White objected to this line of questioning and argued that communication of the legal advice to a key member of Beast IPTV did not constitute an explicit or implicit waiver of the solicitor-client privilege. I disagree. [86] There is no indication that Mr. Lomic was retained to represent any members of the Beast IPTV Service, other than Mr. White. He freely talked about the legal advice he received from Mr. Lomic with Jay Stevens and expressed frustration because it was not what he wanted to hear. In any event, even if privilege was not waived, Mr. White placed the legal advice he received at issue by stating at paragraph 32 of his affidavit that: “I now realize that following this advice (from Mr. Mason) resulted in me not complying with all the provisions of the November 17, 2020 Order, which led to the finding that I was in contempt.” By relying on the fact of taking legal advice as a defence or excuse for his conduct, Mr. White necessarily put in issue all the legal advice he received when he breached the terms of the Interim Order in such a way that it would be unfair to shield those communications from disclosure: Apotex Inc v Canada (Minister of Health), [2004] 2 FCR 137, aff’d 2004 FCA 280, at para 44. VI. Principles for Sentencing for Civil Contempt [87] The power of courts to enforce their process is a cornerstone of the rule of law. For the judicial process to function, orders of the Court must be respected. [88] The Supreme Court of Canada in United Nurses of Alberta v Alberta (Attorney General), [1992] 1 SCR 901 at 931 explained the principle underlying the importance of complying with court decisions: Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court. [89] This principle was reiterated by Chief Justice Paul Crampton in the recent case of Bell Media Inc v Macciacchera (Smoothstreams.tv), 2023 FC 801 at para 1: “Those who decide when and under what circumstances they will comply with a court order essentially take the law into their own hands. That cannot be countenanced in a society governed by the rule of law.” [90] This Court’s authority to impose penalties on a contemnor is governed by Rules 466 to 472 of the Rules. [91] Rule 472 sets out the penalties that may be issued in contempt proceedings. Penalty Peine 472 Where a person is found to be in contempt, a judge may order that (a) the person be imprisoned for a period of less than five years or until the person complies with the order; (b) the person be imprisoned for a period of less than five years if the person fails to comply with the order; (c) the person pay a fine; (d) the person do or refrain from doing any act; (e) in respect of a person referred to in rule 429, the person’s property be sequestered; and (f) the person pay costs. 472 Lorsqu’une personne est reconnue coupable d’outrage au tribunal, le juge peut ordonner : a) qu’elle soit incarcérée pour une période de moins de cinq ans ou jusqu’à ce qu’elle se conforme à l’ordonnance; b) qu’elle soit incarcérée pour une période de moins de cinq ans si elle ne se conforme pas à l’ordonnance; c) qu’elle paie une amende; d) qu’elle accomplisse un acte ou s’abstienne de l’accomplir; e) que les biens de la personne soient mis sous séquestre, dans le cas visé à la règle 429; f) qu’elle soit condamnée aux dépens. [92] Mr. Justice John Norris provides a helpful and comprehensive overview of the general principles of sentencing for civil contempt in Bell Canada et al v Red Rhino Entertainment Inc, 2021 FC 895 [Red Rhino] at paras 6-13. [93] As noted by Justice Norris, a judge has wide discretion to determine the appropriate sanction for civil contempt (Red Rhino at para 9; Tremaine v Canada (Human Rights Commission), 2014 FCA 192 [Tremaine] at para 26). [94] Sentencing principles in criminal law are applicable to cases of civil contempt (Tremaine at para 19). The Federal Court of Appeal in Tremaine outlines the framework for determining a “fit” sentence and emphasizes the importance of deterrence and proportionality as the objectives of sentencing: [21] In order to determine what is a “fit” sentence in a particular case, the sentencing judge must consider the range of sentences for similar offences set out in prior jurisprudence and adjust the sentence depending on the objectives of sentencing and any aggravating and mitigating factors applicable to the case at hand (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at paragraph 43; Professional Institute of the Public Service of Canada v. Bremsak, 2013 FCA 214, [2013] F.C.J. No. 1009 at paragraph 33 [Bremsak]). [22] Courts also ought to consider the importance of specific and general deterrence for preserving public confidence in the administration of justice, while maintaining proportionality in sentencing (Canada (Minister of National Revenue) v. Marshall, 2006 FC 788, [2006] F.C.J. No. 1008 at paragraph 16 [Marshall]). [95] There are a number of aggravating and mitigating factors a court can consider when determining a sentence for civil contempt. Aggravating factors, which must be established beyond a reasonable doubt by the prosecutor (the Plaintiffs in this case), include: a. Whether the offending conduct was a prolonged course of conduct as opposed to an isolated incident; b. The scope or scale of the offending conduct; c. Whether the offending conduct continued even after it was found to constitute contempt; d. The offender’s motivation; e. Whether the offender has previously been found guilty of contempt. (Red Rhino at para 13.) [96] Mitigating factors, which must be established on a balance of probabilities by the party relying on them (Mr. White in this case), include: a. A genuine expression of remorse by the offender; b. Acceptance of responsibility; c. Taking steps towards rehabilitation; d. Good faith efforts to comply with the order in question; e. Personal circumstances such as youthfulness or addiction that reduce the offender’s degree of responsibility for the wrongful conduct (Red Rhino at para 13.) [97] Justice Norris also notes in Red Rhino at paragraph 14 that the profitability of the offending conduct is a relevant consideration in a commercial context. This can impact the quantum of the fine and whether it meaningfully denounces the wrongful conduct and protects the administration of justice through specific and general deterrence. If the motive was greed, this can be an aggravating factor. [98] He emphasizes “[n]one of these objectives will be achieved if a fine is simply a bearable cost of doing business in breach of a court order.” The burden is on the moving party to establish the offender’s ability to pay on a balance of probabilities (Red Rhino at para 15). [99] In summary, the following must be considered when determining an appropriate sentence: a)the proportionality of the sentence to the wrongdoing; b)the presence of aggravating factors; c)the presence of mitigating factors; d)deterrence and denunciation; e)the similarity of sentences in like circumstances; and f)the reasonableness of a fine and the reasonableness of incarceration. VII. Analysis [100] The Supreme Court of Canada has repeatedly expressed that sentencing is “one of the most delicate stages of the criminal justice process in Canada:” R v Lacasse, 2015 SCC 64 at para 1; R v Friesen, 2020 SCC 9 at para 31; R v Parranto, 2021 SCC 46 [Parranto] at para 9. The same applies to sentencing in contempt proceedings. [101] As stated by the Supreme Court in Parranto at para 10: “The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal.” [102] In order to produce proportionate sentences, sentencing must be highly individualized (Parranto at para 12). Sentencing judges must determine which objectives of sentencing merit greater weight and evaluate the importance of the mitigating and aggravating factors. A. Aggravating and Mitigating Factors [103] In deciding on a sentence, I have taken the following factors into account. (1) The Contempt was knowing [104] Mr. White claims that when the Interim Order was executed at his home, he was “confused, frustrated, and at a significant disadvantage, having no knowledge of, or experience with, these types of civil court proceedings.” I find this assertion to be wholly lacking in credibility. [105] Mr. White was no stranger to the IPTV piracy world before the execution team came knocking at his door. Based on his post on the BlackHatWorld Forum, it is clear he had been involved in selling pirated IPTV channel subscriptions since at least 2018 and was aware of the legal ramifications of his activities. He publicly thumbed his nose at any potential court process, making it clear that he was not concerned about the consequences of his actions and that his motivation was purely greed. [106] To the extent that Mr. White may not have been fully aware of the seriousness of this conduct and the potential legal consequences, any possible confusion would have been dispelled by the cease and desist letter from the MPA in 2019 and his subsequent discussions with Mr. McGuigan. [107] It is clear Mr. White was fully aware of the risks he was taking by continuing to be involved in the operation of an unauthorized IPTV service, as further evidenced by his lament expressed to Jay Stevens during their telephone conversation on November 25, 2020. MR. TYLER WHITE: No, well you know man. I don’t, listen, I don’t even look for sympathy. We did it ourselves. We knew what, what the risks are, right? [108] In the circumstances, Mr. White’s pleas of “confusion” and ignorance of the court process are untenable. Based on the overwhelming evidence before me, the acts of contempt were committed by Mr. White with full knowledge of their unlawfulness. They were objectively and subjectively wrong. (2) The Contempt was deliberate [109] Mr. White claims that Mr. Mason advised him that he did not need to take any action and could wait until he found proper legal representation. I have trouble believing that this would have been the extent of the legal advice provided by Mr. Mason. In any event, it does not serve to excuse Mr. White’s conduct. To the contrary, rather than heed Mr. Mason’s advice and refrain from taking any action, Mr. White immediately embarked on a course of contemptuous conduct, that continued over the next few days and months. [110] Mr. White was reminded in cross-examination that he had retained Mr. Paul Lomic, a copyright lawyer on November 25, 2020, that he had discussed the case with Mr. Lomic on that day, and that Mr. Lomic had advised him to abide by the terms of the Interim Order. His advice was ignored. [111] Mr. White was clearly unwilling to follow any legal advice that did not suit his purposes. [112] Mr. White proceeded to contact a number of individuals associated with the Beast IPTV Service in flagrant breach of the Interim Order. Mr. White was aware, as he admitted on cross-examination, that others within the Beast IPTV Service were going ahead with moving to other servers and trying to migrate their subscribers to new platforms. Those parties were able to access the Beast IPTV subscriber lists, and in the days and weeks following the attempted enforcement, they were able to use subscribers’ email addresses and other contact information to control the messaging provided to subscribers. This information facilitated the efforts of third parties to move Beast customers to other unauthorized IPTV services. [113] In turning away the execution team without providing any of the technical information required of him under the terms of the Interim Order, Mr. White acted in a manner calculated to frustrate one of the fundamental purposes of the Interim Order, namely, to gain immediate control of the Beast IPTV infrastructure and stop any further copyright infringement. [114] Mr. White’s conduct frustrated another of the fundamental purposes of the Interim Order, specifically to stop his potentially unlawful gains from being dissipated. Over time, he depleted as much of his assets as possible to keep them out of the reach of this Court and the Plaintiffs. [115] By the time Mr. White disclosed the identity of some of his bank accounts in April of the following year, most of the money in the accounts had been withdrawn, except for approximately $50,000. While it appears that $400,000 went towards legal fees, no valid explanation has been provided by Mr. White as to what happened to the remaining $295,000. [116] The only clue as to what did transpire with the missing funds is found in the recorded call between Mr. White and Jay Stevens. In the following exchange, Mr. White contemplates falsely claiming to be bankrupt to shield himself and using the money that was intended to be frozen by the Interim Order to keep himself “going for a while.” MR. TYLER WHITE: I think if I -- if I just friggen, you know, think of what I’ve got and then they can sue me for whatever, but like claim bankrupt and say I don’t have it. At least then I know --- MR. JAY STEVENS: Well --- MR. TYLER WHITE: --- the amounts that I can take out. I know that it’s -- you know, I’m good. MR. JAY STEVENS: I don’t know how it works up there. Down here the judgments -- certain court judgments you can’t --- MR. TYLER WHITE: No, it says I can’t, but what are they going to do. MR. JAY STEVENS: Well, I mean, you ruin your credit, you know, and you’ll never be able to finance stuff. MR. TYLER WHITE: I mean, the amounts could keep me going for a while, right. [117] By not disclosing the financial information required of him in November 2020, Mr. White benefitted to the tune of hundreds of thousands of dollars. (3) The Contempt has not been purged [118] Mr. White submits that he has used his best efforts to purge his contempt. I disagree. [119] Mr. White claims that as of November 25, 2020, he caused the Beast IPTV system to be shut down to the extent he could and ceased having any control, involvement, and authority over the system. Mr. White points out that, as of September 7, 2021, he provided all known and available technical information to the Plaintiffs’ solicitors. [120] These efforts were obviously too little, too late. The harm had already been done and the situation was beyond repair. [121] Mr. White also claims that as of November 2, 2021, he made “to the best of his ability” detailed disclosure of all requested financial information in his possession and updated Plaintiffs’ counsel with additional financial information obtained from his bank on February 25, 2022. [122] However, Mr. White did not disclose all of his accounts, as he claims. In fact, up to the date of the sentencing hearing, he was still in breach of paragraphs 2J) and 2K) of the Interim Order. As noted earlier in these reasons, Mr. White acknowledged on cross-examination, he had still not identified nor disclosed details of various investment accounts. (4) The Contempt caused irreparable harm to the Plaintiffs [123] Mr. White submits that the delayed disclosure of the technical information relating to Beast IPTV, including domain login and related information, did not harm the Plaintiffs or prejudice their case. I disagree. [124] The consequence of Mr. White’s failure to comply with the terms of the Interim Order within the window of time provided therein was that the ISS was not able to secure, deactivate and take custody of the Beast IPTV Infrastructure. [125] At paragraphs 10 and 11 of his affidavit, Mr. McGuigan explains the importance of securing online infrastructure: 10. […] it is not unusual for operators of unauthorized IPTV Services to move control over online infrastructures between different partners in different jurisdictions in order to avoid detection and prosecution, and that the transferring control of such infrastructure can occur in a very short period of time. 11. Requesting that domain and server credentials be handed over as part of an enforcement effort are therefore critical to: a) ensure that the unauthorized IPTV service targeted by the enforcement effort is shutdown as quickly as possible; b) avoid any parts of the infrastructure being transferred to third parties that may be outside the jurisdiction of Canadian courts; and c) prevent use of the infrastructure by a defendant or third party subscribers to facilitate the migration or enrollment of subscribers of the targeted service to an alternative unauthorized IPTV service, thereby circumventing the enforcement effort. [126] While Mr. White may have taken the Beast IPTV Service offline on November 25, 2020, it was a hollow gesture as someone else had already taken it over. This would not have occurred were it not for Mr. White contacting Jay Stevens the morning of the execution of the Interim Order and instructing him to delete two domains, in flagrant breach of the Interim Order. As the saying goes “the cat was out of the bag.” [127] The Beast IPTV Service was not effectively shut down for about one month after the Interim Order was executed on Mr. White, and only after a concerted effort by Beast IPTV personnel and re-sellers to migrate subscribers from the Beast IPTV Service to one of several unauthorized replacement or successor IPTV services. [128] In the end, all the substantial time, resources and energy invested by the Plaintiffs in marshalling evidence, seeking and obtaining interlocutory relief from this Court, and going through the process of executing the Interim Order were for naught. The Plaintiffs are now forced to start again playing the never-ending whack-a-mole game against content piracy sites. (5) Mitigating factors [129] Mr. White submits that there are mitigating circumstances that call for a fine rather than imprisonment, and for a proportionate award of costs rather than solicitor-client costs. [130] Mr. White’s guilty plea is certainly a positive factor. As a result, there was some saving of Court time and no witnesses were required to testify at the contempt hearing. [131] It also appears to be the first time that Mr. White has been found in contempt. The absence of a prior conviction for contempt is a mitigating factor. [132] Mr. White apologized for his conduct and expressed remorse to the Court, and to the Plaintiffs, for disobeying the provisions of the Interim Order with which he was charged. However, to my ears, the words of apology ring hollow given that aspects of Mr. White’s contempt are ongoing or cannot be purged. There can be little to no value in an apology presented in the context of a sentencing hearing, offered seemingly for the sole purpose of attempting to reduce the sentence to be imposed. [133] As for Mr. White’s expression of remorse, I question his sincerity. He appeared to me to be more sorry for himself, and the plight he now finds himself in, than he was for the Court or the Plaintiffs. I find that Mr. White’s statements to Jay Stevens on November 25, 2020 shows his true colours and attests to what he really thinks about the Plaintiffs and this Court. [134] Mr. White adopted an approach, which, in his words, would entail “sticking it to the plaintiffs - just a little.” He also showed a disdainful attitude toward this Court, dismissing it as nothing more than a “civil court.” MR. TYLER WHITE: (Inaudible) to the bank, took everything I could out, and then, you know, obviously they’ll see that and they’ll be like where’s that, and I’ll be like I don’t know, I spent it, sorry, I fucked up, whatever. It’s a civil court, it’s not criminal, right. He’s like well then they’ll come after you harder and take everything. But I’m saying well buddy I’ll still have what I took out. You know what I mean? [135] Mr. White claims that he has learned his lesson, and that he will never disobey a court order again. However, during his conversation with Jay Stevens, Mr. White is defiant despite receiving proper legal advice and mused about declaring bankruptcy to avoid paying any judgment awarded against him. Even though Mr. White may not have taken any steps in furtherance of his scheme, it suggests to me that he will continue to frustrate the Plaintiffs’ ability to obtain justice from this Court by whatever means, legal or otherwise. [136] Mr. White provided evidence concerning his own health and that of his son and the personal circumstances of his partner and parents. He states that he is the primary caregiver and sole legal guardian for his son and that any duration of jail time will significantly affect his care and disrupt his life. However, there is nothing exceptional about this. [137] Courts, and more particularly criminal courts, are routinely required to sentence individuals who are caregivers to periods of incarceration. Mr. White has not established that he has any serious medical condition, let alone a condition that could not be accommodated in prison. Moreover, Mr. White has not adduced any evidence from his son’s mother, his girlfriend, or his son’s grandparents establishing that they would be unwilling or unable to look after his son. [138] Mr. White points out that he is finally employed full-time after almost two years of being largely unemployed. He is currently on probation and is eager to keep his job and to use his modest income to support his partner and son, acquire health benefits, pay off his debts and defend this action. He says that any jail sentence will likely result in his losing his job. Once again, there is nothing exceptional about this. [139] To the extent mitigating factors have been established, they pale in comparison to the numerous aggravating factors established beyond a reasonable doubt by the Plaintiffs. B. Sentence to be imposed [140] Both parties agree that this Court must consider the principle of parity, which requires that similar offenders who commit similar offences in similar circumstances receive similar sentences. Looking at comparable cases is important to determine an appropriate sentence because they serve as helpful benchmarks: Red Rhino at para 51. [141] Mr. White submits none of the sentencing cases of this Court involving contempt in the intellectual property context involve a sentence of immediate incarceration, but rather fines ranging from $1,000 to $50,000. He argues that unlike the facts in Bell Canada et al v Vincent Wesley DBA MtlfreeTV.com, 2018 FC 861 [Wesley] and Red Rhino, where fines of $30,000 and $40,000 were imposed respectively, the seriousness of Mr. White’s contempt is not at the high end of the scale. In my view, it is an “apples and oranges” exercise to compare the two decisions with the case at hand. [142] I agree that the conduct of the defendants charged with contempt in Wesley and Red Rhino was serious indeed. However, each case must be decided on its own facts and in light of the unique circumstances of the contemnor. [143] In Wesley, Justice Roy noted that defendant came across as being rather reckless and naïve. He found that there was no evidence of the profits that might have been generated by the defendant, but they could not have been significant. As for deterrence of others, he concluded that it could be achieved by the imposition of a significant fine commensurate with the financial means of the defendant. [144] In Red Rhino, Justice Norris accepted as sincere the defendant’s statement that he recognized the error of his ways, that he had not engaged in conduct contrary to the injunction ever since, and that he would not do so in the future. He also noted that there was little direct evidence of the defendant’s present financial circumstances or obligations. [145] None of the factors or deficiencies in evidence in these two cases are present here. More importantly, neither Wesley nor Red Rhino involved breaches of an Anton Piller order, which, by its very nature, requires immediate compliance to be effective. [146] An Anton Piller order derives its name from the case of Anton Piller KG v Manufactur­ing Processes Ltd, [1976] 1 All ER 779 (CA) the English Court of Appeal approved a practice which had recently been adopted in the Chancery Division, in infringement of propriety rights cases, of making orders which Master of the Rolls, Lord Denning, noted “have some resemblance to search warrants,” but with a difference. At p. 60 he pointed out: Let me say at once that no court in this land has any power to issue a search warrant to enter a man’s house so as to see if there are papers or documents there which are of an incriminating nature, whether libels or infringements of copyright or anything else of the kind. No constable or bailiff can knock at the door and demand entry so as to inspect papers or documents. The householder can shut the door in his face and say “Get out.” That was established in the leading case of Entick v. Carrington (1765) 2 Wils.K.B. 275. Unable to authorize the plaintiffs or their agents to enter the defendants’ premises against their will, the court, employing a kind of Catch 22 logic, fashioned an order compelling the defendants to give permission to the plaintiffs to enter, inspect, copy and seize or remove documents and things. The defendants’ refusal to comply does not entitle the plaintiffs to enter forcibly; but it makes the defendants liable to punishment for their contempt. [147] As Justice Roy noted in Warner Bros at paras 79 and 80, the interim orders issued against the Defendants were “not of the typical Anton Piller variety” as they were not search warrants; however, they had “by their nature, a measure of intrusiveness similar to that of the typical Anton Piller.” [148] Ordinarily, the contemnor is given an opportunity to purge their contempt. At the penalty hearing, if the contempt has been purged, this is a significant mitigating factor with respect to the penalty imposed. However, the extraordinary nature of the Interim Order issued in this case was premised on immediate compliance with its terms and grounded on the coercive threat of contempt proceedings. Its purpose was to preserve the Court’s jurisdiction by preventing the Defendants from avoiding this Court’s jurisdiction by transferring the ownership or control of the Beast IPTV Service outside this Court’s jurisdiction and to stop Mr. White’s potentially unlawful gains from being dissipated. [149] It is impossible for Mr. White to purge the contempt in this case. By the time he disclosed any credentials to the former Beast IPTV Service, some four months after the execution of the Interim Order, the damage had been done and was beyond repair. Moreover, substantial assets were depleted and are unaccounted for. [150] An important objective of sentencing is to denounce the unlawful conduct and the need for specific and general deterrence must be considered, especially in content piracy matters. [151] By Mr. White’s own admission, “there is a TON of money to be made in IPTV.” On cross-examination, Mr. White acknowledged that the IPTV piracy community has come to understand that the “go to” fine for infringement was payment of about $50,000, more than double the fine he now proposes to this Court. [152] There is obviously a significant financial incentive in the illicit IPTV industry to not comply with the Court’s orders. These actors are after all nothing more than digital content thieves who reap big profits by stealing the intellectual property of others. They are motivated by greed, pure and simple. In my view, imposing a fine in an amount that is perceived as being nothing more than the “cost of doing business” would not send a correct message of deterrence. [153] Based on a screenshot of exchanges from a Beast IPTV support group between December 7 and 11, 2020, and messages posted on Beast IPTV website later that month, it is reasonable to expect that the satellite piracy community is aware of the present case. The Plaintiffs argue that the sentence imposed should be one that ensures that those involved in satellite piracy understand that these types of orders cannot be ignored or circumvented without serious consequence. [154] The credibility of the threat of contempt and the Court’s willingness to impose hefty penalties when its orders are ignored must go hand in hand in order to provide meaningful and effective justice. [155] In the present case, the amount of a fine that might achieve deterrence remains elusive, in large part due to Mr. White’s non-compliance with the Interim Order. As discussed earlier in these reasons, due to Mr. White’s acts of contempt, various aspects of the Beast IPTV service were migrated elsewhere and significant evidence has either been destroyed or withheld. Further, as established on cross-examination, Mr. White frustrated the Plaintiffs’ ability to prevent the dissipation of at least $344,000, not including $400,000 paid to his counsel. Mr. White also failed to provide disclosure relating to his cryptocurrency and investment accounts by the time of sentencing. [156] Mr. White argues that he does not have the means to pay a substantial fine. I do not believe him. Mr. White’s own evidence establishes that has substantial equity in four real estate properties, including his personal residence. Moreover, the inference I take from Mr. White’s post on the BlackHatWorld Forum about the advantage of using BTC (bitcoin), and his statement to Jay Stevens that the amounts he could take out “could keep (him) going for a while,” is that he socked away a substantial amount of money that cannot be traced. Unfortunately, the exact amount that can be accessed by Mr. White cannot be ascertained due to his continued failure to come clean about his financial circumstances. [157] Mr. White has hindered the Court’s ability to determine a meaningful fine that achieves deterrence. I am therefore left to consider what other penalty would serve to drive home the message that this Court takes breaches of its orders seriously and deters others from engaging in similar conduct. [158] In terms of parity, I agree with the Plaintiffs that, in the absence of any cases on point in this Court, the sentences imposed by the Ontario Courts in similar cases of breaches of Anton Piller Orders ought to guide this Court’s consideration. These include Echostar Communications Corp v Rodgers, 2010 ONSC 2164 [Echostar]; DIRECTV Inc v Boudreau, 2005 CarswellOnt 7026 (Ont SC) [Boudreau], varied in [2006] OJ No 1583, 2006 CarswellOnt 2391 (Ont CA); and Bell Expressvu Limited Partnership v Rodgers, Court No. 06-CL-6574, an unreported decision dated May 18, 2010 [Rodgers]. [159] In Echostar, the defendants each received periods of incarceration of four months for contempt of Anton Piller Orders. The Superior Court of Ontario considered incarceration to be appropriate “where the refusal to comply with an Order frustrates the gathering of important information necessary for the resolution of a complex situation, with adverse consequences to the plaintiff” (Echostar para 55). The Court added at para 56: [56] Imprisonment is also appropriate where non-compliance with the Court Order has had and will continue to have extremely serious consequences for the plaintiff. Incarceration can serve as an inducement or an incentive for a person to change his or her attitude and begin to appreciate and respect the legal system. Incarceration sends a clear message that non-compliance with Court Orders will not be tolerated or taken lightly and is therefore consistent with the sentencing goals of denunciation and specific and general deterrence. [160] In Boudreau, the Court ordered the defendant to be incarcerated for nine months (reduced on appeal to three months) for failing to grant access to a web site, which resulted in the loss of evidence and severe prejudice to the plaintiffs. [161] In Rodgers, the Court ordered a defendant to be incarcerated for four months for failing to grant access immediately to a premises and several web sites, and for implementing a complicated scheme designed to conceal his activities. [162] Although the facts in the Ontario cases cited above are somewhat distinguishable from those in this case, the common theme is that the sentence imposed should address general deterrence, so that others do not mimic the contemnor’s wrongdoing: see also Echostar Satellite Corporation et al v Megill et al, unreported reasons of Pepall J dated April 19, 2007, docket 06-CL-6619, 06-CL-6618. [163] Breaches of court orders are taken seriously by the courts in Ontario. It matters not that the contemnor is a first time offender: Mercedes-Benz Financial (DCFS Canada Corp) v Kovacevic, 2009 CanLII 9423 (ONSC) at para 41. In that case, the sentencing judge found that the defendant that had deliberately and willfully disobeyed the court’s order, that he displayed disdain for the court and its authority, and that his defiance of the court was palpable, unrepentant, and unremitting. Even though it was the defendant’s first offence and had purged his contempt, the judge sentenced him to serve 5 days in a provincial correctional institution. [164] In her dissenting reasons in Bell Canada v. Adwokat, 2023 FCA 106 [Adowokat], Justice Nathalie Goyette noted that there was a conflict in approach between the Federal Courts and those in Ontario, at para 58. [58] […] In all likelihood, incarceration would have been imposed by the Ontario courts on Mr. Adwokat had this matter been adjudicated by these courts: Dish Network at p. 14; DIRECTV. Federal courts, including our Court, have been much more lenient. In civil contempt cases involving copyright matters, I am only aware of three Federal court cases that ordered incarceration, but only if certain conditions were not met: Lari v. Canadian Copyright Licensing Agency, [Lari]; P.S. Knight; Polsat. This conflict in approach between these courts should no longer continue. The Federal Court should not be a safe haven for persons in contempt. [165] I agree with Justice Goyette that courts in Canada should be consistent in their approach to sentencing in contempt proceeding involving copyright matters. It is important to dispel the notion that this Court, the go-to forum for intellectual property litigation, is more lenient than provincial superior courts. [166] Despite the principle of restraint in the use of incarceration, I consider a sentence of incarceration to be warranted in this case. The evidence against Mr. White in this case is overwhelming and damning. Numerous aggravating factors have been established by the Plaintiffs beyond a reasonable doubt, based largely on Mr. White’s own admissions, including his words caught on tape and posted online. [167] I reject the community service alternative proposed by Mr. White because it would send the wrong message that restitution is being made. The traditional penalty of imprisonment makes it clear to the satellite piracy community, as well as their enablers, that Mr. White has committed serious contempt to which attaches a moral opprobrium. A clear message should be sent to those who would ever contemplate frustrating the execution of an order of this Court that jail time is not only a possibility but also a likelihood. [168] As for the length of incarceration, I accept the Plaintiffs’ recommendation of two months, notwithstanding that I consider it to be at the lower scale of the spectrum. I should add that were it not for Mr. White’s guilty plea, I would have been inclined to impose a longer sentence. [169] Counsel for Mr. White suggested at the hearing that if the Court was inclined on imposing a sentence of incarceration, there were options available to the Court to minimize the impact of a jail sentence, such as making a corresponding order that the sentence be served intermittently in accordance with s 732(1) of the Criminal Code. I note that Mr. White is now finally gainfully employed full-time on weekdays after almost two years of being largely unemployed. In the circumstances, I am prepared to allow Mr. White to serve his custodial sentence intermittently, which will enable him to maintain his job and use his income to support his partner and son. [170] Mr. White is therefore sentenced to incarceration at the provincial correctional facility in Halifax, Nova Scotia for a period of 60 days, to be served intermittently from Friday evenings at 6 p.m. until Monday mornings at 6 a.m. [171] At Mr. White’s request, and in the absence of any objection on the part of the Plaintiffs, I will suspend the issuance of a warrant of committal for a period of 45 days to afford Mr. White sufficient time to file an appeal and seek a stay of this Order from the Federal Court of Appeal. C. Costs [172] The Plaintiffs seek an order that costs be granted to them on a solicitor-client basis. It is customary practice in contempt cases to impose costs on a solicitor-client basis. As stated by Justice Gilles Létourneau in Canadian Copyright Licensing Agency v U-Compute, 2007 FCA 127 at para 38, citing Pfizer Canada Inc v Apotex Inc, [1998] CanLII 8951 at para 8: “[…] The policy underlying that jurisprudence is clear: a party who assists the Court in the enforcement of its orders and in the enforcement of respect for its orders should not, as a rule, be put out of pocket for having been put to that trouble.” On the facts of this case, I see no reason to deviate from the general rule. [173] The invoices adduced at and immediately following the sentencing hearing establish that the Plaintiffs have incurred significant legal costs of approximately $187,000, in relation to the preparation of materials for the contempt and sentencing hearings and the attendance of counsel at the hearings. [174] Mr. White submits that this was not a very complicated case and the costs demands of the Plaintiffs are manifestly excessive. He argues that Bell Media and the law firm retained in this case have been involved in numerous cases in this Court of alleged copyright infringement, piracy and contempt proceedings that are similar in many ways to the present case. While every case is different, Mr. White contends that there is clearly a certain amount of repetitive elements in these cases, especially in terms of legal research, the collection and marshalling of evidence, and arguments regarding contempt. [175] I am somewhat hampered in assessing whether the costs being sought by the Plaintiffs are reasonable as they have not produced of a Bill of Costs. As a result, I cannot determine what services were provided by counsel, by whom and at what rate, or even what disbursements were incurred. It is also unclear whether there was some overlap between these contempt proceedings and others that preceded this one, as alleged by Mr. White. [176] Despite the paucity of evidence, the affidavits of Ms. Guy do establish that costs were incurred and invoiced to the Plaintiffs in the preparation and for the purposes of the contempt proceedings. The amounts invoiced by Plaintiffs’ counsel may at first blush appear excessive; however, this is not surprising as intellectual property litigation is inherently expensive because it is a specialized area of the law. Mr. White knows this all too well, having paid a retainer of $400,000 himself. [177] Mr. White had the opportunity to cross-examine on Ms. Guy’s affidavits and demand details about the services provided as well as production of any supporting documents. He chose not to do so. I therefore find that the Plaintiffs have established the reasonableness of their costs on a prima facie basis. [178] In my opinion, it is in the interests of justice for both parties and consistent with Rule 3 of the Rules that the matter of the Plaintiffs’ costs and disbursements be remitted to an assessment officer pursuant to Rule 405 to be assessed on a solicitor-client basis. I will remain seized of this matter in the event the parties require directions from the Court for the purpose of the assessment. ORDER IN T-1176-20 THIS COURT ORDERS that: 1. The Defendant, Tyler White, is hereby sentenced to incarceration at the provincial correctional facility in the city of Halifax, Nova Scotia for a period of 60 days, to be served intermittently from Friday evenings at 6 p.m. until Monday mornings at 6 a.m., commencing on a day to fixed by the Court. 2. In the event Mr. White fails to obtain a stay of this Order from the Federal Court of Appeal within 45 days of the date of this Order, the Plaintiffs may apply informally on an ex parte basis for the issuance of a Warrant of Committal. 3. Costs of the contempt proceedings shall be paid by Mr. White to the Plaintiffs on a solicitor-client basis. The matter is referred to an assessment officer for the determination of a specific award of costs. 4. This Court shall remain seized of this matter to address any issue arising from the terms of this Order. Blank “Roger R. Lafreniѐre” Blank Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1176-20 STYLE OF CAUSE: WARNER BROS. ENTERTAINMENT INC., AMAZON CONTENT SERVICES LLC, BELL MEDIA INC., COLUMBIA PICTURES INDUSTRIES, INC., DISNEY ENTERPRISES, INC., NETFLIX STUDIOS, LLC, NETFLIX WORLDWIDE ENTERTAINMENT, LLC, PARAMOUNT PICTURES CORPORATION, SONY PICTURES TELEVISION INC., UNIVERSAL CITY STUDIOS PRODUCTIONS, LLLP v TYLER WHITE DBA BEAST IPTV, COLIN WRIGHT DBA BEAST IPTV PLACE OF HEARING: held by videoconference DATE OF HEARING: December 12, 2022, December 13, 2022 ORDER AND REASONS: LAFRENIÈRE J. DATED: June 28, 2023 APPEARANCES: Evan Nuttall Ryan T. Evans Denise Felsztyna For The Plaintiffs Dino Clarizio Howard P. Knopf Meika Ellis For The Defendants SOLICITORS OF RECORD: Smart & Biggar LLP Montréal, Quebec For The Plaintiffs Ridout & Maybee LLP Montréal, Quebec For The Defendants", "response": "## Analysis of Court Decision: Warner Bros. et al v. Tyler White dba Beast IPTV\n\n### Key Issues\ntwo-year period. [5] The two issues to be determined before me are what is the appropriate sentence to be imposed on Mr. White and what costs award should be granted to the Plaint\n\n### Standard of Review\nlike circumstances; and f)the reasonableness of a fine and the reasonableness of incarceration. VII. Analysis [100] The Supreme Court of Canada has repeatedly expressed that senten\n\n### Legal Analysis\nThe court's analysis focuses on: leness of incarceration. VII. Analysis [100] The Supreme Court of Canada has repeatedly expressed that sentencing is “one of the most delicate stages of the criminal justice process in Canada:” R v Lacasse, 2015 SCC 64 at para 1; R v Friesen, 2020 SCC 9 at para 31; R v Parranto, 2021 SCC 46 [Parranto] at para 9. The same applies\n\n### Precedential Value\nThis Federal Court decision has persuasive value for similar cases before the court and provides guidance to the Immigration and Refugee Board on the proper interpretation of law and procedural requirements. While not binding on other Federal Court judges, it establishes a precedent that will often be followed for consistency."}
{"prompt": "What legal tests are applied in this Refugee Protection Division decision from the Immigration and Refugee Board of Canada?\n\nRPD File No. / N° de dossier de la SPR : TA7-13711 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXXX XXXXX Demandeur(e)(s) d'asile Date(s) of Hearing September 16, 2009 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision September 23, 2009 Date de la décision Panel Tom Pinkney Tribunal Counsel for the Claimant(s) Sina Ogunleye Barrister and Solicitor Conseil(s) du / de la / des demandeur(e)(s) d'asile Tribunal Officer N/A Agent(e) de tribunal Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre INTRODUCTION [1] XXXXX XXXXX, a citizen of Nigeria, claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act1 (IRPA). ALLEGATIONS [2] The claimant makes the following allegations. [3] After being born in Lagos, Nigeria in XXXXX 1966, the claimant was educated there before he left to visit the United States of America (U.S.) in 1991. He did not return home until he was deported in 2007. While in the U.S. in XXXXX 1997, he was found guilty of forgery/fraud and sentenced to five years probation, which he served without any further incident. He fathered four children with a common-law wife between 1994 and 2001. By 2003 he became an illegal resident of the U.S., and was deported on or about XXXXX 2007 because of his overstay. [4] Back in Nigeria he soon joined with his father to become involved with the XXXXX XXXXX (XXXXX) political party as an XXXXX. On XXXXX 2007 the family home was burned by thugs associated with the People's Democratic Party (PDP) when the claimant was absent, and his sister died in the fire. Two days later he was kidnapped and tortured for two days by PDP thugs. Political violence was widespread and was not controlled by the Nigerian police who favoured the PDP since it was the national ruling party. When the claimant learned the assailants who had burned the family home were still seeking him, he left Nigeria and came to Canada where he made a refugee claim upon arrival on 26 November 2007. [5] In XXXXX 2009 he was informed by friends in Nigeria that the police are now looking for him as an alleged member of the XXXXX XXXXX XXXXX (XXXXX). Since the police have been known to act with impunity in killing real or alleged XXXXX members, the claimant is now even more afraid to return to Nigeria. DETERMINATION [6] For the reasons that follow, I find that the claimant is neither a Convention refugee nor a person in need of protection. ANALYSIS Identity [7] Although the claimant apparently has his own Nigerian passport, he elected to travel using a fraudulent passport and other documents in the name of \"XXXXX XXXXX\".2 In an amended Personal Information Form (PIF) that he submitted in XXXXX 2009, the claimant provided a copy of the biographical page of his Nigerian passport and a copy of his birth registration form.3 The claimant spent approximately sixteen years in the U.S., and a hearings officer at the Greater Toronto Enforcement Centre of the Canadian Border Services Agency (CBSA) has scrutinized his claim. The Minister decided not to intervene in this claim and raised no identity concerns.4 [8] In these circumstances I find, on a balance of probabilities, that the claimant is who he says he is, and that he is a national of Nigeria. Credibility [9] The determinative issue in this claim is the claimant's lack of credibility. Evidence that is not contradicted may be rejected if that evidence does not accord with the probabilities affecting the case as a whole.5 In this respect, the British Columbia Court of Appeal stated in Faryna v. Chorny:6 In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. The Claimant's Political Profile [10] When the claimant left Nigeria in 1991 he was approximately 25 years old. He testified that his father had been an active participant in the political process for many years, but although he wrote in his amended PIF narrative that he \"became involved in politics early\",7 in oral testimony he acknowledged that he did not actively participate in politics before he went to the U.S. The only testimony he gave of any early involvement was that he helped his mother serve food and drinks to his father's political associates. [11] He provided contradictory evidence regarding this activity. In the revised PIF narrative he wrote about how his father had supported the late Chief Awolowo (known as Awo) when the National Party of Nigeria cheated Awo out of the presidency in 1978. When he was asked in the hearing as to which political party his father supported at the gatherings in the family home, the claimant replied that it was the NGN, and specifically clarified that he was referring to the National Party of Nigeria. Thus he provided clearly inconsistent evidence. He added that although this party was eventually disbanded, he did not know why. [12] When he was asked about the current political situation in Nigeria, the claimant did provide some correct answers regarding who won some key positions such as Governor in the election of 2007. Regarding his own alleged involvement, the claimant said he joined the XXXXX early in XXXXX 2007 and that he was both an XXXXX and a XXXXX at rallies on behalf of the party. The election for Lagos State was scheduled for April 14, 2007 and the election for the federal positions was scheduled for April 21, 2007. The claimant was asked why a party in the middle of an election campaign would appoint a recently arrived person to such positions. He said he was part of the XXXXX team, but I note he only just joined the party about six weeks before the election, and so it is probable that the campaign was in full swing when the claimant arrived in Nigeria and joined the party. He said he had supported the party financially in 20068 and that the party was interested in his American experiences. However, this latter explanation defies credulity in that the only thing he identified as being in his area of expertise was that he believed Americans ran elections so that people could obtain power through free and fair processes. This would not be news to even moderately informed Nigerians and would unlikely be of significant interest during the intensity of an election in Nigeria. Moreover, the claimant provided no documentary evidence of his alleged financial support in 2006. [13] Given that the claimant alleges he is a target for murder at the hands of political thugs associated with the PDP if he returns to Nigeria, I have considered whether the claimant has established a significant political profile such that he would be so targeted after all this time. The claimant's explanation is that this is typical of Nigerian politics. When it was pointed out to him that these thugs cannot and do not kill all those who support the XXXXX, the claimant replied that his father had a high profile, his family house had been burned and he had gone to the police to seek protection. However, these responses make little sense. His father's political profile would not make the claimant a target, especially so soon after he returned from being away for sixteen years. If the family home was burned (and the claimant provided no documentary evidence of this allegation other than his sister's alleged death certificate), it is more reasonable to assume the father was the target. Given the notorious corruption and inefficiencies of the Nigerian police, the claimant's action in reporting his troubles to the police would be no threat to the PDP thugs in Lagos. [14] A natural reading of the PIF narrative would lead one to believe the claimant was kidnapped for two days from the family home, but the affidavit the claimant submitted refers to his being \"traced and abducted on the highway...[where] he was beaten and abandoned...\".9 [15] Thus, when I consider all the evidence about the claimant's political activities in Nigeria, I find the evidence is both inconsistent and implausible. I can find no sufficient reasons to believe the claimant would be targeted for death as he alleges. Sequence of Events in Nigeria: February to November 2007 [16] Since 1991 the claimant has been in Nigeria for just more than nine months, from late in XXXXX to late in XXXXX 2007. It was during this short time that the claimant allegedly became such a target of persecution that he had to flee his native country and return to North America. [17] In his revised PIF the claimant provided the following allegations. He indicated that after the family house was burned he was kidnapped when thugs \"came back some few days later\".10 Yet he also alleged that he moved to XXXXX Street in Lagos on XXXXX and remained living there until he left Nigeria.11 Equally significantly, he also asserted that he worked as a self-employed XXXXX from XXXXX until XXXXX, 2007 in Lagos.12 [18] The claimant's oral testimony was different. He said specifically that he was kidnapped on XXXXX and that he began to think of leaving Nigeria in mid- XXXXX. Given that he already possessed a Nigerian passport, he was asked why he had not simply left the country at that time. He replied that he did not have a visa (to Canada). When he was asked why he had not gone to some other country that did not require a visa, he replied that he was in hiding. He added that he believed the PDP thugs, godfathers and the Nigerian police were looking for him, and so he could never attempt to go through the airport in his own name because \"the police are everywhere\". [19] This testimony truly defies credulity because if he was able to live at the same place from mid- XXXXX to XXXXX, and if he was able to work as a XXXXX throughout that time, he cannot be said to have been in hiding. From this inconsistent evidence provided by the claimant I take a negative inference regarding his credibility as a witness. The Claimant's Story at the Port of Entry [20] Although the claimant made his refugee claim at the port of entry (XXXXX XXXXX XXXXX XXXXX), the story he alleged at that time and his testimony at the hearing about the story both raise issues related to his credibility. [21] The claimant arrived in Canada on November 26, 2007. He attempted to enter Canada under the name of \"XXXXX XXXXX\", allegedly an American citizen.13 His XXXXX XXXXX itinerary for his trip from Lagos to London was in the name of \"XXXXX XXXXX\",14 and he arrived in Canada in possession of an American passport in the name of \"XXXXX XXXXX\" along with several bankcards and a Nigerian driver's licence also in XXXXX name.15 The passport and driver's licence have photographs that are very similar in appearance to the claimant. [22] Although the claimant acknowledged traveling under XXXXX name, he said he did not do so upon arrival in Canada. He appears to have chosen his words very carefully when he said, \"As soon as I got off (the plane), I said I wanted to declare a refugee claim\". This may be literally correct, but it is not the whole truth which the claimant promised to provide at the start of the hearing. The Minister's Delegate Notes (Section 44 Report Review) states the following:16 Subject was intercepted by members of the disembarkation team who had concerns about the validity of the American passport in his possession. He admitted during this review process that if he had entered Canada undetected, he would have traveled to the United States to attempt entry there. [23] Thus the claimant was confronted about his fraudulent travel documents before he left the plane, and his assertion that he claimed refugee status as soon as he got off the plane may be literally true, but misleading as to his behaviour which the documentary evidence suggests was more devious than he admitted at the hearing. Both the notes cited above and the CBSA declaration card suggests if the claimant had not been detected with a fraudulent passport he would have entered Canada as \"XXXXX XXXXX\". This credibility issue is made worse by the claimant's denying at the hearing that he ever attempted to be admitted as \"XXXXX XXXXX\" and by his allegation that he had no intentions of going to the United States where his children are. When asked to explain why the officer would write that the claimant admitted an intention to proceed to the U.S. if successful in entering Canada as \"XXXXX XXXXX\", the claimant replied that he did not say that. Challenged as to why the officer would record it if the claimant never said it, the claimant only replied, \"I don't know\". I have more faith in the integrity of the Immigration officer who is a trained professional than I do in the testimony of a claimant who has shown by past behaviour a willingness to distort the truth. [24] From this documentation at the port of entry and the highly unsatisfactory testimony provided by the claimant, I find, on a balance of probabilities, that the claimant did not intend to stay in Canada unless his disguise as \"XXXXX XXXXX\" was detected. From this I take a further negative inference with regard to the credibility of the alleged persecution for his political activities that he experienced in Nigeria. [25] In addition, I note that the claimant misrepresented the truth in other ways at the port of entry, and in subsequent evidence. He told the Immigration officer that he is widowed,17 but in oral testimony he denied saying that, and he speculated that perhaps the officer made that conclusion from his saying his children depended on him. This makes little sense. In his subsequent PIFs he said he was \"never married\".18 However, according to his oral testimony he lived with his children's mother from 1993 until 2005, which would constitute a common-law marriage. I note the claimant had the advice of an experienced and capable counsel in completing his amended PIF, and yet this issue was apparently not addressed. [26] Similarly the claimant told officials at the port of entry that he has two children, and he identified just two when he completed the Citizenship and Immigration information form (IMM5500).19 He did the same on his first PIF.20 He corrected this misinformation in his amended PIF,21 and acknowledged that he has four children living in the U.S. When asked why he originally lied about the children, he first attributed it to his state of mind at the airport, but then soon admitted he did not know why he lied. This issue does not go to the heart of his claim, but it is indicative of someone who is prepared to say whatever he deems to be in his own momentary self-interest. 16 Years in the U.S. [27] The claimant said when he first went to the U.S. in 1991 he intended to return to Nigeria after a few months. He also said he did not know why he failed to do so. This answer is troubling because it either indicates the claimant has failed to reflect upon an important life decision or that he is withholding an answer because he fears the consequences or disapproval from the panel. In any case, it does nothing to instill confidence that the claimant is willing to tell the truth at all times, no matter what the immediate consequences may be. I do not accept that the claimant has no idea why he did not return to Nigeria when he was supposed to do so. In fact, even after he was out of legal status he remained in the U.S. for at least three more years before he was apprehended and deported. [28] The claimant also had a serious criminal conviction in the U.S. for forgery/fraud and served five years of probation.22 Although not serious enough to warrant exclusion under Article 1E of the Convention, the conviction is nevertheless indicative that at the time, the claimant was willing to misrepresent the truth (engage in fraudulent acts) to serve his own desires. XXXXX XXXXX XXXXX XXXXX [29] In his amended PIF narrative the claimant added the allegation that he has now been informed the police in Nigeria have accused him of being a member of the XXXXX XXXXX XXXXX. This allegation makes no sense. If the police in Nigeria want the claimant they can detain him on whatever grounds they wish and deal with him with relative impunity. There is no need for the police to trump up some new charge against the claimant. In reality, while the police may not offer protection to persons who are truly persecuted by PDP thugs, the claimant advanced no meaningful evidence as to why the police would seek to persecute him for their own reasons. Thus I find, on a balance of probabilities, that the claimant has simply added another manufactured component to his story to support his claim. Summation [30] These many problems with the claimant's evidence raise the issue of the claimant's credibility as a witness. The claimant has demonstrated a willingness to say whatever seems to serve his immediate interests, and there are numerous serious specific problems associated with the evidence as described above. Thus, when I consider the claimant's evidence as a whole, I am not persuaded that it is truthful. On a balance of probabilities I do not believe the claimant had the experiences he alleges as arising from his political commitment to the XXXXX in Nigeria. Specifically, I do not believe he was persecuted and pursued in the manner he alleges for his short-term involvement with the XXXXX, and more significantly, I do not believe he established such a political profile in Nigeria that he is the ongoing target for murder by PDP thugs. Documentary Evidence [31] The claimant did not provide any documentary evidence regarding his experiences in the U.S., not even to confirm the existence of his children or the circumstances of his deportation from the U.S. [32] He did provide documents23 that seem to support some of his allegations about having problems in Nigeria. However a Norwegian fact-finding report identified that corruption is widespread in Nigeria, and that fraudulent documents and genuine documents with false information are readily available.24 Without engaging in a microscopic examination of these documents, I note that one issue was described previously. I, therefore, give these documents little weight. Credibility Conclusion [33] I am aware that none of the credibility concerns raised here may be sufficient on its own to negate this claim. However, the cumulative effect of all of them is that I do not have sufficient credible and trustworthy evidence upon which to base a determination that the claimant is a Convention refugee. As the Court of Appeal stated in Sheikh:25 Even without disbelieving every word [a claimant] has uttered, a ... panel may reasonably find [that] ... a general finding of a lack of credibility on the part of the [claimant] may conceivably extend to all relevant evidence emanating from his testimony. [34] On a balance of probabilities I find the claimant has manufactured a story to support a bogus refugee claim. In short, I find the claimant not to be a credible witness, and as explained above I do not believe he has a sincerely held fear of persecution in Nigeria on account of his political opinions. He is therefore not a Convention refugee. Section 97(1) [35] The claimant advanced no additional credible evidence to suggest he would face any danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the \"Convention Against Torture\". [36] Given the finding above that the claimant is not a credible witness, I find that he is not a person who more likely than not, faces a risk to his life or a risk of cruel and unusual treatment or punishment if he were to return to Nigeria. [37] For these reasons, the claimant is not a person in need of protection. CONCLUSION [38] For the foregoing reasons the claim is rejected. (signed) \"Tom Pinkney\" Tom Pinkney \"September 23, 2009\" Date REFUGEE PROTECTION DIVISION / POLITICAL OPINION / VICTIM OF CRIMINALITY / PERSONAL INFORMATION FORM / AMENDMENTS / SOJOURNING / CRIMINAL OFFENCE / FALSE DOCUMENTATION / LYING TO A VISA OFFICER / FALSE STATEMENTS / PORT OF ENTRY / TRAVEL DOCUMENT / AUTHENTICITY / MALE / NEGATIVE / NIGERIA 1 Immigration and Refugee Protection Act, S.C. 2001, c.27. 2 Exhibit R-2, Passport, XXXXX XXXXX, stamped \"suspected fraudulent\" by the Immigration Officer on XXXXX, 2007. The photograph appears to be that of the claimant. 3 Exhibit C-1(a), pages following Personal Information Form, amended and submitted in its entirety 27 August, 2009. 4 Exhibit M-2, Communication dated 9 March 2009. 5 Alza, Julian Ulises v. M.C.I. (F.C.T.D., no. IMM-3657-94), MacKay, March 26,1996. 6 Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) at 357, per O'Halloran, J.A. 7 Exhibit C-1(a), item 31, Personal Information Form, narrative line 27, received August 27, 2009. 8 In actuality the party was first formed in September 2006. Exhibit R-1, item 1.3, p.7, Country Fact Sheet: Nigeria, Immigration and Refugee Board of Canada, August 2007. 9 Exhibit C-2, Affidavit of Support, XXXXX XXXXX, 29 January 2009. 10 Supra, footnote 6, item 31, lines 44 and 45. 11 Ibid, item 11(e). 12 Ibid, item 7(a). 13 Exhibit R-2, Canadian Border Services Agency Declaration Card, signed \"XXXXX XXXXX\", stamped November 26, 2007. 14 Exhibit R-2, \"Your Itinerary: XXXXX XXXXX\". 15 Exhibit R-2, Certified true copy of the American passport stamped \"suspected fraudulent\", three bank cards and a Nigerian driver's licence, all stamped \"suspected fraudulent\". 16 Exhibit R-2, Minister's Delegate Notes, K. Harris, 27 November 2007. 17 Ibid. 18 Exhibits C-1, Personal Information Form, received 19 December 2007. 19 Exhibit R-2, Information on Individuals Seeking Refugee Protection, p. 3 of 4, signed 27 November 2007. 20 Supra, footnote 15, item 4. 21 Supra, footnote 6, item 4 22 Supra, footnote 6, item 10. 23 Exhibits C-3 and C-4. 24 Exhibit R-1, item 3.9, Response to Information Request NGA43280.E, \"Availability of False Documents...\", Research Directorate, IRB, 14 January 2005. 25 Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.), at 244, per MacGuigan, J.A. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.15.7 (February 12, 2009) Disponible en français RPD.15.7 (February 12, 2009) Disponible en français RPD File No. : TA7-13711 RPD File No. :TA7-13711", "response": "## Analysis of Refugee Decision: TA7-13711\n\n### Key Issues\nng about the story both raise issues related to his credibility. [21] The claimant arrived in Canada on November 26, 2007. He attempted to enter Canada under the name of \"XXXXX XXX\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: person in need of protection. ANALYSIS Identity [7] Although the claimant apparently has his own Nigerian passport, he elected to travel using a fraudulent passport and other documents in the name of \"XXXXX XXXXX\".2 In an amended Personal Information Form (PIF) that he submitted in XXXXX 2009, the claimant provided a copy of the\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "How should this Federal legislation from the Canadian government be interpreted in immigration contexts?\n\n# Accessible Canada Act SC 2019, c 10 An Act to ensure a barrier-free Canada Assented to 2019-6-21 ### Preamble Whereas the Canadian Charter of Rights and Freedoms guarantees the right to the equal protection and equal benefit of the law without discrimination and, in particular, discrimination on the basis of disability; Whereas the Canadian Human Rights Act recognizes that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated without discrimination and, in particular, discrimination on the basis of disability; Whereas a proactive and systemic approach for identifying, removing and preventing barriers to accessibility without delay complements the rights of persons with disabilities under the Canadian Human Rights Act ; Whereas Canada is a State Party to the United Nations Convention on the Rights of Persons with Disabilities and Canada has agreed to take appropriate measures respecting accessibility and to develop and monitor minimum accessibility standards; Whereas barriers to accessibility can impact all persons in Canada, in particular those with disabilities and their families, and can prevent persons with disabilities from achieving their full and equal participation in society; And whereas Parliament considers that it is essential to ensure the economic, social and civic participation of all persons in Canada, regardless of their disabilities, and to allow them to fully exercise their rights and responsibilities in a barrier-free Canada; Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: ## Short Title ### Short title 1 This Act may be cited as the Accessible Canada Act. ## Interpretation ### Definitions 2 The following definitions apply in this Act. *Accessibility Commissioner* means the member of the Canadian Human Rights Commission that is appointed under subsection 26(1) of the Canadian Human Rights Act and that is referred to in that Act as the “Accessibility Commissioner”. (commissaire à l’accessibilité) *barrier* means anything — including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a policy or a practice — that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation. (obstacle) *broadcasting undertaking* has the same meaning as in subsection 2(1) of the Broadcasting Act. (entreprise de radiodiffusion) *Canadian carrier* has the same meaning as in subsection 2(1) of the Telecommunications Act. (entreprise canadienne) *disability* means any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment — or a functional limitation — whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society. (handicap) *Minister* means the member of the Queen’s Privy Council for Canada designated under section 4. (ministre) *personal information* has the same meaning as in section 3 of the Privacy Act. (renseignements personnels) *regulated entity* means an entity or person referred to in subsection 7 (1). (entité réglementée) *Standards Organization* means the Canadian Accessibility Standards Development Organization established under subsection 17 (1). (organisation de normalisation) *telecommunications service provider* has the same meaning as in subsection 2(1) of the Telecommunications Act. (fournisseur de services de télécommunication) ## Her Majesty ### Binding on Her Majesty 3 This Act is binding on Her Majesty in right of Canada. ## Designation ### Designation of Minister 4 The Governor in Council may, by order, designate a member of the Queen’s Privy Council for Canada as the Minister for the purposes of this Act. ## Purpose of Act ### Purpose 5 The purpose of this Act is to benefit all persons, especially persons with disabilities, through the realization, within the purview of matters coming within the legislative authority of Parliament, of a Canada without barriers, on or before January 1, 2040, particularly by the identification and removal of barriers, and the prevention of new barriers, in the following areas: (a) employment; (b) the built environment; (c) information and communication technologies; (c.1) communication, other than information and communication technologies; (d) the procurement of goods, services and facilities; (e) the design and delivery of programs and services; (f) transportation; and (g) areas designated under regulations made under paragraph 117 (1)(b). ### Clarification 5.1 (1) The area of communication referred to in paragraph 5(c.1) (a) includes the use of American Sign Language, Quebec Sign Language and Indigenous sign languages; and (b) does not include broadcasting as defined in subsection 2(1) of the Broadcasting Act or telecommunications as defined in subsection 2(1) of the Telecommunications Act. ### Recognition of sign languages (2) American Sign Language, Quebec Sign Language and Indigenous sign languages are recognized as the primary languages for communication by deaf persons in Canada. ### Interpretation 5.2 Nothing in this Act, including its purpose of the realization of a Canada without barriers, should be construed as requiring or authorizing any delay in the removal of barriers or the implementation of measures to prevent new barriers as soon as is reasonably possible. ## Principles ### Principles 6 This Act is to be carried out in recognition of, and in accordance with, the following principles: (a) all persons must be treated with dignity regardless of their disabilities; (b) all persons must have the same opportunity to make for themselves the lives that they are able and wish to have regardless of their disabilities; (c) all persons must have barrier-free access to full and equal participation in society, regardless of their disabilities; (d) all persons must have meaningful options and be free to make their own choices, with support if they desire, regardless of their disabilities; (e) laws, policies, programs, services and structures must take into account the disabilities of persons, the different ways that persons interact with their environments and the multiple and intersecting forms of marginalization and discrimination faced by persons; (f) persons with disabilities must be involved in the development and design of laws, policies, programs, services and structures; and (g) the development and revision of accessibility standards and the making of regulations must be done with the objective of achieving the highest level of accessibility for persons with disabilities. ## Application ### Application 7 (1) This Act applies to the following entities and persons: (a) each entity named or set out in any of Schedules I to V to the Financial Administration Act ; (b) each Crown corporation, as defined in subsection 83(1) of the Financial Administration Act that is not referred to in Schedule III to that Act; (c) every portion of the federal public administration that is designated under subsection (3); (d) the Canadian Forces; (e) any person, partnership or unincorporated organization that operates a work or carries on an undertaking or business that is within the legislative authority of Parliament, other than a work, undertaking or business of a local or private nature in Yukon, the Northwest Territories or Nunavut; and (f) any entity or person — including a trustee, executor, administrator, liquidator of the succession, guardian, curator or tutor — that acts in the name of, or for the benefit of, any entity or person in the operation of a work or carrying on of an undertaking or business that is within the legislative authority of Parliament, other than a work, undertaking or business of a local or private nature in Yukon, the Northwest Territories or Nunavut. ### Parliamentary entities (2) This Act also applies, to the extent provided for in Part 9, to the entities referred to in the definition of parliamentary entity in section 134. ### Designation (3) For the purposes of paragraph (1)(c), the Governor in Council may, by order, designate any portion of the federal public administration that is not named or set out in any of Schedules I to V to the Financial Administration Act. ### Non-application 8 Nothing in this Act applies to the Yukon Government, the Government of the Northwest Territories or the Government of Nunavut or a corporation established to perform any function or duty on behalf of any of those Governments. ### Canadian Forces 9 Nothing in this Act is to be construed as affecting the principle of universality of service under which members of the Canadian Forces must at all times and under any circumstances perform any functions that they may be required to perform. ### Royal Canadian Mounted Police 10 Nothing in this Act is to be construed as affecting the principle that certain physical and other qualifications are necessary for appointment under the Royal Canadian Mounted Police Act or to prevent the establishment of requirements that are necessary to carry out functions and duties within the Royal Canadian Mounted Police. # PART 1 ## Minister’s Powers, Duties and Functions ### Mandate 11 (1) The Minister’s mandate is the realization of a Canada without barriers on or before January 1, 2040. ### Powers (2) In carrying out his or her mandate, the Minister may, among other things, (a) provide information, advice and assistance in relation to matters relating to accessibility; and (b) promote, support and conduct research into the identification and removal of barriers and the prevention of new barriers. ### Minister’s powers, duties and functions 12 The Minister’s powers, duties and functions extend to and include all matters relating to accessibility over which Parliament has jurisdiction and that are not by law assigned to any other Minister or to any department, board or agency of the Government of Canada. ### Policies, programs and projects 13 The Minister may initiate, recommend, implement and promote policies, programs and projects in relation to matters relating to accessibility. ### Grants and contributions 14 The Minister may make grants and contributions in support of the Minister’s programs and projects in relation to matters relating to accessibility. ### Information 15 Subject to the Statistics Act, the Minister may collect, analyse, interpret, publish and distribute information in relation to matters relating to accessibility. ### Coordination with provincial and territorial authorities 16 The Minister must make every reasonable effort to collaborate with provincial or territorial authorities with a view to coordinating efforts in relation to matters relating to accessibility. # PART 2 ## Canadian Accessibility Standards Development Organization ## Establishment ### Canadian Accessibility Standards Development Organization 17 (1) A corporation is established to be known as the Canadian Accessibility Standards Development Organization. ### Agent of Her Majesty (2) The Standards Organization is an agent of Her Majesty in right of Canada. ### Head office (3) The head office of the Standards Organization is to be at a place in Canada that is designated by the Governor in Council. ## Mandate ### Mandate 18 The Standards Organization’s mandate is to contribute to the realization of a Canada without barriers, on or before January 1, 2040, through, among other things, (a) the development and revision of accessibility standards; (b) the recommendation of accessibility standards to the Minister; (c) the provision of information, products and services in relation to the accessibility standards that it has developed or revised; (d) the promotion, support and conduct of research into the identification and removal of barriers and the prevention of new barriers; and (e) the dissemination of information, including information about best practices, in relation to the identification and removal of barriers and the prevention of new barriers. ## Powers ### Powers 19 The Standards Organization, in carrying out its mandate, may (a) enter into contracts, agreements or other arrangements with any person or entity, including any government, in the name of Her Majesty in right of Canada or in its own name; (b) make grants and contributions; (c) establish and register its own marks under the Trademarks Act and authorize and regulate their use subject to that Act; (d) license, sell or otherwise make available any patent, copyright, industrial design, trademark or other similar property right that it holds, controls or administers; (e) charge a fee for any accessibility standard that it develops or revises and any information, product or service that it provides under this Act; (f) spend any money that it receives through its activities, in the fiscal year in which the money is received or in the subsequent fiscal year; (g) acquire any money, securities or other personal or movable property by gift or bequest and expend, administer or dispose of the property subject to the terms, if any, on which the gift or bequest was made; and (h) undertake any other activities that it considers conducive to the furtherance of its mandate and the exercise of its powers. ### Other powers 20 The Standards Organization may develop accessibility standards for — or provide any information, product or service related to accessibility standards to — any person or entity, including any government in Canada or elsewhere. ## Minister ### Ministerial directions 21 (1) The Minister may issue general directions to the Standards Organization respecting the carrying out of its mandate. ### Non-application of Statutory Instruments Act (2) The Statutory Instruments Act does not apply to directions issued under subsection (1). ## Board of Directors ### Establishment and composition 22 The Standards Organization is to have a board of directors consisting of not more than 11 directors, including a Chair and a Vice-Chair. ### Appointment and tenure 23 (1) The directors are to be appointed by the Governor in Council to hold office on a part-time basis and during pleasure for a term of not more than four years that will ensure, to the extent possible, the end in any one year of the terms of office of not more than one half of the directors. ### Appointment considerations (2) The appointment of directors is to be made having regard to the following considerations: (a) that at all times, as far as possible, the majority of the directors are persons with disabilities; (b) the importance of having directors that are representative of the diversity of Canadian society; and (c) the importance of having directors that are representative of the diversity of disabilities faced by Canadians. ### Persons not eligible for appointment (3) A person is not eligible to be appointed or to continue as a director if the person (a) is not a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act ; (b) is a member of the Senate or House of Commons or a member of a provincial or territorial legislature; or (c) is employed on a full-time basis in the federal public administration or the public service of a province or territory. ### Reappointment (4) A director is eligible for reappointment in the same or another capacity. ### Remuneration and expenses 24 A director is to be paid the remuneration that is fixed by the Governor in Council and is entitled to be paid reasonable travel and living expenses incurred while absent from their ordinary place of residence in the course of performing their duties under this Act. ### Benefits 25 A director is deemed to be an employee for the purposes of the Government Employees Compensation Act and employed in the federal public administration for the purposes of regulations made under section 9 of the Aeronautics Act. ### Role of board of directors 26 The board of directors is responsible for (a) setting the strategic direction for the Standards Organization; (b) supervising and managing the Standards Organization’s activities and affairs; and (c) advising the Chief Executive Officer on matters relating to the Standards Organization’s mandate. ### By-laws 27 (1) The board of directors may make by-laws respecting the carrying out of its activities and the conduct of its affairs. ### Copy to Minister (2) The board of directors must send a copy of every by-law to the Minister. ### Advisory and other committees 28 The board of directors may, in accordance with the by-laws, appoint advisory or other committees. ## Chair ### Role of Chair 29 (1) The Chair presides over meetings of the board of directors and performs any other duties that are assigned by the board. ### Absence or incapacity of Chair (2) In the event of the absence or incapacity of the Chair, or a vacancy in that office, the Vice-Chair acts as Chair. ### Absence or incapacity of Chair and Vice-Chair (3) In the event of the absence or incapacity of the Chair and the Vice-Chair or a vacancy in both those offices, the Minister may authorize another director to act as Chair, but no director so authorized has authority to act for a term of more than 90 days without the Governor in Council’s approval. ## Chief Executive Officer ### Appointment 30 (1) The Chief Executive Officer of the Standards Organization is to be appointed by the Governor in Council to hold office on a full-time basis during pleasure for a term of up to five years. ### Reappointment (2) The Chief Executive Officer is eligible for reappointment. ### Remuneration and expenses (3) The Chief Executive Officer is to be paid the remuneration that is fixed by the Governor in Council and is entitled to be paid reasonable travel and living expenses incurred while absent from his or her ordinary place of work in the course of performing his or her duties under this Act. ### Benefits (4) The Chief Executive Officer is deemed to be employed in the public service for the purposes of the Public Service Superannuation Act, an employee for the purposes of the Government Employees Compensation Act and employed in the federal public administration for the purposes of regulations made under section 9 of the Aeronautics Act. ### Role of Chief Executive Officer 31 (1) The Chief Executive Officer is responsible for the Standards Organization’s day-to-day operations. ### Rank of deputy head (2) The Chief Executive Officer has the rank and the powers of a deputy head of a department. ### Absence or incapacity of Chief Executive Officer (3) In the event of the absence or incapacity of the Chief Executive Officer, or a vacancy in that office, the Minister may authorize any person to act as Chief Executive Officer, but no person so authorized has authority to act for a term of more than 90 days without the Governor in Council’s approval. ### Committees 32 (1) The Chief Executive Officer may establish committees to assist in the development and revision of accessibility standards. ### Public notice (2) As soon as feasible after establishing a committee, the Chief Executive Officer must make the committee’s terms of reference and the names of its members available to the public. ## Human Resources ### Officers and employees 33 Officers and employees necessary for the proper conduct of the work of the Standards Organization are to be appointed in accordance with the Public Service Employment Act. ## General ### Recommended standards to be made public 34 The Standards Organization must make available to the public every accessibility standard that it recommends to the Minister under paragraph 18 (b). ### Inventions 35 Despite section 9 of the Public Servants Inventions Act, the administration and control of any invention made by an employee of the Standards Organization and vested in Her Majesty by that Act, and any patent issued with respect to the invention, are vested in the Standards Organization. ## Annual Report ### Duty to submit 36 (1) The Standards Organization must, within three months after the end of each fiscal year, submit a report on its activities in that fiscal year to the Minister. ### Tabling (2) The Minister must cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the report is received by the Minister. # PART 3 ## Accessibility Commissioner ### Provision of information or advice 37 The Accessibility Commissioner may provide information or advice to the Minister in respect of issues arising from the administration and enforcement of this Act. ### Special report 38 (1) The Accessibility Commissioner may report in writing to the Minister in respect of issues arising from the administration and enforcement of this Act. ### Publication (2) The Accessibility Commissioner may, after the sixtieth day after the day on which it was provided, publish any report that he or she provided to the Minister. ### Annual report 39 (1) The Accessibility Commissioner must, within three months after the end of each fiscal year, submit a report on his or her activities under this Act during that year to the Minister and provide the Minister of Justice with a copy of the report. ### Contents (2) The report must include (a) information about the following in respect of the fiscal year, including their number: (i) inspections conducted under section 73, (ii) orders made under section 74, (iii) orders made under section 75, (iv) notices of violation issued under section 79, and (v) complaints filed under subsection 94 (1); (b) the Accessibility Commissioner’s observations about whether the information referred to in paragraph (a) discloses any systemic or emerging accessibility issues; and (c) information prescribed in regulations made under subsection 117 (1). ### Tabling (3) The Minister must cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the report is received by the Minister. ### Delegation to any person 40 (1) Subject to subsection (2), the Accessibility Commissioner may delegate, subject to any restrictions or limitations that he or she may specify, any of his or her powers, duties and functions under this Act — other than those set out in sections 37 to 39, 76, 82, 84, 93, 95 to 103 and 110 and subsections 140 (5), (7) and (8) and the power to delegate under this subsection and subsection (2) — to any person, other than the Chief Commissioner of the Canadian Human Rights Commission. ### Delegation to member or staff of Commission (2) The Accessibility Commissioner may delegate, subject to any restrictions or limitations that he or she may specify, any of his or her powers, duties and functions under sections 93 and 95 to 103 to another member of the Canadian Human Rights Commission — other than the Chief Commissioner — or to a member of the staff of that Commission. ### Consultation (3) The Accessibility Commissioner must consult with the Chief Commissioner before delegating any power, duty or function to a member of the Canadian Human Rights Commission. ### Certificate of delegation — subsection (1) (4) Each person to whom powers, duties or functions are delegated under subsection (1) must be provided with a certificate of delegation in the form established by the Accessibility Commissioner and, if the person enters any place under subsection 73 (1), the person must, on request, produce the certificate to the occupant or person in charge of the place. ### Certificate of delegation — subsection (2) (5) Each person to whom powers, duties or functions are delegated under subsection (2) must be provided with a certificate of delegation in the form established by the Accessibility Commissioner and, if the person enters any place under subsection 73 (1) or paragraph 98 (d), the person must, on request, produce the certificate to the occupant or person in charge of the place. ### Immunity 41 No action or other proceeding of a civil nature lies against the Accessibility Commissioner, or any person acting on behalf or under the direction of the Accessibility Commissioner, in respect of anything that is done or omitted to be done in good faith while exercising their powers or performing their duties and functions under this Act. # PART 4 ## Duties of Regulated Entities ## Regulated Entities That Carry On Broadcasting Undertakings ## Accessibility Plans — Requirements Under the Broadcasting Act ### Initial accessibility plan 42 (1) A regulated entity that carries on a broadcasting undertaking must, before the expiry of one year after the day fixed or determined by regulations made under subsection 45 (1) that apply to that regulated entity, prepare and publish, in accordance with this Act and regulations made under that subsection, an accessibility plan respecting (a) its policies, programs, practices and services in relation to the identification and removal of barriers, and the prevention of new barriers, in the areas referred to in paragraphs 5(c), (d) and (e), the area referred to in paragraph 5(c.1) as it relates to the areas referred to in paragraphs (d) and (e) and, if it is not subject to the Employment Equity Act, employment equity; (b) the conditions imposed on the regulated entity under section 9.1 of the Broadcasting Act that relate to the identification and removal of barriers and the prevention of new barriers; (c) the provisions of any order made under subsection 9(4) of that Act that relate to the identification and removal of barriers and the prevention of new barriers and that apply to the regulated entity; and (d) the provisions of any regulations made under subsection 10(1) of that Act that relate to the identification and removal of barriers and the prevention of new barriers and that apply to the regulated entity. ### Updated accessibility plan (2) The regulated entity must prepare and publish, in accordance with this Act and regulations made under subsection 45 (1), an updated version of its accessibility plan no later than the third anniversary of the day on which the plan was last published or before the expiry of the applicable period prescribed by regulations made under that subsection. ### Notice to Commission (3) The regulated entity must notify the Canadian Radio-television and Telecommunications Commission, within the time and in the manner prescribed in regulations made under subsection 45 (1), of the publication of every version of its accessibility plan. ### Duty to consult (4) The regulated entity must consult persons with disabilities in the preparation of its accessibility plan and every updated version of its accessibility plan. ### Manner of consultation (5) The accessibility plan must set out the manner in which the regulated entity consulted persons with disabilities in the preparation of the plan. ### Applicable requirements (6) The accessibility plan need not address a requirement that applies to the regulated entity and that is set out in a condition, order or regulation referred to in paragraphs (1)(b) to (d) unless the requirement has been in force at least three months before the day on which the accessibility plan must be published. ### Duty to make plan available on request (7) If a person makes a request in accordance with subsection (8), the regulated entity must, within the time prescribed by regulations made under subsection 45 (1), make its accessibility plan available to the person in the format prescribed by regulations made under that subsection that is indicated in the request. ### Conditions (8) The request must be made in the form and manner prescribed by regulations made under subsection 45 (1) and must indicate the format prescribed by regulations made under that subsection in which the accessibility plan is to be made available to the person making the request. ### Principles (9) The regulated entity must take into account the principles set out in section 6 when it prepares an accessibility plan or an updated version of its accessibility plan. ## Feedback ### Establishment of process 43 (1) A regulated entity referred to in subsection 42 (1) must establish a process for receiving feedback about the following and for dealing with that feedback: (a) the manner in which the regulated entity is implementing its accessibility plan; and (b) the barriers encountered by persons that deal with the regulated entity. ### Publication (2) The regulated entity must publish a description of its process in accordance with regulations made under subsection 45 (1). ### Notice to Commission (3) The regulated entity must notify the Canadian Radio-television and Telecommunications Commission, within the time and in the manner prescribed in regulations made under subsection 45 (1), of the publication of the description of every version of its process. ## Progress Reports ### Obligation 44 (1) A regulated entity referred to in subsection 42 (1) must prepare and publish, in accordance with this Act and regulations made under subsection 45 (1), a progress report respecting its implementation of its accessibility plan. ### Notice to Commission (2) The regulated entity must notify the Canadian Radio-television and Telecommunications Commission, within the time and in the manner prescribed in regulations made under subsection 45 (1), of the publication of its progress report. ### Duty to consult (3) The regulated entity must consult persons with disabilities in the preparation of its progress report. ### Manner of consultation (4) The progress report must set out the manner in which the regulated entity consulted persons with disabilities in the preparation of its progress report. ### Feedback information (5) The progress report must set out information concerning the feedback received by the regulated entity through its feedback process and how that feedback was taken into consideration. ### Duty to make progress report available on request (6) If a person makes a request in accordance with subsection (7), the regulated entity must, within the time prescribed by regulations made under subsection 45 (1), make its progress report available to the person in the format prescribed by regulations made under that subsection that is indicated in the request. ### Conditions (7) The request must be made in the form and manner prescribed by regulations made under subsection 45 (1) and must indicate the format prescribed by regulations made under that subsection in which the progress report is to be made available to the person making the request. ## Regulations ### Regulations 45 (1) The Canadian Radio-television and Telecommunications Commission may make regulations (a) fixing or determining, for the purposes of subsection 42(1), a day in respect of a regulated entity; (b) specifying the form in which accessibility plans required by subsections 42 (1) and (2) are to be prepared and the manner in which they are to be published; (b.1) respecting the feedback process required by subsection 43(1); (c) specifying the form and manner in which descriptions of the feedback process required by subsection 43 (1) are to be published; (d) specifying the form in which progress reports required by subsection 44 (1) are to be prepared and the time and manner in which they are to be published; and (e) prescribing anything that is to be prescribed by any of subsections 42 (3), (7) and (8), 43 (3) and 44 (2), (6) and (7). ### Obligation (1.1) The Canadian Radio-television and Telecommunications Commission must make at least one regulation under subsection (1) within the period of two years that begins on the day on which this subsection comes into force. ### Distinguishing — classes (2) Regulations made under subsection (1) may distinguish among different classes of regulated entities. ## Exemptions ### Power to exempt 46 (1) The Canadian Radio-television and Telecommunications Commission may, by order, exempt any regulated entity or class of regulated entities from the application of all or any part of sections 42 to 44, on any terms that the Commission considers necessary. The order ceases to have effect on the earlier of the end of the period of three years that begins on the day on which the order is made and the end of any shorter period specified in the order. ### Non-application of Statutory Instruments Act (2) The Statutory Instruments Act does not apply to an order made under subsection (1) in respect of a regulated entity, but the order must be published in the Canada Gazette and the reasons for the making of the order must be made available to the public. ## Accessibility Plans — Regulations Under This Act ### Initial accessibility plan 47 (1) A regulated entity referred to in subsection 42 (1) must, before the expiry of one year after the day fixed or determined by regulations made under subsection 117 (1) that apply to that regulated entity, prepare and publish, in accordance with this Act and regulations made under subsection 117 (1), an accessibility plan respecting (a) its policies, programs, practices and services in relation to the identification and removal of barriers, and the prevention of new barriers, in the areas referred to in paragraphs 5(a), (b), (f) and (g) and in the area referred to in paragraph 5(c.1) as that paragraph applies in respect of the areas referred to in those paragraphs; and (b) the provisions of regulations made under subsection 117 (1) that apply to it. ### Updated accessibility plan (2) The regulated entity must prepare and publish, in accordance with this Act and regulations made under subsection 117 (1), an updated version of its accessibility plan no later than the third anniversary of the day on which the plan was last published or before the expiry of the applicable period prescribed by regulations made under that subsection. ### Notice to Accessibility Commissioner (3) The regulated entity must notify the Accessibility Commissioner, within the time and in the manner prescribed in regulations made under subsection 117 (1), of the publication of every version of its accessibility plan. ### Duty to consult (4) The regulated entity must consult persons with disabilities in the preparation of its accessibility plan and every updated version of its accessibility plan. ### Manner of consultation (5) The accessibility plan must set out the manner in which the regulated entity consulted persons with disabilities in the preparation of the plan. ### Applicable requirements (6) The accessibility plan need not address a requirement that applies to the regulated entity and that is set out in regulations made under subsection 117 (1) unless the requirement has been in force at least three months before the day on which the accessibility plan must be published. ### Duty to make plan available on request (7) If a person makes a request in accordance with subsection (8), the regulated entity must, within the time prescribed by regulations made under subsection 117 (1), make its accessibility plan available to the person in the format prescribed by regulations made under that subsection that is indicated in the request. ### Conditions (8) The request must be made in the form and manner prescribed by regulations made under subsection 117 (1) and must indicate the format prescribed by regulations made under that subsection in which the accessibility plan is to be made available to the person making the request. ### Principles (9) The regulated entity must take into account the principles set out in section 6 when it prepares an accessibility plan or an updated version of its accessibility plan. ## Feedback ### Establishment of process 48 (1) A regulated entity referred to in subsection 42 (1) must establish a process for receiving feedback about the following and for dealing with that feedback: (a) the manner in which the regulated entity is implementing its accessibility plan; and (b) the barriers encountered by the regulated entity’s employees and by other persons that deal with the regulated entity. ### Publication (2) The regulated entity must publish a description of its process in accordance with regulations made under subsection 117 (1). ### Notice to Accessibility Commissioner (3) The regulated entity must notify the Accessibility Commissioner, within the time and in the manner prescribed in regulations made under subsection 117 (1), of the publication of the description of every version of its process. ## Progress Reports ### Obligation 49 (1) A regulated entity referred to in subsection 42 (1) must prepare and publish, in accordance with this Act and regulations made under subsection 117 (1), a progress report respecting its implementation of its accessibility plan. ### Notice to Accessibility Commissioner (2) The regulated entity must notify the Accessibility Commissioner, within the time and in the manner prescribed in regulations made under subsection 117 (1), of the publication of its progress report. ### Duty to consult (3) The regulated entity must consult persons with disabilities in the preparation of its progress report. ### Manner of consultation (4) The progress report must set out the manner in which the regulated entity consulted persons with disabilities in the preparation of its progress report. ### Feedback information (5) The progress report must set out information concerning the feedback received by the regulated entity through its feedback process and how that feedback was taken into consideration. ### Duty to make progress report available on request (6) If a person makes a request in accordance with subsection (7), the regulated entity must, within the time prescribed by regulations made under subsection 117 (1), make its progress report available to the person in the format prescribed by regulations made under that subsection that is indicated in the request. ### Conditions (7) The request must be made in the form and manner prescribed by regulations made under subsection 117 (1) and must indicate the format prescribed by regulations made under that subsection in which the progress report is to be made available to the person making the request. ## Exemptions ### Power to exempt 50 (1) The Minister may, by order, exempt any regulated entity or class of regulated entities from the application of all or any part of sections 47 to 49, on any terms that the Minister considers necessary. The order ceases to have effect on the earlier of the end of the period of three years that begins on the day on which the order is made and the end of any shorter period specified in the order. ### Copy to Accessibility Commissioner (2) The Minister must provide the Accessibility Commissioner with a copy of every order made under subsection (1). ### Non-application of Statutory Instruments Act (3) The Statutory Instruments Act does not apply to an order made under subsection (1) in respect of a regulated entity, but the order must be published in the Canada Gazette and the reasons for the making of the order must be made available to the public. ## Regulated Entities That Are Canadian Carriers or Telecommunications Service Providers ## Accessibility Plans — Requirements Under the Telecommunications Act ### Initial accessibility plan 51 (1) A regulated entity that is a Canadian carrier or a telecommunications service provider must, before the expiry of one year after the day fixed or determined by regulations made under subsection 54 (1) that apply to that regulated entity, prepare and publish, in accordance with this Act and regulations made under that subsection, an accessibility plan respecting (a) its policies, programs, practices and services in relation to the identification and removal of barriers, and the prevention of new barriers, in the areas referred to in paragraphs 5(c), (d) and (e) and the area referred to in paragraph 5(c.1) as it relates to the areas referred to in paragraphs (d) and (e); (b) the conditions imposed under section 24 or 24.1 of the Telecommunications Act to which the regulated entity is subject that relate to the identification and removal of barriers and the prevention of new barriers; and (c) the provisions of any regulations made under that Act that relate to the identification and removal of barriers and the prevention of new barriers and that apply to the regulated entity. ### Updated accessibility plan (2) The regulated entity must prepare and publish, in accordance with this Act and regulations made under subsection 54 (1), an updated version of its accessibility plan no later than the third anniversary of the day on which the plan was last published or before the expiry of the applicable period prescribed by regulations made under that subsection. ### Notice to Commission (3) The regulated entity must notify the Canadian Radio-television and Telecommunications Commission, within the time and in the manner prescribed in regulations made under subsection 54 (1), of the publication of every version of its accessibility plan. ### Duty to consult (4) The regulated entity must consult persons with disabilities in the preparation of its accessibility plan and every updated version of its accessibility plan. ### Manner of consultation (5) The accessibility plan must set out the manner in which the regulated entity consulted persons with disabilities in the preparation of the plan. ### Applicable requirements (6) The accessibility plan need not address a requirement that applies to the regulated entity and that is set out in a condition or regulation referred to in paragraphs (1)(b) and (c) unless the requirement has been in force at least three months before the day on which the accessibility plan must be published. ### Duty to make plan available on request (7) If a person makes a request in accordance with subsection (8), the regulated entity must, within the time prescribed by regulations made under subsection 54 (1), make its accessibility plan available to the person in the format prescribed by regulations made under that subsection that is indicated in the request. ### Conditions (8) The request must be made in the form and manner prescribed by regulations made under subsection 54 (1) and must indicate the format prescribed by regulations made under that subsection in which the accessibility plan is to be made available to the person making the request. ### Principles (9) The regulated entity must take into account the principles set out in section 6 when it prepares an accessibility plan or an updated version of its accessibility plan. ## Feedback ### Establishment of process 52 (1) A regulated entity referred to in subsection 51 (1) must establish a process for receiving feedback about the following and for dealing with that feedback: (a) the manner in which the regulated entity is implementing its accessibility plan; and (b) the barriers encountered by persons that deal with the regulated entity. ### Publication (2) The regulated entity must publish a description of its process in accordance with regulations made under subsection 54 (1). ### Notice to Commission (3) The regulated entity must notify the Canadian Radio-television and Telecommunications Commission, within the time and in the manner prescribed in regulations made under subsection 54 (1), of the publication of the description of every version of its process. ## Progress Reports ### Obligation 53 (1) A regulated entity referred to in subsection 51 (1) must prepare and publish, in accordance with this Act and regulations made under subsection 54 (1), a progress report respecting its implementation of its accessibility plan. ### Notice to Commission (2) The regulated entity must notify the Canadian Radio-television and Telecommunications Commission, within the time and in the manner prescribed in regulations made under subsection 54 (1), of the publication of its progress report. ### Duty to consult (3) The regulated entity must consult persons with disabilities in the preparation of its progress report. ### Manner of consultation (4) The progress report must set out the manner in which the regulated entity consulted persons with disabilities in the preparation of its progress report. ### Feedback information (5) The progress report must set out information concerning the feedback received by the regulated entity through its feedback process and how that feedback was taken into consideration. ### Duty to make progress report available on request (6) If a person makes a request in accordance with subsection (7), the regulated entity must, within the time prescribed by regulations made under subsection 54 (1), make its progress report available to the person in the format prescribed by regulations made under that subsection that is indicated in the request. ### Conditions (7) The request must be made in the form and manner prescribed by regulations made under subsection 54 (1) and must indicate the format prescribed by regulations made under that subsection in which the progress report is to be made available to the person making the request. ## Regulations ### Regulations 54 (1) The Canadian Radio-television and Telecommunications Commission may make regulations (a) fixing or determining, for the purposes of subsection 5(1), a day in respect of a regulated entity; (b) specifying the form in which accessibility plans required by subsections 51 (1) and (2) are to be prepared and the manner in which they are to be published; (b.1) respecting the feedback process required by subsection 52(1); (c) specifying the form and manner in which descriptions of the feedback process required by subsection 52 (1) are to be published; (d) specifying the form in which progress reports required by subsection 53 (1) are to be prepared and the time and manner in which they are to be published; and (e) prescribing anything that is to be prescribed by any of subsections 51 (3), (7) and (8), 52 (3) and 53 (2), (6) and (7). ### Obligation (1.1) The Canadian Radio-television and Telecommunications Commission must make at least one regulation under subsection (1) within the period of two years that begins on the day on which this subsection comes into force. ### Distinguishing — classes (2) Regulations made under subsection (1) may distinguish among different classes of regulated entities. ## Exemptions ### Power to exempt 55 (1) The Canadian Radio-television and Telecommunication Commission may, by order, exempt any regulated entity or class of regulated entities from the application of all or any part of sections 51 to 53, on any terms that the Commission considers necessary. The order ceases to have effect on the earlier of the end of the period of three years that begins on the day on which the order is made and the end of any shorter period specified in the order. ### Non-application of Statutory Instruments Act (2) The Statutory Instruments Act does not apply to an order made under subsection (1) in respect of a regulated entity, but the order must be published in the Canada Gazette and the reasons for the making of the order must be made available to the public. ## Accessibility Plans — Regulations Under This Act ### Initial accessibility plan 56 (1) A regulated entity referred to in subsection 51 (1) must, before the expiry of one year after the day fixed or determined by regulations made under subsection 117 (1) that apply to that regulated entity, prepare and publish, in accordance with this Act and regulations made under subsection 117 (1), an accessibility plan respecting (a) its policies, programs, practices and services in relation to the identification and removal of barriers, and the prevention of new barriers, in the areas referred to in paragraphs 5(a), (b), (f) and (g) and in the area referred to in paragraph 5(c.1) as it relates to the areas referred to in those paragraphs; and (b) the provisions of regulations made under subsection 117 (1) that apply to it. ### Updated accessibility plan (2) The regulated entity must prepare and publish, in accordance with this Act and regulations made under subsection 117 (1), an updated version of its accessibility plan no later than the third anniversary of the day on which the plan was last published or before the expiry of the applicable period prescribed by regulations made under that subsection. ### Notice to Accessibility Commissioner (3) The regulated entity must notify the Accessibility Commissioner, within the time and in the manner prescribed in regulations made under subsection 117 (1), of the publication of every version of its accessibility plan. ### Duty to consult (4) The regulated entity must consult persons with disabilities in the preparation of its accessibility plan and every updated version of its accessibility plan. ### Manner of consultation (5) The accessibility plan must set out the manner in which the regulated entity consulted persons with disabilities in the preparation of the plan. ### Applicable requirements (6) The accessibility plan need not address a requirement that applies to the regulated entity and that is set out in regulations made under subsection 117 (1) unless the requirement has been in force at least three months before the day on which the accessibility plan must be published. ### Duty to make plan available on request (7) If a person makes a request in accordance with subsection (8), the regulated entity must, within the time prescribed by regulations made under subsection 117 (1), make its accessibility plan available to the person in the format prescribed by regulations made under that subsection that is indicated in the request. ### Conditions (8) The request must be made in the form and manner prescribed by regulations made under subsection 117 (1) and must indicate the format prescribed by regulations made under that subsection in which the accessibility plan is to be made available to the person making the request. ### Principles (9) The regulated entity must take into account the principles set out in section 6 when it prepares an accessibility plan or an updated version of its accessibility plan. ## Feedback ### Establishment of process 57 (1) A regulated entity referred to in subsection 51 (1) must establish a process for receiving feedback about the following and for dealing with that feedback: (a) the manner in which the regulated entity is implementing its accessibility plan; and (b) the barriers encountered by the regulated entity’s employees and by other persons that deal with the regulated entity. ### Publication (2) The regulated entity must publish a description of its process in accordance with regulations made under subsection 117 (1). ### Notice to Accessibility Commissioner (3) The regulated entity must notify the Accessibility Commissioner, within the time and in the manner prescribed in regulations made under subsection 117 (1), of the publication of the description of every version of its process. ## Progress Reports ### Obligation 58 (1) A regulated entity referred to in subsection 51 (1) must prepare and publish, in accordance with this Act and regulations made under subsection 117 (1), a progress report respecting its implementation of its accessibility plan. ### Notice to Accessibility Commissioner (2) The regulated entity must notify the Accessibility Commissioner, within the time and in the manner prescribed in regulations made under subsection 117 (1), of the publication of its progress report. ### Duty to consult (3) The regulated entity must consult persons with disabilities in the preparation of its progress report. ### Manner of consultation (4) The progress report must set out the manner in which the regulated entity consulted persons with disabilities in the preparation of its progress report. ### Feedback information (5) The progress report must set out information concerning the feedback received by the regulated entity through its feedback process and how that feedback was taken into consideration. ### Duty to make progress report available on request (6) If a person makes a request in accordance with subsection (7), the regulated entity must, within the time prescribed by regulations made under subsection 117 (1), make its progress report available to the person in the format prescribed by regulations made under that subsection that is indicated in the request. ### Conditions (7) The request must be made in the form and manner prescribed by regulations made under subsection 117 (1) and must indicate the format prescribed by regulations made under that subsection in which the progress report is to be made available to the person making the request. ## Exemptions ### Power to exempt 59 (1) The Minister may, by order, exempt any regulated entity or class of regulated entities from the application of all or any part of sections 56 to 58, on any terms that the Minister considers necessary. The order ceases to have effect on the earlier of the end of the period of three years that begins on the day on which the order is made and the end of any shorter period specified in the order. ### Copy to Accessibility Commissioner (2) The Minister must provide the Accessibility Commissioner with a copy of every order made under subsection (1). ### Non-application of Statutory Instruments Act (3) The Statutory Instruments Act does not apply to an order made under subsection (1) in respect of a regulated entity, but the order must be published in the Canada Gazette and the reasons for the making of the order must be made available to the public. ## Regulated Entities in the Transportation Network ## Accessibility Plans — Regulations Under the Canada Transportation Act ### Initial accessibility plan 60 (1) A regulated entity that is required to comply with any provision of regulations made under subsection 170(1) of the Canada Transportation Act must, before the expiry of one year after the day fixed or determined by regulations made under subsection 63 (1) that apply to that regulated entity, prepare and publish, in accordance with this Act and regulations made under subsection 63 (1), an accessibility plan respecting (a) its policies, programs, practices and services in relation to the identification and removal of barriers, and the prevention of new barriers, in (i) the areas referred to in paragraphs 5(c) and (d) to (f), (ii) the built environment, to the extent that the built environment is a passenger aircraft, passenger train, passenger bus, passenger vessel, aerodrome passenger terminal, railway passenger station, bus passenger station or marine passenger terminal, and (iii) the area referred to in paragraph 5(c.1) as it relates to the areas referred to in paragraphs 5(c) and (d) to (f) and to the built environment referred to in subparagraph (ii); and (b) the provisions of regulations made under subsection 170(1) of the Canada Transportation Act that apply to it. ### Updated accessibility plan (2) The regulated entity must prepare and publish, in accordance with this Act and regulations made under subsection 63 (1), an updated version of its accessibility plan no later than the third anniversary of the day on which the plan was last published or before the expiry of the applicable period prescribed by regulations made under that subsection. ### Notice to Agency (3) The regulated entity must notify the Canadian Transportation Agency, within the time and in the manner prescribed in regulations made under subsection 63 (1), of the publication of every version of its accessibility plan. ### Duty to consult (4) The regulated entity must consult persons with disabilities in the preparation of its accessibility plan and every updated version of its accessibility plan. ### Manner of consultation (5) The accessibility plan must set out the manner in which the regulated entity consulted persons with disabilities in the preparation of the plan. ### Applicable requirements (6) The accessibility plan need not address a requirement that applies to the regulated entity and that is set out in regulations made under subsection 170(1) of the Canada Transportation Act unless the requirement has been in force at least three months before the day on which the accessibility plan must be published. ### Duty to make plan available on request (7) If a person makes a request in accordance with subsection (8), the regulated entity must, within the time prescribed by regulations made under subsection 63 (1), make its accessibility plan available to the person in the format prescribed by regulations made under that subsection that is indicated in the request. ### Conditions (8) The request must be made in the form and manner prescribed by regulations made under subsection 63 (1) and must indicate the format prescribed by regulations made under that subsection in which the accessibility plan is to be made available to the person making the request. ### Principles (9) The regulated entity must take into account the principles set out in section 6 when it prepares an accessibility plan or an updated version of its accessibility plan. ## Feedback ### Establishment of process 61 (1) A regulated entity referred to in subsection 60 (1) must establish a process for receiving feedback about the following and for dealing with that feedback: (a) the manner in which the regulated entity is implementing its accessibility plan; and (b) the barriers encountered by persons that deal with the regulated entity. ### Publication (2) The regulated entity must publish a description of its process in accordance with regulations made under subsection 63 (1). ### Notice to Agency (3) The regulated entity must notify the Canadian Transportation Agency, within the time and in the manner prescribed in regulations made under subsection 63 (1), of the publication of the description of every version of its process. ## Progress Reports ### Obligation 62 (1) A regulated entity referred to in subsection 60 (1) must prepare and publish, in accordance with this Act and regulations made under subsection 63 (1), a progress report respecting its implementation of its accessibility plan. ### Notice to Agency (2) The regulated entity must notify the Canadian Transportation Agency, within the time and in the manner prescribed in regulations made under subsection 63 (1), of the publication of its progress report. ### Duty to consult (3) The regulated entity must consult persons with disabilities in the preparation of its progress report. ### Manner of consultation (4) The progress report must set out the manner in which the regulated entity consulted persons with disabilities in the preparation of its progress report. ### Feedback information (5) The progress report must set out information concerning the feedback received by the regulated entity through its feedback process and how that feedback was taken into consideration. ### Duty to make progress report available on request (6) If a person makes a request in accordance with subsection (7), the regulated entity must, within the time prescribed by regulations made under subsection 63 (1), make its progress report available to the person in the format prescribed by regulations made under that subsection that is indicated in the request. ### Conditions (7) The request must be made in the form and manner prescribed by regulations made under subsection 63 (1) and must indicate the format prescribed by regulations made under that subsection in which the progress report is to be made available to the person making the request. ## Regulations ### Regulations 63 (1) The Canadian Transportation Agency may, with the approval of the Governor in Council given on the recommendation of the Minister of Transport, make regulations (a) fixing or determining, for the purposes of subsection 60 (1), a day in respect of a regulated entity; (b) specifying the form in which accessibility plans required by subsections 60 (1) and (2) are to be prepared and the manner in which they are to be published; (b.1) respecting the feedback process required by subsection 61(1); (c) specifying the form and manner in which descriptions of the feedback process required by subsection 61(1) are to be published; (d) specifying the form in which progress reports required by subsection 62 (1) are to be prepared and the time and manner in which they are to be published; and (e) prescribing anything that is to be prescribed by any of subsections 60 (2), (3), (7) and (8), 61 (3) and 62 (2), (6) and (7). ### Obligation (1.1) The Canadian Transportation Agency must make at least one regulation under subsection (1) within the period of two years that begins on the day on which this subsection comes into force. ### Distinguishing — classes (2) Regulations made under subsection (1) may distinguish among different classes of regulated entities. ## Exemptions ### Power to exempt 64 (1) The Canadian Transportation Agency, with the approval of the Minister of Transport, may, by order, exempt any regulated entity or class of regulated entities from the application of all or any part of sections 60 to 62, on any terms that the Agency considers necessary. The order ceases to have effect on the earlier of the end of the period of three years that begins on the day on which the order is made and the end of any shorter period specified in the order. ### Non-application of Statutory Instruments Act (2) The Statutory Instruments Act does not apply to an order made under subsection (1) in respect of a regulated entity, but the order must be published in the Canada Gazette and the reasons for the making of the order must be made available to the public. ## Accessibility Plans — Regulations Under This Act ### Initial accessibility plan 65 (1) A regulated entity referred to in subsection 60 (1) must, before the expiry of one year after the day fixed or determined by regulations made under subsection 117 (1) that apply to that regulated entity, prepare and publish, in accordance with this Act and regulations made under subsection 117 (1), an accessibility plan respecting (a) its policies, programs, practices and services in relation to the identification and removal of barriers, and the prevention of new barriers, in (i) the areas referred to in paragraphs 5(a) and (g), (ii) the built environment, other than passenger aircraft, passenger trains, passenger buses, passenger vessels, aerodrome passenger terminals, railway passenger stations, bus passenger stations or marine passenger terminals, and (iii) the area referred to in paragraph 5(c.1) as it relates to the areas referred to in paragraphs 5(a) and (g) and to the built environment referred to in subparagraph (ii); and (b) the provisions of regulations made under subsection 117 (1) that apply to it. ### Updated accessibility plan (2) The regulated entity must prepare and publish, in accordance with this Act and regulations made under subsection 117 (1), an updated version of its accessibility plan no later than the third anniversary of the day on which the plan was last published or before the expiry of the applicable period prescribed by regulations made under that subsection. ### Notice to Accessibility Commissioner (3) The regulated entity must notify the Accessibility Commissioner, within the time and in the manner prescribed in regulations made under subsection 117 (1), of the publication of every version of its accessibility plan. ### Duty to consult (4) The regulated entity must consult persons with disabilities in the preparation of its accessibility plan and every updated version of its accessibility plan. ### Manner of consultation (5) The accessibility plan must set out the manner in which the regulated entity consulted persons with disabilities in the preparation of the plan. ### Applicable requirements (6) The accessibility plan need not address a requirement that applies to the regulated entity and that is set out in regulations made under subsection 117 (1) unless the requirement has been in force at least three months before the day on which the accessibility plan must be published. ### Duty to make plan available on request (7) If a person makes a request in accordance with subsection (8), the regulated entity must, within the time prescribed by regulations made under subsection 117 (1), make its accessibility plan available to the person in the format prescribed by regulations made under that subsection that is indicated in the request. ### Conditions (8) The request must be made in the form and manner prescribed by regulations made under subsection 117 (1) and must indicate the format prescribed by regulations made under that subsection in which the accessibility plan is to be made available to the person making the request. ### Principles (9) The regulated entity must take into account the principles set out in section 6 when it prepares an accessibility plan or an updated version of its accessibility plan. ## Feedback ### Establishment of process 66 (1) A regulated entity referred to in subsection 60 (1) must establish a process for receiving feedback about the following and for dealing with that feedback: (a) the manner in which the regulated entity is implementing its accessibility plan; and (b) the barriers encountered by the regulated entity’s employees and by other persons that deal with the regulated entity. ### Publication (2) The regulated entity must publish a description of its process in accordance with regulations made under subsection 117 (1). ### Notice to Accessibility Commissioner (3) The regulated entity must notify the Accessibility Commissioner, within the time and in the manner prescribed in regulations made under subsection 117 (1), of the publication of the description of every version of its process. ## Progress Reports ### Obligation 67 (1) A regulated entity referred to in subsection 60 (1) must prepare and publish, in accordance with this Act and regulations made under subsection 117 (1), a progress report respecting its implementation of its accessibility plan. ### Notice to Accessibility Commissioner (2) The regulated entity must notify the Accessibility Commissioner, within the time and in the manner prescribed in regulations made under subsection 117 (1), of the publication of its progress report. ### Duty to consult (3) The regulated entity must consult persons with disabilities in the preparation of its progress report. ### Manner of consultation (4) The progress report must set out the manner in which the regulated entity consulted persons with disabilities in the preparation of its progress report. ### Feedback information (5) The progress report must set out information concerning the feedback received by the regulated entity through its feedback process and how that feedback was taken into consideration. ### Duty to make progress report available on request (6) If a person makes a request in accordance with subsection (7), the regulated entity must, within the time prescribed by regulations made under subsection 117 (1), make its progress report available to the person in the format prescribed by regulations made under that subsection that is indicated in the request. ### Conditions (7) The request must be made in the form and manner prescribed by regulations made under subsection 117 (1) and must indicate the format prescribed by regulations made under that subsection in which the progress report is to be made available to the person making the request. ## Exemptions ### Power to exempt 68 (1) The Minister may, by order, exempt any regulated entity or class of regulated entities from the application of all or any part of sections 65 to 67, on any terms that the Minister considers necessary. The order ceases to have effect on the earlier of the end of the period of three years that begins on the day on which the order is made and the end of any shorter period specified in the order. ### Copy to Accessibility Commissioner (2) The Minister must provide the Accessibility Commissioner with a copy of every order made under subsection (1). ### Non-application of Statutory Instruments Act (3) The Statutory Instruments Act does not apply to an order made under subsection (1) in respect of a regulated entity, but the order must be published in the Canada Gazette and the reasons for the making of the order must be made available to the public. ## Other Regulated Entities ## Accessibility Plans — Regulations Under This Act ### Initial accessibility plan 69 (1) A regulated entity – other than a regulated entity referred to in any of subsections 42 (1), 51 (1) and 60 (1) — must, before the expiry of one year after the day fixed or determined by regulations made under subsection 117 (1) that apply to that regulated entity, prepare and publish, in accordance with this Act and regulations made under subsection 117 (1), an accessibility plan respecting (a) its policies, programs, practices and services in relation to the identification and removal of barriers, and the prevention of new barriers, in the areas referred to in paragraphs 5 (a) to (g); and (b) the provisions of regulations made under subsection 117 (1) that apply to it. ### Updated accessibility plan (2) The regulated entity must prepare and publish, in accordance with this Act and regulations made under subsection 117 (1), an updated version of its accessibility plan no later than the third anniversary of the day on which the plan was last published or before the expiry of the applicable period prescribed by regulations made under that subsection. ### Notice to Accessibility Commissioner (3) The regulated entity must notify the Accessibility Commissioner, within the time and in the manner prescribed in regulations made under subsection 117 (1), of the publication of every version of its accessibility plan. ### Duty to consult (4) The regulated entity must consult persons with disabilities in the preparation of its accessibility plan and every updated version of its accessibility plan. ### Manner of consultation (5) The accessibility plan must set out the manner in which the regulated entity consulted persons with disabilities in the preparation of the plan. ### Applicable requirements (6) The accessibility plan need not address a requirement that applies to the regulated entity and that is set out in regulations made under subsection 117 (1) unless the requirement has been in force at least three months before the day on which the accessibility plan must be published. ### Duty to make plan available on request (7) If a person makes a request in accordance with subsection (8), the regulated entity must, within the time prescribed by regulations made under subsection 117 (1), make its accessibility plan available to the person in the format prescribed by regulations made under that subsection that is indicated in the request. ### Conditions (8) The request must be made in the form and manner prescribed by regulations made under subsection 117 (1) and must indicate the format prescribed by regulations made under that subsection in which the accessibility plan is to be made available to the person making the request. ### Principles (9) The regulated entity must take into account the principles set out in section 6 when it prepares an accessibility plan or an updated version of its accessibility plan. ## Feedback ### Establishment of process 70 (1) A regulated entity — other than a regulated entity referred to in any of subsections 42 (1), 51 (1) and 60 (1) — must establish a process for receiving feedback about the following and for dealing with that feedback: (a) the manner in which the regulated entity is implementing its accessibility plan; and (b) the barriers encountered by the regulated entity’s employees and by other persons that deal with the regulated entity. ### Publication (2) The regulated entity must publish a description of its process in accordance with regulations made under subsection 117 (1). ### Notice to Accessibility Commissioner (3) The regulated entity must notify the Accessibility Commissioner, within the time and in the manner prescribed in regulations made under subsection 117 (1), of the publication of the description of every version of its process. ## Progress Reports ### Obligation 71 (1) A regulated entity — other than a regulated entity referred to in any of subsections 42 (1), 51 (1) and 60 (1) — must prepare and publish, in accordance with this Act and regulations made under subsection 117 (1), a progress report respecting its implementation of its accessibility plan. ### Notice to Accessibility Commissioner (2) The regulated entity must notify the Accessibility Commissioner, within the time and in the manner prescribed in regulations made under subsection 117 (1), of the publication of its progress report. ### Duty to consult (3) The regulated entity must consult persons with disabilities in the preparation of its progress report. ### Manner of consultation (4) The progress report must set out the manner in which the regulated entity consulted persons with disabilities in the preparation of its progress report. ### Feedback information (5) The progress report must set out information concerning the feedback received by the regulated entity through its feedback process and how that feedback was taken into consideration. ### Duty to make progress report available on request (6) If a person makes a request in accordance with subsection (7), the regulated entity must, within the time prescribed by regulations made under subsection 117 (1), make its progress report available to the person in the format prescribed by regulations made under that subsection that is indicated in the request. ### Conditions (7) The request must be made in the form and manner prescribed by regulations made under subsection 117 (1) and must indicate the format prescribed by regulations made under that subsection in which the progress report is to be made available to the person making the request. ## Exemptions ### Power to exempt 72 (1) The Minister may, by order, exempt any regulated entity or class of regulated entities from the application of all or any part of sections 69 to 71, on any terms that the Minister considers necessary. The order ceases to have effect on the earlier of the end of the period of three years that begins on the day on which the order is made and the end of any shorter period specified in the order. ### Copy to Accessibility Commissioner (2) The Minister must provide the Accessibility Commissioner with a copy of every order made under subsection (1). ### Non-application of Statutory Instruments Act (3) The Statutory Instruments Act does not apply to an order made under subsection (1) in respect of a regulated entity, but the order must be published in the Canada Gazette and the reasons for the making of the order must be made available to the public. # PART 5 ## Administration and Enforcement ## Inspections ### Power to enter 73 (1) Subject to subsection (7), the Accessibility Commissioner may, for a purpose related to verifying compliance or preventing non-compliance with any of sections 47 to 49, 56 to 58, 65 to 67 and 69 to 71 or any provision of regulations made under subsection 117 (1), enter any place, including a conveyance, in which he or she has reasonable grounds to believe there is any record, report, electronic data or other document, or any information or thing, relevant to that purpose. ### Other powers (2) The Accessibility Commissioner may, for that purpose, (a) open and examine any receptacle or package found in the place; (b) examine anything found in the place; (c) examine any record, report, electronic data or other document that is found in the place and make copies of it or take extracts from it; (d) use or cause to be used any computer system at the place to examine any electronic data referred to in paragraph (c); (e) reproduce any document from any electronic data referred to in paragraph (c), or cause it to be reproduced, in the form of a printout or other output; (f) take the record, report or other document referred to in paragraph (c) or the printout or other output referred to in paragraph (e) for examination or copying; (g) use or cause to be used any copying equipment at the place to make copies of any document; (h) take photographs and make recordings and sketches; (i) order the owner or person having possession of any thing to which any provision of regulations made under subsection 117 (1) applies that is found in that place to move it or, for any time that may be necessary, not to move it or to restrict its movement; (j) order the owner or person having possession of any conveyance that is found in the place to stop the conveyance, to move it or, for any time that may be necessary, not to move it or to restrict its movement; (k) order any person in that place to establish their identity to the Accessibility Commissioner’s satisfaction, or to the satisfaction of the Accessibility Commissioner’s delegate, as the case may be; and (l) order a person in that place to start any activity that is necessary for the purpose of the inspection or to stop any activity that impedes the inspection. ### Means of telecommunication (3) For the purposes of subsection (1), the Accessibility Commissioner is considered to have entered a place when accessing it remotely by a means of telecommunication. ### Limitation — place not accessible to the public (4) The Accessibility Commissioner who, by a means of telecommunication, accesses remotely a place that is not accessible to the public must do so with the knowledge of the owner or person in charge of the place and must be remotely in the place for no longer than the period necessary for the purpose referred to in subsection (1). ### Accompanying individual (5) The Accessibility Commissioner may be accompanied by any other individual the Accessibility Commissioner believes is necessary to help him or her exercise his or her powers or perform his or her duties or functions under this section. ### Entering private property (6) The Accessibility Commissioner and any individual accompanying him or her may enter and pass through private property, other than a dwelling-house on that property, in order to gain entry to a place referred to in subsection (1). For greater certainty, they are not liable for doing so. ### Consent required to enter dwelling-house (7) In the case of a dwelling-house, the Accessibility Commissioner may enter it only with the consent of an occupant. ### Assistance (8) The owner or other person in charge of a place entered by the Accessibility Commissioner or his or her delegate under subsection (1) and every individual found in the place must give the Accessibility Commissioner or the delegate, as the case may be, all reasonable assistance in the individual’s power and provide the Accessibility Commissioner or delegate with any information that the Accessibility Commissioner or delegate may reasonably require. ## Production Order ### Power to order production 74 (1) The Accessibility Commissioner may, for a purpose related to verifying compliance or preventing non-compliance with any of sections 47 to 49, 56 to 58, 65 to 67 and 69 to 71 or any provision of regulations made under subsection 117 (1), make an order requiring a regulated entity to produce, at the time and place specified in the order, for examination or copying, any record, report, electronic data or other document that the Accessibility Commissioner has reasonable grounds to believe contains information that is relevant to that purpose. ### Copies (2) The Accessibility Commissioner may (a) make copies or take extracts from the record, report, electronic data or other document produced under an order made under subsection (1); and (b) reproduce any document from such electronic data, or cause it to be reproduced, in the form of a printout or other output. ## Compliance Order ### Power to order termination of contravention 75 (1) If the Accessibility Commissioner has reasonable grounds to believe that a regulated entity is contravening or has contravened any of sections 47 to 49, 56 to 58, 65 to 67 and 69 to 71 or any provision of regulations made under subsection 117 (1), he or she may make a compliance order requiring the regulated entity to terminate the contravention within the time specified in the order or to take any step specified in the order, within the time specified in the order, to ensure that the contravention does not continue or reoccur. ### Copy (2) The Accessibility Commissioner must cause the regulated entity to be served with a copy of the order. ### Request for review 76 (1) Subject to any other provision of this section, an order that is made under section 75 must be reviewed by the Accessibility Commissioner on the written request of the regulated entity to which the order is addressed. ### Contents and time for making request (2) The request must be made within the time and in the manner specified in the order and state the grounds for review and set out the evidence that supports those grounds. ### Order in effect (3) An order made under section 75 continues to apply during a review unless the Accessibility Commissioner decides otherwise. ### Decision on completion of review (4) On completion of a review, the Accessibility Commissioner must confirm, amend, revoke or cancel the order. ### Notice of decision (5) The Accessibility Commissioner must cause the regulated entity to be served with a notice setting out the Accessibility Commissioner’s decision under subsection (4) and the reasons for it. ## Administrative Monetary Penalties ### Commission — regulated entity 77 (1) Every regulated entity that contravenes any of the following commits a violation and is liable to a warning or to a penalty fixed in accordance with regulations made under subsection 91 (1): (a) any of subsections 47 (1) to (4) and (7), 48 (1) to (3), 49 (1) to (3) and (6), 56 (1) to (4) and (7), 57 (1) to (3), 58 (1) to (3) and (6), 65 (1) to (4) and (7), 66 (1) to (3), 67 (1) to (3) and (6), 69 (1) to (4) and (7), 70 (1) to (3), 71 (1) to (3) and (6) and 73 (8) and sections 124 to 126 ; (b) an order made under section 74 ; (c) an order made under subsection 75 (1) or amended under subsection 76 (4); and (d) a provision of regulations made under subsection 117 (1). ### Commission — person (2) Every person that contravenes an order made under any of paragraphs 73 (2)(i) to (l) or contravenes subsection 73 (8) or section 124 or 125 commits a violation and is liable to a warning or to a penalty fixed in accordance with regulations made under subsection 91 (1). ### Exception (3) Subsection (2) does not apply to a specified person as defined in subsection 140 (11). ### Purpose of penalty 78 The purpose of a penalty is to promote compliance with this Act and not to punish. ### Issuance of notice of violation 79 (1) If the Accessibility Commissioner has reasonable grounds to believe that a regulated entity or person has committed a violation, the Accessibility Commissioner may issue, and must cause to be served on the regulated entity or person, a notice of violation that names the regulated entity or person, identifies the violation and (a) contains a warning; or (b) sets out (i) the penalty for the violation that the regulated entity or person is liable to pay, (ii) the particulars concerning the time and manner of payment of the penalty, and (iii) the lesser amount that may be paid in complete satisfaction of the penalty if paid within the time and manner specified in the notice. ### Summary of rights and obligations (2) The notice of violation must also summarize, in plain language, the rights and obligations of the regulated entity or person under this Part, including their right referred to in subsection 80 (1), or their rights referred to in subsection 81 (2), and the procedure for exercising that right, or those rights, as the case may be. ### Warning — right to request review 80 (1) A regulated entity or person that is served with a notice of violation that sets out a warning may, within the time and in the manner specified in the notice, request a review of the acts or omissions that constitute the violation. ### Warning — right not exercised (2) If a regulated entity or person that is served with a notice of violation that contains a warning does not exercise the right referred to in subsection (1) within the time and in the manner specified in the notice, they are deemed to have committed the violation identified in the notice of violation. ### Notices with penalty — payment 81 (1) If a notice of violation sets out a penalty and the regulated entity or person named in the notice pays, within the time and in the manner specified in the notice, the amount of the penalty or the lesser amount set out in the notice, (a) they are deemed to have committed the violation in respect of which the amount is paid; (b) the Accessibility Commissioner must accept that amount in complete satisfaction of the penalty; and (c) the proceedings commenced in respect of the violation are ended. ### Alternatives to payment (2) Instead of paying the penalty set out in a notice of violation or the lesser amount that may be paid in lieu of the penalty, the regulated entity or person named in the notice may, within the time and in the manner specified in the notice, (a) request to enter into a compliance agreement with the Accessibility Commissioner for the purpose of ensuring their compliance with the provisions of this Act or of regulations made under subsection 117 (1), or the order, to which the violation relates; or (b) request a review of the acts or omissions that constitute the violation or of the amount of the penalty. ### Deeming (3) If a regulated entity or person that is served with a notice of violation does not exercise any right referred to in subsection (2) within the time and in the manner specified in the notice, they are deemed to have committed the violation identified in the notice. ### Entering into compliance agreements 82 (1) After considering a request made under paragraph 81 (2)(a), the Accessibility Commissioner may enter into a compliance agreement, as described in that paragraph, with the regulated entity or person making the request on any terms that the Accessibility Commissioner considers appropriate. The terms may (a) include a provision for the deposit of reasonable security, in a form and amount satisfactory to the Accessibility Commissioner, as a guarantee that the regulated entity or person will comply with the compliance agreement; and (b) provide for the reduction, in whole or in part, of the penalty for the violation. ### Deeming (2) A regulated entity or person that enters into a compliance agreement is, on doing so, deemed to have committed the violation in respect of which the compliance agreement was entered into. ### Notice of compliance (3) If the Accessibility Commissioner is satisfied that a regulated entity or person that has entered into a compliance agreement has complied with it, the Accessibility Commissioner must cause the regulated entity or person to be served with a notice of compliance, and once it is served, (a) the proceedings commenced in respect of the violation are ended; and (b) any security given under the compliance agreement must be returned to them. ### Notice of default (4) If the Accessibility Commissioner is of the opinion that a regulated entity or person that has entered into a compliance agreement has not complied with it, the Accessibility Commissioner must cause the regulated entity or person to be served with a notice of default informing them of one of the following: (a) that instead of being liable to pay the amount of the penalty set out in the notice of violation in respect of which the compliance agreement was entered into, they are liable to pay, within the time and in the manner set out in the notice of default, and without taking account of the limit set out in subsection 91 (2), an amount that is twice the amount of that penalty; (b) that the security, if any, given under the compliance agreement will be forfeited to Her Majesty in right of Canada. ### Effect of service of notice of default — payment (5) If served with a notice of default under paragraph (4)(a), the regulated entity or person may not deduct from the amount set out in the notice of default any amount they spent under the compliance agreement and they are liable to pay the amount set out in the notice of default within the time and in the manner specified in the notice of default. ### Effect of service of notice of default — forfeiture (6) If served with a notice of default under paragraph (4)(b), the security is forfeited to Her Majesty in right of Canada and the proceedings commenced in respect of the violation are ended. ### Effect of payment (7) If the regulated entity or person pays the amount set out in the notice of default within the time and in the manner specified in the notice of default, the Accessibility Commissioner must accept the amount in complete satisfaction of the amount owing in respect of the violation and the proceedings commenced in respect of the violation are ended. ### Refusal to enter into compliance agreement 83 (1) If the Accessibility Commissioner refuses to enter into a compliance agreement requested under paragraph 81 (2)(a), the regulated entity or person that made the request is liable to pay, within the time and in the manner specified in the notice of violation, the amount of the penalty set out in the notice of violation. ### Effect of payment (2) If the regulated entity or person pays the amount set out in the notice of violation within the time and in the manner specified in the notice of violation, (a) they are deemed to have committed the violation in respect of which the amount is paid; (b) the Accessibility Commissioner must accept the amount in complete satisfaction of the penalty in respect of the violation; and (c) the proceedings commenced in respect of the violation are ended. ### Deeming (3) If the regulated entity or person does not pay the amount set out in the notice of violation within the time and in the manner specified in the notice of violation, they are deemed to have committed the violation identified in the notice of violation. ### Review — with respect to facts 84 (1) On completion of a review requested under subsection 80 (1), or under paragraph 81 (2)(b) with respect to the acts or omissions that constitute the violation, the Accessibility Commissioner must determine, on a balance of probabilities, whether the regulated entity or person that requested the review committed the violation. ### Violation not committed — effect (2) If the Accessibility Commissioner determines under subsection (1) that the regulated entity or person did not commit the violation, the proceedings commenced in respect of it are ended. ### Violation committed — penalty (3) If the Accessibility Commissioner determines that the regulated entity or person committed the violation, and a penalty was set out in the notice of violation, the Accessibility Commissioner must determine whether the amount of the penalty was fixed in accordance with regulations made under subsection 91 (1) and (a) if the Accessibility Commissioner determines that it was correctly fixed, he or she must confirm the amount of the penalty; and (b) if the Accessibility Commissioner determines that it was not correctly fixed, he or she must correct the amount. ### Notice of decision (4) The Accessibility Commissioner must cause the regulated entity or person to be served with a notice that sets out the Accessibility Commissioner’s decision under this section and the reasons for it and, if the amount of the penalty was confirmed or corrected by the Accessibility Commissioner, the time and manner in which that amount is to be paid. ### Payment (5) The regulated entity or person is liable to pay, within the time and in the manner specified in the notice, the amount of the penalty confirmed or corrected by the Accessibility Commissioner. ### Effect of payment (6) If a regulated entity or person pays the amount referred to in subsection (5), the Accessibility Commissioner must accept the amount in complete satisfaction of the penalty in respect of the violation and the proceedings commenced in respect of the violation are ended. ### Certain defences not available 85 (1) A regulated entity or person named in a notice of violation does not have a defence by reason that they (a) exercised due diligence to prevent the violation; or (b) reasonably and honestly believed in the existence of facts that, if true, would exonerate them. ### Common law principles (2) Every rule and principle of the common law that renders any circumstance a justification or excuse if the act or omission to which the violation relates could have been the subject of a charge for an offence under this Act but for section 127 applies in respect of a violation to the extent that it is not inconsistent with this Act. ### Party to violation 86 If a regulated entity commits a violation, any of the following persons that directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to and liable for the violation whether or not the regulated entity is proceeded against under this Act: (a) an officer, director, agent or mandatary of the regulated entity; (b) a senior official of the regulated entity; or (c) any other person authorized to exercise managerial or supervisory functions on behalf of the regulated entity. ### Employees or agents or mandataries 87 A regulated entity is liable for a violation that is committed by any of their employees or agents or mandataries acting in the course of their employment or the scope of their authority as agent or mandatary, whether or not the employee or agent or mandatary that actually committed the violation is identified. ### Continuing violation 88 A violation that is committed or continued on more than one day constitutes a separate violation in respect of each day on which it is committed or continued. ### Evidence 89 In any proceeding in respect of a violation, a notice of violation purporting to be issued under this Act is admissible in evidence without proof of the signature or official character of the individual purporting to have signed the notice of violation. ### Limitation period or prescription 90 No proceedings in respect of a violation may be commenced after the expiry of two years after the day on which the subject matter of the proceedings arose. ### Regulations 91 (1) The Governor in Council may make regulations (a) classifying each violation as a minor violation, a serious violation or a very serious violation; (b) fixing a penalty, or a range of penalties, in respect of each violation; (c) establishing criteria to be considered in determining the amount of the penalty if a range of penalties is established; (d) respecting the determination of a lesser amount for the purposes of subparagraph 79 (1)(b)(iii) and the time and manner in which it is to be paid; (e) respecting the circumstances under which, the criteria by which and the manner in which a penalty for a violation may be reduced under the terms of a compliance agreement entered into under subsection 82 (1); (f) respecting the circumstances under which reviews under section 84 are to be oral or in writing; and (g) specifying information for the purposes of section 93. ### Paragraph (1)(b) (2) The maximum penalty in respect of a violation that may be fixed under regulations made under paragraph (1)(b) is $250,000. ### Powers regarding notices of violation 92 The Accessibility Commissioner may establish the form of notices of violation and establish, in respect of each violation, a short-form description to be used in notices of violation. ### Publication 93 The Accessibility Commissioner may make public (a) the name of a regulated entity or person that is determined under section 84, or that is deemed by this Act, to have committed a violation; (b) the nature of the violation; (c) the amount of the penalty imposed, if any; and (d) any other information specified in regulations made under subsection 91 (1). # PART 6 ## Remedies ## Filing of Complaint ### Right to file complaint 94 (1) Any individual that has suffered physical or psychological harm, property damage or economic loss as the result of — or that has otherwise been adversely affected by — a contravention by a regulated entity of any provision of regulations made under subsection 117 (1) may file with the Accessibility Commissioner a complaint that is in a form acceptable to the Accessibility Commissioner. ### Exception — Federal Public Sector Labour Relations Act — employee (2) An employee, as defined in subsection 2(1) of the Federal Public Sector Labour Relations Act, is not entitled to file a complaint in respect of a contravention of any provision of regulations made under subsection 117 (1) if he or she is entitled to present an individual grievance in respect of that contravention under section 208 of that Act, determined without taking into account subsection 208(2) of that Act and the definition of employee in subsection 206(1) of that Act. ### Exception — Federal Public Sector Labour Relations Act — RCMP member (3) An employee, as defined in subsection 2(1) of the Federal Public Sector Labour Relations Act, that is an RCMP member is not entitled to file a complaint in respect of a contravention of any provision of regulations made under subsection 117 (1) if he or she is entitled to present an individual grievance in respect of that contravention under section 238.24 of that Act, determined without taking into account subsection 208(2) of that Act. ### Exception — Public Service Employment Act (4) An individual is not entitled to file a complaint in respect of a contravention of any provision of regulations made under subsection 117 (1) if he or she is entitled to make a complaint in respect of that contravention under section 65 or 77 of the Public Service Employment Act. ### Notice (5) The Accessibility Commissioner must cause a written notice of a complaint to be served on the regulated entity against which the complaint was made. ## Investigation ### Power to conduct investigation 95 The Accessibility Commissioner may conduct an investigation into a complaint filed under subsection 94 (1) unless it appears to him or her that (a) the complainant ought to exhaust grievance or review procedures otherwise reasonably available; (b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act; (c) the complaint is beyond the jurisdiction of the Accessibility Commissioner; (d) the complaint is trivial, frivolous, vexatious or made in bad faith; or (e) the complaint is based on acts or omissions the complainant became aware of more than one year, or any longer period of time that the Accessibility Commissioner considers appropriate in the circumstances, before the filing of the complaint. ### Notice 96 (1) The Accessibility Commissioner must cause a written notice advising of whether or not he or she has decided to investigate a complaint to be served on the complainant and the regulated entity against which the complaint was made. ### Time and manner for application for review (2) If the Accessibility Commissioner’s decision is that the complaint will not be investigated, the notice must specify the time within which and the manner in which an application may be made for a review of the decision. ### Joint investigation 97 If the Accessibility Commissioner is of the opinion that two or more complaints involve substantially the same issues of fact, he or she may conduct a joint investigation into the complaints. ### Powers of Accessibility Commissioner 98 In the conduct of an investigation of a complaint, the Accessibility Commissioner may (a) summon and enforce the appearance of persons before the Accessibility Commissioner and compel them to give oral or written evidence on oath and to produce any records and things that the Accessibility Commissioner considers necessary to investigate the complaint, in the same manner and to the same extent as a superior court of record; (b) administer oaths; (c) receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Accessibility Commissioner sees fit, whether or not it is or would be admissible in a court of law; (d) enter any place — including a conveyance — other than a dwelling-house; (e) converse in private with any person in any place entered under paragraph (d) and otherwise carry out in that place any inquiries that the Accessibility Commissioner sees fit; and (f) exercise any of the powers referred to in any of paragraphs 73 (2)(a) to (l). ### Dispute resolution mechanisms 99 The Accessibility Commissioner may attempt to resolve complaints by means of a dispute resolution mechanism. ### Discontinuance of investigation 100 (1) The Accessibility Commissioner may discontinue the investigation of a complaint if he or she is of the opinion that (a) there is insufficient evidence to pursue the investigation; (b) any of the circumstances mentioned in paragraphs 95 (a) to (e) applies; or (c) the matter has been resolved — by means of a dispute resolution mechanism or otherwise — by the complainant and the regulated entity. ### Notice (2) The Accessibility Commissioner must cause the complainant and the regulated entity to be served with written notice of the discontinuance of the investigation that sets out the reasons for the discontinuance and that specifies the time within which and the manner in which an application may be made for a review of the decision to discontinue the investigation. ### Complaint dismissed 101 (1) At the conclusion of an investigation, the Accessibility Commissioner must dismiss the complaint if he or she finds that the complaint is not substantiated. ### Notice (2) The Accessibility Commissioner must cause the complainant and the regulated entity to be served with a written notice of the dismissal of the complaint that sets out the reasons for the dismissal and that specifies the time within which and the manner in which an application may be made for an appeal of the decision to dismiss the complaint. ### Complaint substantiated 102 (1) If, at the conclusion of an investigation, the Accessibility Commissioner finds that the complaint is substantiated, he or she may order the regulated entity to do one or more of the following: (a) take the appropriate corrective measures specified in the order; (b) make available to the complainant, on the first reasonable occasion, the rights, opportunities or privileges that were denied to the complainant as a result of the contravention to which the complaint relates; (c) pay compensation to the complainant for any or all of the wages that they were deprived of and for any or all of the expenses incurred by the complainant as a result of the contravention; (d) pay compensation to the complainant for any or all additional costs of obtaining alternative goods, services, facilities or accommodation, and for any or all of the expenses incurred by the complainant, as a result of the contravention; (e) pay compensation to the complainant in an amount that is not more than the amount referred to in subsection (2) for any pain and suffering that the complainant experienced as a result of the contravention; (f) pay to the complainant an amount that is not more than the amount referred to in subsection (2), if the Accessibility Commissioner determines that the contravention is the result of a wilful or reckless practice. ### Amount (2) The amount, for the purposes of each of paragraphs (1)(e) and (f), is (a) for the calendar year during which subsection (1) comes into force, $20,000; and (b) for each subsequent calendar year, the amount that is equal to the product obtained by multiplying (i) the amount determined under this subsection for the preceding calendar year by (ii) the ratio that the Consumer Price Index for the preceding calendar year bears to the Consumer Price Index for the calendar year before that preceding calendar year. ### Definition of Consumer Price Index (3) In subsection (2), *Consumer Price Index*, for a calendar year, means the average of the Consumer Price Index for Canada, as published by Statistics Canada under the authority of the Statistics Act, for each month in the calendar year. ### Amount to be published (4) The Accessibility Commissioner must, as soon as it is determined, publish the amount that is the amount for the purposes of paragraphs (1)(e) and (f) for each calendar year after the year during which subsection (1) comes into force. ### Interest (5) An order to pay compensation under paragraph (1)(c) or (d) may include an award of interest at a rate and for a period that the Accessibility Commissioner considers appropriate. ### Copy (6) The Accessibility Commissioner must cause the complainant and the regulated entity to be served with a copy of the order made under subsection (1) and a notice that specifies the time within which and the manner in which an application may be made for an appeal of the order. ### Review by Accessibility Commissioner 103 (1) The Accessibility Commissioner may, on application made within the time and in the manner specified in the notice served under section 96 or 100, as the case may be, review a decision under section 95 not to investigate a complaint or a decision under section 100 to discontinue an investigation. ### Representations (1.1) The complainant must be given the opportunity to make representations to the officer or employee conducting the review in a manner that is accessible to the complainant. ### Powers (2) After concluding the review, the Accessibility Commissioner must (a) confirm the decision not to investigate the complaint; (b) investigate the complaint; (c) confirm the decision to discontinue the investigation; or (d) continue the investigation. ### Notice (3) The Accessibility Commissioner must cause the complainant and the regulated entity to be served with a written notice that sets out the Accessibility Commissioner’s decision under subsection (2) and the reasons for it. ### Decision final (4) Every decision made by the Accessibility Commissioner under any of paragraphs (2)(a) to (d) is final and is not to be questioned or reviewed in any court. ### Appeal 104 (1) A complainant or regulated entity that is affected by a decision made under section 101 or an order made under subsection 102 (1) may appeal the decision or order to the Canadian Human Rights Tribunal, in writing, within 30 days after the day on which a copy of the order or notice of the decision is served or any longer period — that is not more than 60 days after that day — that the Canadian Human Rights Tribunal considers appropriate in the circumstances. ### Nature of appeal (1.1) The appeal lies on any ground of appeal that involves a question of law or fact alone, or a question of mixed law and fact, including a principle of natural justice. ### Grounds of appeal (2) The request for appeal must contain a statement of the grounds of appeal and set out the evidence that supports those grounds. ### Assignment of member 105 (1) On receipt of an application for an appeal, the Chairperson of the Canadian Human Rights Tribunal must assign a member of the Tribunal to hear the appeal, but the Chairperson may assign a panel of three members of the Tribunal to hear the appeal if he or she considers that the complexity of the matters under appeal requires three members. ### Chair of panel (2) If a panel of three members is assigned, the Chairperson must designate one of them to be its chair, but the Chairperson is to be the chair if he or she is a member of the panel. ### Decision 106 (1) The member or panel of members of the Canadian Human Rights Tribunal assigned to hear the appeal may, by order, confirm, vary, give the decision that the Accessibility Commissioner should have given or rescind the decision or order to which the appeal relates or refer the complaint back to the Accessibility Commissioner for reconsideration in accordance with any direction the Canadian Human Rights Tribunal may give. ### Nature of appeal (1.1) An appeal shall be on the merits based on the record of the proceedings before the Accessibility Commissioner, but the member or panel of members of the Canadian Human Rights Tribunal shall allow arguments and, if he, she or it considers it necessary for the purposes of the appeal, shall hear evidence not previously available. ### Panel’s decision (2) A decision made by a majority of the members of the panel is the decision of the panel or, if no decision is supported by the majority, the decision of the panel’s chair is the decision of the panel. ### Copy (3) A copy of the order made by the member or panel of members of the Canadian Human Rights Tribunal must be provided to the Accessibility Commissioner and the parties to the appeal. ### Decision final (4) Every decision made under subsection (1) is final and is not to be questioned or reviewed in any court. ### Report of activities 107 The Canadian Human Rights Tribunal must include in its annual report referred to in subsection 61(3) of the Canadian Human Rights Act a report of its activities under this Act during the year. ### Regulations 108 The Governor in Council may make regulations (a) prescribing the procedures to be followed by the Accessibility Commissioner when conducting an investigation; and (b) governing the manner in which complaints are to be investigated by the Accessibility Commissioner. ## General ### Duty to act informally and expeditiously 109 The Accessibility Commissioner must deal with complaints filed under subsection 94 (1) and applications made under subsection 103 (1) as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit. ### Disclosure of personal information 110 For the purpose of the administration of Part III of the Canadian Human Rights Act, the Accessibility Commissioner may disclose to any officer or employee of the Canadian Human Rights Commission any personal information that is contained in a complaint filed with the Accessibility Commissioner. # PART 7 ## Chief Accessibility Officer ## Appointment ### Special advisor 111 (1) The Governor in Council may appoint, on a full-time basis, a special adviser to the Minister to be called the Chief Accessibility Officer. ### Tenure of office (2) The Chief Accessibility Officer holds office during good behaviour, for a term of not more than five years, but may be removed for cause at any time by the Governor in Council. ### Reappointment (3) The Chief Accessibility Officer is eligible to be re-appointed for a maximum of two further terms of office. ### Absence or incapacity of Chief Accessibility Officer (4) In the event of the absence or incapacity of the Chief Accessibility Officer, or if the office of Chief Accessibility Officer is vacant, the Minister may authorize a person to act as Chief Accessibility Officer, but no person so authorized has authority to act for a term of more than 90 days without the Governor in Council’s approval. ## Remuneration and Expenses ### Remuneration and expenses 112 (1) The Chief Accessibility Officer is to be paid the remuneration that is fixed by the Governor in Council and is entitled to be paid reasonable travel and living expenses incurred while absent from his or her ordinary place of work in the course of performing his or her duties under this Act. ### Benefits (2) The Chief Accessibility Officer is deemed to be employed in the public service for the purposes of the Public Service Superannuation Act, an employee for the purposes of the Government Employees Compensation Act and employed in the federal public administration for the purposes of regulations made under section 9 of the Aeronautics Act. ## Duties and Functions ### Advice 113 The Chief Accessibility Officer may — or, if requested to do so by the Minister, must — provide information or advice to the Minister in respect of systemic or emerging accessibility issues. ### Special report 114 (1) The Chief Accessibility Officer may — or, if requested to do so by the Minister, must — report in writing to the Minister in respect of systemic or emerging accessibility issues. ### Publication (2) The Chief Accessibility Officer may, after the sixtieth day after the day on which it was provided, publish any report that he or she provided to the Minister. ### Assistance 115 The Accessibility Commissioner, the Canadian Transportation Agency, the Canadian Radio-television and Telecommunications Commission, the Canadian Human Rights Commission, the Federal Public Sector Labour Relations and Employment Board and the Standards Organization must take all reasonable steps to assist the Chief Accessibility Officer in the performance of his or her duties and functions. ### Annual report 116 (1) The Chief Accessibility Officer must, after the end of each fiscal year but no later than December 31 following the end of that fiscal year, submit to the Minister a report on (a) the outcomes achieved by this Act during that fiscal year; and (b) systemic or emerging accessibility issues. ### Tabling (2) The Minister must cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the report is received by the Minister. # PART 8 ## General ## Regulations ### Regulations 117 (1) Subject to sections 118 to 120, the Governor in Council may make regulations (a) defining, for the purposes of this Act, any term that is used but not defined in this Act; (b) designating areas for the purposes of paragraph 5 (g); (c) establishing standards intended to remove barriers and to improve accessibility in the areas referred to in section 5 ; (d) imposing obligations or prohibitions on regulated entities for the purpose of identifying or removing barriers or preventing new barriers; (e) fixing or determining, for the purposes of subsections 47 (1), 56 (1), 65 (1) and 69 (1), a day in respect of a regulated entity; (f) specifying the form in which the accessibility plans required by subsections 47 (1) and (2), 56 (1) and (2), 65 (1) and (2) and 69 (1) and (2) are to be prepared and the manner in which they are to be published; (f.1) respecting the feedback process required by subsections 48(1), 57(1), 66(1) and 70(1); (g) specifying the form and manner in which descriptions of the feedback process required by subsections 48(1), 57(1), 66(1) and 70(1) are to be published; (h) specifying the form in which progress reports required by subsections 49 (1), 58 (1), 67 (1) and 71 (1) are to be prepared and the time and manner in which they are to be published; (i) respecting the records, reports, electronic data or other documents that are required to be prepared, retained or provided by regulated entities and (i) the time, manner or place in which they are to be prepared and retained, or (ii) the time, manner or form in which they are to be provided; (j) respecting the making, serving, filing and manner of proving service of any notice, order, report or other document referred to in this Act or regulations made under this subsection; (k) respecting the circumstances under which reviews under section 76 are to be oral or in writing; (l) exempting, on any terms that are specified in the regulations, in whole or in part, any of the following, or any class of the following, from the application of all or any part of sections 47 to 49, 56 to 58, 65 to 67 and 69 to 71 or all or any provision of regulations made under this subsection: (i) a regulated entity, (ii) a built environment, (iii) an object, (iv) a work, undertaking or business that is within the legislative authority of Parliament, (v) an activity conducted by a regulated entity, and (vi) a location; and (m) prescribing anything that is to be prescribed by any of sections 39, 47 to 49, 56 to 58, 65 to 67 and 69 to 71. ### Obligation (1.1) The Governor in Council must make at least one regulation under any of paragraphs (1)(e) to (h) within the period of two years that begins on the day on which this subsection comes into force. ### Distinguishing — classes (2) Regulations made under subsection (1) may distinguish among different classes of regulated entities. ### Paragraph (1)(c) (3) A standard established in regulations made under paragraph (1)(c) may be general or specific in its application and may be limited as to time and location. ### Incorporation by reference — limitation removed (4) The limitation set out in paragraph 18.1(2)(a) of the Statutory Instruments Act to the effect that a document must be incorporated as it exists on a particular date does not apply to the powers to make regulations under paragraph (1)(c). ### Limited application — broadcasting 118 (1) Subject to subsections (2) and (3), regulations made under subsection 117 (1) apply in respect of a regulated entity that carries on a broadcasting undertaking only if the regulations relate to the identification, prevention and removal of barriers in the areas referred to in paragraphs 5(a), (b), (f) and (g) and in the area referred to in paragraph 5(c.1) as it relates to the areas referred to in those paragraphs. ### Non-application — employment equity (2) Regulations made under subsection 117 (1) that are in relation to employment do not apply in respect of a regulated entity that carries on a broadcasting undertaking and that is not subject to the Employment Equity Act. ### Non-application — areas specified in regulations (3) Regulations made under subsection 117 (1) that are in relation to the identification, prevention and removal of barriers in an area referred to in paragraph 5 (g) do not apply in respect of a regulated entity that carries on a broadcasting undertaking if requirements in relation to the identification, prevention and removal of barriers in that area apply to the regulated entity under (a) a condition imposed under section 9.1 of the Broadcasting Act ; (b) an order under subsection 9(4) of that Act; or (c) a regulation made under subsection 10(1) of that Act. ### Limited application — telecommunications 119 (1) Subject to subsection (2), regulations made under subsection 117 (1) apply in respect of a regulated entity that is a Canadian carrier or a telecommunications service provider only if the regulations relate to the identification, prevention and removal of barriers in the areas referred to in paragraphs 5(a), (b), (f) and (g) and in the area referred to in paragraph 5(c.1) as it relates to the areas referred to in those paragraphs. ### Non-application — areas specified in regulations (2) Regulations made under subsection 117 (1) that are in relation to the identification, prevention and removal of barriers in an area referred to in paragraph 5 (g) do not apply in respect of a regulated entity that is a Canadian carrier or telecommunications service provider if requirements in relation to the identification, prevention and removal of barriers in that area apply to the regulated entity under a condition imposed under section 24 or 24.1 of the Telecommunications Act or a regulation made under that Act. ### Limited application — transportation 120 The only regulations made under subsection 117 (1) that apply in respect of a regulated entity that is required to comply with any provision of regulations made under subsection 170(1) of the Canada Transportation Act are those that relate to the identification and removal of barriers, and the prevention of new barriers, in the following areas: (a) employment; (b) the built environment, other than a passenger aircraft, passenger train, passenger bus, passenger vessel, aerodrome passenger terminal, railway passenger station, bus passenger station or marine passenger terminal; (c) the procurement of goods, services and facilities that are not related to the mobility of persons with disabilities; (d) areas designated under regulations made under paragraph 117(1)(b); and (e) the area referred to in paragraph 5(c.1) as it relates to the areas referred to paragraphs (a) to (d). ### Exemption 121 (1) On application by a regulated entity, the Minister may, by order and on any terms that he or she considers necessary, (a) exempt a regulated entity from the application of any provision of regulations made under subsection 117 (1) if the Minister is satisfied that the regulated entity has taken or will take measures that will result in an equivalent or greater level of accessibility for persons with disabilities; or (b) exempt a class of regulated entities from the application of any provision of regulations made under subsection 117 (1) if the Minister is satisfied that all the members of the class have taken or will take measures that will result in an equivalent or greater level of accessibility for persons with disabilities. The order ceases to have effect on the earlier of the end of the period of three years that begins on the day on which the order is made and the end of any shorter period specified in the order. ### Copy to Accessibility Commissioner (2) The Minister must provide the Accessibility Commissioner with a copy of every order made under subsection (1). ### Non-application of Statutory Instruments Act (3) The Statutory Instruments Act does not apply to an order made under paragraph (1)(a), but the order must be published in the Canada Gazette and the reasons for the making of the order must be made available to the public. ### For greater certainty 121.1 For greater certainty, nothing in any provision of this Act or the regulations limits a regulated entity’s duty to accommodate under any other Act of Parliament. ## Miscellaneous ### Collaboration — complaints, applications and grievances 122 (1) The Accessibility Commissioner, the Canadian Transportation Agency, the Canadian Radio-television and Telecommunications Commission, the Canadian Human Rights Commission and the Federal Public Sector Labour Relations and Employment Board must work together to put in place mechanisms for the efficient and expeditious referral to the appropriate authority of accessibility-related complaints, applications and grievances. ### Notice of referral (2) If an authority referred to in subsection (1) decides not to deal with a complaint, application or grievance for one of the following reasons and it decides to refer the complaint, application or grievance to the appropriate authority, it must cause a written notice of its decision, and the reasons for it, to be served on the individual that filed the complaint or application, or presented the grievance, and on the individual or entity that is the subject of the complaint, application or grievance: (a) the complaint, application or grievance is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under any Act of Parliament; or (b) the complaint, application or grievance is beyond the jurisdiction of the authority required to serve the notice. ### Suspension of time (3) If an authority causes a notice under subsection (2) to be served, the period that begins on the day on which the complaint or application was filed or the grievance was referred to adjudication and that ends on the day on which the complaint, application, or grievance was referred to the appropriate authority is not to be included in the calculation of any time the individual has to avail themselves of any procedure under any Act of Parliament. ### Disclosure of information (4) An authority referred to in subsection (1) may, for the purpose of implementing the mechanisms referred to in subsection (1), disclose to the appropriate authority any information, including personal information, that is contained in a complaint, application or grievance that it refers to the appropriate authority. ### Collaboration — policies and practices 123 The Accessibility Commissioner, the Canadian Transportation Agency, the Canadian Radio-television and Telecommunications Commission, the Canadian Human Rights Commission and the Federal Public Sector Labour Relations and Employment Board must work together to foster complementary policies and practices in relation to accessibility-related matters. ### Obstruction 124 It is prohibited to obstruct, by act or omission, the Accessibility Commissioner or his or her delegate while they are engaged in the exercise of powers or the performance of duties or functions under this Act. ### False statements — Accessibility Commissioner 125 It is prohibited to knowingly make any false or misleading statement verbally or in writing to the Accessibility Commissioner, or to his or her delegate, while they are engaged in the exercise of powers or the performance of duties or functions under this Act. ### False statements — records, reports, etc. 126 It is prohibited for a regulated entity to knowingly make, or participate in, assent to or acquiesce in the making of a false or misleading statement in any record, report, electronic data or other document that it is required to prepare, retain or provide under this Act. ### Section 126 of Criminal Code 127 Section 126 of the Criminal Code does not apply to or in respect of any contravention of any provision of this Act or of regulations made under subsection 117 (1). ### Debts to Her Majesty 128 (1) The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in the Federal Court: (a) costs incurred by Her Majesty in right of Canada in relation to the inspection of a place or the examination of any thing; (b) the amount of a penalty, from the time the notice of violation setting out the amount of the penalty is served; (c) every amount undertaken to be paid under a compliance agreement entered into with the Accessibility Commissioner under subsection 82 (1), from the time the compliance agreement is entered into; (d) the amount set out in a notice of default referred to in subsection 82 (4), from the time the notice is served; (e) the amount of a penalty confirmed or corrected in the Accessibility Commissioner’s notice of decision served under subsection 84 (4), from the expiry of the time specified in the notice. ### Limitation period (2) No proceedings to recover a debt referred to in subsection (1) may be commenced after the expiry of five years after the day on which the debt became payable. ### Debt final (3) A debt referred to in subsection (1) is final and not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 81 to 84. ### Certificate of default 129 (1) Any debt referred to in subsection 128 (1) in respect of which there is a default of payment, or the part of any such debt that has not been paid, may be certified by the Accessibility Commissioner. ### Registration in Federal Court (2) Registration in the Federal Court of a certificate issued under subsection (1) has the same force and effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs. ### Enforcement of order 130 An order made under subsection 75 (1) or amended under subsection 76 (4) and an order made under subsection 102 (1) or section 106 may, for the purpose of enforcement, be made an order of the Federal Court by following the usual procedure or by the Accessibility Commissioner filing in the Registry of the Court a copy of the order certified by the Accessibility Commissioner to be a true copy. ### Review by Senate and House of Commons 131 (1) Five years after the day on which the first regulation is made under subsection 117 (1), or as soon as feasible after that day, a comprehensive review of the provisions and operation of this Act is to be commenced by a committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established by the Senate, the House of Commons or both Houses of Parliament, as the case may be, for that purpose. ### Report (2) Within six months, or any further time that is authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be, after the day on which the review is commenced, the committee must submit a report on that review to the Senate, the House of Commons or both Houses of Parliament, as the case may be, together with a statement of any changes recommended by the committee. ### Independent review 132 (1) Five years after the first day on which a report is submitted under subsection 131 (2) to either House of Parliament and every tenth anniversary of that day, the Minister must cause an independent review of the provisions and operation of this Act to be conducted, and must cause a report on the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the review is completed. ### Duty to consult (2) The person or persons conducting the review must consult the public, persons with disabilities, organizations that represent the interests of persons with disabilities, regulated entities and organizations that represent the interests of regulated entities. ## National AccessAbility Week ### Designation 133 Throughout Canada, in each year, the week starting on the last Sunday in May is to be known as National AccessAbility Week. # PART 9 ## Parliamentary Entities ## Definition and Application ### Definition of parliamentary entity 134 In this Part, *parliamentary entity* means (a) the Senate, as represented by any committee or person that the Senate by its rules or orders designates for the purposes of this Part; (b) the House of Commons, as represented by the Board of Internal Economy of the House of Commons; (c) the Library of Parliament; (d) the office of the Senate Ethics Officer; (e) the office of the Conflict of Interest and Ethics Commissioner; (f) the Parliamentary Protective Service; and (g) the office of the Parliamentary Budget Officer. ### Application of other Parts 135 Parts 4 to 6 and 8 apply in respect of parliamentary entities only to the extent provided for in this Part. ### Constituency offices 136 For greater certainty, this Part applies with respect to the constituency offices of members of the House of Commons. ## Parliamentary Powers, Privileges and Immunities ### Powers, privileges and immunities 137 For greater certainty, nothing in this Act or in any regulations made under it is to be construed as limiting in any way the powers, privileges and immunities of the Senate and the House of Commons and their members or as authorizing the exercise of a power or the performance of a function or duty under this Act if the exercise of that power or the performance of that function or duty would interfere, directly or indirectly, with the business of the Senate or the House of Commons. ## Application ### Application of Part 4 138 (1) Sections 69 to 71 apply with respect to a parliamentary entity as if it were a regulated entity. ### Exemption (2) After consulting with the Accessibility Commissioner, the Speaker of the Senate or the Speaker of the House of Commons — or, in the case of the Library of Parliament, the Parliamentary Protective Service and the office of the Parliamentary Budget Officer, both Speakers acting jointly — may exempt in writing a parliamentary entity from the application of all or any part of sections 69 to 71, on any terms that the Speaker or Speakers consider necessary. ### Amendment or revocation (3) The Speaker or Speakers who gave an exemption under subsection (2) must consult with the Accessibility Commissioner before amending it but need not do so before revoking it. ### Statutory Instruments Act (4) For greater certainty, an exemption, amendment or revocation referred to in this section is not a statutory instrument for the purposes of the Statutory Instruments Act. ### Application of Part 5 — inspection 139 (1) Section 73 applies with respect to a parliamentary entity. ### Orders (2) Sections 74 to 76 apply with respect to a parliamentary entity as if it were a regulated entity. ### Contravention — parliamentary entity 140 (1) The Accessibility Commissioner may issue a notice of contravention to a parliamentary entity, and must cause it to be served with the notice, if the Accessibility Commissioner has reasonable grounds to believe that the parliamentary entity has contravened (a) any of subsections 69 (1) to (4) and (7), 70 (1) to (3), 71 (1) to (3) and (6) and 73 (8) and sections 124 to 126 ; (b) an order made under section 74 ; (c) an order made under subsection 75 (1) or amended under subsection 76 (4); or (d) a provision of regulations made under subsection 117 (1) that applies with respect to the parliamentary entity. ### Contravention — specified person (2) The Accessibility Commissioner may issue a notice of contravention to a specified person, and must cause them to be served with the notice, if the Accessibility Commissioner has reasonable grounds to believe that the specified person has contravened an order made under any of paragraphs 73 (2)(i) to (l) or has contravened subsection 73 (8) or section 124 or 125. ### Contents of notice (3) A notice of contravention must (a) name the parliamentary entity or specified person; (b) identify the contravention; (c) summarize, in plain language, the rights and obligations of the parliamentary entity or specified person under this section, including their right to request to enter into a compliance agreement with the Accessibility Commissioner or request a review of the acts or omissions that constitute the contravention; and (d) set out the time and manner — as determined by the Accessibility Commissioner — in which the parliamentary entity or specified person may make a request under subsection (4). ### Options (4) A parliamentary entity or specified person that is served with a notice of contravention may, within the time and in the manner set out in the notice, (a) request to enter into a compliance agreement with the Accessibility Commissioner for the purpose of ensuring their compliance with the provision or order to which the notice relates; or (b) request a review of the acts or omissions that constitute the contravention. ### Review (5) On completion of a review requested under paragraph (4)(b), the Accessibility Commissioner must determine, on a balance of probabilities, whether the parliamentary entity or specified person committed the contravention and confirm or cancel the notice of contravention. The Accessibility Commissioner must cause the parliamentary entity or specified person to be served with a notice setting out the decision under this subsection and must, if the notice of contravention is confirmed, specify in the notice the time and the manner in which they may make a request under subsection (6). ### Request for compliance agreement (6) If the Accessibility Commissioner confirms the notice of contravention on review, the parliamentary entity or specified person may, within the time and in the manner set out in the notice of decision, request to enter into a compliance agreement as set out in paragraph (4)(a). ### Entering into compliance agreement (7) After considering a request to enter into a compliance agreement, the Accessibility Commissioner may enter into a compliance agreement with the parliamentary entity or specified person on any terms that the Accessibility Commissioner considers appropriate, other than any terms that would provide for a deposit of security or for a penalty. ### Notice (8) If the Accessibility Commissioner is satisfied that a parliamentary entity or specified person that has entered into a compliance agreement has complied with it, he or she must cause the parliamentary entity or specified person to be served with a notice of compliance. If he or she is satisfied that the parliamentary entity or specified person has not complied with the agreement, he or she must cause them to be served with a notice of default. ### Limitation period or prescription (9) No notice of contravention is to be issued after the expiry of two years after the day on which the subject matter of the contravention arose. ### Application — sections 85 and 87 (10) Sections 85 and 87 apply with respect to contraventions referred to in this section, with any reference to a regulated entity to be read as a reference to a parliamentary entity, any reference to a person to be read as a reference to a specified person and any reference to a violation to be read as a reference to a contravention. ### Definition of specified person (11) In this section, *specified person* means a person performing duties and functions in the course of the activities or business of a parliamentary entity. ### Application of Part 6 141 (1) Subject to subsections (2) and (3), sections 94 to 104, subsection 106 (1) and sections 108 to 110 apply with respect to a parliamentary entity as if it were a regulated entity. ### Exception (2) An individual is not entitled to file a complaint under subsection 94 (1) in respect of a contravention by a parliamentary entity of any provision of regulations made under subsection 117 (1) if the individual is entitled to present a grievance under section 62 of the Parliamentary Employment and Staff Relations Act in respect of the contravention. ### Appeal (3) An appeal with respect to a parliamentary entity under subsection 104 (1) is to be made to the Federal Public Sector Labour Relations and Employment Board instead of to the Canadian Human Rights Tribunal and, with respect to such an appeal, a reference to the member or panel of members of the Tribunal in subsection 106 (1) is to be read as a reference to a panel of the Board. ### For greater certainty (4) For greater certainty, section 35 of the Federal Public Sector Labour Relations and Employment Board Act does not apply with respect to an order of the Federal Public Sector Labour Relations and Employment Board made with respect to an appeal under subsection 104 (1). ### Application of Part 8 — regulations 142 (1) Regulations made under any of paragraphs 117 (1)(a) to (l) — and under paragraph 117 (1)(m) with respect to sections 69 to 71 — apply with respect to a parliamentary entity as if it were a regulated entity, but only to the extent that the regulations apply generally to regulated entities that are departments named in Schedule I to the Financial Administration Act. ### Exemption (2) On application by a parliamentary entity and after consulting with the Accessibility Commissioner, the Speaker of the Senate or the Speaker of the House of Commons — or, in the case of the Library of Parliament, the Parliamentary Protective Service and the office of the Parliamentary Budget Officer, both Speakers acting jointly — may, in writing and on any terms that they consider necessary, exempt the parliamentary entity from the application of any provision of the regulations referred to in subsection (1) if the Speaker or Speakers are satisfied that the parliamentary entity will take or has taken measures that will result in an equivalent or greater level of accessibility for persons with disabilities. ### Amendment or revocation (3) The Speaker or Speakers who gave an exemption under subsection (2) must consult with the Accessibility Commissioner before amending it but need not do so before revoking it. ### Statutory Instruments Act (4) For greater certainty, an exemption, amendment or revocation referred to in this section is not a statutory instrument for the purposes of the Statutory Instruments Act. ### Sections 122 to 125, 127 and 131 (5) Sections 122 to 125, 127 and 131 apply with respect to a parliamentary entity. ### Sections 126 and 132 (6) Sections 126 and 132 apply with respect to a parliamentary entity as if it were a regulated entity. ## Notification of Speakers ### Notification — entrance into place 143 (1) The Accessibility Commissioner must notify the Speaker of the Senate or the Speaker of the House of Commons, or both, of his or her intention to enter, under section 73 or paragraph 98 (d), a place that is under the authority of a parliamentary entity. ### Other notifications (2) The Accessibility Commissioner must notify the Speaker of the Senate or the Speaker of the House of Commons, or both, as soon as possible after he or she (a) makes an order with respect to a parliamentary entity under section 74 ; (b) makes a compliance order with respect to a parliamentary entity under section 75 ; (c) makes a decision under subsection 76 (4) in respect of a compliance order referred to in paragraph (b); (d) begins to conduct an investigation of a parliamentary entity under section 95 ; (e) makes an order under subsection 102 (1) with respect to a parliamentary entity; (f) issues a notice of contravention under subsection 140 (1) or (2); (g) makes a decision under subsection 140 (5); or (h) causes a notice of compliance or default to be served under subsection 140 (8). ### Notice or order — complaint (3) Whenever the Accessibility Commissioner causes a parliamentary entity to be served with a notice under subsection 94 (5), 96 (1), 100 (2), 101 (2) or 103 (3), the Accessibility Commissioner must provide a copy to the Speaker of the Senate or the Speaker of the House of Commons, or both. ### Notification — appeal under subsection 104 (1) 144 (1) The Federal Public Sector Labour Relations and Employment Board must notify the Speaker of the Senate or the Speaker of the House of Commons, or both, as soon as possible after the Board receives a request for appeal of a decision or order with respect to a parliamentary entity under subsection 104 (1). ### Power of Speakers (2) If the Speaker of the Senate or the Speaker of the House of Commons is notified that an appeal has been brought, (a) the Board must, at the Speaker’s request, provide to the Speaker a copy of any document that is filed with the Board in the appeal and that is necessary to enable the Speaker to present evidence and make representations under paragraph (b); and (b) the Speaker may present evidence and make representations to the Board in the appeal. ### Non-compliance with compliance order 145 (1) The Accessibility Commissioner must provide to the Speaker of the Senate or the Speaker of the House of Commons, or both, a compliance order that is made under section 75 or amended under subsection 76 (4) with respect to a parliamentary entity, if the order is not complied with. ### Order under subsection 102 (1) (2) The Accessibility Commissioner must provide an order made under subsection 102 (1) with respect to a parliamentary entity to the Speaker of the Senate or the Speaker of the House of Commons, or both, if the order is not complied with. ### Order under subsection 106 (1) (3) The Federal Public Sector Labour Relations and Employment Board must, at the request of the Accessibility Commissioner or the complainant, provide an order made under subsection 106 (1) with respect to a parliamentary entity to the Speaker of the Senate or the Speaker of the House of Commons, or both, if the order is not complied with. ### Tabling by Speaker 146 The Speaker of the Senate or the Speaker of the House of Commons, or both, must, within a reasonable time after receiving it, table every notice of default received under paragraph 143 (2)(h) and every order received under section 145 in the House over which the Speaker presides. # PART 10 ## Related Amendments ### R.S., c. C-22 ## Canadian Radio-television and Telecommunications Commission Act 147 [Amendments] ### R.S., c. H-6 ## Canadian Human Rights Act 148 [Amendments] 149 [Amendments] 150 [Amendments] 151 [Amendments] 152 [Amendments] 153 [Amendments] ### R.S., c. 33 (2nd Supp.) ## Parliamentary Employment and Staff Relations Act 154 [Amendments] 155 [Amendments] 156 [Amendments] 157 [Amendments] 158 [Amendments] 159 [Amendments] 160 [Amendments] ### 1991, c. 11 ## Broadcasting Act 161 [Amendments] ### 1993, c. 38 ## Telecommunications Act 162 [Amendments] 163 [Amendments] 164 [Amendments] 165 [Amendments] ### 1996, c. 10 ## Canada Transportation Act 166 [Amendments] 167 [Amendments] 168 [Amendments] 169 [Amendments] 170 [Amendments] 171 [Amendments] 172 [Amendments] 173 [Amendments] 174 [Amendments] 175 [Amendments] 176 [Amendments] 177 [Amendments] 178 [Amendments] 179 [Amendments] 180 [Amendments] 181 [Amendments] 182 [Amendments] 183 [Amendments] ### 2003, c. 22, s. 2; 2017 c. 9, s. 2 ## Federal Public Sector Labour Relations Act 184 [Amendments] 185 [Amendments] 186 [Amendments] 187 [Amendments] 188 [Amendments] 189 [Amendments] 190 [Amendments] 191 [Amendments] 192 [Amendments] 193 [Amendments] ### 2003, c. 22, ss. 12 and 13 ## Public Service Employment Act 194 [Amendments] 195 [Amendments] 196 [Amendments] 197 [Amendments] 198 [Amendments] 199 [Amendments] # PART 11 ## Consequential and Coordinating Amendments ## Consequential Amendments ### R.S., c. A-1 ## Access to Information Act 200 [Amendments] ### R.S., c. F-11 ## Financial Administration Act 201 [Amendments] 202 [Amendments] 203 [Amendments] ### R.S., c. P-21 ## Privacy Act 204 [Amendments] ## Coordinating Amendments 205 [Amendments] # PART 12 ## Coming into Force ### Order in council * 206 The provisions of this Act, other than section 205, come into force on a day to be fixed by order of the Governor in Council. * [Note: Act, other than section 205, in force July 11, 2019, see SI/2019-55.]", "response": "## Analysis of LEGISLATION-FED: Accessible Canada Act\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nWhen applying this legislation to immigration cases, practitioners should consider both the explicit requirements and the underlying policy objectives. The provisions must be interpreted in light of the Canadian Charter of Rights and Freedoms, international obligations, and relevant jurisprudence. Particular attention should be paid to procedural fairness requirements and the proper exercise of discretionary authority."}
{"prompt": "What are the implications of this Refugee Protection Division decision from the Refugee Law Lab Reporter for similar cases?\n\n2023 RLLR 101 Citation: 2023 RLLR 101 Tribunal: Refugee Protection Division Date of Decision: August 31, 2023 Panel: Cristina De Leon Counsel for the Claimant(s): Maksim Gonyakin Country: Russia RPD Number: TC3-00273 Associated RPD Number(s): N/A ATIP Number: A-2024-00593 ATIP Pages: N/A DECISION [1] MEMBER: This is a decision in the claim for refugee protection made by the claimant, XXXX XXXX, TC3-00273. The claimant is a citizen of Russia and is claiming refugee protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act or IRPA. ALLEGATIONS [2] The allegations in support of the claim are set out in the claimant’s Basis of Claim form marked as Exhibit 2. In summary, the claimant fears harm and persecution by members of a crime group headed by XXXX XXXX (ph), or XXXX (ph), who have targeted his business for a forced takeover. He also fears being charged for evasion and desertion under the Criminal Code of the Russian Federation for refusing conscription due to his opposition to the war in Ukraine. DETERMINATION [3] I find on a balance of probabilities that the claimant faces a risk to life or a risk of cruel and unusual treatment or punishment at the hands of the crime organization headed by XXXX XXXX if he were to return to Russia. Nexus [4] The claimant’s fear of harm arises from criminality and corruption, and I find that there is no nexus to any of the five (5) Convention grounds. Identity [5] The claimants’ identity is established on a balance of probabilities by a certified true copy of his Russia-issued passport. Credibility [6] The claimant testified in a detailed, spontaneous, and straightforward manner with regard to the central elements of his claim. There were no inconsistencies or omissions which were material or which went to the core of the claim. I find that the claimant was a credible witness. The claimant also submitted documentary evidence which corroborated elements of the claim. He submitted certificate of registration, the charter of the corporation balance sheet, a statement of transactions and personal account of the company, and other documents to establish on a balance of probabilities his ownership of [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] XXXX. The claimant also submitted a doctor’s note with regard to his injuries and treatment on XXXX XXXX, 2022. He also submitted witness statements with attached passports of two (2) employees of his XXXX company with regard to the visits to the company on XXXX XXXX, 2021, and XXXX XXXX, 2022, of XXXX XXXX’s men. He also submitted a statement from a neighbour regarding visits from unknown men to the claimant’s apartment and inquiries about him, as well as the mailing of summons from the military enlistment office to the claimant’s address. I have no reason to doubt the veracity of these documents, and as such I place great weight on them in support of the claim. [7] Based on the credible testimony and the corroborating documents, I find on a balance of probabilities that the claimant was a [REDACTED] and XXXX of the [REDACTED] [REDACTED] XXXX. The XXXX company was engaged in [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] XXXX. The business was very successful and profitable, and in 2021 its annual turnover was XXXX XXXX rubles. I find on a balance of probabilities that in the year 2020, the claimant started receiving intimidating phone calls from people who demanded sale of the company. The claimant refused to entertain these calls or engage in any conversation about the sale of his business. He largely ignored these phone calls or refused to answer these calls. [8] I find on a balance of probabilities that on XXXX XXXX, 2021, a man who introduced himself as XXXX (ph) showed up at the company office at Tver with two (2) well-built men. They offered to buy out the company for (inaudible) of [REDACTED] rubles under threat that, if he refused, the claimant and his wife would not live to see the following year. I accept that on the very same day, the claimant went to the XXXX XXXX police department of the city of Tver and submitted a statement about the situation. The police investigator sneered and told him that he did not understand the complaint, and that these people likely came to him with a legitimate commercial offer which he did not like. The claimant believed, and I accept, on a balance of probabilities, that the investigator likely knew what was going on and was protecting or complicit with the men. [9] The claimant testified, and I accept, that he communicated with his suppliers and other directors of other companies about his situation, and he described XXXX and his men, and these people told him that he was dealing with XXXX XXXX’s guys, who are known criminals in the region who engage in business racketeering, including extortion of a roof for protection of businesses. I find on a balance of probabilities that again, on XXXX XXXX, 2022, XXXX came to the office and told the claimant that his time was up and that they should be signing an agreement soon on the sale of the company. The claimant did not respond, deferring the decision in order to buy time to allow his wife to obtain a visa to Canada. [10] I accept that in XXXX of 2022 XXXX and his men came to the office several times and inquired about his whereabouts. The claimant was in Armenia at that time, attending to vaccination requirements for travel to Canada. I find on a balance of probabilities that on XXXX XXXX, 2022, the claimant was getting out of his car when two (2) unknown persons attacked him from behind. They hit him on his head and he lost consciousness. When he regained consciousness, the claimant saw a horrible sight at the back seat of his car. His dog lay dead. They killed his dog. He understood this to be his final warning and that the next time he would be killed. After receiving hospital treatment, the claimant and his wife packed two (2) suitcases, left their residence, and moved to his nephew’s place in the village of XXXX , [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] XXXX XXXX. On the way to the XXXX, they passed by a village where the claimant and his wife buried his dog. They stayed in XXXX until the claimant flew to Canada. [11] I accept on a balance of probabilities that on XXXX XXXX, 2022, the claimant spoke with a prosecutor’s office in the city of XXXX, [REDACTED] [REDACTED] XXXX. The prosecutor interviewed him and told him that they would contact him. After two (2) weeks, the claimant had not heard from anyone, and so the claimant went to the prosecutor’s office again. He was told that they had no information and the prosecutor asked him to leave his office and not to disturb him again. At that point, the claimant decided it was time to leave. [12] Since leaving for Canada, the claimant has heard from his neighbour that unknown people of muscular build have repeatedly come to his apartment building looking for him. The neighbour also advised that in the claimant’s mailbox he found summons from the military enlistment office issued to the claimant’s name with a demand to appear at the military registration and enlistment office at the place of registration. The claimant is opposed to military service and opposed to the — what he calls the criminal war in Ukraine. He does not want to fight in this illegal war. Particularized Risk [13] I find that the claimant’s fear or risk arises from his ownership, and XXXX, and XXXX of a multimillion XXXX enterprise in Russia which has been targeted by a crime organization protected and supported by the state security apparatus. I find that this risk is particularized and personal to the claimant, and it is distinct from the generalized risk faced by the rest of the population in Russia. Forward-Looking Risk [14] The objective evidence reveals links between organized crime and Russian state powers. Item 1.4 of the National Documentation Package for Russia, which is Exhibit 3 at page 192, describes the most dangerous types of police corruption in Russia, referring to high-order activities related to invisible, well-coordinated services which the police provide to organized crime groups, along with business racketeering. I note that Item 1.4 specifically identifies shakedowns, forced takeovers, selling assets, and the so-called roofing. [15] Exhibit 7 is a March 23, 2018, article entitled, Gangster’s Paradise: how organized crime took over Russia, by Mark Galeotti, published in The Guardian. It describes the following, and I quote. “A key characteristic of organized crime in today’s Russia is the depth of its interconnectedness with the legitimate economy. Unpicking dirty from clean money in Russia is a hopeless task, not least because in the 1990s it was next to impossible to make serious amounts of money without engaging in practices that were ethically questionable at best, and downright illegal at worst. [16] ‘Raiding’ – the seizure of assets and companies through physical or legal coercion remains a serious problem, but it depends less on violence than it did in the past. One (1) British-based businessmen told me” — the author — that in 2009 he had to fly to Moscow at a moment’s notice on two (2) separate occasions because of attempts to steal one (1) of his properties. The first time, thugs appeared at the door and marched their way past the security guard. The businessmen had to call in favours from the local police on order to have them thrown out. The second time, though, the raiders came in the form of lawyers and bailiffs, bearing documents alleging the property had been signed into their possession in order to discharge a (non-existent) debt. Whereas getting rid of the thugs took a few hours and, I suspect, a moderate bribe to the police chief, dealing with the legal challenge took weeks, and large amounts paid out in legal fees and illegal inducements. [17] This does not make the new gangster-businessmen champions of the rule of law. They appreciate a degree of predictability within the system, and also – now that they are rich – a state apparatus dedicated to preserving property rights. However, they are also well aware that an honest, well-functioning police force and a dedicated, incorruptible judiciary would be a serious threat to them. As a result, they have a strong interest in preserving the current, compromised status quo.” [18] Exhibit 6 is an October 12, 2012, article entitled, The Russian Mafia and organized crime: how can this global force be tamed?, published by openDemocracy. It states the following: “Russian organized crime enjoys significant levels of state protection. In Russia and other countries of the Former Soviet Union, it is not just a question of organized crime being big business. Big business is organized crime. And, given that no big business in Russia can operate without government approval (just ask the numerous exiles who left Russia in 2003 after the arrest of Mikhail Khodorkovsky) it follows that the state and organized crime are inextricably linked. Russian Transnational Organized Crime has other features which are less familiar to Western law enforcement agencies operating in countries where the rule of law is paramount. It has connections. There are close, almost seamless, links with the ‘deep state’ kleptocracy of government, parliament, civil service, law enforcement and business at all levels, as well as the military and, above all, the security services.” [19] Item 7.5 of the NDP, which is Exhibit 3, indicates that some elected Russian officials have been found guilty of associating with organized crime groups or those with criminal records. In some cases, they form organized and persistent criminal enterprises which engage in a range of criminal activities and are largely dependent on their specific positions in government. As a result, gangs within the security agencies are particularly powerful. It indicates that virtually every major illicit market is controlled by mid to high-level members of the security forces under the tacit supervision and control of higher-level political elites, both at the local and federal level. Additionally, the state deals with large and violent criminal groups by allowing some crime bosses to operate both on the black market and in legitimate businesses on the condition of not drawing public attention through violence. Many past criminal leaders went into legitimate business or politics in the period following the fall of the Soviet Union, and those who still try to operate independently are typically outgunned by the law enforcement protection bracket. [20] I find that organized crime in Russia has an entrenched links to Russian state powers and, above all, to law enforcement and state security officers on a balance of probabilities. I find on a balance of probabilities that organized crime groups engage in, among others, business racketeering, including business seizure and raiding, and forced takeovers of business, and this a serious problem in Russia. While the article suggests that raiding depends less on violence in today’s Russia, the article does not rule out violence. I find credible the claimant’s evidence that he was attacked and rendered unconscious, and his dog killed, certainly showing what the crime groups are capable of doing, and sending a warning of violence if he were to refuse their demands. State Protection [21] Given the links between organized crime in Russian security apparatus, I find that state protection will not be available on a balance of probabilities to the claimant. I note that the claimant tried to report the threats and the attack to the police and the prosecutor of XXXX, and they did not take his statement or extend any protection, or even start any investigation on his behalf. [22] I also note that according to Item 1.4 there is a performance evaluation system in place for Russian police which creates an incentive that undermines the integrity of police work. Item 1.4 describes the high pressure on police officers to produce acceptable statistics, which results in a tendency for officers to only open cases that they know can be solved. This apparently is most prevalent in the area of criminal investigations. When a criminal case has been filed, the decision to open a formal investigation depends not only on the prospect of finding and apprehending a suspect, but also on the evaluation of the officers, whether the case will lead to official charges. If a case is passed on it without leading to official charges, none of the time spent by the frontline officer on the initial investigation tends to be credited to him personally or to his department as a whole. Therefore, the performance evaluation rewards the decrease in the number of complaints and penalizes the termination of a case for rehabilitation or acquittal of the suspect. A cited study concludes that utter refusals by police officers to initiate criminal investigations, up to 90 percent intended to hide crimes that are difficult to solve. Refusals can be made by convincing the crime victim not to report or by officially refusing to start a criminal investigation, and I note that this is what happened to the claimant. [23] I find that on a balance of probabilities this was also at play when the Tver police and the XXXX prosecutor refused to start an investigation or to even accept this report. I find on a balance of probabilities that the presumption of state protection has been rebutted, and that the claimant will not be able to avail of state protection in Russia. Internal Flight Alternative [24] The Panel suggested Saint Petersburg as a possible internal flight alternative location. I have considered the nexus between the organized crime and state security apparatus. I have considered the size and profile of the claimant’s XXXX business. I have considered the evidence of continuing inquiries about the claimant’s whereabouts, even as he arrived — or moved to Canada. I find that there is motivation on the part of his agents of harm to pursue him and locate him wherever he may relocate. I also accept, based on the objective evidence, that the claimant will be required to register his personal information with the Russian authorities upon return to the country. Per Item 14.one of the NDP, according to the law on the rights of the citizens of the Russian Federation to the freedom of movement, citizens of the Russian Federation are obliged to register their place of permanent or temporary residence with the authorities. I find on a balance of probabilities that the claimant can therefore be tracked by his agents of harm and will, on a balance of probabilities, be pressured and harmed to legally transfer his business. Or, if the business has in the meanwhile been already transferred illegally, he will be pressured and harmed to coerce his validation of such transfer and/or he will be eliminated to preclude any legal challenge from him. [25] I also find on the balance of probabilities that, with his residence being registered, he will be subject to summons to be mobilized to the war in Ukraine. The claimant, being opposed to the war, will refuse to be mobilised. And according to Item 8.2 and 8.4 of the NDP, he will be subject to prosecution for draft evasion or for desertion under article 328, 337, and 338 of the Criminal Code of the Russian Federation. I therefore find that there is no safe and viable internal flight alternative location for the claimant anywhere in Russia. CONCLUSION [26] I therefore find on a balance of probabilities that the claimant faces a serious risk to life or a risk of cruel and unusual treatment or punishment if he were to return to Russia. I find that the claimant, XXXX XXXX, is a person in need of protection under section 97(1)(b) of the IRPA. The claim is therefore accepted. ——— REASONS CONCLUDED ———", "response": "## Analysis of Refugee Decision: 2023 RLLR 101\n\n### Key Issues\npractices that were ethically questionable at best, and downright illegal at worst. [16] ‘Raiding’ – the seizure of assets and companies through physical or legal coercion remains\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: claimant anywhere in Russia. CONCLUSION [26] I therefore find on a balance of probabilities that the claimant faces a serious risk to life or a risk of cruel and unusual treatment or punishment if he were to return to Russia. I find that the claimant, XXXX XXXX, is a person in need of protection under section 97(1)(b) of the IR\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "What legal tests are applied in this Refugee Protection Division decision from the Immigration and Refugee Board of Canada?\n\nImmigration and Refugee Board Refugee Protection Division Commission de l'immigration et du statut de réfugié Section de la protection des réfugiés RPD File No. / No de dossier de la SPR : MA7-07299 MA7-07300 MA7-07301 MA7-07302 Private Proceeding Huis clos Claimant(s) Demandeur(e)s d'asile XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX Date(s) of Hearing Date(s) de l'audience July 30, 2009 Place of Hearing Lieu de l'audience Montréal, Quebec Date of Decision Date de la décision August 27, 2009 Panel Tribunal Youssoupha Diop Claimant's Counsel Conseil du demandeur d'asile Me Carlos Hoyos-Tello Tribunal Officer Agent du tribunal Michel Colin (Filing of Documents) Designated Representative Représentant désigné XXXXX XXXXX XXXXX XXXXX XXXXX Minister's Counsel Conseil du ministre N/A [1] The claimants, XXXXX XXXXX XXXXX XXXXX XXXXX, the principal claimant, his spouse, XXXXX XXXXX XXXXX XXXXX, and their minor children, XXXXX XXXXX XXXXX XXXXX and XXXXX XXXXX XXXXX XXXXX, citizens of Mexico, allege a well-founded fear of persecution in Mexico for reasons of membership in a particular social group. [2] They also are seeking protection from Canada as \"persons in need of protection\" due to a danger of torture and a risk to their lives or a risk of cruel and unusual treatment or punishment. [3] At the start of the hearing, the principal claimant, XXXXX XXXXX XXXXX XXXXX XXXXX, was confirmed as the designated representative for his minor children, XXXXX XXXXX XXXXX XXXXX and XXXXX XXXXX XXXXX XXXXX. ALLEGED FACTS [4] The claimants stated that a criminal named XXXXX XXXXX XXXXX -whose illicit activities were reported by the principal claimant's spouse-had persecuted them. He had attacked and threatened them explicitly on a number of occasions, forcing them to decide to leave Mexico. They arrived in Canada with their respective passports and other identity documents. DETERMINATION [5] The panel determines that the claimants are neither \"refugees\" nor \"persons in need of protection\" for the reasons set out below. ANALYSIS [6] The claimants' identity was established to the panel's satisfaction. [7] On arriving in Canada, they presented their Mexican passports and, in the case of the parents, their voter registration cards. Citizenship and Immigration Canada (CIC) seized the documents and copies were entered on the record. [8] The claimants presented testimony, primarily through the principal claimant, that clearly outlined all the details of their account. The panel noted no contradictions. The principal claimant answered all questions without evasion or scheming. Substantial documentation that supported certain aspects of their testimony was provided for the panel's review. [9] Power and telephone bills displaying their address were submitted to the panel.1 The bills provided persuasive confirmation of the information in the press clippings attached to the claimants' file2 and undeniably established that they lived near the criminal. [10] The press clippings further establish that Mr. XXXXX is a notorious gangster who committed numerous crimes and who, on the occasion of some of his offences in particular, had assistance from people close to the municipal authorities, including the father of a city's mayor. [11] The claimants undeniably made significant efforts to gather consistent documentation that definitely backs up their allegations in order to support of their claim for refugee protection. In light of the quality of their testimony, the panel found them to be credible as to the truthfulness of the alleged events. [12] However, though the panel believes their allegations, they did not provide \"clear and convincing\" evidence that the State was unwilling or unable to protect them, as they had the right to expect in such circumstances. The claimants testified that they lodged a complaint after they were attacked on XXXXX, 2007. They testified that on that day, which was a national holiday, the police department suggested that they come back or write down their complaint, because they had insufficient staff. The principal claimant testified that he did so, accompanied by his lawyer. The lawyer prepared a complaint in due form3 and they returned to file it the same day at about 7:00 p.m. The claimant testified that the complaint was accepted and logged and that the police told him that an investigation would be conducted. He specified that he noted from the police officers' expressions on seeing the name XXXXX that they were not very willing to follow up. According to him, he was right to believe this, because when his spouse had tried to report Mr. XXXXX actions to the police, Mr. XXXXX found out, even though the call was made anonymously. He nonetheless acknowledged that his wife had to give personal information when she called, such as her name, address and date of birth.4 That clearly negated the anonymous nature of the call. As a result, XXXXX XXXXX was informed of the call and was able to determine who had lodged the complaint. He began harassing them. In light of that, the claimant, noting that the police had not arrested Mr. XXXXX and that he had not received adequate protection, drew the conclusion that his life was in danger and, on the advice of his lawyer, decided to leave the country. The panel is of the opinion that, by acting as he did, the claimant deliberately relinquished the opportunity to pursue the case that he had initiated, without waiting for developments or explicit or tacit notification of an unwillingness or inability to protect him. The panel is of the opinion that the police accepted his complaint. He was given a number confirming that the complaint had been logged. According to his testimony, he was told that an investigation would be opened. [13] The documentary evidence5 showed that Mr. XXXXX was a notorious criminal but it did not indicate, despite his alleged connections to the father of a city mayor in the region, that he was under police protection or that because of his crimes he had police protection or impunity. It specifically stated that the criminal was wanted for gun smuggling and unlawful possession of weapons,6 that he had not been located, and that investigations were under way against the owner of the house for weapons possession.7 However, the principal claimant supported his personal suppositions by saying that he believed that Mr. XXXXX was a contract killer for the government. When asked how he knew this, he stated that it was because he conducted his business in broad daylight in full view of everyone and because many people came to his home. Based on this information, which he stated that he had received afterwards from his other neighbours, the claimant concluded that he had to leave the country, as he claims his lawyer advised him to do. [14] The panel therefore infers that the claimants, in behaving as they did, did not show on a balance of probabilities that they took all reasonable steps in the circumstances to solicit state protection. According to their testimony, they filed a complaint and a case was opened. They chose to believe personal suppositions and abandon the steps and proceedings that they had initiated against an individual who, though recognized as a notorious criminal, was being investigated and was wanted by the police. The claimants also did not show that the state protection available in Mexico was inadequate. In fact, there is substantial documentary evidence on Mexico regarding the efforts made by the various governments to protect people.8 The situation may not be perfect, but there is no doubt that the State is not in complete decay and that there are institutions and organizations in the country that operate normally.9 Furthermore, the failures that have been noted in maintaining order do not illustrate a broader pattern of the State's unwillingness or refusal to protect people.10 [15] Additionally, the panel examined whether the claimants had an internal flight alternative in Mexico. [16] From that standpoint, the principal claimant was asked whether he had considered settling elsewhere, for instance in the national capital, where he could live a normal life-find employment, lodgings, even medical assistance. The claimant stated that he would have had no problem doing so. However, in his view, it would have been unreasonable, because Mr. XXXXX could have located them. When asked how he could have done so, the claimant stated through his voter registration card and social security card if he ever had to find work. The panel therefore asked him whether Mr. XXXXX acted alone or was a member of a criminal organization. The principal claimant testified that he certainly did business with many people, but he did not know whether they were his partners or not. He further stated that he would be able to locate them through his contacts with the police and the government. [17] The panel is of the opinion that the documentary evidence shows that it is not conceivable for a person to be located solely through his voter registration card, even though the residential address on the card must be changed if the voter moves, which makes sense for the voter registration lists. . . . the IEEM official noted that, according to Article 135 of the Federal Code of Institutions and Electoral Procedures, documents, data and information provided by Mexican citizens to the Federal Registry of Voters is strictly confidential and cannot be divulged to anyone except authorized users within the organization (Mexico 12 May 2006). No reports of police, government authorities or individuals using the Voter Registration Card to access the information in the official computer system in order to locate an individual within Mexico could be found among the sources consulted by the Research Directorate.11 [18] As for social security, the documentary evidence indicates the following: The information contained in the main CURP database includes the information needed to assign the CURP code (name, birth date, birth place and sex) as well as the registry office and the registry book where the person registered his or her CURP code (Mexico 12 June 2003). The address of the person and any other information is not contained in the CURP database (ibid. 18 June 2003a). . . . A person does not need to provide local authorities with the CURP code when he or she moves: the only time the authorities require seeing the CURP code is when a person is registering official documents (ibid.). There is no obligation to provide the employer with the CURP code, but the employer does need the code to register the employee in the Social Security system and for most other official documentation.12 [19] The principal claimant already has a CURP code, which is indicated on his passport, a copy of which is attached. He therefore does not need to seek a new one. If he were to move, he would not have to provide it. Even if he did so, no information in the CURP code should enable the criminal, acting alone and wanted by the police, according to the documentary evidence provided by the claimant, to discover their place of residence. [20] Apart from their fear of being located by Mr. XXXXX, the claimants did not show that their lives and safety would be at risk if they moved to the national capital, for instance. The panel is of the opinion that the claimants erred in making no effort to seek an internal flight alternative and in offering no evidence that they were personally and genuinely at risk everywhere in Mexico. CONCLUSION [21] Having examined all of the evidence, the panel is of the opinion that the claimants did not discharge their burden of proving that, in the circumstances, the Mexican State was unwilling or unable to protect them, as they were entitled to expect. Further, they made no effort to find an internal flight alternative elsewhere in Mexico. That said, it is established that refugee protection must be an ultimate solution to which claimants may resort only upon examining all of the options available to them before deciding to leave their country. [22] For these reasons, the panel is of the opinion that it cannot accept the claim for refugee protection filed by XXXXX XXXXX XXXXX XXXXX XXXXX, the principal claimant, his spouse, XXXXX XXXXX XXXXX XXXXX, and their minor children, XXXXX XXXXX XXXXX XXXXX and XXXXX XXXXX XXXXX XXXXX, and determines that they are not \"Convention refugees\" or \"persons in need of protection\". [23] Accordingly, their claim for refugee protection is rejected. Youssoupha Diop Youssoupha Diop August 27, 2009 Date REFUGEE PROTECTION DIVISION / DENUNCIATION / VENDETTA / STATE PROTECTION / INTERNAL FLIGHT ALTERNATIVE / MALE / SPOUSE / CHILDREN / NEGATIVE / MEXICO 1 Exhibit P-17: Proof of addresses. 2 Exhibits P-13 a) and b): Articles in XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX respectively. 3 Exhibit P-12: Complaint before the Public Ministry. 4 Exhibit P-1: Personal Information Form (PIF), question 31, paragraph 4, in fine. 5 Exhibits P-13 a), b), c) and d): Articles in XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX respectively. 6 Exhibit P-13 c). 7 Exhibit P-13 a). 8 Exhibit A-1: National Documentation Package on Mexico, March 18, 2009, tab 9.2, Canada. May 2005. Immigration and Refugee Board (IRB). Mexico: State Protection (December 2003 - March 5). 9 Zalzali v. Canada (Minister of Employment and Immigration) (1991), 3 F.C. 605 (F.C.A.); (1991), 14 Imm. L.R. (2d) 81; 126 N.R. 126 (F.C.A.). 10 Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4th) 532 (F.C.A.). 11 Exhibit A-1: National Documentation Package on Mexico, March 18, 2009. Tab 3.4 : MEX101353.E. June 2, 2006. Voter's Registration Card (Credencial para votar); whether a cardholder must make notification of a change of address; whether it can be used as an identification document; whether the card is punched in some manner once a person has voted; whether the card indicates when a secondary or replacement card has been issued; whether the police, government authorities or individuals can use the Voter Registration Card to access information in the official computer system in order to locate an individual within Mexico; voter card falsification and government responses to this problem (May 2006). 12 Exhibit A-1: National Documentation Package on Mexico, March 18, 2009. Tab 3.6: MEX41642.E. June 24, 2003. Information on the Clave Única de Registro de Población (CURP); whether Mexicans are required to provide a CURP to their employer; what the employer does with the information; whether there is a tracking system that records each time the CURP is used; what information the CURP records; who has access to that information; whether the police or the general public track down a person by their CURP; whether a person can work without a CURP; whether a Mexican has to provide local authorities with the CURP when he/she changes his place of residency; who has access to that information. --------------- --------------- --------------- --------------- RPD File No. / No de dossier de la SPR : MA7-07299 MA7-07300 MA7-07301 MA7-07302 7", "response": "## Analysis of Refugee Decision: MA7-07299\n\n### Key Issues\nincipal claimant answered all questions without evasion or scheming. Substantial documentation that supported certain aspects of their testimony was provided for the panel's review\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: or the reasons set out below. ANALYSIS [6] The claimants' identity was established to the panel's satisfaction. [7] On arriving in Canada, they presented their Mexican passports and, in the case of the parents, their voter registration cards. Citizenship and Immigration Canada (CIC) seized the documents and copies were entered o\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "What standard of review does this Federal Court of Canada decision apply to immigration decisions?\n\nOnyibor v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2023-07-21 Neutral citation 2023 FC 1005 File numbers IMM-5633-22 Decision Content Date: 20230721 Docket: IMM-5633-22 Citation: 2023 FC 1005 Ottawa, Ontario, July 21, 2023 PRESENT: Madam Justice McDonald BETWEEN: JOSEPH ONYIBOR Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS [1] This is an Application for judicial review of the decision of an Immigration, Refugees and Citizenship Canada officer [Officer], dated June 8, 2022 [Decision], denying the Applicant’s permanent residence application under the Spouse or Common-Law Partner in Canada class. The Officer was not satisfied that the Applicant was in a genuine relationship. For the reasons that follow, this judicial review is granted as the Officer’s Decision is not reasonable. I. Background [2] The Applicant is a 58-year-old citizen of Nigeria. His wife (sponsor) is a 63-year-old Canadian. The Applicant arrived in Canada on a temporary resident visa in March 2020. He met the sponsor shortly after arriving in Canada and they married in April 2021. A spousal sponsorship application was made in July 2021. [3] The couple were interviewed separately by the Officer on May 11, 2022. A. Decision Under Review [4] The Officer was not satisfied that the marriage was genuine within the meaning of subsection 4(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227. [5] In the Global Case Management System notes, the Officer notes inconsistencies between the Applicant’s answers and his sponsor’s answers during their interviews. The inconsistencies included the nicknames the couple used for each other, if they travelled to the interview together, and how, when, and where they met. The Officer also concluded that their answers suggested the couple were not living together. II. Issue and Standard of Review [6] The Applicant argues that the Decision was reached in a manner that was not procedurally fair and is unreasonable. As the reasonableness issue is dispositive of the judicial review, I decline to address the procedural fairness issues. [7] The standard of review for the Decision itself is reasonableness, per Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. III. Analysis [8] The Applicant argues the Officer’s conclusion that there were a sufficient number of inconsistent answers to justify an overall finding that the marriage was not genuine is not reasonable. The Applicant submits that when the interview questions and answers are considered in the context they were given, there are no true inconsistencies. Further, the Applicant argues any discrepancies are of a minute nature and not sufficient to support a finding that the marriage was not genuine. [9] One inconsistency identified by the Officer is the location of the Costco where the couple first met. Both the Applicant and the sponsor answered that they met at a Costco in Vaughan. However, the sponsor referenced a cross street that was not the correct address for the Costco in Vaughan. The Officer determined this incorrect street address was a contradiction from the sponsorship paperwork. In my view, an incorrect street address was an inconsequential dicrepancy as the parties were both consistent that they meet at the Costco in Vaughan. [10] Another inconsistency relied upon by the Officer was the couple’s answers to the question if they had nicknames for each other. The sponsor stated the couple used short forms of their first names, Joe and Ophi, whereas the Applicant stated they use terms like ‘darling’ and ‘baby’. Neither party indicated a specific term or name that was used. In my view, the Officer’s question was vague, thus it was not reasonable for the Officer to classify their answers as inconsistent. [11] The Officer also questioned if the parties lived together as the Officer found the sponsor did not name her husband when asked who she lived with. This response was given following the sponsor’s previous answer that she and the Applicant were living together. The Officer’s follow up question “[w]ho do you live with?” could have been interpreted by the sponsor as ‘who do you and your husband live with’, given she had just stated they live together. Her answer to the next question, “[h]ow many people total?”, is also consistent with her husband living with her: she answered six people and named her daughter and her husband, a grandson, and her son. The other two people were presumably her and her husband. In my view, it is not reasonable for the Officer to find an inconsistency on this factor based upon the sequence of the questions. [12] The Officer also asked the Applicant a question about when his “wife” first arrived in Canada. The Applicant responded by asking if the Officer meant his first wife or his current wife. The Officer concluded that someone in a genuine relationship would not be confused about which wife was being referred to when asked about his spouse. [13] However, the Applicant asserts that the confusion about which wife the Officer was referring to arose directly from the context in which the questions were asked. Specifically, the previous question was about when his son first arrived in Canada. The next question was when his “wife” first arrived in Canada. The Applicant says that he understood the Officer to be asking a follow-up question about his son’s arrival in Canada, and in fact, his son was accompanied by his first wife when he arrived in Canada. In my view, the fact that he asked for clarification on the Officer’s question was not unreasonable or inconsistent when the order of the questions posed by the Officer is considered. [14] Further, although the Officer relies upon inconsistent answers on how the couple travelled to the interview, the record discloses no such inconsistency in their answers. Rather, the record suggests that it was the Officer who confused their answers. [15] While I do agree that the Applicant provided unclear answers to questions on his sponsor’s hours of work and whether she had a car at some point in their relationship, in my view these answers are not sufficient to support the Officer’s conclusion. I say this as the Officer made a “cumulative” finding of inconsistent answers. In my view these unclear answers would not be sufficient to support the Officer’s overall conclusion that the marriage was not genuine. [16] I acknowledge that the Officer was not required to seek clarification or documentation from the Applicant to clarify answers; however the Officer was obligated to reasonably consider the answers provided by the couple in relation to the questions the Officer posed. In this regard, the context of the questions posed by the Officer is relevant. Having reviewed the transcripts which detail the questions and answers, the conclusions reached by the Officer are not reasonable when considered against the answers provided by the Applicant and his spouse. IV. Conclusion [17] The Officer’s Decision was based upon a finding that there were a series of inconsistent responses given by the Applicant and his sponsor. As noted above, a number of the “inconsistencies” identified by the Officer are not inconsistencies at all. Furthermore, any discrepancies in the answers were microscopic or did not go to the issue of whether the relationship was bona fide. In my view, the Officer here engaged in an overzealous assessment of the alleged discrepancies. Finally, as it is not clear which, if any, of these inconsistencies were determinative for the Officer, the Decision as a whole is unreasonable. JUDGMENT IN IMM-5633-22 THIS COURT’S JUDGMENT is that: This Application for judicial review is granted, the decision is set aside, and the matter is remitted for redetermination by a different Officer; and There is no question for certification. \"Ann Marie McDonald\" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5633-22 STYLE OF CAUSE: ONYIBOR v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, ON DATE OF HEARING: June 7, 2023 JUDGMENT AND REASONS: MCDONALD J. DATED: July 21, 2023 APPEARANCES: Adetayo G. Akinyemi For The Applicant Aida Kalaj For The Respondent SOLICITORS OF RECORD: Adetayo G. Akinyemi Barrister and Solicitor North York, ON For The Applicant Attorney General of Canada Toronto, ON For The Respondent", "response": "## Analysis of Court Decision: Onyibor v. Canada (Citizenship and Immigration)\n\n### Key Issues\ndress the procedural fairness issues. [7] The standard of review for the Decision itself is reasonableness, per Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC\n\n### Standard of Review\niving together. II. Issue and Standard of Review [6] The Applicant argues that the Decision was reached in a manner that was not procedurally fair and is unreasonable. As the reaso\n\n### Legal Analysis\nThe court's analysis focuses on: v Vavilov, 2019 SCC 65. III. Analysis [8] The Applicant argues the Officer’s conclusion that there were a sufficient number of inconsistent answers to justify an overall finding that the marriage was not genuine is not reasonable. The Applicant submits that when the interview questions and answers are considered in the context\n\n### Precedential Value\nThis Federal Court decision has persuasive value for similar cases before the court and provides guidance to the Immigration and Refugee Board on the proper interpretation of law and procedural requirements. While not binding on other Federal Court judges, it establishes a precedent that will often be followed for consistency."}
{"prompt": "Explain the credibility assessment in this Refugee Protection Division decision from the Immigration and Refugee Board of Canada:\n\nRPD File No. / No de dossier de SPR : VA7-02852 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXXX XXXXX Demandeur(e)(s) d'asile Date(s) of Hearing 30 July 2008 Date(s) de l'audience Place of Hearing Lieu de l'audience Date of Decision 09 October 2008 Date de la décision Panel Tribunal Counsel for the Nil Conseil(s) du / de la / des Claimant(s) demandeur(e)(s) d'asile Tribunal Officer Mumtaz Rana Agent(e) des tribunaux Designated Nil Représentant(e)(s) Representative(s) Désigné(e)(s) Counsel for the Minister Nil Conseil du ministre Reasons and Decision [1] This is the decision and the reasons for the decision on the claim for protection by XXXXX XXXXX, an alleged citizen of India. ALLEGATIONS [2] The claimant alleges that he cannot return to India because the police will arrest him and torture him because they believe he is associated with Muslim extremists. DETERMINATION [3] I find the claimant is not a Convention refugee or a person in need or protection for the following reasons. There is insufficient credible and trustworthy evidence to establish on a balance of probabilities that the claimant has a well-founded fear of persecution in India or that there is a serious reason to believe that his life is at risk or that he will face torture or cruel and unusual punishment should he return to India. ANALYSIS Identity [4] The claimant's identity was established on a balance of probabilities by the evidence; there is an uncontested Indian Passport that has a Canadian visitor visa in it and there is a Punjab driver's licence. He is on a balance of probabilities who he says he is and he is a citizen of India. Nexus [5] The nexus to a Convention ground, it is argued, is perceived political opinion. While I find that if the claimant is really believed to be a terrorist the nexus would more appropriately be perceived member of a particular social group, 'terrorist'. I am not, however, pursuing this avenue of thought. The issue of prosecution versus persecution would need to be raised and it was not. Credibility [6] The claimant alleges that he hired a young Muslim man (a XXXXX) of 19 who was taken into custody by police under the excuse of their having to interview all new employees from out of province. He alleges the XXXXX was released the next day but he could hardly walk; the XXXXX said he had been robbed and tortured overnight by members of the police. The claimant encouraged the XXXXX to keep on in his employ. The young man stayed and the claimant compensated him for the money the police had robbed him of while in detention. It is alleged that when police returned six months later to the fields where the claimant and his XXXXX were working the young man ran away and police were unable to catch him. [7] The police accused the claimant of aiding and abetting and accused him of being aligned with the XXXXX. The claimant alleges that the police detained him and while he was in detention he was treated with contempt and he was tortured. While the claimant was in prison on one occasion the police told the claimant they had found a gun secreted away in the XXXXX XXXXX and demanded that the claimant sign a statement that he had witnessed this. The claimant alleged that he was detained three times and each time he was brutally tortured. He is afraid of returning to India because he believes this police behaviour will continue and eventually he will be fatally wounded during his interrogations. [8] I find these allegations implausible. [9] The documentary evidence adduced does acknowledge police brutality and impunity for having violated human rights of some suspects and criminals in the past. Torture, although against the law, has routinely been a part of police investigative procedures at times when insurgents or criminals are being interrogated however I do not believe the claimant was arrested. [10] As noted in Amnesty International's (AI) 2003 report 'India, Break the Cycle of Impunity and Torture in Punjab' AI states that torture continued in police custody Torture and custodial violence continue to be regularly reported in Punjab, despite the end of the militancy period. But also that the majority of the armed opposition groups were inactive in Punjab today.1 [11] This is consistent with other information that states things in Punjab are quiet right now: AI had received no reports of acts of torture perpetrated by their members after the end of the militancy period. The report notes that: \"most of the members of these groups in the state were arrested or killed by security forces in counter insurgency operations in the early 1990s.\"2 [12] The country condition documents submitted by the claimant were all quite dated. Even the National Standard Package, March 18 2008 relies on old information and does not reflect changes that have occurred between 2003 and 2008. Nevertheless one can surmise from the following: In its 2002 assessment of Punjab state, South Asia Terrorism Portal (SATP) concluded that Punjab state \"remains largely free from terrorist violence for the ninth consecutive year,\" explaining that \"the ideology of [an independent state of] Khalistan has lost appeal among the people of Punjab, and even public calls to revive secession and terrorist violence have faded out\" (SATP n.d.b). This general atmosphere is reflected in SATP's South Asia Conflict Maps for 2003 and 2004, which do not include Punjab state as an area of \"conflict\" (SATP n.d.c.; ibid. n.d.d.). Similarly, according to a 2003 article by a research associate with the Institute for Conflict Management (ICM) in New Delhi, India, which is \"committed to the continuous evaluation and resolution of problems of internal security in South Asia\" (ICM n.d.a), anti-Sikh violence in Punjab state had been \"settled\" (IPCS 24 June 2003). Les Nouveaux Mondes rebelles, on the other hand, reported in 2005 that the Punjab state independence conflict was \"on its way to being resolved\" [translation] (2005, 358). In articles focusing on the security situation in India for the time period 2002 to 2005, Jane's Intelligence Review (JIR) does not mention Punjab state. Rather, JIR articles focus on the activities of Maoist groups in northeastern and southeastern states of India, with no reference to militant groups in Punjab state (JIR Nov. 2004; ibid. June 2004; ibid. Aug. 2003). Similarly, while the World Police Encyclopedia discusses \"terrorism\" in India, it does not list Punjab state among those areas where terrorist groups are active in India (WPE 2006, 383)3. and that the problem areas are not in the \"... north-eastern and south-eastern states of India ....\" . I conclude there is insufficient evidence that establishes such practices as are being alleged by the claimant are in frequent general use in Punjab at this time. [13] The claimant alleges that prior to the detention of his XXXXX on XXXXX, 2000, he lived a wonderful trouble free life with his wife and children. I also find that it is not reasonable to accept that torture was specifically used against the claimant. [14] The claimant states that he is a XXXXX and a farmer and he had no previous encounters with police. India operates to large extend under the rule of law even if that law is sometimes ignored and abused when dealing with the human rights of prisoners and insurgents, given the background of the claimant, I find the alleged behaviour of the police to be just too extreme to be believable. [15] In support of his allegations the claimant provided a short Medical certificate which stated that the claimant was \"under my treatment ...\" and that he was advised to have complete bed rest for a week but that document makes no reference to what illness or injuries the claimant has that resulted in the recommendation. [16] Fraudulent documents are so easy to procure in India that, when one has reason to doubt the trustworthiness of the claimant's evidence, one cannot assign much weight to such supporting documents. Two news sources also report the existence of schemes used to provide false documents relating to education (The Hindu 25 Jan. 2005; ibid. 27 May 2005; The Telegraph 18 July 2004). The Telegraph indicates that police discovered a racket producing fake report cards in 2004 and seized approximately 1,000 fake report cards, around 1,000 blank report cards, admission cards, certificates, progress reports and over 100 \"rubber stamps\" (18 July 2004). In January 2005, the Delhi police arrested two people for allegedly selling fake school certificates including fraudulent certificates from Bundelkhand University, Punjab Education Board, Gorakhpur University and the Central Board of Secondary Education (CBSE) (The Hindu 25 Jan. 2005; NNE 25 Jan. 2005). The Hindu also reports that the owner of a teaching institute was arrested in Shakarpur for forging school and college report cards and degrees, which he provided to his students (27 May 2005). According to The Times of India, an organized network which produces fraudulent documents, such as school certificates, operates in Gujarat, particularly in Nadiad (The Times of India 24 Sept. 2006). Some schools are believed to be involved in the production of such documents (ibid.).4 Other sources also report the use of fraudulent documents with regard to drivers licences (The Times of India 12 Dec. 2006) and voter cards (The Telegraph 12 Feb. 2007). The Times of India reports that underage Indians use fake identity documents to obtain drivers licences and quotes the manager of a driving school in Mumbai who estimates that around 25 percent of youths applying for a driver's licence are underage (12 Dec. 2006). According to The Telegraph, a scheme producing fake voter cards \"may well have flooded Bengal\" (12 Feb. 2007). The network also provides fake ration cards to \"Bangladeshi infiltrators,\" which will help them to get their names on the voter list; police could not indicate how many fake voter cards were in circulation (The Telegraph 12 Feb. 2007).5 [17] The claimant submitted some affidavits from India6 from people who allege to be knowledgeable about the events testified to by the claimant. I put little weight on the affidavits. Although they are alleged to have been sent by different people it is evident that the same typewriter has been used to type each one. I come to this conclusion because of the uneven and repeated pattern of some of the letters in the affidavits. This suggested to me that there are not reliable documents. [18] The claimant alleges that the XXXXX he hired was the son of a man who the claimant had come to know. He testified that this man was Muslim who would often come to town and sell XXXXX and other XXXXX XXXXX XXXXX to the townspeople. It is alleged that when the XXXXX father heard that his son had been arrested, tortured and had run away he held the claimant responsible. The father allegedly threatened the claimant and his family. The claimant alleges he is afraid of the father as well. It was the father who suggested the claimant hire his son in the first place and if the claimant was tortured it would not make sense that the man would come to such a conclusion. I find this is another part of a fabricated claim that is added so that it becomes more complicated. [19] The claimant stated that after the XXXXX father visited the claimant's home searching for his son the police accused that the claimant is entertaining \" ... some militant of Jammu and Kashmir\". This does not make sense. If the police saw or knew about militants going to the claimant's home it is reasonable to expect them to have arrested them at that time; all at that instant. [20] The claimant alleges he left India using his passport. The last alleged event occurred mid XXXXX 2007. The claimant exited India on XXXXX 2007. During that time the claimant alleges he was avoiding the police and that he has knowledge that they were seeking him prior to him leaving India and since. I find that if the police were searching for the claimant since mid XXXXX there would be an alert at ports of exit. The claimant can allege that agents bribed the police at the airport but I do not accept that this would be possible. Muslim extremist terrorists have police everywhere on the alert. I do not believe that security persons would just let the claimant pass by if he were seriously expected as being associated with terrorists. [21] I conclude from the objective evidence that life in Punjab is back to normal. The militancy has abated and there does not seem to be an upsurge of popular support for the problems being experienced in Jammu, Kashmir and Gujarat in Punjab. I conclude that this story is a fabricated one and that the claimant is not a Convention refugee or a person in need of protection. [22] Should I have erred in my credibility analysis the claimant did not do all that there was to do to protect himself and he has an internal flight alternative (IFA). [23] The claimant alleges that he is afraid of the police. He states that he tried to denounce those who tortured him to the Deputy Commissioner but he would not take a complaint from him. It appears from the evidence that the claimant tried an avenue that more likely than not would fail. He would have done better to go to the High Court or the Court of Session. He had the option to go to the courts but he did not. If he were afraid that authorities would harm him while he followed up with a complaint he could have requested anticipatory bail or bail before arrest. This document prohibits any policing authority from arresting a person before a case is known against him. It is often used when a person believes she is being set up on false charges. The claimant could have applied to the High Court of the Court of Session for Anticipatory bail.7 He did not. [24] In any event, the claimant has an IFA. I concluded that even if these local events occurred the claimant left India on his own passport and could return using it with equal ease. There is a very large population of Sikh in Delhi. A lot of those people are merchants and other kinds of businessmen. The claimant is a XXXXX. It is not unreasonable to expect him to try to establish himself elsewhere before asking protection of another country. There is no evidence that those who are alleged to be persecuting the claimant would follow him outside the area for which they are responsible. In the case of the servant's father I conclude it would be too difficult for a private individual to locate a family in such a dense population as Dehli. It is pure speculation on the claimant's part that they would. A year has passed since these incidents are alleged to have taken place. Each province is responsible for its own policing in India. It is pure conjecture on the part of the claimant that those police in the town on XXXXX XXXXX, XXXXX would have the will or the ability to follow the claimant to Delhi or Mumbai especially no that time has passed. [25] I find that the claimant has an IFA in Delhi. [26] The claimant is not a Convention refugee or a person in need of protection because he did not provide clear and convincing evidence that he could not get protection in India and in any case he has an internal flight alternative. CONCLUSION [27] Having considered all the evidence and for the reasons stated above I find XXXXX XXXXX, is not a Convention refugee or a person in need of protection. (signed) \"Susan French\" 09 Octobter 2008 Date (day/month/year) REFUGEE PROTECTION DIVISION / POLITICAL OPINION / VICTIM OF CONFLICT / TERRORIST / DETENTION / TORTURE / PASSPORT / CHANGE OF CIRCUMSTANCES IN HOME COUNTRY / INTERNAL FLIGHT ALTERNATIVE / MALE / NEGATIVE / INDIA 1 United Kingdom (UK). 11 May 2007. Home Office, Border and Immigration Agency. Country of Origin Information Report: India. http://www.homeoffice.gov.uk/rds/pdfs07/india-160507.doc. 2 Ibid. 3 IND100772.E. 23 January 2006. The security situation in Punjab, including patterns of violence, the groups involved, and the government's response (2002 - 2005). 4 IND102461.E. 26 April 2007. Availability and prevalence of fraudulent identity documents (2004 - 2007). 5 Ibid. 6 Exhibit 5. 7 Exhibit 4, page 1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : 8 RPD.15.7 (October 2007) Disponible en français RPD File No. /Dossier : VA7-02852 RPD File No. /Dossier : VA7-02852 1", "response": "## Analysis of Refugee Decision: VA7-02852\n\n### Key Issues\nstate of] Khalistan has lost appeal among the people of Punjab, and even public calls to revive secession and terrorist violence have faded out\" (SATP n.d.b). This general atmosph\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: nt should he return to India. ANALYSIS Identity [4] The claimant's identity was established on a balance of probabilities by the evidence; there is an uncontested Indian Passport that has a Canadian visitor visa in it and there is a Punjab driver's licence. He is on a balance of probabilities who he says he is and he is a citize\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "What administrative law principles are applied in this Federal Court of Canada decision?\n\nSewak v. Canada Court (s) Database Federal Court Decisions Date 2023-01-03 Neutral citation 2023 FC 10 File numbers T-1691-21 Decision Content Date: 20230103 Docket: T-1691-21 Citation: 2023 FC 10 Ottawa, Ontario, January 3, 2023 PRESENT: The Honourable Mr. Justice Gleeson BETWEEN: SHANEIL KUMAR SEWAK Plaintiff and HIS MAJESTY THE KING IN RIGHT OF CANADA Defendant ORDER AND REASONS I. Overview [1] By way of motion pursuant to Rule 51 of the Federal Courts Rules, SOR/98-106, Mr. Shaneil Kumar Sewak, the Plaintiff, appeals the October 3, 2022 Judgment of Associate Judge Trent Horne, acting in the capacity of a Case Management Judge, striking out the Plaintiff’s Statement of Claim without leave to amend. Mr. Sewak represents himself. [2] Having considered the written and oral submissions of the parties, I find there is no basis to interfere with the Judgment of the Associate Judge. My reasons follow. II. Background [3] On November 5, 2021, the Plaintiff filed a Statement of Claim [Claim] alleging various justice system participants had engaged in racist conduct, illegal conduct, and tortious conduct that had breached his rights. The vast majority of the alleged misconduct relates to the provincial courts, provincial correctional institutions, and a municipal police service in Alberta. The Plaintiff’s allegations of misconduct also include two incidents relating to the alleged arrest of the Plaintiff by the Royal Canadian Mounted Police [RCMP]. The Associate Judge refers to the two incidents involving the RCMP as the “Sylvan Lake Allegation” and the “Violation of Conditions Allegation,” labels that I also use. [4] The Claim names His Majesty the King in Right of Canada as the sole defendant. The Applicant alleges Canada has a duty to protect citizens subjected to conduct within a province that “would offend the court’s sense of decency.” The Plaintiff seeks damages under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], special damages, and punitive and aggravated damages. [5] On September 12, 2022, the Attorney General of Canada brought a motion in writing on behalf of the Defendant seeking an Order striking the Claim. Associate Judge Horne granted the motion, without leave to amend and awarded the Defendant costs fixed at $500 payable forthwith. III. The Decision of the Associate Judge [6] The Associate Judge first described the Claim, noting that all of the events set out involve provincial courts, provincial correctional institutions and the Edmonton Police Service with the exception of the Sylvan Lake and Violation of Conditions Allegations, which allege RCMP misconduct. The Associate Judge then stated: [9] The Claim alleges that “Canada” has an obligation to protect Canadian citizens detained, arrested, charged and convicted because of their race and or color of their skin, and that Canada has failed to come to the plaintiff’s aid. The Claim also alleges that the Alberta justice system actively, knowingly, and willfully participated in harming the plaintiff. [10] The Claim alleges that the plaintiff’s Charter rights have been infringed, and also relies on international conventions, including the United Nations Convention Against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment. [7] The law applicable to a strike motion was summarized and the following underlying principles were identified by the Associate Judge: To strike a claim on the basis it discloses no reasonable cause of action, it must be plain and obvious that the claim, assuming the pleadings to be true, has no reasonable prospect of success, or that the action is certain to fail due to a radical defect (R v Imperial Tobacco Canada Ltd, 2011 SCC 42 at paras 17, 19); In a pleading, a plaintiff is required to plead all material facts forming the basis of the claim and relief sought. The facts pled must provide sufficient details of each cause of action or legal ground raised. The material facts must explain the “who, when, where, how and what” that gives rise to the defendant’s liability. The relief sought must be set out and that relief must be of a type the action could produce and that is within the jurisdiction of the court to grant (Rule 174 of the Federal Courts Rules; Pelletier v Canada, 2016 FC 1356 at paras 8, 10; Oleynik v Canada (Attorney General) 2014 FC 896 at para 5; Al Omani v Canada, 2017 FC 786 at para 14); The statement of claim is to be read generously with a view to understanding its real essence and the court should err on the side of permitting a novel but arguable claim to proceed (Atlantic Lottery Corp Inc v Babstock, 2020 SCC 19 at para 19; Lim v Canada (Justice), 2020 FC 628 at para 20 citingCanada (National Revenue) v JP Morgan Asset Management (Canada) Inc, 2013 FCA 250 at paras 49–50); and Allegations may be struck on the basis that they are vexatious where the material facts are so deficient a defendant is unable to know how to answer the claim, and where they raise inflammatory allegations without supporting facts (Carten v Canada, 2009 FC 1233 at paras 64, 67; Kisikawpimootewin v Canada, 2004 FC 1426 at para 8). [8] The Associate Judge then reviewed the three-part test set out by the Supreme Court of Canada in ITO-International Terminal Operators Ltd v Miida Electronics Inc, [1986] 1 SCR 752 for finding jurisdiction in the Federal Court. Citing Windsor (City) v Canadian Transit Co, 2016 SCC 54 the Associate Judge also noted that it is necessary to determine the essential nature or character of a claim before assessing whether the three-part test is met. [9] Turning to the issues raised by the Plaintiff on the motion, the Associate Judge first concluded it was appropriate to consider the motion to strike prior to any further steps being taken in the proceeding. He then found it to be plain and obvious that allegations against the Edmonton Police Service and provincial correctional institutions were not within the Court’s jurisdiction (Tonner v Lowry, 2016 FC 230 at para 27; Legere v Canada, 2003 FC 896 at para 11). In considering the allegations involving members of the Alberta judiciary, the Associate Judge cited the doctrine judicial immunity, noting that the pleading of bald allegations was insufficient to overcome the doctrine, and that in any event the allegations pled were in essence a collateral attack on judicial orders and therefore an abuse of process. The Associate Judge then considered the Plaintiff’s reliance on international instruments, holding that instruments that are not part of domestic law cannot be relied upon in a claim to create substantive rights. Similarly, he found advancing a claim of a Charter breach neither extends nor creates jurisdiction in the Federal Court where that jurisdiction does not otherwise exist. The Associate Judge noted that a court of competent jurisdiction for the purpose of section 24(1) of the Charter is one that possesses: (1) jurisdiction over the person; (2) jurisdiction over the subject matter; and (3) jurisdiction to grant a remedy (R v 974649 Ontario Inc, 2001 SCC 81 at para 15). [10] The Associate Judge acknowledged the Court might have jurisdiction in respect of the claims involving allegations of misconduct by the RCMP but found these claims did not amount to anything more than bald allegations. [11] The Associate Judge struck the whole of the Claim, first on the basis that the Plaintiff had failed to disclose a reasonable cause of action and second, on the basis that the Claim was an abuse of process. In doing so, the Associate Judge cited the Plaintiff’s filings in the Alberta Court of King’s Bench relating to the same issues and claims – all which had been struck. [12] Finally, the Associate Judge refused leave to amend, finding the absence of jurisdiction was not curable by way of amendment, and that the Plaintiff had had three opportunities to present a claim disclosing a proper cause of action against the RCMP and had failed to do so. I. Issue and Standard of Review [13] The Plaintiff’s motion raises a single issue: has the Plaintiff demonstrated that the Associate Judge committed a reviewable error in striking the Claim and denying leave to amend? [14] An Associate Judge’s decision on a motion to strike is a discretionary determination (Moore v Canada, 2020 FC 27 at para 18). An Associate Judge’s discretionary decisions are reviewed against the standard of palpable and overriding error in respect of questions of fact and mixed fact and law. Where issues of law arise or can be extracted from a matter of mixed fact and law, that issue of law is reviewable on a correctness standard (Hospira Healthcare Corporation v Kennedy Institute of Rheumatology, 2016 FCA 215 at paras 28, 65, 79; Housen v Nikolaisen, 2002 SCC 33 at paras 8, 10, 36). [15] As recently highlighted by the Federal Court of Appeal in Bennett v Canada 2022 FCA 73, the palpable and overriding error standard is highly deferential: [7] As was explained to the appellant during the hearing, our function is not to retry his case or to re-weigh the evidence that was before the Tax Court. Quite the contrary, we can only intervene if we determine that the Tax Court either erred in law or made a palpable and overriding error of fact. The test for setting aside a decision for palpable and overriding factual error is an exacting one. An error is only palpable if it is obvious or plainly seen and only overriding if it affects the result reached. As stated by this Court in Canada v. South Yukon Forest Corporation, 2012 FCA 165, 431 N.R. 286 at para. 46: [46] Palpable and overriding error is a highly deferential standard of review: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; Peart v. Peel Regional Police Services (2006) 217 O.A.C. 269 (C.A.) at paragraphs 158-59; Waxman, supra. “Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall. II. Analysis [16] The Plaintiff argues that in striking the Claim the Associate Judge: (1) failed to consider the novelty and possible validity of the tort claim; (2) improperly labeled the claim as an abuse of the Court’s process; and, (3) in refusing leave to amend, improperly focused on proposed amendments as opposed to whether the Plaintiff could successfully amend the Claim. [17] The Plaintiff has clearly and eloquently expressed his view on the novelty issue in the course of oral submissions. In this regard, the Associate Judge did not ignore or fail to recognize the nature of Canada’s alleged duty towards its citizens; it was set out at paragraph 9 (reproduced above) of the Judgment. The Associate Judge also correctly recognized that pleadings are to be read generously and not struck simply on the basis of novelty. [18] After reviewing the applicable law relating to the striking of pleadings and the Court’s jurisdiction, the Associate Judge concluded, subject to two exceptions, that the claims advanced simply failed to establish any connection to the Federal Crown. Although the Plaintiff disagrees with this conclusion, he has not highlighted any specific error in fact or law that would warrant intervention on appeal. [19] The Plaintiff further argues that the Associate Judge erred in concluding there was an absence of material facts to support the Sylvan Lake and Violation of Conditions Allegations. The Plaintiff argues that the substance of the claims is obvious, commonplace and easily understood. Again, the argument advanced reflects a disagreement with the Judgment but does not highlight any error of on the part of the Associate Judge that satisfies the palpable and overriding threshold. [20] Similarly, the Associate Judge did not err in finding the alleged Charter violations had been pled without particulars, a conclusion that the Plaintiff has not expressly taken issue with. [21] The Plaintiff argues the Associate Judge erred in striking the Claim as an abuse of process because the actions commenced in the Alberta Courts are fundamentally different in nature and focus. The Claim before this Court, he argues, names different defendants and seeks Charter relief. The Plaintiff also argues the Associate Judge erred in holding three claims had been previously struck in the Alberta Courts, because the third action was filed after the Federal Court action had been commenced. None of these arguments is persuasive. [22] I am not convinced the Associate Judge in fact misapprehended the timing of the filings of the three actions in the Alberta Courts. However, even if I were to assume this to be so, the alleged error does not undermine the Associate Judge’s finding that similar claims had been initiated and struck in the Alberta Courts. This is not palpable and overriding error. [23] Further, the Associate Judge was not unaware of the effort to distinguish this Claim from those previously struck in the Alberta Courts but found “that a few passing references to the Federal Crown and the Crown Liability and Proceedings Act, RSC 1985, c C-50” were insufficient to distinguish the claims. On appeal, the Plaintiff’s broad assertion that the claims in the Alberta Courts are fundamentally different without specifics is simply insufficient to disclose any error warranting intervention. In this regard the Defendant notes that the Plaintiff’s action filed in the Alberta Court of King’s Bench on February 22, 2022, and subsequently struck (Sewak v Alberta, 2022 ABQB 257 and Sewak v Alberta, 2022 ABQB 334), named the RCMP as a defendant, alleged violations of the Charter and sought Charter damages. [24] With respect to the denial of leave to amend, the Plaintiff argues that the Associate Judge was required to consider whether the Claim was capable of amendment, not whether previous attempts had failed. The Plaintiff further submits that the refusal of leave to amend is inconsistent with the Court’s obligations when dealing with self–represented litigants, citing the Statement of Principles on Self-represented Litigants and Accused Persons adopted by the Canadian Judicial Council in September 2006 and endorsed by the Supreme Court of Canada in Pintea v Johns 2017 SCC 23 at paragraph 4. [25] The refusal to grant leave to amend was reached after the Associate Judge reviewed the proposed amendments to the pleadings and found that the proposed amendments failed to rectify any deficiencies in the Claim. In addition, the Associate Judge noted that the jurisdictional deficiencies could not be cured by way of amendment. The conclusion was also reached regarding the Sylvan Lake and Violation of Conditions Allegations and the Charter claims, because the pleadings did not contain any material facts to support these claims. The Associate Judge’s finding is owed significant deference. [26] I have carefully considered the Plaintiff’s argument that the refusal of leave to amend was inconsistent with the Statement of Principles on Self-represented Litigants and Accused Persons. The principles provide that, in promoting equal justice, self-represented litigants should not be denied relief on the basis of minor or easily rectified deficiencies. As noted above, this is not a situation where the Claim was suffering a technical defect, but rather it was substantially deficient on numerous grounds. [27] Finally, the Plaintiff argues that the timing of the Defendant’s motion raises concerns because it was considered after the Plaintiff had initiated a motion for default judgment. The Associate Judge addressed the timing of the motion to strike, finding that Rule 221 allows a motion to strike to be brought at any time and noting that default judgment cannot be granted in the absence of jurisdiction or disclosure of a reasonable cause of action. No error has been demonstrated. III. Conclusion [28] The Plaintiff’s Appeal is dismissed. [29] The Defendant has sought and shall be awarded costs in the fixed amount of $250. ORDER IN T-1691-21 THIS COURT ORDERS that: 1. The motion is dismissed. 2. The Plaintiff shall pay costs to the Crown in the fixed amount of $250.00 inclusive of all disbursements and taxes. Blank “Patrick Gleeson” Blank Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1691-21 STYLE OF CAUSE: SHANEIL KUMAR SEWAK v HIS MAJESTY THE KING IN RIGHT OF CANADA PLACE OF HEARING: held by videoconferfence DATE OF HEARING: December 12, 2022 ORDER AND REASONS: GLEESON J. DATED: jANUARY 3, 2023 APPEARANCES: Shaneil Kumar Sewak For The Plaintiff (ON HIS OWN BEHALF) Katrina Longo For The Defendant SOLICITORS OF RECORD: Attorney General of Canada Toronto, Ontario For The Defendant", "response": "## Analysis of Court Decision: Sewak v. Canada\n\n### Key Issues\nst is met. [9] Turning to the issues raised by the Plaintiff on the motion, the Associate Judge first concluded it was appropriate to consider the motion to strike prior to any fur\n\n### Standard of Review\nfailed to do so. I. Issue and Standard of Review [13] The Plaintiff’s motion raises a single issue: has the Plaintiff demonstrated that the Associate Judge committed a reviewable e\n\n### Legal Analysis\nThe court's analysis focuses on: he entire tree must fall. II. Analysis [16] The Plaintiff argues that in striking the Claim the Associate Judge: (1) failed to consider the novelty and possible validity of the tort claim; (2) improperly labeled the claim as an abuse of the Court’s process; and, (3) in refusing leave to amend, improperly focused on proposed amen\n\n### Precedential Value\nThis Federal Court decision has persuasive value for similar cases before the court and provides guidance to the Immigration and Refugee Board on the proper interpretation of law and procedural requirements. While not binding on other Federal Court judges, it establishes a precedent that will often be followed for consistency."}
{"prompt": "Explain how this Refugee Protection Division decision from the Refugee Law Lab Reporter applies international refugee law:\n\n2023 RLLR 104 Citation: 2023 RLLR 104 Tribunal: Refugee Protection Division Date of Decision: December 27, 2023 Panel: Radostina Pavlova Counsel for the Claimant(s): Murhula Jugauce Mweze Country: Haiti RPD Number: TC3-06464 Associated RPD Number(s): N/A ATIP Number: A-2024-00593 ATIP Pages: N/A DECISION [1] XXXX XXXX (hereafter, the “claimant”) is a citizen of Haiti who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”, the “Act”).[1] ALLEGATIONS [2] In summary, the claimant alleges that, in Haiti, he fears vengeful acts on the part of his maternal uncle, who has been jealous for years of the claimant’s mother’s successful XXXX and XXXX activity. This uncle, according to the claimant, wanted to obtain money from the claimant’s mother, and to take possession of some family assets. When unsuccessful, he took revenge by causing the death by “mystical means” of several close family members of the claimant – his mother, in 2016; his sister, in 2022; and his father, in 2023. The claimant alleges that these three family members were in good health when they suddenly passed away from illnesses that the doctors could not diagnose. The claimant left Haiti after his mother’s death and lived in Chile from 2017 to 2021; he alleges that he was unable to obtain permanent resident status there. He claims that his uncle in Haiti continued to utter threats and to this day intends to harm the claimant as an act of revenge. DETERMINATION [3] For the reasons that follow, I find that the claimant is a person in need of protection in the meaning of section 97(1) of the IRPA. ANALYSIS The claimant’s identity is established [4] The claimant’s identity was established on a balance of probabilities through his oral testimony and the certified true copy of his Haitian passport,[2] which is on file. The claimant is not excluded Article 1E of the Convention [5] Given the claimant’s prior residence in Chile, the Tribunal notified[3] the Minister of the possibility that the claimant might be excluded under Article 1E of the Convention. The Minister responded[4] to the invitation, informing the Refugee Protection Division (RPD) that they would not intervene in the hearing of the claim. [6] Article 1E of the United Nations Convention Relating to the Status of Refugees stipulates: This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country. [7] This article has been incorporated in s. 98 of the IRPA: A person referred to in Section E or F of Article 1 of the Convention is not a Convention refugee or a person in need of protection. [8] The applicable legal test for Article 1E exclusion was established by the Federal Court of Appeal in the case of Zeng.[5] Under the Zeng framework of analysis, the first step is to establish whether, at the time of the hearing, the claimant has status in another country that is substantially similar to that of its nationals. If the answer to this question is yes, then the claimant should be excluded under Article 1E of the Convention. If the answer is no, then the Panel must consider whether the claimant previously had such status and lost it or had access to it and failed to acquire it. If the answer to this question is yes, then the following factors must be considered in deciding whether the claimant should be excluded: the reason for the loss of status (voluntary or involuntary); whether the claimant could return to the third country where he had status; the risk the claimant would face in the home country; Canada’s international obligations; and any other relevant facts. [9] In the present case, when questioned at the hearing about the nature and validity of his residence status in Chile, the claimant testified that he had obtained a temporary resident status in Chile some time after his arrival and that this status expired a long time ago. He testified that he was unable to present any document, such as a residence card, since his belonging had been stolen on the way to Canada. He further explained that he had attempted to prolong his residency rights in Chile and/or to obtain a permanent residence status, and had submitted an application to the Chilean authorities, but he never received any response, in spite of his continued checking and following up; he claimed that he had been repeatedly told to wait. I have no reason to disbelieve the claimant’s testimony on this question, and in the absence of evidence to the contrary, I accept on a balance of probabilities that the claimant’s status in Chile was temporary and that he did not obtain a residence status, such as permanent residence, that would accord to him rights and responsibilities essentially similar to those accorded to Chilean nationals. Therefore, the answer to the first and second questions of the Zeng test is “no”. The determinative question, therefore, is whether the claimant had access to such status, but failed to obtain it. Having found earlier that his testimony that he tried to do so but was unsuccessful in that he got no response over a long period of time, to be credible on a balance of probabilities, I find that the answer to this question is also “no”. [10] For the above reasons, applying the Zeng test to the present circumstances, I find that the claimant is not excluded under Article 1E of the Convention and proceed with examining his allegations against his country of origin, Haiti. Nexus to a Convention ground is not established [11] The claimant’s core allegations when it comes to Haiti consist of fearing for his life and physical integrity because of an extended family member’s intent to harm him, driven by jealousy and a desire to take revenge. It is not alleged, and it does not arise from the evidence before me, that the claimant fears persecution on the basis of any of the enumerated Convention grounds – race, nationality, religion, membership in a particular social group or political opinion. For this reason, I find that a connection to a Convention ground has not been established. There is also no evidence that the claimant may be exposed to a risk of torture in the meaning of section 97(1)a of the IRPA. Therefore, I have assessed the claim under s. 97(1)b of the Act. The claimant’s key allegations are credible [12] In the case of Maldonado[6] the Federal Court established the principle of presumption of truth, where a refugee claimant’s sworn testimony is presumed truthful unless there is a reason to doubt its veracity. In the present case, I found the claimant’s testimony to be direct and spontaneous, sufficiently detailed, and consistent with his Basis of Claim (BOC)[7] narrative and the documentary evidence[8] presented in support of his allegations. He submitted in evidence copies of death certificates for his mother, sister and father, as well as letter of testimony from a friend of the family, corroborating the claimant’s allegations regarding the conflict with the said uncle and the latter’s jealousy, that the death of the claimant’s mother was unexplained by medical professionals, and that the claimant left Haiti as a result of fearing his uncle. [13] I find that, on the basis of his testimony and the documentary evidence, the claimant has established the following circumstances on a balance of probabilities: [14] There was a conflict in his family stemming form jealousy on the part of an uncle, where he uttered threats and wanted to claim some assets. [15] Three family members of the claimant, his mother, his sister and his father died within a period of six years, and in the absence of a specific medical explanation, the claimant, as well as others close to the family, believe that their deaths were caused by that uncle through “mystical” means. [16] The alleged agent of harm has maintained his grudge and has an ongoing desire to exact revenge on the claimant as a member of the family. Nature of the risk of harm [17] Having found that the above circumstances have been established on a balance of probabilities, I have examined the nature of the alleged risk of harm for the claimant. I have no doubt that the claimant sincerely and strongly believes that his close family members’ deaths occurred as a result of a voodoo curse cast by his uncle or at his request. While the death certificates presented in evidence do not identify the cause of death, thus, there is no evidence contrary to the claimant’s allegations that all three were in good health and the doctors could not identify a particular medical condition that led to the loss of life, I am not prepared to accept a novel interpretation of the natural word, one where it is possible to cause someone’s death through mystical means. I have, therefore, examined the available objective evidence found in the National Documentation Package (NDP) for Haiti[9] in view of illuminating the basis of the belief that the use of voodoo can inflict actual physical harm and death. [18] According to Item 1.29 of the NDP, the official religions in Haiti are Catholicism and voodoo, where voodoo is practiced by about 2.1% of the population. Item 1.7 states that as many as 50%-80% percent of Haitians incorporate some elements of voodoo culture or practice in addition to another religion. Different sources in the NDP, such as Items 1.18, 1.41 and 12.2, indicate that, in Haiti, under the influence of voodooist beliefs, calamities, epidemics and even socio-political problems are commonly attributed to supernatural causes, such as evil spirits and curses. An ethologist cited in Section 1.2 of Item 12.2 of the NDP describes voodoo as “a general system of practices and knowledge related to illness, care and healing […]” (translation); voodoo, in addition to being an African religion, is defined in this source as a system of care with magical-religious aspects that is relied upon in a similar manner that medicine is relied upon in Western societies. [19] When it comes to the actual or perceived use of voodoo in interpersonal conflicts or as a form of revenge, Item 7.4 of the NDP mentions a 2019 report about two voodoo practitioners who were killed because they were believed to have used “occult powers” to kill their neighbours. According to Item 7.6, voodoo curses are a known form of revenge in Haiti. A report by the French refugee and stateless persons protection office – OFPRA, at Item 12.2 of the NDP, elaborates on the use of “witchcraft” for criminal purpose in Haiti, including in the context of intra-family conflict. This source describes what seems to be an elaborate system of beliefs and concepts related to the possibility of influencing the combat between the spirits responsible for the life and protection of one individual against another, where rituals and ceremonies are used to this end and turning a family member into a zombie is mentioned as form of harm inflicted in an internal familial dispute. Notably, according to the same source, such activities are penalized by law where Art. 246 of the Criminal Code specifies that using substances to produce death or a lethargic state in another person qualifies as poisoning constituting murder or attempted murder. I find that this definition of the offence is an indicator that, while some people may believe that a death was caused by purely spiritual or “mystical” means, in the context of voodoo practices in Haiti when they are used for criminal purposes, much more conventional means, such as poisoning, may be employed. Thus, I find that it is not clearly implausible, that, in the present case, the claimant’s family members’ deaths were caused by non-mystical conditions, such as poisoning, even though he strongly believes otherwise. [20] On the basis of the above, I find that the risk faced by the claimant is a risk to his life or physical integrity. I find that this risk is personal to him, as it stems from the desire of a family member to exact revenge against the claimant specifically and is not faced by the general population in Haiti. It is not a risk arising from the application of lawful sanctions, and it is not caused by the inability of the state to provide medical care. State protection [21] The NDP for Haiti contains abundant information speaking to the inability of the state to provide protection to its citizens from criminal acts, which are widespread and committed with impunity. According to Item 7.6, there is little to no protection in Haiti from acts of revenge; the Haitian police lack resources to protect targets of revenge and policemen are often themselves targeted. The judiciary, according to the same source, is also under-resourced, as it is ineffective and susceptible to corruption. Further evidence in this respect can be found at Items 7.9, and 10.2, among others. For this reason, I find that the presumption of state protection has been refuted by clear and convincing evidence and that the claimant cannot rely on such protection in Haiti. Internal Flight Alternative [22] The objective evidence similarly indicates an absence of a viable Internal Flight Alternative (IFA) for the claimant in Haiti. Item 7.6 of the NDP points out that the principal means by which an assailant would locate their target in Haiti is through the use of informal networks and word-of-mouth. This is an effective means of locating victims, according to the same source, as outsiders to a particular area are easily recognized and rumours quickly spread. It is also important to consider that merely travelling to an IFA location would expose the claimant to significant risks of generalized criminality, given the evidence, at Item 14.1, that persons returning from abroad are more likely to be kidnapped for ransom, and that criminal gangs exercise control over some of the main routes. Therefore, I find that the claimant does not have a viable IFA anywhere in Haiti. CONCLUSION [23] Based on the reasons provided above, I find that the claimant is a person in need of protection under s. 97(1) of the IRPA. [24] The claim is accepted. ——— REASONS CONCLUDED ——— [1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1). [2] Exhibit 1. [3] Exhibit 4. [4] Exhibit 5. [5] M.C.I. v. Zeng, Guanqiu (F.C.A., no. A-275 09); 2010 FCA 118. [6] Maldonado v. Canada (Minister of Employment and Immigration), [1979] F.C.J. No. 248 (FCA)(QL), [1980] 2 FC 302 (CA). [7] Exhibit 2. [8] Exhibit 7. [9] Exhibit 3.1.", "response": "## Analysis of Refugee Decision: 2023 RLLR 104\n\n### Key Issues\nionals. If the answer to this question is yes, then the claimant should be excluded under Article 1E of the Convention. If the answer is no, then the Panel must consider whether th\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: of section 97(1) of the IRPA. ANALYSIS The claimant’s identity is established [4] The claimant’s identity was established on a balance of probabilities through his oral testimony and the certified true copy of his Haitian passport,[2] which is on file. The claimant is not excluded Article 1E of the Convention [5] Given the claim\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "How does this Refugee Protection Division decision from the Immigration and Refugee Board of Canada evaluate refugee protection needs?\n\nRPD File No. / N° de dossier de la SPR : TA7-04375, TA7-04376, TA7-04377, TA7-04378 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX Demandeur(e)(s) d'asile Date(s) of Hearing April 23, 2008 Date(s) de l'audience Place of Hearing TORONTO Lieu de l'audience Date of Decision July 24, 2008 Date de la décision Panel M. Freilich Tribunal Counsel for the Claimant(s) Waikwa Wanyoike Barrister and Solicitor Conseil(s) du / de la / des demandeur(e)(s) d'asile Tribunal Officer Agent(e) des tribunaux Designated Representative(s) XXXXX XXXXX XXXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister Conseil du ministre These are the reasons for the negative decision of the Refugee Protection Division (RPD) with respect to the claim of XXXXX XXXXX XXXXX (the principal claimant), a 31 year-old citizen of Mexico. His claim was joined with that of his wife XXXXX XXXXX XXXXX (the female claimant), a 23 year-old citizen of Mexico and their minor children XXXXX XXXXX XXXXX XXXXX, a one and a half-year-old citizen of Mexico and three year-old XXXXX XXXXX XXXXX XXXXX, also a citizen of Mexico.1 The claimants claim protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA).2 The claimants alleged that they have a well-founded fear of persecution if they were to return to Mexico by reason of their membership in a particular social group, that is, persons who have been targeted by organized crime. In addition, they claim to be persons in need of protection by reason of either a danger of torture within the meaning of Article 1 of the Convention Against Torture or a risk to their lives or a risk of cruel and unusual treatment or punishment. In accordance with section 167(2) of Act, the father, XXXXX XXXXX XXXXX was appointed the designated representative for the minor claimants for the purposes of their refugee claim. ISSUES AND DETERMINATION The determinative issue in these claims is whether a viable internal flight alternative (\"IFA\") exists for the claimants in Mexico, specifically in Mexico City in the Federal District including whether the claimants have rebutted the presumption of state protection. Having considered the totality of the evidence, the panel finds that the claimants have a viable internal flight alternative (\"IFA\") and they have not rebutted the presumption of state protection and are not Convention refugees or persons in need of protection. Their removal to Mexico would not subject them personally to a risk to their lives or to a risk of cruel and unusual treatment or punishment, and that there are no substantial grounds to believe that their removal to Mexico would subject them personally to a danger of torture. The panel has considered all of the claimant's evidence as well as the documents before it and counsel's submissions. ALLEGATIONS The principal claimant stated in his narrative to his Personal Information Form3 that on XXXXX, 2005 he joined the XXXXX XXXXX XXXXX of XXXXX Puebla. Everything went well until XXXXX 2006. While he was at a gas station he was approached by a man who asked him if he wanted to make some money and that he had a business deal for the claimant. The claimant alleged that he ignored the offer and went home. On XXXXX, 2006 he received several calls at his office indicating that someone was looking for him. The claimant alleged that he went out to speak to two men who he did not know who allegedly showed him pictures of his children and his home and told him that they knew about the position he held and that he had to work for them or he would be harmed. On XXXXX, 2006, he was XXXXX XXXXX XXXXX on the XXXXX XXXXX in Puebla. When he asked a driver for his ID, the driver gave the claimant the telephone telling him there was a call for him. When the claimant took the phone it was allegedly his boss on the other end of the phone. The claimant alleged that the person on the phone was his supervisor XXXXX XXXXX XXXXX who told the claimant to let the truck pass because the truck driver was a friend of the supervisor. Since the claimant did not agree with this, his supervisor showed up and told the claimant he would speak to him later. The claimant alleged that the next morning he was called into his superior's office. When the principal claimant went to see his superior officer to discuss what had transpired the night before, the principal claimant's superior officer allegedly told the claimant that it was in his best interest not to talk to anyone about the situation. The claimant alleged that he told his supervisor that he was not going to become involved in corruption and that he would go to the appropriate state authorities. On XXXXX, 2006, as the claimant was leaving work, a vehicle cut him off, two individuals with guns, wearing hats, got out of their vehicle and beat and threatened the claimant. The claimant was taken to the hospital and he filed a formal complaint regarding the express kidnapping, beating and death threats against himself and his family. When he left the clinic on XXXXX, he decided that he did not want to have anything further to do with his job and resigned from the XXXXX XXXXX XXXXX in Pueblo. During XXXXX he received several death threat phone calls saying that he knew too much. On XXXXX, 2007 he decided to hide at his uncle's home. On XXXXX, 2006, as they were heading toward the XXXXX XXXXX they noticed that they were being followed by the same men who had beaten him previously. The claimant and his family came to Canada on XXXXX, 2007 and made their claims for refugee protection on XXXXX, 2007. ANALYSIS To establish the status as Convention refugees, the claimants have to show that there is a \"serious possibility\" or \"reasonable chance\"4 that they would face persecution in Mexico. Alternatively, to establish that they are persons in need of protection, the claimants have to show that the their removal to Mexico would subject them personally either (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture, or (b) to a risk to their lives or to a risk of cruel or unusual treatment or punishment. The panel has taken the Guideline on Child Refugee Claimants5 into consideration before rendering a decision in this claim. INTERNAL FLIGHT ALTERNATIVE (IFA) Internal Flight Alternative (IFA) arises when a claimant has a well-founded fear of persecution in the home area of his or her country of citizenship, but can safely relocate to another part of the country. The test to be applied in determining whether there is an IFA is two-pronged: (i) there is no serious possibility of the claimant being persecuted or subjected, on a balance of probabilities, to persecution or to a danger of torture or to a risk to life or of cruel and unusual treatment or punishment in the proposed IFA area, and (ii) conditions in the IFA area must be such that it would not be unreasonable, in all the circumstances, for the claimant to seek refuge there.6 The second prong of the IFA test may be stated as follows: would it be unduly harsh to expect the claimant to move to another less hostile part of the country before seeking refugee protection abroad?7 The hardship associated with dislocation and relocation is not the kind of undue hardship that renders an IFA unreasonable.8 It is not enough for the claimant to say that he or she does not like the weather there, or that he or she has no friends or relatives there, or that he or she may not be able to find suitable work there.9 The fact that a claimant might be better off in Canada physically, economically and emotionally than in a safe place in his own country is not a factor to consider in assessing the reasonableness of the IFA.10 The panel is of the view that the claimants had an obligation to at least try to find a safe haven in their own country before abandoning it altogether and, unless it were patently unreasonable for them to do so, their failure to at least try will be fatal to their claim. The panel has considered whether a viable IFA exists for the claimants, specifically in Mexico City in the federal district, as this issue was canvassed with the claimants during the hearing. The panel asked the claimants if they could move to Mexico City and be safe. The principal claimant stated that there was nowhere in Mexico they could move and be safe because either the police or criminal elements could find them anywhere in Mexico. The panel finds that even if the claimants were to be found in Mexico City, and they should experience any incidents of violence in the future, the federal district has ample and adequate remedies adequate remedies. The panel notes that in this regard, the documentary evidence states.11 STATE PROTECTION The panel is not convinced, as it must be, that the state would not be reasonably forthcoming with serious efforts to protect the claimants if they were to return to Mexico. The panel finds that the totality of the evidence does not support a conclusion of state breakdown, nor does it rebut the presumption that Mexico is able to protect its nationals. A state is not expected to be able to provide perfect protection to its citizens. The issue is whether the government of Mexico is making serious efforts to provide adequate protection to individuals in the claimants' situation in Mexico. The panel is guided by the Court of Appeal decision of Kadenko,12 which held: When the state in question is a democratic state... the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her. In Villafranca,13 the Federal Court of Appeal found that the mere fact that a country is not always successful at protecting its citizens is not enough to justify a claim. It found that no government could guarantee the protection of all of its citizens at all times. In Milev,14 the Federal Court noted that the fact that the state does not provide perfect protection is not, in itself, a basis for determining that the state is unwilling or unable to offer reasonable protection in the circumstances. International refugee protection is not meant to permit a claimant the opportunity to seek better protection abroad that he/she would receive at home. The Supreme Court of Canada in Ward15 set out the principal that a state must be presumed capable of protection its citizens. This presumption can be rebutted by \"clear and convincing\" evidence of the state's inability to protect.16 A claimant is required to seek the protection of the authorities of his/her home country unless it is objectively unreasonable for him/her to do so.17 The test is such cases is forward-looking. The panel accepts that the principal claimant was a XXXXX XXXXX in Pueblo Mexico and that he XXXXX XXXXX XXXXX in 2005, graduating on XXXXX, 2005. The panel accepts that the claimant was what he described as XXXXX XXXXX along with doing XXXXX XXXXX XXXXX XXXXX XXXXX. The panel accepts that the principal claimant was involved in XXXXX XXXXX XXXXX XXXXX XXXXX in Pueblo on XXXXX, 2006. The panel accepts that the principal claimant supervisor was himself involve in some type of corruption and advised the principal claimant to allow specific trucks go by XXXXX XXXXX XXXXX. The panel accepts that the principal claimant went to see his supervisor the next morning and told him that he refused to participate in any part of corruption, and that he was going to report the situation to the authorities, and that his supervisor laughed at him. The principal claimant alleged that because he was unwilling to be involved in this corruption, two individuals carrying guns cut off his vehicle on XXXXX, 2006, beating and threatening the claimant. The panel accepts that the principal claimant was beaten and required medical attention at the clinic. The panel notes that the police report18 dated XXXXX, 2006 indicates that the claimant was robbed as he left work, there is nothing in the police report to indicate that the robbery was in anyway connected to his work as a XXXXX XXXXX nor does the report even mention that the principal claimant is a XXXXX XXXXX. The panel notes that when the principal claimant left the clinic on XXXXX, 2006, he quit his job and was no longer in a position to assist in any type of corruption involving the decision of his XXXXX XXXXX to not stop or not XXXXX XXXXX XXXXX in the future. The principal claimant alleged in oral evidence that on XXXXX, 2006, he had gone to the internal affairs person in charge to report this corruption, but that he was advised that he was young, had small children, and that the offer he was being given a was not such a bad opportunity, and that's many of the XXXXX XXXXX in Pablo were working in collusion so that drugs and guns would make their way to the United States, and at that the internal affairs personnel, and allegedly told the prince will claimant to join the group. The claimant alleged that he went back to work XXXXX, he was kidnapped for three hours in the morning of XXXXX, 2006, he stated in oral evidence that he was not injured but that he had internal injuries and therefore went to a clinic. The principal claimant alleged that the doctor at the clinic called the officials from the public Ministry who came to the clinic to see the principal claimant. The principal claimant alleged that they made him make a report only about the kidnapping and would not take down any information about the corruption. The principal claimant stated in oral evidence that he never returned to work after he left the clinic, and that he moved to his mother's home on XXXXX 2006 where he stayed until XXXXX 2007, in the state of Mexico four hours away from Pueblo. The principal claimant alleged that he started to receive death threats over the phone, indicating that they would kill the principal claimant and his family. The principal claimant and his family moved back to Pueblo with a state for one month until they came to Canada. While the panel accepted that the principal claimant's supervisor may have been involved in some type of local corruption, the panel is hard pressed to find that individuals within the Internal Affairs Department, who are in place to investigate corruption, would have given the principal claimant advice to go back and be part of the corruption rather than file a report on his behalf. In regard to the availability of state protection in Mexico City the panel takes note of the most recent documentary evidence, which states and that Mexico is a functioning democracy,19 and thus the presumption of state protection applies. The claimants can rebut this presumption by providing \"clear and convincing\" evidence that the state of Mexico is unable or unwilling to protect them.20 For the reasons that follow, I find that the claimants have failed to rebut this presumption. The documentary evidence states that: Mexico is a federal constitutional republic with a population of 108 million. In July 2006 Felipe Calderon of the National Action Party (PAN) was elected president to a six-year term in generally free and fair multiparty elections. While civilian authorities generally maintained effective control of the security forces, there were frequent instances in which elements of the security forces acted independently of government authority. The government generally respected and promoted human rights at the national level by investigating, prosecuting, and sentencing public officials and members of the security forces. However, impunity and corruption remained problems, particularly at the state and local level. The following human rights problems were reported: unlawful killings by security forces; kidnappings, including by police; physical abuse; poor and overcrowded prison conditions; arbitrary arrests and detention; corruption, inefficiency, and lack of transparency in the judicial system; confessions coerced through physical abuse permitted as evidence in trials; criminal intimidation of journalists leading to self-censorship; corruption at all levels of government; domestic violence against women, often perpetrated with impunity; violence, including killings, against women; trafficking in persons, sometimes allegedly with official involvement; social and economic discrimination against indigenous people; and child labor. As a first step, in efforts to reform and professionalize the police, the government relieved 284 federal police commanders, including all 34 regional police commanders, and rigorously trained and evaluated their replacements.21 In terms of corruption within the police system, the panel looked to the following in regard to the actions taken by the federal, state, and municipal police. Role of the Police and Security Apparatus The federal, state, and municipal police forces included approximately 500,000 officers. The federal and state police are divided into preventive and judicial police. Preventive police maintain order and public security and generally do not investigate crimes. Judicial police serve as the investigative force under the authority and command of the public ministries (prosecutor's offices). The military is responsible for external security but also has significant domestic security responsibilities, particularly in combating drug trafficking and maintaining order. Corruption continued to be a problem, as many police were involved in kidnapping, extortion, or providing protection for, or acting directly on behalf of organized crime and drug traffickers. Impunity was pervasive to an extent that victims often refused to file complaints. Responsibility for investigating federal police abuse falls under the purview of the PGR and the Secretariat of Public Administration, depending on the type of offence. The CNDH also can receive complaints, but its recommendations are nonbinding and carry no legal weight. However, once a government entity accepts a CNDH recommendation, it is legally bound to take appropriate action. A similar mechanism exists at the state level. The CNDH provided human rights training for security and military forces, and the government continued professional training of its law enforcement officials. Between January and October, in conjunction with the CNDH, the National Defence Secretariat SEDENA trained more than 13,500 employees, and the Secretariat for Public Security (SSP) trained more than 18,000 employees in human rights issues. In June 284 federal police commanders were relieved of their duties, including all of the 34 regional police coordinators as part of the government's anticorruption and transparency reform. The SSP began a comprehensive polygraph program with the goal of training several hundred polygraph operators over the next two years in order to utilize this tool to eliminate corruption within the SSP. The CNDH expressed concern about alleged human rights abuses committed by some military units deployed in counter narcotics and other law enforcement operations. On September 21, the CNDH cited four separate incidents implicating military units in killings, illegal searches, rapes, and arbitrary detentions of individuals. By year's end the CNDH had issued four recommendations on those cases to EDENA, which accepted all four and agreed to investigate. Further, in terms of the Government efforts to combat corruption, the panel looks to further documentary evidence which states: Government efforts Reports issued in 2006 by both the United States (US) and Mexico governments noted that the federal government continued to work on reducing corruption levels in Mexico by investigating and sanctioning employee misconduct. The US Department of State noted in its International Narcotics Control Strategy Report 2006 (INCSR 2006) that the government of Mexico continued to promote anticorruption efforts in 2005: \"President Fox and other senior officials have demanded that all agencies, departments, and government institutions, including Mexican military services, adhere to strict enforcement of anticorruption measures\". These measures include, among other things, better employee selection procedures and improved remuneration and benefits. In addition, from January to October 2005, federal authorities \"conducted more than 4,512 investigations into possible misconduct by federal officers and government employees\" according to the INCSR 2006, [t]hese investigations resulted in the issuance of 68 warnings, 1,296 reprimands, suspensions of 918 employees, dismissals of 284 federal employees, dismissals of another 1,058 employees with re-employment sanctions or restrictions for service within the government sector, and 905 economic sanctions resulting in over 3 billion pesos (about $300 million) in fines and recoveries. Most sanctions resulted from violation of laws or abuse of authority by public servants. The federal government's National Development Plan's Fifth Performance Report 2005 (Quinto Informe de Ejecucion 2005 del Plan Nacional de Desarrollo) provides information on a number of initiatives aimed at reducing corruption throughout the country. The Inter-Secretarial Commission for Transparency and the Fight against Corruption (Comision Intersecretarial para la Transparencia y el Combate a la Corrupcion, CITCC) reportedly increased its operational coverage from 161 public institutions in 2004 to 236 in 2005. CITCC programs aim to promote and coordinate anti-corruption strategies in order to increase transparency in public management. Through such programs, the CITCC identified 1,839 potential areas of irregular conduct in 2005, and instigated 3,874 corrective actions (acciones de mejora), a 4.3 per cent increase in such actions from 2004. Regarding the sanction of acts of impunity and corruption, the 2005 National Development Plan Report noted that 4,079 public servants were cited with 5,597 administrative penalties for employee misconduct, which marked an 8.6 per cent decrease from the number of employees likewise charged in 2004. The federal government also offers a number of services for citizens to denounce corruption in the public service, including online assistance (Sistema Electronico de Atencion Cidudadana, SEAC), direct assistance from Internal Control offices (Organos Internos de Control, OIC), and a telephone helpline (Sistema de Atencion Telefonica a la Ciudadania, SACTEL). Statistics compiled for 2005 showed that of the 27,147 online requests received by the SEAC, 12,431 were complaints and denunciations (quejas y denuncias). As for direct assistance, of a total of 128,488 requests heard by various government offices, 92,372 were made at central federal departments and 15,133 were filed directly at OIC offices. The SACTEL responded to 144,157 phone calls about various services and procedures within the federal government. Moreover, regional supervisors conducted 493 investigations of various public agencies, resulting in 34 complaints and denunciations, 548 follow-ups for irregularities (seguimientos de irregularidades), and 490 immediate corrective actions (acciones de mejora inmediamente). The 2005 National Development Plan Report also indicated that the National Registry of Public Security Personnel (Registro Nacional de Personal de Seguridad Publica) was nearly complete, reportedly containing the names of 427,418 active public security agents from across the 32 states of Mexico, as well as those of 46,191 private security agents. Effectively, the registry enables background checks for prior misconduct among personnel to be performed in order to reduce police corruption. Other efforts to deter corruption in the police forces include psychological evaluation and drug testing, economic incentives for good performance, education and training opportunities, disciplinary action, regulatory reviews by Internal Affairs (Asuntos Internos), and investigations and prosecutions by the OIC of the Secretary of Public Security (Secretaria de Seguridad Publica, SSP). Also in 2005, news sources reported on the efforts of authorities to rid state and local-level law enforcement of corruption. In May 2005, the new governor of Guerrero state announced the dissolution of the \"notorious\" State Transit and Public Safety Police, which was reportedly \"known for corruption and arms trafficking\". In June 2005, ushering in \"Operation 'Safe Mexico',\" an initiative to combat drug-trafficking and police corruption, \"federal and state authorities carried out a massive purge of police in the border city of Nuevo Laredo, firing 400 municipal officers\". PGJDF Within the Office of the Attorney General of the Federal District (Procuraduria General de Justicia del Distrito Federal, PGJDF), the position of inspector general (visitaduria general) has existed since 1977 (Mexico n.d.a.). The inspector general investigates and monitors complaints against the Public Ministry (Ministerio Publico) and its judicial police agents in order to [translation] \"combat corruption and impunity head-on, respect human rights and restore the public's trust\" (Mexico n.d.b). According to an activity report for the period of January to March 2004, the inspector general conducted 4,268 visits and undertook 10,978 examinations of PGJDF personnel, which resulted in proceedings against a number of PGJDF employees, including 147 public ministry agents, 111 official secretaries (oficial secretario), 46 agency heads (responsable de agencia), 17 judicial police officers, and 13 experts (peritos). In October 2004, Bernardo Batiz, the Attorney General of the Federal District, noted that while the PGJDF housed an Internal Inspection Unit (Unidad de Inspeccion Interna) that specifically monitors judicial police agents, the office lacked an adequate internal control mechanism to safeguard against administrative personnel committing acts of corruption. Overall, however, Batiz explained that whoever commits illegal acts within the PGJDF would be subject to prosecution and imprisonment (ibid.). Such was the case for an officer, mentioned in the same article in which Batiz was quoted, who was arrested and jailed on kidnapping charges. In press statements made to the EFE News Service in April 2006 upon the release of its annual report, the Human Rights Commission of the Federal District (Comision de Derechos Humanos del Distrito Federal, CDHDF), without providing details as to which police agency was involved, reported that arbitrary arrests in Mexico City had increased \"13 per cent over the previous year\". In particular, the CDHDF stated that in 2005 \"1,352 people lodged complaints about illegal detentions and that, of those, it investigated 666 cases, up from 586 in 2004 and 441 in 2003\".. The CDHDF also called on \"Mexico City police and prosecutors to assume a public commitment and show political will to eliminate all forms of illegal privation of liberty\" (ibid.). The panel finds that if the principal claimant were to move to Mexico City and decide that he wanted to become a XXXXX XXXXX again, if he were to be faced with the possibility of working with requests for him to participate in corruption, there are effective protective mechanisms that have been put in place by the Mexican Government to protect individuals such as the principal claimant and his family. The panel notes that the first alleged incident of persecution began on XXXXX, 20906. By XXXXX, the principal claimant had already resigned from the XXXXX XXXXX and by XXXXX, 2007, less than three months later, the principal claimant and his family had come to Canada. The panel further notes, that in the Federal Court decision of Hussain, Majeed,22 the court stated that the applicant was too quick to assume that no state protection was available. The panel is also guided by the Federal Court decision in De Baez:23 ...the actions of some police officers do not obviate the need to seek protection from the authorities. Discrimination by some police officers is not sufficient proof of the state's unwillingness to provide, or inability on the part of the applicants, to seek protection. The claimants have therefore not established that they would face the risks of harm found in sections 96 or 97(1) of Immigration and Refugee Protection Act. The panel takes further guidance from the recent Federal Court Decision in Flores Carrillo,24 which states A refugee who claims that the state protection is inadequate or non-existent bears the evidentiary burden of adducing evidence to that effect and the legal burden of persuading the trier of fact that his or her claim in this respect is founded. The standard of proof applicable is the balance of probabilities and there is no requirement of a higher degree of probability than what that standard usually requires. As for the quality of the evidence required to rebut the presumption of state protection, the presumption is rebutted by clear and convincing evidence that the state protection is inadequate or non-existent. Having found that the claimants are not Convention refugees, the panel also considered the applicability of sections 97(1)(a) and 97(1)(b) of the Act, and finds that no evidence was adduced that would support a finding that the claimants face a danger of torture. With respect to a risk to their lives or a risk of cruel and unusual treatment or punishment, the panel's finding with respect to degree of risk or harm and the level or harm they face and the availability of state protection applies to this ground as well. On a balance of probabilities, the claimant will not be subjected personally to a risk of life or a risk of cruel and unusual treatment or punishment on return to Mexico. Having also found that there is adequate state protection, the claim fails under section 97 of the Act. After careful consideration of all the evidence and because of the reasons set out above, the panel finds that the claimants do not have a well-founded fear of persecution by reason of any of the enumerated grounds. Having found that the claimants are not Convention refugees, the panel also considered the applicability of sections 97(1)(a) and 97(1)(b) of the Act, and finds that no evidence was adduced that would support a finding that the claimants face a danger of torture. With respect to a risk to their lives or a risk of cruel and unusual treatment or punishment, the panel's findings with respect to the availability of state protection, applies to this ground as well. Having found that there is adequate state protection, the claims also fail under section 97 of the Act. CONCLUSION For these reasons, the Refugee Protection Division determines that the claimants are not Convention refugee nor are they persons in need of protection and therefore, rejects their claims for refugee protection. (signed) \"M. Freilich\" M. Freilich July 24, 2008 Date REFUGEE PROTECTION DIVISION / EMPLOYMENT / VICTIM OF CONFLICT / ORGANIZED CRIMINALITY / CORRUPTION / HIDING / GUIDELINES / CHILDREN / INTERNAL FLIGHT ALTERNATIVE / STATE PROTECTION / MALE / SPOUSE / CHILDREN / NEGATIVE / MEXICO 1 Exhibit R/A/2 - certified true copies of the claimants' Mexico passports. 2 Immigration and Refugee Protection Act, S.C. 2001, c.27. 3 Exhibit C-1. 4 Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.). 5 Child Refugee Claimants: Procedural and Evidentiary Issues Guidelines issued by the Chairperson pursuant to Section 65(3) of the Immigration Act, Immigration and Refugee Board, Ottawa, Canada, September 30, 1996, as continued in effect by the Chairperson n June 28 2002, pursuant to section 159 (1)(h) of the Immigration and Refugee Protection Act. 6 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 7 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994], 1.F.C. 589 (C.A.). 8 Ranganathan v. Canada (Minister of Citizenship and Immigration) (1999), 1 Imm. L.R. (3d) 245 (F.C.T.D.). 9 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994], 1.F.C. 589 (C.A.) pp. 596-599. 10 Ranganathan v. Canada (Minister of Citizenship and Immigration) (1999), 1 Imm. L.R. (3d) 245 (F.C.T.D.). 11 Exhibit R/A/1 - Item 5.6. REFINFO MEX1025551.E, June 13, 2007 - Mexico: Protection available to women victims of domestic violence in the state of Jalisco (2005 - May 2007). 12 M.C.I. v. Kadenko, Ninal (F.C.A., no. A-388-95), Hugessen, Décary, Chevalier, October 15, 1996. Reported: Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4th) 532 (F.C.A.).. 13 Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.). 14 Milev, Dane v. M.C.I. (F.C.T.D., no. IMM-1125-95), MacKay, June 28, 1996. 15 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. 16 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at 724-726. 17 Ibid. at 724. 18 Exhibit C-5, Item 2. 19 Exhibit R/A/1, RPD Information Package, March 19 2008, item 2.1, United States Department of State, Country Reports on Human Rights - 2007, March 11, 2008. 20 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. 21 Ibid., Exhibit 18. 22 Hussain, Majeed v. M.C.I. (F.C.T.D., no. IMM-2345-02), O'Reilly, April 8, 2003. 23 De Baez, Mario Beatrice Arguello v. M.C.I. (F.C.T.D., no. IMM-3208-02), Dawson, June 26, 2003; F.C.T. 785. 24 M.C.I. v. Flores Carrillo 2008 F.C.A. 94. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : TA7-04375, TA7-04376, TA7-04377, TA7-04378 13 RPD.15.7 (October 2007) Disponible en français", "response": "## Analysis of Refugee Decision: TA7-04375\n\n### Key Issues\nposes of their refugee claim. ISSUES AND DETERMINATION The determinative issue in these claims is whether a viable internal flight alternative (\"IFA\") exists for the claimants in M\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: ee protection on XXXXX, 2007. ANALYSIS To establish the status as Convention refugees, the claimants have to show that there is a \"serious possibility\" or \"reasonable chance\"4 that they would face persecution in Mexico. Alternatively, to establish that they are persons in need of protection, the claimants have to show that the t\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "How does this Federal Court of Appeal of Canada decision affect immigration jurisprudence?\n\nCanada v. Boloh 1(a) Court (s) Database Federal Court of Appeal Decisions Date 2023-05-31 Neutral citation 2023 FCA 120 File numbers A-32-23 Decision Content Date: 20230531 Docket: A-32-23 Citation: 2023 FCA 120 CORAM: STRATAS J.A. WEBB J.A. MONAGHAN J.A. BETWEEN: HIS MAJESTY THE KING AND THE MINISTER OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE Appellants and BOLOH 1(a), BOLOH 2(a) male only, BOLOH 12, and BOLOH 13 Respondents Heard at Toronto, Ontario, on March 27, 2023. Judgment delivered at Ottawa, Ontario, on May 31, 2023. REASONS FOR JUDGMENT BY: STRATAS J.A. CONCURRED IN BY: WEBB J.A. MONAGHAN J.A. Date: 20230531 Docket: A-32-23 Citation: 2023 FCA 120 CORAM: STRATAS J.A. WEBB J.A. MONAGHAN J.A. BETWEEN: HIS MAJESTY THE KING AND THE MINISTER OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE Appellants and BOLOH 1(a), BOLOH 2(a) male only, BOLOH 12, and BOLOH 13 Respondents REASONS FOR JUDGMENT STRATAS J.A. A. Introduction [1] The Federal Court (per Brown J.) required the Government of Canada, specifically the appellants, to take steps to cause the respondents, four Canadian citizens currently detained in northeastern Syria in abysmal, deplorable conditions, to be returned to Canada: 2023 FC 98. [2] The facts giving rise to this can be briefly stated. [3] Northeastern Syria is a chaotic war zone: its conditions are ever-changing, dangerous, and violent to all concerned: Reasons of the Federal Court at paras. 10, 152, 160 and 173. It is controlled by the Autonomous Administration of North and East Syria, a non-state entity. It does not consider itself bound by international conventions or treaties concerning human rights, international relations or the safe passage of diplomats. [4] For a number of years now, the Autonomous Administration of North and East Syria has held the respondents in prisons run by its military wing, the Syrian Democratic Forces. The Autonomous Administration of North and East Syria suspects that the respondents fought for or assisted fighters for Daesh or the Islamic State of Iraq and Syria, otherwise known as ISIS: Reasons of the Federal Court at paras. 2 and 7-9. ISIS is a fundamentalist, extremist and militant group known worldwide for beheadings, atrocities and terrorism. [5] The Government of Canada is not any way complicit in the respondents’ presence in Syria or their detention in prison: Reasons of the Federal Court at para. 176. Quite the opposite. From 2011, the Government of Canada has been warning its citizens not to enter Syria due to a brutal civil war that has caused instability, violence and bloodshed: Reasons of the Federal Court at para. 4. Further, the Government of Canada has warned its citizens that if they get into trouble in Syria, it will not be able to assist: Reasons of the Federal Court at para. 6. Since 2012, Canada’s embassy has been closed. [6] Nevertheless, the respondents entered Syria, made their way to northeastern Syria, did whatever they did there, and eventually were detained in a prison controlled by the Autonomous Administration of North and East Syria: Reasons of the Federal Court, at paras. 4-5. [7] Recently, the Autonomous Administration of North and East Syria has been encouraging foreign states to repatriate their nationals from its prisons and from certain camps. On its own accord, the Government of Canada has successfully repatriated some of its citizens from camps. [8] But in every case of potential repatriation, certain challenges must be overcome. For one thing, the criteria and arrangements for the handover of detainees are not known with certainty or particularity: Reasons of the Federal Court at paras. 45-47. The criteria and arrangements must be specifically negotiated with the Autonomous Administration of North and East Syria. The criteria and arrangements it proposes might not be ones that the Government of Canada can practically or legally accept. [9] At a high level, some of the criteria and arrangements are already known. Officials of the Government of Canada or delegates for whom it is responsible will have to travel through the dangerous territory of northeastern Syria to the place where the respondents are to be handed over: Reasons of the Federal Court at paras. 43-45. There they will receive the respondents, sign whatever documents they must sign, and then travel again through the dangerous territory of northeastern Syria. [10] In response to this Court’s questioning during oral argument of this appeal, one of the counsel for the respondents fairly admitted that the situation in northeastern Syria is “very difficult” and has “been described as a war zone”, “the record is replete with all kinds of potential issues and problems and risks that may result [to] a Canadian representative” sent there, and the Autonomous Administration of North and East Syria cannot “guarantee the safety of whoever is in their territory”. The evidentiary record supports these statements. [11] In these circumstances, the respondents say that, as a matter of law and the Charter of Rights and Freedoms, the Government of Canada must take positive steps to cause them to be returned to Canada from this dangerous, unstable war zone. The primary basis for this is subsection 6(1) of the Charter: the right of Canadian citizens “to enter…Canada”. [12] The Federal Court agreed with the respondents. It took the right of Canadian citizens “to enter…Canada” and transformed it into a right of Canadian citizens, wherever they might be, regardless of their conduct abroad, to return to Canada or to have their government take steps to rescue them and return them to Canada: see Reasons of the Federal Court at paras. 105-112, 115, 117, 119, 121-122, 125, 128, 132, 136, 145, 149-150, 155-156, 158, 160-162, 173, and 176. The Federal Court required the Government of Canada to take steps to cause the return of the respondents—who acted against government warnings in circumstances where government did nothing to cause their plight—in the face of challenging issues of planning, logistics, diplomacy, international relations, national security and personal safety. [13] The subsection 6(1) Charter right is not that broad. This Court must intervene. For the following reasons, I would allow the appeal and set aside the judgment of the Federal Court and, giving the judgment the Federal Court should have given, I would dismiss the respondents’ application for judicial review. B. Analysis (1) The proper interpretation of subsection 6(1) of the Charter [14] To interpret subsection 6(1) of the Charter properly, we must first examine a wider, more general question: what is the proper approach to interpreting the Charter? [15] Then we must examine the specific jurisprudence that has interpreted subsection 6(1) of the Charter under that approach. (a) The proper approach to Charter interpretation [16] Soon after the Charter came into force, the Supreme Court told us how to interpret Charter rights and freedoms. [17] Early in our analysis, we must examine the text of Charter rights and freedoms—words that can be changed only by following specific provisions of the Constitution Act, 1982. But the words, properly construed, are only one consideration: other considerations come to bear and can shape the interpretation in significant ways. [18] The Supreme Court’s classic statement on this is as follows: …[T]his analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court's decision in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts. (R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321 at 344 S.C.R.) [19] For the first two decades under the Charter, the Supreme Court consistently followed the Big M approach. That made sense. Except in the rarest, most justified circumstances, once the Supreme Court lays down the law, that law must be obeyed by all—even by the Supreme Court itself: R. v. Salituro, [1991] 3 S.C.R. 654, 68 C.C.C. (3d) 289; R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342; Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489. This is especially the case for foundational jurisprudence that has been around for decades, like Big M. [20] But starting around the turn of this century, the Supreme Court began toying with a looser approach, one that has now been discredited and rejected. Under that approach, well-described in the majority reasons of Quebec (Attorney General) v. 9147-0732 Québec Inc., 2020 SCC 32, 451 D.L.R. (4th) 367, the text was not so much a constraint or an expression of the meaning of constitutional provisions. Rather, it was a cue, prompt or springboard for the Court to fashion a much broader underlying feel, spirit or vibe to widen the scope of the provisions. As a result, sometimes new unwritten constitutional rights, far removed from the constitutional text, were “discovered”: see, e.g., Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31 (broad right of access to courts found under the Attorney General’s judicial appointment power); Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 (extremely expansive overbreadth doctrine developed under section 7). Unsurprisingly, under this looser approach, the Supreme Court began to strike down or circumvent some decades-old binding precedents, with doctrinal inconsistency the result. See e.g., Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245; see also the examples during this time of doctrinal inconsistency listed in Schmidt v. Canada (Attorney General), 2018 FCA 55, [2019] 2 F.C.R. 376 at paras. 91-95. [21] In 2020, the Big M approach and the looser approach met for a showdown. The case of 9147-0732 Québec Inc., above was the battlefield. The Big M approach won. [22] For good measure, soon afterward, a majority of the Supreme Court doubled down on this, reaffirming the proper role of text in constitutional interpretation: Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, 462 D.L.R. (4th) 1. Now no doubt remains. And given the doctrine of precedent that binds all, including the Supreme Court, no doubt can remain. The matter has been settled once and for all. We must interpret the Charter following the Big M approach. [23] Gone is inspiration from some vague feel, spirit or vibe, things that are in the eye of the beholder. In its place is a rigorous, objective and disciplined judicial task guided by the words of the Constitution itself viewed in light of their historical context, the larger objects of the Constitution, and, where applicable, the meaning and purpose of associated provisions in the Constitution. After all, “if [our] job is to enforce the Constitution, then the Constitution is what [we] should be enforcing, not whatever might happen to strike [us] as a good idea at the time”: John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1980) at 12. [24] The Supreme Court’s recent, dual approval of the Big M approach has brought us more doctrinal stability under the Charter, at least in the area of civil cases. This is welcome. Stability furthers the separation of powers between the judiciary and other branches of government: it keeps the judiciary in a predictable, appropriate lane. Stability brings us certainty, predictability, and freedom: it gives us consistent jurisprudence about what governments can and cannot do and about what they can be required to do. Stability bolsters the rule of law and increases confidence in the legal system. The people we serve deserve to be governed by lasting legal doctrine carefully shaped and sculpted over the years by many—not by the personal diktat of whoever happens to sit in a particular judicial chair at a particular moment of time. [25] So faced with a Charter question, how do we proceed? Under the Big M approach, early on we must examine the text of the Charter right or freedom: 9147-0732 Québec Inc. at paras. 8-9, citing British Columbia (Attorney General) v. Canada (Attorney General), [1994] 2 S.C.R. 41, 114 D.L.R. (4th) 193 (the Vancouver Island Railway case), R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566 at para. 32 and Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511 at paras. 36-37. The rule of law “requires that courts give effect to the Constitution’s text”: British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473 at para. 67. The text has “primordial significance”, supplies the “outer bounds” to any examination of the underlying purpose of the provision, prevents the Court from adopting an interpretation that “overshoots…the actual purpose of the right” and is “a foundation and a touchstone for the exercise of constitutional judicial review”: Big M at p. 344; 9147-0732 Québec Inc. at para. 10; R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144 at paras. 21 and 126; Caron at para. 36; Vancouver Island Railway at 88; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236 at paras. 17-18 and 40; Toronto (City) at para. 14; Reference re Secession of Quebec, [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385 at para. 53. [26] But we do not stop with the text. That would be pure textualism—the delegation of our judicial task to find the authentic meaning of a constitutional guarantee to a dictionary. Rather, as mentioned above, we must look for “the scope and purpose of the right” or freedom in question by looking to “the [philosophical and] historical context [of the right or freedom], the larger objects of the Charter, and, where applicable, the meaning and purpose of associated Charter rights”: 9147-0732 Québec Inc. at paras. 7 and 13, citing the classic passage from Big M, above. In some cases, an important part of the task is to “[interpret] the text in a way that is true to the theories on which the text is based”, and an analysis of the structure of the Constitution can shed light on this: Hon. Malcolm Rowe and Manish Oza, “Structural Analysis and the Canadian Constitution” (2023) 101 Can. Bar Rev. 205 at 222, citing Kate Glover, “Structure, Substance and Spirit: Lessons in Constitutional Architecture from the Senate Reform Reference” (2014) 67 S.C.L.R. 221 at 236. [27] In short, although in some cases specific text might take us far, it does not necessarily take us all the way down the road to the final destination. But often it can supply essential guardrails and signposts guiding our way and keeping us on track. [28] Under the Big M approach, where do international and foreign law fit in? They can play a role in Charter interpretation, sometimes significant, by supporting or confirming the result reached by purposive interpretation under the Big M approach: 9147-0732 Québec Inc. at paras. 19-47. As well, some Charter guarantees—and as we shall see, subsection 6(1) of the Charter is one such guarantee—were modelled after provisions in international law instruments. Thus, international jurisprudence under those provisions can often play an important role in the interpretive process. [29] But international law and foreign law do not displace or supplement the Big M approach. They have a defined, limited role, not the sprawling, undisciplined role they had under the looser approach: see 9147-0732 Québec Inc, and, in particular, the comments in the majority opinion about the dissenting opinion’s misuse of international law. When we interpret the Charter, international law and foreign law are not “a series of tasty plates on a buffet table from which we can take whatever we like and eat whatever we please”: Canada (Attorney General) v. Kattenburg, 2020 FCA 164 at para. 26. As well, different sources of international law have different value in the interpretive process: see generally 9147-0732 Québec Inc. at paras. 29-38. (b) Applying the proper interpretive approach: subsection 6(1) of the Charter and specific jurisprudence [30] The interpretation of subsection 6(1) of the Charter offered by the respondents requires the Government of Canada to take positive, even risky action, including action abroad, to facilitate the respondents’ right to enter Canada. In the context of this case, this transforms the right “to enter…Canada” into a right to be returned to Canada. [31] This smacks of the looser approach of interpreting Charter provisions, now discredited and rejected. In this case, the respondents acknowledge the existence of the text of subsection 6(1), but then pluck broad words about its underlying purposes from certain isolated paragraphs in certain Supreme Court cases, ignoring the Supreme Court’s more specific observations and conclusions in those cases, and ignoring the specific text of the subsection 6(1) right. In the end, all that is left are the broad words ripped from their context and presented in the abstract. The result? Subsection 6(1) of the Charter is given a meaning that overshoots its proper scope. [32] We must reject that approach. Instead, we must apply the Big M approach. Under the Big M approach, we keep front of mind the words of the Charter guarantee—the essential guardrails and signposts guiding our way and keeping us on track—while we examine, among other things, the purposes of the Charter and the purposes of the subsection 6(1) guarantee itself. [33] The text of subsection 6(1) of the Charter is as follows: “[e]very citizen of Canada has the right to enter, remain in and leave Canada”. In this case, the key words are “right to enter…Canada”. The words appear to be carefully chosen, specific and clear: self-evidently, a right to enter Canada is not a right to be returned to Canada. [34] Following the Big M approach, we must look at the historical context, the larger objects of the Charter, the meaning and purpose of any associated Charter rights, and the purpose of the particular guarantee. [35] In the case of subsection 6(1) of the Charter, the Supreme Court has done this work for us: United States of America v. Cotroni, [1989] 1 S.C.R. 1469, 48 C.C.C. (3d) 193; Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157. The Supreme Court’s words in these cases bind us. To the extent the Supreme Court has not yet spoken on an issue, our own jurisprudence binds us as well: R. v. Sullivan, 2022 SCC 19, 472 D.L.R. (4th) 521; Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149; Hon. Malcolm Rowe and Leanna Katz, “A Practical Guide to Stare Decisis”, (2020), Windsor Rev. Legal Soc. Issues 1. Both the Supreme Court and the Federal Courts have developed their jurisprudence under subsection 6(1) following the accepted approach in Big M. [36] In Cotroni, the Supreme Court analyzed the text of subsection 6(1) in light of the wider Big M considerations set out above. From that analysis, it concluded (at 1482) that the “central thrust” of subsection 6(1) is “against exile and banishment, the purpose of which is the exclusion of membership in the national community”. This implies that subsection 6(1) is aimed at state action that removes people from Canada or prevents their return, or both. The Supreme Court’s analysis in Cotroni offers no encouragement for the idea that subsection 6(1) includes a right to be returned to Canada. [37] Indeed, Cotroni found (at 1481) that extradition—the sending of a person already present in Canada to a foreign nation to face justice there—was only at the “outer edges of the core values sought to be protected” by subsection 6(1). What about an obligation on the Government of Canada to take positive actions, some of which expose its officials to personal danger, in order to bring back to Canada a person detained in a territory controlled by a non-state entity? Surely that falls outside the “outer edges” of subsection 6(1). [38] In Divito, the Supreme Court further interpreted subsection 6(1) of the Charter and its right to enter Canada. It held that article 12 of the International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47 lay behind section 6 of the Charter and was essential to its interpretation. [39] The Supreme Court noted that article 12(4) provides that “[n]o one shall be arbitrarily deprived of the right to enter his own country”. In analyzing subsection 6(1), the majority of the Supreme Court found that few if any limitations on the right to enter would be considered reasonable. It found this interpretation bolstered by certain contextual factors. For example, section 6(1) is unqualified. This is unlike subsection 6(2), which is qualified by subsections 6(3) and 6(4). Further, subsection 6(1) is not subject to the override provision in section 33. See Divito at para. 28, citing Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519 at para. 11. [40] But, importantly for present purposes, the Supreme Court limited subsection 6(1) of the Charter to a right to enter Canada, nothing more. The Supreme Court did not extend subsection 6(1) to include a right of Canadian citizens to have the Government of Canada return them to Canada. [41] In particular, in Divito (at paras. 45 and 48), the Supreme Court held that an inmate in a prison in the United States could not rely on subsection 6(1) of the Charter to force the Government of Canada to take steps to return him to a prison in Canada. The inmate’s right to return to Canada was governed only by an international treaty and domestic implementing legislation. The Supreme Court emphasized that the ability of a Canadian citizen to leave a foreign territory is governed by the authority and power of the foreign state or entity with control over that territory: Divito at paras. 40 and 48. [42] In its wording and in the concepts it deployed, the Supreme Court in Divito was consistent with Cotroni. Indeed, the best reading of Divito is that the Supreme Court embraced what it said earlier in Cotroni, telling us again what subsection 6(1) of the Charter is about and, importantly for the case at bar, what subsection 6(1) of the Charter is not about. [43] The Supreme Court’s holdings in Divito and Controni bind us. And they make sense. For one thing, the Charter governs matters within the control of governments in Canada: Charter, section 32. Reading subsection 6(1) of the Charter as including an enforceable constitutional obligation on the Government of Canada to take steps in other countries to rescue and repatriate citizens in trouble, where they alone are responsible for their trouble, greatly overshoots the mark. As the Government of Canada puts it: The right to enter set out in s. 6(1) has a clear link to matters under the exclusive jurisdiction of Canada: namely control over who comes into the country by passing through the border. In contrast, the process of returning to Canada from abroad is inherently transnational and multi-jurisdictional. Returning to Canada, especially for citizens detained abroad, is a multi-step process including matters outside of Canada’s territory, jurisdiction and control. (Government of Canada’s memorandum of fact and law at para. 31.) [44] Can the Government of Canada voluntarily try, through diplomacy or other means, to help a citizen in distress abroad? Of course it can. But, as a matter of constitutional law, does it have to? Of course not. Subsection 6(1) of the Charter, the right to enter, remain in and leave Canada, is not a golden ticket for Canadian citizens abroad to force their government to take steps—even risky, dangerous steps—so they can escape the consequences of their actions. [45] The respondents submit that two authorities in the Federal Courts system support their position: Kamel v. Canada (Attorney General), 2009 FCA 21, [2009] 4 F.C.R. 449; Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580, [2010] 1 F.C.R. 267. [46] Kamel and Abdelrazik do not help the respondents. They address a failure by the Government of Canada to issue a travel document without reasonable justification—a relatively easy, administrative step required by law and entirely within the control of Canada, the only step preventing entry into Canada. [47] These authorities do not stand for the broader proposition that, as this Court put it in Kamel in summarizing a party’s submission (at para. 17), the Government of Canada must act “to guarantee entry to or exit from another country”. Indeed, in Abdelrazik, the Federal Court expressly rejected the submission that Canada’s failure to take extraordinary measures to repatriate a citizen, such as arranging for a military jet to take the citizen home, infringed the citizen’s rights under subsection 6(1) of the Charter. [48] The respondents also submit that international law supports their position. It does not. As mentioned in paragraphs 38-39 above, subsection 6(1) of the Charter is modelled upon article 12(4) of the International Covenant on Civil and Political Rights. Article 12(4) provides that “[n]o one shall be arbitrarily deprived of the right to enter his own country”. Textually, this provision does not give people the right to be returned to their country of citizenship. And case law under article 12(4) confirms the interpretation the Supreme Court has adopted in Cotroni and Divito concerning subsection 6(1) of the Charter: Case of H.F. and Others v. France, Application Nos. 24384/19 and 44234/20, Decision of the Grand Chamber of the European Court of Human Rights (14 September 2022), especially at paras. 201, 250-252, 259, 261 and 272-276; see also C.B. v. Germany (no. 22012/93, Commission decision of 11 January 1994, unreported). H.F. tells us that article 12(4) prohibits state actions that arbitrarily prevent citizens from entering their country of citizenship and does not extend to a right to be returned to their country of citizenship. The parties have not placed before this Court any international authorities that conflict with H.F., nor has this Court found any. [49] The Federal Court relied on a letter from the UN Special Rapporteur as support for its imposition of positive obligations upon the Government of Canada under subsection 6(1) of the Charter. The letter does support the Federal Court’s view. But, as we have seen, H.F., a decision of the European Court of Human Rights, says the opposite, in highly detailed, persuasive reasoning. [50] Different international authorities are of different value, and, in particular, international court decisions in adjudicative contexts, such as H.F., deserve far more weight than the non-adjudicative individual opinions of other international actors, such as the letter from the UN Special Rapporteur relied upon by the Federal Court: Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176 at paras. 142-144, 147-148. International law is not a box of chocolates from which one can take what one wants, leaving the rest in the box. Instead, international law is a specialized field calling for discipline, intellectual rigour and careful judgment when applying it to domestic issues: Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, 471 D.L.R. (4th) 391 at paras. 43-48, largely affirming Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100, [2021] 1 F.C.R. 374 at paras. 76-92. [51] The Federal Court did not cite the decision of the European Court of Human Rights in H.F., above. But H.F. is relevant. It concerns article 12(4) of the International Covenant on Civil and Political Rights, which was very much the inspiration behind subsection 6(1) of the Charter. It rejects the existence of a right to be returned from abroad to one’s country of citizenship. It strongly confirms the interpretation of subsection 6(1) of the Charter reached by the Supreme Court in Cotroni and Divito. (c) Application of these principles to this case [52] From the foregoing, it is evident that the Federal Court had no basis under subsection 6(1) of the Charter to make the judgment it did. In such a circumstance, this Court has to intervene, set aside the judgment, and give the judgment the Federal Court should have given. (2) Additional issues [53] In their written submissions, the respondents offer a number of brief submissions on sections 7, 9, 12 and 15 of the Charter. They did not expand upon them in oral argument. In substance, these submissions amount to the same thing: an attempt to rewrite the “right to enter…Canada” in subsection 6(1) of the Charter in order to make it broader. [54] If sections 7, 9, 12 and 15 of the Charter were given the scope the respondents give them here, subsection 6(1) of the Charter would be paved over: it would become completely redundant. Provisions in the Constitution cannot be interpreted and applied to amend, modify or nullify other provisions in the Constitution: Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2 S.C.R. 585 at para. 24; Adler v. Ontario, [1996] 3 S.C.R. 609, (1996), 140 D.L.R. (4th) 385; Gosselin (Tutor of) v. Quebec (Attorney General), 2005 SCC 15, [2005] 1 S.C.R. 238 at para. 14. Subsection 6(1), a specifically worded right meant to govern this sort of circumstance, applies in this case and is not overborne by other, more broadly worded, general rights. [55] In any event, the Charter and all of the sections the respondents invoke do not apply. Canadian state conduct did not lead to the respondents being in northeastern Syria, did not prevent them from entering Canada, and did not cause or continue their plight. The respondents’ own conduct and persons abroad who have control over them alone are responsible. In no way is the Government of Canada infringing the respondents’ right to liberty nor on these facts is it violating a principle of fundamental justice (section 7), arbitrarily detaining the respondents (section 9), inflicting cruel and unusual punishment on them (section 12) or discriminating against them (section 15). To the extent these rights are being infringed, entities other than the Government of Canada are responsible. [56] Further, the application of the Charter in this case would be extraterritorial and invalid. True, sometimes the Charter can apply to circumstances outside of Canada: see e.g., Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44. But for that to happen, there must be some action or involvement by the Government of Canada to attract the application of the Charter. In particular, there must be either evidence of “Canadian participation in a process that violates Canada’s international law obligations” or “consent by the foreign state to the application of Canadian law”: R. v. McGregor, 2023 SCC 4 at para. 18; see also R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 at paras. 51-52 and 101 and Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125 at paras. 18-19. Neither is present here. [57] As the Federal Court found, there is no evidence of Canadian participation or contribution to the respondents’ plight. A foreign state has not consented to the application of Canadian law. Instead, the respondents’ plight stems from foreign causes and the actions or omissions of the Autonomous Administration of North and East Syria, the Syrian Democratic Forces, or both. Thus, in this case, the Charter does not apply. [58] For the benefit of future cases, the remedy granted by the Federal Court deserves comment. Here too, the Federal Court erred in law. [59] The Federal Court said it was granting declarations. The relevant portions of its judgment are as follows: 2. It is hereby declared that the Applicants are entitled as soon as reasonably possible to the Respondents making formal requests to [the Autonomous Administration of North and East Syria] that [the Autonomous Administration of North and East Syria] allow the voluntary repatriation of the Canadian men held in the prisons run by [the Autonomous Administration of North and East Syria’s] military wing the [Syrian Democratic Forces]. 3. It is hereby declared that the Applicants are entitled to be provided by the Respondents with passports or emergency travel documents as soon as they are required after [the Autonomous Administration of North and East Syria] agrees to allow the Applicants to be repatriated to Canada. 4. It is hereby declared that the Applicants are entitled [to] appointment by the Respondents of a representative(s) or delegates(s) to attend within [the Autonomous Administration of North and East Syria] controlled territory or as otherwise agreed as soon as possible after [the Autonomous Administration of North and East Syria] agrees to hand over the Applicants for the repatriation to Canada. [60] Declarations are supposed to be declarations of rights held by those seeking them. But, in reality, what the Federal Court awarded were not declarations. They were disguised mandatory orders or disguised mandamus remedies against the Government of Canada. [61] The established legal prerequisites for administrative law remedies cannot be avoided simply by applying a different label to the remedy, such as “declaration”: Schmidt at paras. 21-22; Hupacasath First Nation v. Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4, 379 D.L.R. (4th) 737. Instead, the court must determine the essential character and real essence of the remedy being sought: JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 at paras. 49-50. Once that is done, the court must first identify the legal prerequisites for it. Only then can it decide whether it is able to grant the remedy and, if so, whether it should. [62] The essential character and real essence of the remedy the Federal Court awarded was the imposition of mandatory obligations upon the Government of Canada, something akin to mandamus. The Federal Court said that the Government of Canada “must make a formal request” for the repatriation of the respondents (at para. 155), must provide appropriate travel documents to the respondents (at para. 145) and “must appoint” a delegate or a Government of Canada official to travel to Syria to deal with the handover of the respondents (at para. 161). These matters had to be done “as soon as reasonably possible” (at para. 160), meaning forthwith. [63] However, mandatory obligations or mandamus cannot be imposed without first determining whether their exacting legal prerequisites are met: for a statement of these prerequisites, see, e.g., Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55, 444 N.R. 93 at para. 14, citing, among other authorities, Apotex v. Canada (Attorney General), [1994] 3 S.C.R. 1100, 29 Admin LR (2d) 1, aff’g [1994] 1 F.C. 742, 18 Admin LR (2d) 122 (C.A.) at 767-768 F.C. Here, the prerequisites were not met. [64] Further, in granting mandatory remedies in this area, courts must proceed with caution. The Government of Canada is entitled to consider possible dangers and other considerations such as foreign relations, international affairs and national security, and their judgments on such matters deserve a wide margin of appreciation and deference: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3 at para. 56; Khadr (2010) at para. 37. [65] In deciding cases, judges are restricted to the evidence supplied by self-interested parties and have a deep knowledge of law but little else at their disposal. In the sort of ever-evolving, sensitive and complex context we have here, are judges well placed to easily substitute their opinion for that of the Government of Canada, given the foreign information and intelligence, knowledge, and experience and expertise in foreign relations and international affairs it has? Of course not. [66] Courts must appropriately defer to the executive when it acts on matters quintessentially and uniquely within its ken: Canada v. Kabul Farms Inc., 2016 FCA 143, 13 Admin. L.R. (6th) 11 at para. 25; CMRRA-SODRAC Inc. v. Apple Canada Inc., 2020 FCA 101 at para. 49; Re:Sound v. Canadian Association of Broadcasters, 2017 FCA 138, 148 C.P.R. (4th) 91 at para. 49; Canadian Copyright Licensing Agency (Access Copyright) v. Canada, 2018 FCA 58, 422 D.L.R. (4th) 112 at para. 100; Hupacasath First Nation at paras. 66-67, citing numerous cases from the Supreme Court. Sensitive issues of foreign relations and international affairs are just such a matter: Portnov v. Canada (Attorney General), 2021 FCA 171, 461 D.L.R. (4th) 130 at para. 44; Canada v. Schmidt, [1987] 1 S.C.R. 500, 7 D.L.R. (4th) 95 at 522-523 S.C.R.; Spencer v. The Queen, [1985] 2 S.C.R. 278, 21 D.L.R. (4th) 756; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, 84 D.L.R. (4th) 438; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, 18 D.L.R. (4th) 481. [67] The Government of Canada correctly submits that the Federal Court accorded insufficient deference in this case: The Court directed Canada to undertake what can only be understood as diplomatic negotiations with [the Autonomous Administration of North and East Syria], a foreign non-state actor, and to travel to a foreign territory, without the relevant foreign State’s consent as normally required, to effect the repatriation of the detained Respondents as soon as possible after [the Autonomous Administration of North and East Syria] agrees to release them. This decision leaves the Government little flexibility or control over important matters of high policy. (Government of Canada’s memorandum of fact and law at para. 82.) In the words of the Supreme Court in Khadr (2010) (at para. 39), the Federal Court gave “too little weight to the constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada’s broader national interests”. [68] To the extent that the Court’s declaratory remedy was not just a mandamus order but was intended to be made under subsection 24(1) of the Charter as an “appropriate and just” remedy, many of the same considerations apply. For example, remedies under subsection 24(1) of the Charter must be granted with due respect for the proper roles of the judiciary and the executive, and the legal and practical limits of the judicial role: Doucet-Boudreau at paras 56-57. [69] Finally, this Court called for supplementary written submissions on the issue whether the Government of Canada might have a positive obligation to take steps to facilitate the respondents’ subsection 6(1) rights to enter Canada, following the framework supplied in cases such as Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673 and Toronto (City), above. The Court has received the parties’ supplementary submissions and has read and considered them. [70] Given the interpretation of subsection 6(1) of the Charter, set out above, imposing a positive obligation on the Government of Canada would rewrite the text of subsection 6(1) and extend it beyond its proper scope. Subsection 6(1), properly interpreted, gives Canadian citizens a right to enter, remain in and leave Canada, nothing more. Imposing a positive obligation would transform subsection 6(1) from its genuine meaning—just a right to enter Canada—into a sweeping right of Canadian citizens to have the Government of Canada take all necessary steps to return them to Canada. Such a right would have potentially limitless scope. It would cover cases ranging from the repatriation of someone detained abroad for whatever reason, including the alleged violation of foreign law in a foreign land, to the payment of ransom to foreigners holding a Canadian citizen hostage. A right of that scope could potentially collide with international law understandings of state sovereignty. [71] For good measure, the reasoning in subsection 6(1) cases such as Cotroni, Divito, Kamel and Abdelrazik, above, precludes imposing positive obligations on government to facilitate the right to enter Canada. The only recognized circumstance is the issuance of a passport or travel document in Kamel and Abdelrazik, the failure of which was taken to be government action preventing the right to enter Canada. [72] Finally, courts normally impose positive obligations on government to assist in the exercise of a right or freedom where government itself is responsible for the inability to exercise a fundamental freedom: Dunmore, above; Baier, above at paras. 29-30; Toronto (City), above at para. 23; Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23, [2010] 1 S.C.R. 815 at para. 37. In this case, the Government of Canada is not responsible for the respondents’ inability to enter Canada: here, the responsibility lies with the Autonomous Administration of North and East Syria, the Syrian Democratic Forces, the respondents themselves who entered Syria against the Government of Canada’s advice, or any combination of them. C. This Court’s stay of the Federal Court’s judgment and developments since [73] By Order dated March 14, 2023, this Court stayed the Federal Court’s judgment. However, it required that the Government of Canada “continue to take steps in furtherance of paragraph 2 of the Federal Court’s [judgment] unless and until the appellants determine that taking a particular further step would be detrimental, as determined by the appellants acting in good faith, to the respondents”. [74] In previous correspondence, the Government of Canada has advised that it has been taking such steps. However, by letter dated May 12, 2023, the Government of Canada stated that “Canada has determined in good faith that taking further steps at this time to request the voluntary repatriation of the respondents would be detrimental to them”. [75] By letter dated May 16, 2023, the respondents asked the Government of Canada to disclose its information and reasoning supporting that determination. [76] No motion has been brought. Thus, we need not decide this dispute. In any event, this will soon be moot. The Federal Court’s judgment, including the requirements of paragraph 2 of the judgment, will be set aside when this Court issues its judgment allowing the appeal. [77] The respondents’ May 16, 2023 letter also enclosed an affidavit from a former senior official of Amnesty International. In this affidavit, he says that he and a delegation of “parliamentarians, former diplomats, human rights experts and lawyers” will travel to northeastern Syria and will visit the prison in which the respondents are being held. There they will try to secure the release of the respondents. Exactly what is to happen if they succeed is unknown: for one thing, the record suggests that security assessments of the respondents will have to be conducted and, perhaps, measures will have to be put in place before they can transit other countries and enter Canada. [78] The delegation is free to evaluate the risks and do as it pleases. But this does not change the outcome of this appeal. The Government of Canada is not constitutionally obligated or otherwise obligated at law to repatriate the respondents. D. Postscript [79] In a number of other cases, the Government of Canada has surmounted the practical and legal obstacles and has successfully repatriated Canadian citizens from camps in northeastern Syria. [80] As mentioned, these reasons stand for the proposition that the Government of Canada is not constitutionally obligated or otherwise obligated at law to repatriate the respondents. However, these reasons should not be taken to discourage the Government of Canada from making efforts on its own to bring about that result. E. Proposed disposition [81] For the foregoing reasons, I would allow the Government of Canada’s appeal, set aside the Federal Court’s judgment and, giving the order the Federal Court should have given, dismiss the respondents’ application. Given the circumstances, I would not award costs against the respondents. “David Stratas” J.A. “I agree Wyman W. Webb J.A.” “I agree K.A. Siobhan Monaghan J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-32-23 APPEAL FROM A JUDGMENT OF THE HONOURABLE JUSTICE HENRY S. BROWN DATED JANUARY 20, 2023, NO. T-1483-21 STYLE OF CAUSE: HIS MAJESTY THE KING et al. v. BOLOH 1(a) et al. PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: March 27, 2023 REASONS FOR JUDGMENT BY: STRATAS J.A. CONCURRED IN BY: WEBB J.A. MONAGHAN J.A. DATED: May 31, 2023 APPEARANCES: Anne M. Turley Elizabeth Richards For The Appellants Lawrence Greenspon For The Respondents, except boloh 13 Barbara Jackman Zoe Chong FOR THE RESPONDENT, BOLOH 13 SOLICITORS OF RECORD: Shalene Curtis-Micallef Deputy Attorney General of Canada For The Appellants Greenspon Granger Hill Ottawa, Ontario For The Respondents, except boloh 13 Jackman & Associates Toronto, Ontario FOR THE RESPONDENT, BOLOH 13", "response": "## Analysis of Court Decision: Canada v. Boloh 1(a)\n\n### Key Issues\ne with all kinds of potential issues and problems and risks that may result [to] a Canadian representative” sent there, and the Autonomous Administration of North and East Syria ca\n\n### Standard of Review\nCanada v. Boloh 1(a) Court (s) Database Federal Court of Appeal Decisions Date 2023-05-31 Neutral citation 2023 FCA 120 File numbers A-32-23 Decision Content Date: 20230531 Docket: A-32-23 Citation: 2023 FCA 120 CORAM: STRATAS J.A. WEBB J.A. MONAGHAN J.A. BETWEEN: HIS MAJESTY THE KING AND THE MINISTER OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE Appellants and BOLOH 1(a), BOLOH 2(a) male only, BOLOH 12, and BOLOH 13 Respondents Heard at Toronto, Ontario, on March 27, 2023. Judgment delivered at Ottawa, Ontario, on May 31, 2023. REASONS FOR JUDGMENT BY: STRATAS J.A. CONCURRED IN BY: WEBB J.A. MONAGHAN J.A. Date: 20230531 Docket: A-32-23 Citation: 2023 FCA 120 CORAM: STRATAS J.A. WEBB J.A. MONAGHAN J.A. BETWEEN: HIS MAJESTY THE KING AND THE MINISTER OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE Appellants and BOLOH 1(a), BOLOH 2(a) male only, BOLOH 12, and BOLOH 13 Respondents REASONS FOR JUDGMENT STRATAS J.A. A. Introduction [1] The Federal Court (per Brown J.) required the Government of Canada, specifically the appellants, to take steps to cause the respondents, four Canadian citizens currently detained in northeastern Syria in abysmal, deplorable conditions, to be returned to Canada: 2023 FC 98. [2] The facts giving rise to this can be briefly stated. [3] Northeastern Syria is a chaotic war zone: its conditions are ever-changing, dangerous, and violent to all concerned: Reasons of the Federal Court at paras. 10, 152, 160 and 173. It is controlled by the Autonomous Administration of North and East Syria, a non-state entity. It does not consider itself bound by international conventions or treaties concerning human rights, international relations or the safe passage of diplomats. [4] For a number of years now, the Autonomous Administration of North and East Syria has held the respondents in prisons run by its military wing, the Syrian Democratic Forces. The Autonomous Administration of North and East Syria suspects that the respondents fought for or assisted fighters for Daesh or the Islamic State of Iraq and Syria, otherwise known as ISIS: Reasons of the Federal Court at paras. 2 and 7-9. ISIS is a fundamentalist, extremist and militant group known worldwide for beheadings, atrocities and terrorism. [5] The Government of Canada is not any way complicit in the respondents’ presence in Syria or their detention in prison: Reasons of the Federal Court at para. 176. Quite the opposite. From 2011, the Government of Canada has been warning its citizens not to enter Syria due to a brutal civil war that has caused instability, violence and bloodshed: Reasons of the Federal Court at para. 4. Further, the Government of Canada has warned its citizens that if they get into trouble in Syria, it will not be able to assist: Reasons of the Federal Court at para. 6. Since 2012, Canada’s embassy has been closed. [6] Nevertheless, the respondents entered Syria, made their way to northeastern Syria, did whatever they did there, and eventually were detained in a prison controlled by the Autonomous Administration of North and East Syria: Reasons of the Federal Court, at paras. 4-5. [7] Recently, the Autonomous Administration of North and East Syria has been encouraging foreign states to repatriate their nationals from its prisons and from certain camps. On its own accord, the Government of Canada has successfully repatriated some of its citizens from camps. [8] But in every case of potential repatriation, certain challenges must be overcome. For one thing, the criteria and arrangements for the handover of detainees are not known with certainty or particularity: Reasons of the Federal Court at paras. 45-47. The criteria and arrangements must be specifically negotiated with the Autonomous Administration of North and East Syria. The criteria and arrangements it proposes might not be ones that the Government of Canada can practically or legally accept. [9] At a high level, some of the criteria and arrangements are already known. Officials of the Government of Canada or delegates for whom it is responsible will have to travel through the dangerous territory of northeastern Syria to the place where the respondents are to be handed over: Reasons of the Federal Court at paras. 43-45. There they will receive the respondents, sign whatever documents they must sign, and then travel again through the dangerous territory of northeastern Syria. [10] In response to this Court’s questioning during oral argument of this appeal, one of the counsel for the respondents fairly admitted that the situation in northeastern Syria is “very difficult” and has “been described as a war zone”, “the record is replete with all kinds of potential issues and problems and risks that may result [to] a Canadian representative” sent there, and the Autonomous Administration of North and East Syria cannot “guarantee the safety of whoever is in their territory”. The evidentiary record supports these statements. [11] In these circumstances, the respondents say that, as a matter of law and the Charter of Rights and Freedoms, the Government of Canada must take positive steps to cause them to be returned to Canada from this dangerous, unstable war zone. The primary basis for this is subsection 6(1) of the Charter: the right of Canadian citizens “to enter…Canada”. [12] The Federal Court agreed with the respondents. It took the right of Canadian citizens “to enter…Canada” and transformed it into a right of Canadian citizens, wherever they might be, regardless of their conduct abroad, to return to Canada or to have their government take steps to rescue them and return them to Canada: see Reasons of the Federal Court at paras. 105-112, 115, 117, 119, 121-122, 125, 128, 132, 136, 145, 149-150, 155-156, 158, 160-162, 173, and 176. The Federal Court required the Government of Canada to take steps to cause the return of the respondents—who acted against government warnings in circumstances where government did nothing to cause their plight—in the face of challenging issues of planning, logistics, diplomacy, international relations, national security and personal safety. [13] The subsection 6(1) Charter right is not that broad. This Court must intervene. For the following reasons, I would allow the appeal and set aside the judgment of the Federal Court and, giving the judgment the Federal Court should have given, I would dismiss the respondents’ application for judicial review. B. Analysis (1) The proper interpretation of subsection 6(1) of the Charter [14] To interpret subsection 6(1) of the Charter properly, we must first examine a wider, more general question: what is the proper approach to interpreting the Charter? [15] Then we must examine the specific jurisprudence that has interpreted subsection 6(1) of the Charter under that approach. (a) The proper approach to Charter interpretation [16] Soon after the Charter came into force, the Supreme Court told us how to interpret Charter rights and freedoms. [17] Early in our analysis, we must examine the text of Charter rights and freedoms—words that can be changed only by following specific provisions of the Constitution Act, 1982. But the words, properly construed, are only one consideration: other considerations come to bear and can shape the interpretation in significant ways. [18] The Supreme Court’s classic statement on this is as follows: …[T]his analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court's decision in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts. (R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321 at 344 S.C.R.) [19] For the first two decades under the Charter, the Supreme Court consistently followed the Big M approach. That made sense. Except in the rarest, most justified circumstances, once the Supreme Court lays down the law, that law must be obeyed by all—even by the Supreme Court itself: R. v. Salituro, [1991] 3 S.C.R. 654, 68 C.C.C. (3d) 289; R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342; Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489. This is especially the case for foundational jurisprudence that has been around for decades, like Big M. [20] But starting around the turn of this century, the Supreme Court began toying with a looser approach, one that has now been discredited and rejected. Under that approach, well-described in the majority reasons of Quebec (Attorney General) v. 9147-0732 Québec Inc., 2020 SCC 32, 451 D.L.R. (4th) 367, the text was not so much a constraint or an expression of the meaning of constitutional provisions. Rather, it was a cue, prompt or springboard for the Court to fashion a much broader underlying feel, spirit or vibe to widen the scope of the provisions. As a result, sometimes new unwritten constitutional rights, far removed from the constitutional text, were “discovered”: see, e.g., Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31 (broad right of access to courts found under the Attorney General’s judicial appointment power); Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 (extremely expansive overbreadth doctrine developed under section 7). Unsurprisingly, under this looser approach, the Supreme Court began to strike down or circumvent some decades-old binding precedents, with doctrinal inconsistency the result. See e.g., Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245; see also the examples during this time of doctrinal inconsistency listed in Schmidt v. Canada (Attorney General), 2018 FCA 55, [2019] 2 F.C.R. 376 at paras. 91-95. [21] In 2020, the Big M approach and the looser approach met for a showdown. The case of 9147-0732 Québec Inc., above was the battlefield. The Big M approach won. [22] For good measure, soon afterward, a majority of the Supreme Court doubled down on this, reaffirming the proper role of text in constitutional interpretation: Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, 462 D.L.R. (4th) 1. Now no doubt remains. And given the doctrine of precedent that binds all, including the Supreme Court, no doubt can remain. The matter has been settled once and for all. We must interpret the Charter following the Big M approach. [23] Gone is inspiration from some vague feel, spirit or vibe, things that are in the eye of the beholder. In its place is a rigorous, objective and disciplined judicial task guided by the words of the Constitution itself viewed in light of their historical context, the larger objects of the Constitution, and, where applicable, the meaning and purpose of associated provisions in the Constitution. After all, “if [our] job is to enforce the Constitution, then the Constitution is what [we] should be enforcing, not whatever might happen to strike [us] as a good idea at the time”: John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1980) at 12. [24] The Supreme Court’s recent, dual approval of the Big M approach has brought us more doctrinal stability under the Charter, at least in the area of civil cases. This is welcome. Stability furthers the separation of powers between the judiciary and other branches of government: it keeps the judiciary in a predictable, appropriate lane. Stability brings us certainty, predictability, and freedom: it gives us consistent jurisprudence about what governments can and cannot do and about what they can be required to do. Stability bolsters the rule of law and increases confidence in the legal system. The people we serve deserve to be governed by lasting legal doctrine carefully shaped and sculpted over the years by many—not by the personal diktat of whoever happens to sit in a particular judicial chair at a particular moment of time. [25] So faced with a Charter question, how do we proceed? Under the Big M approach, early on we must examine the text of the Charter right or freedom: 9147-0732 Québec Inc. at paras. 8-9, citing British Columbia (Attorney General) v. Canada (Attorney General), [1994] 2 S.C.R. 41, 114 D.L.R. (4th) 193 (the Vancouver Island Railway case), R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566 at para. 32 and Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511 at paras. 36-37. The rule of law “requires that courts give effect to the Constitution’s text”: British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473 at para. 67. The text has “primordial significance”, supplies the “outer bounds” to any examination of the underlying purpose of the provision, prevents the Court from adopting an interpretation that “overshoots…the actual purpose of the right” and is “a foundation and a touchstone for the exercise of constitutional judicial review”: Big M at p. 344; 9147-0732 Québec Inc. at para. 10; R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144 at paras. 21 and 126; Caron at para. 36; Vancouver Island Railway at 88; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236 at paras. 17-18 and 40; Toronto (City) at para. 14; Reference re Secession of Quebec, [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385 at para. 53. [26] But we do not stop with the text. That would be pure textualism—the delegation of our judicial task to find the authentic meaning of a constitutional guarantee to a dictionary. Rather, as mentioned above, we must look for “the scope and purpose of the right” or freedom in question by looking to “the [philosophical and] historical context [of the right or freedom], the larger objects of the Charter, and, where applicable, the meaning and purpose of associated Charter rights”: 9147-0732 Québec Inc. at paras. 7 and 13, citing the classic passage from Big M, above. In some cases, an important part of the task is to “[interpret] the text in a way that is true to the theories on which the text is based”, and an analysis of the structure of the Constitution can shed light on this: Hon. Malcolm Rowe and Manish Oza, “Structural Analysis and the Canadian Constitution” (2023) 101 Can. Bar Rev. 205 at 222, citing Kate Glover, “Structure, Substance and Spirit: Lessons in Constitutional Architecture from the Senate Reform Reference” (2014) 67 S.C.L.R. 221 at 236. [27] In short, although in some cases specific text might take us far, it does not necessarily take us all the way down the road to the final destination. But often it can supply essential guardrails and signposts guiding our way and keeping us on track. [28] Under the Big M approach, where do international and foreign law fit in? They can play a role in Charter interpretation, sometimes significant, by supporting or confirming the result reached by purposive interpretation under the Big M approach: 9147-0732 Québec Inc. at paras. 19-47. As well, some Charter guarantees—and as we shall see, subsection 6(1) of the Charter is one such guarantee—were modelled after provisions in international law instruments. Thus, international jurisprudence under those provisions can often play an important role in the interpretive process. [29] But international law and foreign law do not displace or supplement the Big M approach. They have a defined, limited role, not the sprawling, undisciplined role they had under the looser approach: see 9147-0732 Québec Inc, and, in particular, the comments in the majority opinion about the dissenting opinion’s misuse of international law. When we interpret the Charter, international law and foreign law are not “a series of tasty plates on a buffet table from which we can take whatever we like and eat whatever we please”: Canada (Attorney General) v. Kattenburg, 2020 FCA 164 at para. 26. As well, different sources of international law have different value in the interpretive process: see generally 9147-0732 Québec Inc. at paras. 29-38. (b) Applying the proper interpretive approach: subsection 6(1) of the Charter and specific jurisprudence [30] The interpretation of subsection 6(1) of the Charter offered by the respondents requires the Government of Canada to take positive, even risky action, including action abroad, to facilitate the respondents’ right to enter Canada. In the context of this case, this transforms the right “to enter…Canada” into a right to be returned to Canada. [31] This smacks of the looser approach of interpreting Charter provisions, now discredited and rejected. In this case, the respondents acknowledge the existence of the text of subsection 6(1), but then pluck broad words about its underlying purposes from certain isolated paragraphs in certain Supreme Court cases, ignoring the Supreme Court’s more specific observations and conclusions in those cases, and ignoring the specific text of the subsection 6(1) right. In the end, all that is left are the broad words ripped from their context and presented in the abstract. The result? Subsection 6(1) of the Charter is given a meaning that overshoots its proper scope. [32] We must reject that approach. Instead, we must apply the Big M approach. Under the Big M approach, we keep front of mind the words of the Charter guarantee—the essential guardrails and signposts guiding our way and keeping us on track—while we examine, among other things, the purposes of the Charter and the purposes of the subsection 6(1) guarantee itself. [33] The text of subsection 6(1) of the Charter is as follows: “[e]very citizen of Canada has the right to enter, remain in and leave Canada”. In this case, the key words are “right to enter…Canada”. The words appear to be carefully chosen, specific and clear: self-evidently, a right to enter Canada is not a right to be returned to Canada. [34] Following the Big M approach, we must look at the historical context, the larger objects of the Charter, the meaning and purpose of any associated Charter rights, and the purpose of the particular guarantee. [35] In the case of subsection 6(1) of the Charter, the Supreme Court has done this work for us: United States of America v. Cotroni, [1989] 1 S.C.R. 1469, 48 C.C.C. (3d) 193; Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157. The Supreme Court’s words in these cases bind us. To the extent the Supreme Court has not yet spoken on an issue, our own jurisprudence binds us as well: R. v. Sullivan, 2022 SCC 19, 472 D.L.R. (4th) 521; Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149; Hon. Malcolm Rowe and Leanna Katz, “A Practical Guide to Stare Decisis”, (2020), Windsor Rev. Legal Soc. Issues 1. Both the Supreme Court and the Federal Courts have developed their jurisprudence under subsection 6(1) following the accepted approach in Big M. [36] In Cotroni, the Supreme Court analyzed the text of subsection 6(1) in light of the wider Big M considerations set out above. From that analysis, it concluded (at 1482) that the “central thrust” of subsection 6(1) is “against exile and banishment, the purpose of which is the exclusion of membership in the national community”. This implies that subsection 6(1) is aimed at state action that removes people from Canada or prevents their return, or both. The Supreme Court’s analysis in Cotroni offers no encouragement for the idea that subsection 6(1) includes a right to be returned to Canada. [37] Indeed, Cotroni found (at 1481) that extradition—the sending of a person already present in Canada to a foreign nation to face justice there—was only at the “outer edges of the core values sought to be protected” by subsection 6(1). What about an obligation on the Government of Canada to take positive actions, some of which expose its officials to personal danger, in order to bring back to Canada a person detained in a territory controlled by a non-state entity? Surely that falls outside the “outer edges” of subsection 6(1). [38] In Divito, the Supreme Court further interpreted subsection 6(1) of the Charter and its right to enter Canada. It held that article 12 of the International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47 lay behind section 6 of the Charter and was essential to its interpretation. [39] The Supreme Court noted that article 12(4) provides that “[n]o one shall be arbitrarily deprived of the right to enter his own country”. In analyzing subsection 6(1), the majority of the Supreme Court found that few if any limitations on the right to enter would be considered reasonable. It found this interpretation bolstered by certain contextual factors. For example, section 6(1) is unqualified. This is unlike subsection 6(2), which is qualified by subsections 6(3) and 6(4). Further, subsection 6(1) is not subject to the override provision in section 33. See Divito at para. 28, citing Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519 at para. 11. [40] But, importantly for present purposes, the Supreme Court limited subsection 6(1) of the Charter to a right to enter Canada, nothing more. The Supreme Court did not extend subsection 6(1) to include a right of Canadian citizens to have the Government of Canada return them to Canada. [41] In particular, in Divito (at paras. 45 and 48), the Supreme Court held that an inmate in a prison in the United States could not rely on subsection 6(1) of the Charter to force the Government of Canada to take steps to return him to a prison in Canada. The inmate’s right to return to Canada was governed only by an international treaty and domestic implementing legislation. The Supreme Court emphasized that the ability of a Canadian citizen to leave a foreign territory is governed by the authority and power of the foreign state or entity with control over that territory: Divito at paras. 40 and 48. [42] In its wording and in the concepts it deployed, the Supreme Court in Divito was consistent with Cotroni. Indeed, the best reading of Divito is that the Supreme Court embraced what it said earlier in Cotroni, telling us again what subsection 6(1) of the Charter is about and, importantly for the case at bar, what subsection 6(1) of the Charter is not about. [43] The Supreme Court’s holdings in Divito and Controni bind us. And they make sense. For one thing, the Charter governs matters within the control of governments in Canada: Charter, section 32. Reading subsection 6(1) of the Charter as including an enforceable constitutional obligation on the Government of Canada to take steps in other countries to rescue and repatriate citizens in trouble, where they alone are responsible for their trouble, greatly overshoots the mark. As the Government of Canada puts it: The right to enter set out in s. 6(1) has a clear link to matters under the exclusive jurisdiction of Canada: namely control over who comes into the country by passing through the border. In contrast, the process of returning to Canada from abroad is inherently transnational and multi-jurisdictional. Returning to Canada, especially for citizens detained abroad, is a multi-step process including matters outside of Canada’s territory, jurisdiction and control. (Government of Canada’s memorandum of fact and law at para. 31.) [44] Can the Government of Canada voluntarily try, through diplomacy or other means, to help a citizen in distress abroad? Of course it can. But, as a matter of constitutional law, does it have to? Of course not. Subsection 6(1) of the Charter, the right to enter, remain in and leave Canada, is not a golden ticket for Canadian citizens abroad to force their government to take steps—even risky, dangerous steps—so they can escape the consequences of their actions. [45] The respondents submit that two authorities in the Federal Courts system support their position: Kamel v. Canada (Attorney General), 2009 FCA 21, [2009] 4 F.C.R. 449; Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580, [2010] 1 F.C.R. 267. [46] Kamel and Abdelrazik do not help the respondents. They address a failure by the Government of Canada to issue a travel document without reasonable justification—a relatively easy, administrative step required by law and entirely within the control of Canada, the only step preventing entry into Canada. [47] These authorities do not stand for the broader proposition that, as this Court put it in Kamel in summarizing a party’s submission (at para. 17), the Government of Canada must act “to guarantee entry to or exit from another country”. Indeed, in Abdelrazik, the Federal Court expressly rejected the submission that Canada’s failure to take extraordinary measures to repatriate a citizen, such as arranging for a military jet to take the citizen home, infringed the citizen’s rights under subsection 6(1) of the Charter. [48] The respondents also submit that international law supports their position. It does not. As mentioned in paragraphs 38-39 above, subsection 6(1) of the Charter is modelled upon article 12(4) of the International Covenant on Civil and Political Rights. Article 12(4) provides that “[n]o one shall be arbitrarily deprived of the right to enter his own country”. Textually, this provision does not give people the right to be returned to their country of citizenship. And case law under article 12(4) confirms the interpretation the Supreme Court has adopted in Cotroni and Divito concerning subsection 6(1) of the Charter: Case of H.F. and Others v. France, Application Nos. 24384/19 and 44234/20, Decision of the Grand Chamber of the European Court of Human Rights (14 September 2022), especially at paras. 201, 250-252, 259, 261 and 272-276; see also C.B. v. Germany (no. 22012/93, Commission decision of 11 January 1994, unreported). H.F. tells us that article 12(4) prohibits state actions that arbitrarily prevent citizens from entering their country of citizenship and does not extend to a right to be returned to their country of citizenship. The parties have not placed before this Court any international authorities that conflict with H.F., nor has this Court found any. [49] The Federal Court relied on a letter from the UN Special Rapporteur as support for its imposition of positive obligations upon the Government of Canada under subsection 6(1) of the Charter. The letter does support the Federal Court’s view. But, as we have seen, H.F., a decision of the European Court of Human Rights, says the opposite, in highly detailed, persuasive reasoning. [50] Different international authorities are of different value, and, in particular, international court decisions in adjudicative contexts, such as H.F., deserve far more weight than the non-adjudicative individual opinions of other international actors, such as the letter from the UN Special Rapporteur relied upon by the Federal Court: Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176 at paras. 142-144, 147-148. International law is not a box of chocolates from which one can take what one wants, leaving the rest in the box. Instead, international law is a specialized field calling for discipline, intellectual rigour and careful judgment when applying it to domestic issues: Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, 471 D.L.R. (4th) 391 at paras. 43-48, largely affirming Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100, [2021] 1 F.C.R. 374 at paras. 76-92. [51] The Federal Court did not cite the decision of the European Court of Human Rights in H.F., above. But H.F. is relevant. It concerns article 12(4) of the International Covenant on Civil and Political Rights, which was very much the inspiration behind subsection 6(1) of the Charter. It rejects the existence of a right to be returned from abroad to one’s country of citizenship. It strongly confirms the interpretation of subsection 6(1) of the Charter reached by the Supreme Court in Cotroni and Divito. (c) Application of these principles to this case [52] From the foregoing, it is evident that the Federal Court had no basis under subsection 6(1) of the Charter to make the judgment it did. In such a circumstance, this Court has to intervene, set aside the judgment, and give the judgment the Federal Court should have given. (2) Additional issues [53] In their written submissions, the respondents offer a number of brief submissions on sections 7, 9, 12 and 15 of the Charter. They did not expand upon them in oral argument. In substance, these submissions amount to the same thing: an attempt to rewrite the “right to enter…Canada” in subsection 6(1) of the Charter in order to make it broader. [54] If sections 7, 9, 12 and 15 of the Charter were given the scope the respondents give them here, subsection 6(1) of the Charter would be paved over: it would become completely redundant. Provisions in the Constitution cannot be interpreted and applied to amend, modify or nullify other provisions in the Constitution: Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2 S.C.R. 585 at para. 24; Adler v. Ontario, [1996] 3 S.C.R. 609, (1996), 140 D.L.R. (4th) 385; Gosselin (Tutor of) v. Quebec (Attorney General), 2005 SCC 15, [2005] 1 S.C.R. 238 at para. 14. Subsection 6(1), a specifically worded right meant to govern this sort of circumstance, applies in this case and is not overborne by other, more broadly worded, general rights. [55] In any event, the Charter and all of the sections the respondents invoke do not apply. Canadian state conduct did not lead to the respondents being in northeastern Syria, did not prevent them from entering Canada, and did not cause or continue their plight. The respondents’ own conduct and persons abroad who have control over them alone are responsible. In no way is the Government of Canada infringing the respondents’ right to liberty nor on these facts is it violating a principle of fundamental justice (section 7), arbitrarily detaining the respondents (section 9), inflicting cruel and unusual punishment on them (section 12) or discriminating against them (section 15). To the extent these rights are being infringed, entities other than the Government of Canada are responsible. [56] Further, the application of the Charter in this case would be extraterritorial and invalid. True, sometimes the Charter can apply to circumstances outside of Canada: see e.g., Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44. But for that to happen, there must be some action or involvement by the Government of Canada to attract the application of the Charter. In particular, there must be either evidence of “Canadian participation in a process that violates Canada’s international law obligations” or “consent by the foreign state to the application of Canadian law”: R. v. McGregor, 2023 SCC 4 at para. 18; see also R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 at paras. 51-52 and 101 and Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125 at paras. 18-19. Neither is present here. [57] As the Federal Court found, there is no evidence of Canadian participation or contribution to the respondents’ plight. A foreign state has not consented to the application of Canadian law. Instead, the respondents’ plight stems from foreign causes and the actions or omissions of the Autonomous Administration of North and East Syria, the Syrian Democratic Forces, or both. Thus, in this case, the Charter does not apply. [58] For the benefit of future cases, the remedy granted by the Federal Court deserves comment. Here too, the Federal Court erred in law. [59] The Federal Court said it was granting declarations. The relevant portions of its judgment are as follows: 2. It is hereby declared that the Applicants are entitled as soon as reasonably possible to the Respondents making formal requests to [the Autonomous Administration of North and East Syria] that [the Autonomous Administration of North and East Syria] allow the voluntary repatriation of the Canadian men held in the prisons run by [the Autonomous Administration of North and East Syria’s] military wing the [Syrian Democratic Forces]. 3. It is hereby declared that the Applicants are entitled to be provided by the Respondents with passports or emergency travel documents as soon as they are required after [the Autonomous Administration of North and East Syria] agrees to allow the Applicants to be repatriated to Canada. 4. It is hereby declared that the Applicants are entitled [to] appointment by the Respondents of a representative(s) or delegates(s) to attend within [the Autonomous Administration of North and East Syria] controlled territory or as otherwise agreed as soon as possible after [the Autonomous Administration of North and East Syria] agrees to hand over the Applicants for the repatriation to Canada. [60] Declarations are supposed to be declarations of rights held by those seeking them. But, in reality, what the Federal Court awarded were not declarations. They were disguised mandatory orders or disguised mandamus remedies against the Government of Canada. [61] The established legal prerequisites for administrative law remedies cannot be avoided simply by applying a different label to the remedy, such as “declaration”: Schmidt at paras. 21-22; Hupacasath First Nation v. Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4, 379 D.L.R. (4th) 737. Instead, the court must determine the essential character and real essence of the remedy being sought: JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 at paras. 49-50. Once that is done, the court must first identify the legal prerequisites for it. Only then can it decide whether it is able to grant the remedy and, if so, whether it should. [62] The essential character and real essence of the remedy the Federal Court awarded was the imposition of mandatory obligations upon the Government of Canada, something akin to mandamus. The Federal Court said that the Government of Canada “must make a formal request” for the repatriation of the respondents (at para. 155), must provide appropriate travel documents to the respondents (at para. 145) and “must appoint” a delegate or a Government of Canada official to travel to Syria to deal with the handover of the respondents (at para. 161). These matters had to be done “as soon as reasonably possible” (at para. 160), meaning forthwith. [63] However, mandatory obligations or mandamus cannot be imposed without first determining whether their exacting legal prerequisites are met: for a statement of these prerequisites, see, e.g., Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55, 444 N.R. 93 at para. 14, citing, among other authorities, Apotex v. Canada (Attorney General), [1994] 3 S.C.R. 1100, 29 Admin LR (2d) 1, aff’g [1994] 1 F.C. 742, 18 Admin LR (2d) 122 (C.A.) at 767-768 F.C. Here, the prerequisites were not met. [64] Further, in granting mandatory remedies in this area, courts must proceed with caution. The Government of Canada is entitled to consider possible dangers and other considerations such as foreign relations, international affairs and national security, and their judgments on such matters deserve a wide margin of appreciation and deference: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3 at para. 56; Khadr (2010) at para. 37. [65] In deciding cases, judges are restricted to the evidence supplied by self-interested parties and have a deep knowledge of law but little else at their disposal. In the sort of ever-evolving, sensitive and complex context we have here, are judges well placed to easily substitute their opinion for that of the Government of Canada, given the foreign information and intelligence, knowledge, and experience and expertise in foreign relations and international affairs it has? Of course not. [66] Courts must appropriately defer to the executive when it acts on matters quintessentially and uniquely within its ken: Canada v. Kabul Farms Inc., 2016 FCA 143, 13 Admin. L.R. (6th) 11 at para. 25; CMRRA-SODRAC Inc. v. Apple Canada Inc., 2020 FCA 101 at para. 49; Re:Sound v. Canadian Association of Broadcasters, 2017 FCA 138, 148 C.P.R. (4th) 91 at para. 49; Canadian Copyright Licensing Agency (Access Copyright) v. Canada, 2018 FCA 58, 422 D.L.R. (4th) 112 at para. 100; Hupacasath First Nation at paras. 66-67, citing numerous cases from the Supreme Court. Sensitive issues of foreign relations and international affairs are just such a matter: Portnov v. Canada (Attorney General), 2021 FCA 171, 461 D.L.R. (4th) 130 at para. 44; Canada v. Schmidt, [1987] 1 S.C.R. 500, 7 D.L.R. (4th) 95 at 522-523 S.C.R.; Spencer v. The Queen, [1985] 2 S.C.R. 278, 21 D.L.R. (4th) 756; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, 84 D.L.R. (4th) 438; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, 18 D.L.R. (4th) 481. [67] The Government of Canada correctly submits that the Federal Court accorded insufficient deference in this case: The Court directed Canada to undertake what can only be understood as diplomatic negotiations with [the Autonomous Administration of North and East Syria], a foreign non-state actor, and to travel to a foreign territory, without the relevant foreign State’s consent as normally required, to effect the repatriation of the detained Respondents as soon as possible after [the Autonomous Administration of North and East Syria] agrees to release them. This decision leaves the Government little flexibility or control over important matters of high policy. (Government of Canada’s memorandum of fact and law at para. 82.) In the words of the Supreme Court in Khadr (2010) (at para. 39), the Federal Court gave “too little weight to the constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada’s broader national interests”. [68] To the extent that the Court’s declaratory remedy was not just a mandamus order but was intended to be made under subsection 24(1) of the Charter as an “appropriate and just” remedy, many of the same considerations apply. For example, remedies under subsection 24(1) of the Charter must be granted with due respect for the proper roles of the judiciary and the executive, and the legal and practical limits of the judicial role: Doucet-Boudreau at paras 56-57. [69] Finally, this Court called for supplementary written submissions on the issue whether the Government of Canada might have a positive obligation to take steps to facilitate the respondents’ subsection 6(1) rights to enter Canada, following the framework supplied in cases such as Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673 and Toronto (City), above. The Court has received the parties’ supplementary submissions and has read and considered them. [70] Given the interpretation of subsection 6(1) of the Charter, set out above, imposing a positive obligation on the Government of Canada would rewrite the text of subsection 6(1) and extend it beyond its proper scope. Subsection 6(1), properly interpreted, gives Canadian citizens a right to enter, remain in and leave Canada, nothing more. Imposing a positive obligation would transform subsection 6(1) from its genuine meaning—just a right to enter Canada—into a sweeping right of Canadian citizens to have the Government of Canada take all necessary steps to return them to Canada. Such a right would have potentially limitless scope. It would cover cases ranging from the repatriation of someone detained abroad for whatever reason, including the alleged violation of foreign law in a foreign land, to the payment of ransom to foreigners holding a Canadian citizen hostage. A right of that scope could potentially collide with international law understandings of state sovereignty. [71] For good measure, the reasoning in subsection 6(1) cases such as Cotroni, Divito, Kamel and Abdelrazik, above, precludes imposing positive obligations on government to facilitate the right to enter Canada. The only recognized circumstance is the issuance of a passport or travel document in Kamel and Abdelrazik, the failure of which was taken to be government action preventing the right to enter Canada. [72] Finally, courts normally impose positive obligations on government to assist in the exercise of a right or freedom where government itself is responsible for the inability to exercise a fundamental freedom: Dunmore, above; Baier, above at paras. 29-30; Toronto (City), above at para. 23; Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23, [2010] 1 S.C.R. 815 at para. 37. In this case, the Government of Canada is not responsible for the respondents’ inability to enter Canada: here, the responsibility lies with the Autonomous Administration of North and East Syria, the Syrian Democratic Forces, the respondents themselves who entered Syria against the Government of Canada’s advice, or any combination of them. C. This Court’s stay of the Federal Court’s judgment and developments since [73] By Order dated March 14, 2023, this Court stayed the Federal Court’s judgment. However, it required that the Government of Canada “continue to take steps in furtherance of paragraph 2 of the Federal Court’s [judgment] unless and until the appellants determine that taking a particular further step would be detrimental, as determined by the appellants acting in good faith, to the respondents”. [74] In previous correspondence, the Government of Canada has advised that it has been taking such steps. However, by letter dated May 12, 2023, the Government of Canada stated that “Canada has determined in good faith that taking further steps at this time to request the voluntary repatriation of the respondents would be detrimental to them”. [75] By letter dated May 16, 2023, the respondents asked the Government of Canada to disclose its information and reasoning supporting that determination. [76] No motion has been brought. Thus, we need not decide this dispute. In any event, this will soon be moot. The Federal Court’s judgment, including the requirements of paragraph 2 of the judgment, will be set aside when this Court issues its judgment allowing the appeal. [77] The respondents’ May 16, 2023 letter also enclosed an affidavit from a former senior official of Amnesty International. In this affidavit, he says that he and a delegation of “parliamentarians, former diplomats, human rights experts and lawyers” will travel to northeastern Syria and will visit the prison in which the respondents are being held. There they will try to secure the release of the respondents. Exactly what is to happen if they succeed is unknown: for one thing, the record suggests that security assessments of the respondents will have to be conducted and, perhaps, measures will have to be put in place before they can transit other countries and enter Canada. [78] The delegation is free to evaluate the risks and do as it pleases. But this does not change the outcome of this appeal. The Government of Canada is not constitutionally obligated or otherwise obligated at law to repatriate the respondents. D. Postscript [79] In a number of other cases, the Government of Canada has surmounted the practical and legal obstacles and has successfully repatriated Canadian citizens from camps in northeastern Syria. [80] As mentioned, these reasons stand for the proposition that the Government of Canada is not constitutionally obligated or otherwise obligated at law to repatriate the respondents. However, these reasons should not be taken to discourage the Government of Canada from making efforts on its own to bring about that result. E. Proposed disposition [81] For the foregoing reasons, I would allow the Government of Canada’s appeal, set aside the Federal Court’s judgment and, giving the order the Federal Court should have given, dismiss the respondents’ application. Given the circumstances, I would not award costs against the respondents. “David Stratas” J.A. “I agree Wyman W. Webb J.A.” “I agree K.A. Siobhan Monaghan J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-32-23 APPEAL FROM A JUDGMENT OF THE HONOURABLE JUSTICE HENRY S. BROWN DATED JANUARY 20, 2023, NO. T-1483-21 STYLE OF CAUSE: HIS MAJESTY THE KING et al. v. BOLOH 1(a) et al. PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: March 27, 2023 REASONS FOR JUDGMENT BY: STRATAS J.A. CONCURRED IN BY: WEBB J.A. MONAGHAN J.A. DATED: May 31, 2023 APPEARANCES: Anne M. Turley Elizabeth Richards For The Appellants Lawrence Greenspon For The Respondents, except boloh 13 Barbara Jackman Zoe Chong FOR THE RESPONDENT, BOLOH 13 SOLICITORS OF RECORD: Shalene Curtis-Micallef Deputy Attorney General of Canada For The Appellants Greenspon Granger Hill Ottawa, Ontario For The Respondents, except boloh 13 Jackman & Associates Toronto, Ontario FOR THE RESPONDENT, BOLOH 13\n\n### Legal Analysis\nThe court's analysis focuses on: ation for judicial review. B. Analysis (1) The proper interpretation of subsection 6(1) of the Charter [14] To interpret subsection 6(1) of the Charter properly, we must first examine a wider, more general question: what is the proper approach to interpreting the Charter? [15] Then we must examine the specific jurisprudence that\n\n### Precedential Value\nAs a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation."}
{"prompt": "What administrative law principles are applied in this Federal Court of Canada decision?\n\nLi v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2023-07-21 Neutral citation 2023 FC 1006 File numbers IMM-7896-22 Decision Content Date: 20230721 Docket: IMM-7896-22 Citation: 2023 FC 1006 Ottawa, Ontario, July 21, 2023 PRESENT: Madam Justice McDonald BETWEEN: JUN LI Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondents JUDGMENT AND REASONS I. Background [1] This is an Application for judicial review of an Exclusion Order issued by the Minister of Citizenship and Immigration’s delegate [Minister’s Delegate], dated July 26, 2022 [Exclusion Order]. [2] The Applicant is a 40-year-old citizen of China who entered Canada on a student visa in August 2001. His student visa expired in November 2002, but he remained in Canada continuously since then without status. [3] The Applicant married a Canadian permanent resident and the couple have two Canadian children. In July 2021, an in-Canada spousal sponsorship application was submitted for the Applicant. A. Decision Under Review [4] The Applicant was interviewed by an inland enforcement officer on May 30, 2022. At that interview, the Applicant indicated he had not worked since the expiry of his student visa in 2002 and that he had not applied for an extension of his status. [5] After this interview, a Subsection 44(1) Report was issued, recommending an Exclusion Order be issued against the Applicant, under subsections 41(a) and 29(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The Subsection 44(1) Report noted that the Applicant had not obtained an extension of his status since it expired in 2002. [6] The Applicant was interviewed by the Minister’s Delegate on July 26, 2022. When asked by the Minister’s Delegate if he had applied for an extension to stay in Canada longer, the Applicant responded ‘no’. [7] The Minister’s Delegate found that pursuant to subsection 41(a) of the IRPA, on a balance of probabilities, there were grounds to believe that the Applicant was inadmissible for failing to comply with subsection 29(2) of the IRPA, which requires a temporary resident to leave Canada at the end of their authorized stay. II. Relevant Legislation [8] Section 41 of the IRPA states: A person is inadmissible for failing to comply with this Act (a) in the case of a foreign national, through an act or omission which contravenes, directly or indirectly, a provision of this Act. S’agissant de l’étranger, emportent interdiction de territoire pour manquement à la présente loi tout fait — acte ou omission — commis directement ou indirectement en contravention avec la présente loi et, s’agissant du résident permanent, le manquement à l’obligation de résidence et aux conditions imposées. [9] Subsection 29(2) of the IRPA states: A temporary resident must comply with any conditions imposed under the regulations and with any requirements under this Act, must leave Canada by the end of the period authorized for their stay and may re-enter Canada only if their authorization provides for re-entry. Le résident temporaire est assujetti aux conditions imposées par les règlements et doit se conformer à la présente loi et avoir quitté le pays à la fin de la période de séjour autorisée. Il ne peut y rentrer que si l’autorisation le prévoit. III. Issue and Standard of Review [10] The Applicant raises both reasonableness and procedural fairness issues in this Application. As the Applicant did not make any substantive submissions on procedural fairness, I will only address the reasonableness of the Decision. [11] The standard of review is reasonableness, per Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. IV. Analysis [12] The Applicant submits that in issuing the Exclusion Order, the Minister’s Delegate failed to consider his personal circumstances. In particular, he argues the Minister’s Delegate was obligated to consider humanitarian and compassionate [H&C] factors including the best interests of his children [BIOC]. [13] There are two issues with this submission. [14] First, there is no evidence the Applicant raised H&C or BIOC considerations at either of the two interviews with Canada Border Services Agency. Nor is there evidence that he requested that these factors be considered in any way. These factors appear to have been raised for the first time on judicial review. In the circumstances, the Minister’s Delegate cannot be faulted for not considering an argument that was not raised. [15] Second, the case law is clear that the Minister’s Delegate is not required to consider H&C grounds in the context of an exclusion order. In Bermudez v Canada (Citizenship and Immigration), 2016 FCA 131, the Federal Court of Appeal held “non-citizens, whether they be foreign nationals or permanent residents, do not have the right to have H&C considerations imported and read into every provision of the IRPA, the application of which could jeopardize their status” (at para 38). [16] Specifically in the context of exclusion orders, the Federal Court has repeatedly held that a minister’s delegate is not required to consider H&C factors, including the BIOC, when issuing an exclusion order under section 44 (see Eberhardt v Canada (Public Safety and Emergency Preparedness), 2013 FC 1077 at paras 58-59; Rosenberry v Canada (Citizenship and Immigration), 2010 FC 882 at para 36 [Rosenberry]; and Lasin v Canada (Minister of Citizenship and Immigration), 2005 FC 1356). [17] In Rosenberry, the Court held: [36] The substance of the decision did not require the Minister’s delegate to consider the H&C application or H&C factors at all. Under section 44 immigration officials are simply involved in fact-finding. They are under an obligation to act on facts indicating inadmissibility. It is not the function of such officers to consider H&C factors or risk factors that would be considered in a pre-removal risk assessment. This was recently confirmed in Cha v. Canada (Minister of Citizenship and Immigration), 2006 FCA 126, [2007] 1 F.C.R. 409 at paragraphs 35 and 37. [18] Accordingly, the Applicant’s submissions that the Minister’s Delegate was required to consider H&C factors is without merit. [19] The Applicant also relies upon Ouedraogo v Canada (Public Safety and Emergency Preparedness), 2016 FC 810 [Ouedraogo] where Justice McVeigh held that the term ‘may’ in section 44(2) of the IRPA and subparagraph 228(1)(c)(iv) of the Immigration and Refugee Protection Regulations, SOR/2002-227 gave the minister’s delegate limited discretion on whether to issue an exclusion order. In Ouedraogo, the applicant was within the 90 day period to restore his status in Canada and Justice McVeigh held “[t]he exercise of discretion is limited to examine whether on an overstay the applicant has applied for restoration or could have been implied to have applied within the 90 day period before he came to the attention of Immigration officials” (at para 24). Justice McVeigh concluded that the minister’s delegate had not fettered their limited discretion in the circumstances, in considering a policy which reflected the competing objectives within the IRPA (at para 33). [20] The facts in Ouedraogo are different from this case. Here, the Applicant did not apply for restoration of his status within 90 days and, in fact, remained in Canada without status for over 20 years. In any event, with respect to the Minister’s Delegate discretion, this has been described as “limited, if not non‑existent” in the context of issuing an exclusion order (Diakité v Canada (Public Safety and Emergency Preparedness), 2018 FC 1268 at para 13). [21] Here, the Minister’s Delegate was not required to exercise their limited discretion to consider any H&C factors, especially where there is no evidence that those arguments were raised by the Applicant. [22] Overall, the Applicant failed to demonstrate that the Decision of the Minister’s Delegate falls outside a range of possible, acceptable outcomes which are defensible in respect of the facts and law as stated in Vavilov. The Minister’s Delegate’s Decision is therefore reasonable. V. Conclusion [23] This Application for judicial review is dismissed and there is no question for certification. JUDGMENT IN IMM-7896-22 THIS COURT’S JUDGMENT is that: The judicial review Application is dismissed; and There is no question to be certified pursuant to section 74 of the Immigration and Refugee Protection Act, SC 2001, c 27. blank \"Ann Marie McDonald\" blank Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-7896-22 STYLE OF CAUSE: LI v THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: toronto, on DATE OF HEARING: june 8, 2023 JUDGMENT AND REASONS: MCDONALD J. DATED: July 21, 2023 APPEARANCES: Harsher Singh Sidhu For The Applicant Kevin Doyle For The Respondents SOLICITORS OF RECORD: My Visa Source Toronto, ON For The Applicant Attorney General of Canada Toronto, ON For The Respondents", "response": "## Analysis of Court Decision: Li v. Canada (Citizenship and Immigration)\n\n### Key Issues\neness and procedural fairness issues in this Application. As the Applicant did not make any substantive submissions on procedural fairness, I will only address the reasonableness o\n\n### Standard of Review\non le prévoit. III. Issue and Standard of Review [10] The Applicant raises both reasonableness and procedural fairness issues in this Application. As the Applicant did not make any\n\n### Legal Analysis\nThe court's analysis focuses on: v, 2019 SCC 65 [Vavilov]. IV. Analysis [12] The Applicant submits that in issuing the Exclusion Order, the Minister’s Delegate failed to consider his personal circumstances. In particular, he argues the Minister’s Delegate was obligated to consider humanitarian and compassionate [H&C] factors including the best interests of his\n\n### Precedential Value\nThis Federal Court decision has persuasive value for similar cases before the court and provides guidance to the Immigration and Refugee Board on the proper interpretation of law and procedural requirements. While not binding on other Federal Court judges, it establishes a precedent that will often be followed for consistency."}
{"prompt": "Analyze this Refugee Protection Division decision from the Immigration and Refugee Board of Canada and explain how it applies refugee definition:\n\nImmigration and Refugee Board Commission de l'immigration et du statut de réfugié Refugee Protection Division Section de la protection des réfugiés RPD File No. / No de dossier de la SPR : MA6-08826 Private Proceeding Huis clos Claimant(s) Demandeur(e)s d'asile XXXXX XXXXX XXXXX XXXXX Date(s) of Hearing Date(s) de l'audience April 8, 2008 Place of Hearing Lieu de l'audience Montréal, Quebec Date of Decision Date de la décision April 25, 2008 Panel Tribunal Me Michel Byczak Claimant's Counsel Conseil du demandeur d'asile Me Gisela Barraza Tribunal Officer Agent du tribunal Sylvain Paré Designated Representative Représentant désigné N/A Minister's Counsel Conseil du ministre N/A XXXXX XXXXX XXXXX XXXXX, a Mexican citizen, is claiming refugee protection under paragraph 97(1)(b) of the Immigration and Refugee Protection Act (IRPA). SUMMARY OF ALLEGED FACTS The claimant is a 25-year-old XXXXX XXXXX. He had a very good position with XXXXX XXXXX XXXXX, which supplies parts to XXXXX. He comes from a very comfortable family in Mexico. The claimant's problems started on XXXXX, 2006. At around 9:00 that night, 12 men drove up to his house in a white van that had no licence plates. They allegedly showed the claimant their weapons and asked him where he hid the drugs. One of the individuals then struck the claimant on the leg with a metal hammer. The claimant had no idea what they wanted and did not understand why they had targeted him since he had nothing to do with drug trafficking. The claimant does not know the identities of his assailants, who wanted to know where the drugs were. They finally let him go. They also warned him not to file a complaint. The next day, XXXXX, 2006, the claimant went to his parents who live two hours away by car. On XXXXX and XXXXX, the claimant travelled to the United States and back twice. A few days later, some of his assailants came looking for him at his parents' house. The claimant telephoned the public ministry for help. He was told that police officers would be dispatched, but they never showed up. On XXXXX, the claimant decided to leave the country permanently and seek refugee protection in Canada. The claimant did not consider the possibility of an internal flight alternative before leaving his country. He also filed a complaint with the Human Rights Commission on the same day that he filed a complaint with the public ministry. However, he was told that they could only get involved in cases of improper conduct by public servants. DETERMINATION The claimant is not a \"person in need of protection\" under paragraph 97(1)(b) of the IRPA. ANALYSIS Identity The claimant's identity has been established by means of a photocopy of his Mexican passport. Internal flight alternative (IFA) According to the panel, this case can be resolved based on the existence of an internal flight alternative (IFA). The IFA was mentioned during the hearing. The cities of Mexico DF, Guadalajara and Cancun were suggested as IFAs. The test for determining whether an IFA exists has two components. First, is there another part of the country where the claimant would not be subjected to a danger or a risk, as per subsection 97(1) of the IRPA? If so, would it be objectively unreasonable or too severe to expect the claimant to move to another part of his country before claiming refugee protection abroad?1 The second component is objective. Is it objectively reasonable to expect the claimant to move to another part of the country? The criteria are very strict. In this case, the claimant does not know why he was attacked. The assailants allegedly did not ask for any money. It is very difficult to determine the motive for their actions. The claimant speculated that he was targeted because of his financial situation, which is comfortable, and the fact that his parents are considered rich, or middle class. He went on to state [translation] \"I do not know what to answer\". He finally answered no when he was asked if he knew who had attacked him. The claimant said that he did not know whether these people wanted to extort money from him. He did not know what they wanted. The panel must ask itself whether this is a localized situation or whether the assailants would continue to search for the claimant to harass him or threaten his life. When asked if he could move to Mexico City DF, the claimant answered that it had crossed his mind, but that unfortunately there are delinquents and drug traffickers there, although they are elsewhere as well. Given that the claimant was not involved in drugs in any way, the panel is inclined to wonder whether this might be a case of mistaken identity. The only place that the claimant tried to go before deciding to claim refugee protection in Canada was to his parents' home, which is a two-hour drive away. He allegedly saw a few people in front of his parents' home and asked the police to send help. Although the police should have responded, they did not. However, when people are looking for someone, they usually search for them at their family members' homes first as that would be the first place that someone would go to. When the claimant was asked if he could find an IFA in Cancun or in Guadalajara, he answered: [translation] \"I do not know why; they will look for me in other places.\" He was then asked why he had not tried to find an IFA. He stated that he would end up working for another international company or asking for a transfer from the company that he was currently working for, and that it would be easy to find him. The panel does not share the opinion that it would be easy to find the claimant. The claimant is an XXXXX with 16 and one half years of schooling. From the beginning of 2004 to the end of 2006, he worked as a quality-control supervisor with a company that supplies parts to XXXXX. He had a good position, above-average wages, and came from a family that could be considered wealthy. Without knowing the motive for the attack, the panel sees no reason to believe that the crime that was committed was anything but a localized incident. The panel does not see why these people would go to other parts of the country to find the claimant in the suggested larger cities, or in other cities in Mexico. Although the claimant might encounter some difficulties in relocating, these do not, in and of themselves, make the possibility of an IFA unreasonable.2 The panel considers the IFA to be a realistic and affordable option in this case. The panel is of the opinion that the claimant would not be exposed to great physical danger or be subjected to undue hardship if he were to travel or to relocate to one of the suggested regions of Mexico.3 The claimant has not discharged his burden of proof of demonstrating that there is no IFA available to him.4 The panel concludes that an IFA would not be unreasonable in his case. CONCLUSION The claimant is not a \"person in need of protection\". The claim for refugee protection is rejected. Michel Byczak Me Michel Byczak April 25, 2008 Date 1 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.); Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); M.C.I. v. Ranganathan, Rohini (F.C.A., No. A-348-99), Létourneau, Sexton, Malone, December 21, 2000. 2 M.C.I. v. Ranganathan, Rohini (F.C.A., No. A-348-99), Létourneau, Sexton, Malone, December 21, 2000. 3 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.). 4 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). REFUGEE PROTECTION DIVISION / HARASSMENT / DRUG TRAFFICKING / HIDING / INTERNAL FLIGHT ALTERNATIVE / MALE / NEGATIVE / MEXICO --------------- --------------- --------------- --------------- RPD File No. / No de dossier de la SPR : MA6-08826 4", "response": "## Analysis of Refugee Decision: MA6-08826\n\n### Key Issues\nImmigration and Refugee Board Commission de l'immigration et du statut de réfugié Refugee Protection Division Section de la protection des réfugiés RPD File No. / No de dossier de la SPR : MA6-08826 Private Proceeding Huis clos Claimant(s) Demandeur(e)s d'asile XXXXX XXXXX XXXXX XXXXX Date(s) of Hearing Date(s) de l'audience April 8, 2008 Place of Hearing Lieu de l'audience Montréal, Quebec Date of Decision Date de la décision April 25, 2008 Panel Tribunal Me Michel Byczak Claimant's Counsel Conseil du demandeur d'asile Me Gisela Barraza Tribunal Officer Agent du tribunal Sylvain Paré Designated Representative Représentant désigné N/A Minister's Counsel Conseil du ministre N/A XXXXX XXXXX XXXXX XXXXX, a Mexican citizen, is claiming refugee protection under paragraph 97(1)(b) of the Immigration and Refugee Protection Act (IRPA). SUMMARY OF ALLEGED FACTS The claimant is a 25-year-old XXXXX XXXXX. He had a very good position with XXXXX XXXXX XXXXX, which supplies parts to XXXXX. He comes from a very comfortable family in Mexico. The claimant's problems started on XXXXX, 2006. At around 9:00 that night, 12 men drove up to his house in a white van that had no licence plates. They allegedly showed the claimant their weapons and asked him where he hid the drugs. One of the individuals then struck the claimant on the leg with a metal hammer. The claimant had no idea what they wanted and did not understand why they had targeted him since he had nothing to do with drug trafficking. The claimant does not know the identities of his assailants, who wanted to know where the drugs were. They finally let him go. They also warned him not to file a complaint. The next day, XXXXX, 2006, the claimant went to his parents who live two hours away by car. On XXXXX and XXXXX, the claimant travelled to the United States and back twice. A few days later, some of his assailants came looking for him at his parents' house. The claimant telephoned the public ministry for help. He was told that police officers would be dispatched, but they never showed up. On XXXXX, the claimant decided to leave the country permanently and seek refugee protection in Canada. The claimant did not consider the possibility of an internal flight alternative before leaving his country. He also filed a complaint with the Human Rights Commission on the same day that he filed a complaint with the public ministry. However, he was told that they could only get involved in cases of improper conduct by public servants. DETERMINATION The claimant is not a \"person in need of protection\" under paragraph 97(1)(b) of the IRPA. ANALYSIS Identity The claimant's identity has been established by means of a photocopy of his Mexican passport. Internal flight alternative (IFA) According to the panel, this case can be resolved based on the existence of an internal flight alternative (IFA). The IFA was mentioned during the hearing. The cities of Mexico DF, Guadalajara and Cancun were suggested as IFAs. The test for determining whether an IFA exists has two components. First, is there another part of the country where the claimant would not be subjected to a danger or a risk, as per subsection 97(1) of the IRPA? If so, would it be objectively unreasonable or too severe to expect the claimant to move to another part of his country before claiming refugee protection abroad?1 The second component is objective. Is it objectively reasonable to expect the claimant to move to another part of the country? The criteria are very strict. In this case, the claimant does not know why he was attacked. The assailants allegedly did not ask for any money. It is very difficult to determine the motive for their actions. The claimant speculated that he was targeted because of his financial situation, which is comfortable, and the fact that his parents are considered rich, or middle class. He went on to state [translation] \"I do not know what to answer\". He finally answered no when he was asked if he knew who had attacked him. The claimant said that he did not know whether these people wanted to extort money from him. He did not know what they wanted. The panel must ask itself whether this is a localized situation or whether the assailants would continue to search for the claimant to harass him or threaten his life. When asked if he could move to Mexico City DF, the claimant answered that it had crossed his mind, but that unfortunately there are delinquents and drug traffickers there, although they are elsewhere as well. Given that the claimant was not involved in drugs in any way, the panel is inclined to wonder whether this might be a case of mistaken identity. The only place that the claimant tried to go before deciding to claim refugee protection in Canada was to his parents' home, which is a two-hour drive away. He allegedly saw a few people in front of his parents' home and asked the police to send help. Although the police should have responded, they did not. However, when people are looking for someone, they usually search for them at their family members' homes first as that would be the first place that someone would go to. When the claimant was asked if he could find an IFA in Cancun or in Guadalajara, he answered: [translation] \"I do not know why; they will look for me in other places.\" He was then asked why he had not tried to find an IFA. He stated that he would end up working for another international company or asking for a transfer from the company that he was currently working for, and that it would be easy to find him. The panel does not share the opinion that it would be easy to find the claimant. The claimant is an XXXXX with 16 and one half years of schooling. From the beginning of 2004 to the end of 2006, he worked as a quality-control supervisor with a company that supplies parts to XXXXX. He had a good position, above-average wages, and came from a family that could be considered wealthy. Without knowing the motive for the attack, the panel sees no reason to believe that the crime that was committed was anything but a localized incident. The panel does not see why these people would go to other parts of the country to find the claimant in the suggested larger cities, or in other cities in Mexico. Although the claimant might encounter some difficulties in relocating, these do not, in and of themselves, make the possibility of an IFA unreasonable.2 The panel considers the IFA to be a realistic and affordable option in this case. The panel is of the opinion that the claimant would not be exposed to great physical danger or be subjected to undue hardship if he were to travel or to relocate to one of the suggested regions of Mexico.3 The claimant has not discharged his burden of proof of demonstrating that there is no IFA available to him.4 The panel concludes that an IFA would not be unreasonable in his case. CONCLUSION The claimant is not a \"person in need of protection\". The claim for refugee protection is rejected. Michel Byczak Me Michel Byczak April 25, 2008 Date 1 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.); Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); M.C.I. v. Ranganathan, Rohini (F.C.A., No. A-348-99), Létourneau, Sexton, Malone, December 21, 2000. 2 M.C.I. v. Ranganathan, Rohini (F.C.A., No. A-348-99), Létourneau, Sexton, Malone, December 21, 2000. 3 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.). 4 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). REFUGEE PROTECTION DIVISION / HARASSMENT / DRUG TRAFFICKING / HIDING / INTERNAL FLIGHT ALTERNATIVE / MALE / NEGATIVE / MEXICO --------------- --------------- --------------- --------------- RPD File No. / No de dossier de la SPR : MA6-08826 4\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: ragraph 97(1)(b) of the IRPA. ANALYSIS Identity The claimant's identity has been established by means of a photocopy of his Mexican passport. Internal flight alternative (IFA) According to the panel, this case can be resolved based on the existence of an internal flight alternative (IFA). The IFA was mentioned during the hearing\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "What legal principles are established in this Refugee Appeal Division decision from the Immigration and Refugee Board of Canada?\n\nRAD File / Dossier de la SAR : MC1-02685 MC1-02686 / MC1-02687 / MC1-02688 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal [REDACTED] [REDACTED] [REDACTED] [REDACTED][REDACTED] Personnes en cause Date of decision April 13, 2022 Date de la décision Panel Benjamin R. Dolin Tribunal Counsel for the persons who are the subject of the appeal Jacqueline M Lewis Conseil des personnes en cause Designated representative [REDACTED] Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] [REDACTED] (the Principal Appellant) and his wife, [REDACTED], are citizens of Nigeria. They have three daughters, the youngest of which was born in Canada. The other two, [REDACTED] and [REDACTED](the Minor Appellants), are Nigerian citizens joined to their parents' claim. [2] The family claims to fear persecution in their home country at the hands of the Principal Appellant's uncle, who they allege wishes to kill the adult Appellants and perform female genital mutilation (FGM) on the Minor Appellants. They also allege that they are at risk of harm because the Principal Appellant refused to join a group called the [REDACTED] (XXXX). [3] Their claim was rejected by the Refugee Protection Division (RPD) in April 2001 on the basis that the Appellants were not credible. They appealed that decision to the Refugee Appeal Division (RAD). The RAD member noted that the RPD had questioned the Appellants on the availability of an Internal Flight Alternative (IFA) but determined it was unnecessary to rule on the issue due to its finding that the Appellants were not credible. The RAD felt that the IFA issue could be determinative of the appeal and asked for submissions from the Appellants and their counsel. When no submissions were received, the RAD issued it reasons for decision in October 2021, dismissing the appeal on the basis that an IFA was available to the Appellants in Abuja. [4] When they received the RAD decision, the Appellants applied to re-open their appeal based on counsel incompetence. Their former counsel had told the Appellants that there was no need to reply to the RAD's request for submissions. The Appellants provided text messages from their former counsel confirming their allegation that he had improperly advised them that making submissions on the IFA issue was unnecessary. As a result, the RAD granted their request to re-open the appeal due to inadequate representation. [5] The Appellants now have new counsel, who has provided submissions on the IFA issue. Counsel has also submitted new evidence that she requests be admitted for the purposes of this appeal. DECISION [6] I dismiss the appeal and confirm the decision of the RPD that the Appellants are not refugees or persons in need of protection as they have a viable IFA in Abuja. NEW EVIDENCE [7] The Appellant seeks to introduce the following documents as new evidence: i. A letter dated XXXX XXXX, 2022 from XXXX XXXX, who indicates that he is the brother of [REDACTED]. ii. A letter dated XXXX 2022 from XXXX XXXX, another brother of [REDACTED]. iii. An undated letter from XXXX XXXX, who indicates that he is the elder brother of [REDACTED]. iv. A medical report dated XXXX 2022 regarding XXXX XXXX, the adult Appellants' third daughter who was born in Canada in XXXX 2019. v. Two articles about the Nigerian healthcare system from 2020 and 2019. vi. An article dated July 19, 2021 about security crises in Nigeria. vii. An article dated February 9, 2022 entitled Reps declare national emergency on ritual killings in Nigeria. viii. A 2018 article entitled \"Nobody is safe in Nigeria\", Ekweremadu speaks on how assassins invaded his Abuja home. ix. A blog post dated December 5, 2018 entitled Nigeria's National Kidnapping Crisis is Expanding. x. An article dated December 6, 2018 entitled Many feared dead as Boko Haram attacks Borno village. xi. A government of Canada travel advisory for Nigeria, dated February 2022. xii. An article dated April 19, 2021 entitled ANALYSIS: Intelligence failure compounding insecurity in Nigeria. [8] Section 110(4) of the Immigration and Refugee Protection Act (IRPA) sets out that an Appellant may only present evidence that arose after the rejection of their claim, or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented at the time of the rejection. If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.1 [9] As the RPD clearly identified that a potential IFA in Abuja was in issue, I am not prepared to admit into evidence any articles that were published before the RPD decision in April 2021. There is no evidence that the articles were not available to the Appellants before their RPD hearing and it is reasonable to expect that they would have presented such evidence prior to the RPD rejection of their claim. As the Federal Court has noted, a RAD appeal is not a second chance to submit evidence to answer weaknesses identified by the RPD: Abdullahi v Canada (Citizenship and Immigration), 2016 FC 260 at para 15. As such, items (v), (viii), (ix) and (x) are not admitted as new evidence in this appeal. [10] As for items (i), (ii) and (iii) - the letters from family members - I find that they should have been requested and submitted by the Appellants before their RPD hearing. While the documents are new in the sense that they were created after the RPD decision was issued, the Appellants understood that the security situation for them in Nigeria would be canvassed by the RPD in the context of a potential IFA. As such, it is reasonable to expect that they would have contacted family members to provide such information for their RPD hearing. There is no suggestion that these family members were unavailable to the Appellants prior to April 2021. As such, I decline to enter those missives as new evidence. [11] The remaining items - (iv), (vi), (vii), (xi) and (xii) - are new in that they did not exist at the time of the RPD hearing on April 9, 2021. I have no concerns about the credibility of these documents and they are somewhat relevant to the IFA issue in this proceeding. I admit them as exhibits in this appeal. However, as they are not central to the claim and their acceptance as new evidence does not in itself justify allowing the appeal, there is no need for me to convene a hearing in accordance with section 110(6) of the IRPA. ROLE OF THE RAD [12] When reviewing the RPD decision, I am required to independently determine whether the RPD was correct in relation to each alleged error of fact and law. In some circumstances, the RAD may defer to the RPD's credibility assessment of oral testimony if the RPD had a meaningful advantage in that regard. Such was not the case in this appeal. Therefore, I have reviewed the RPD's findings using the standard of correctness.2 ANALYSIS IFA: The Appellants' Submissions [13] The Appellants submit that Abuja is not a viable IFA for the family. Indeed, they argue that they would not be safe from the Principal Appellant's relatives anywhere in Nigeria, given their persecutors' interest and motivation in harming the Appellants. The Principal Appellant testified that his family members are well-connected and that the police could track them down in Abuja, if requested by the agents of harm. Moreover, it is submitted that significant weight should be given to the the violence and threats the Appellants have already faced in assessing whether they will face such harm from their family in the future. [14] It is further submitted that the Appellants' evidence about the means and motivations of the Principal Appellant's uncle and aunt should be accepted as credible. Their evidence in this regard was uncontradicted and should benefit from the presumption of truthfulness that attaches to sworn testimony.3 [15] The Appellants also argue that they would face unreasonable hardship if they had to relocate to Abuja. They point to the children's medical needs and the inadequacy of healthcare in Nigeria, the parents' employment prospects, and the general security situation. [16] In the Appellants' memorandum, no reference is made to the threat posed by the XXXX group or its ability to find the Appellants. The Appellants have a viable IFA in Abuja [17] In my view, the existence of an IFA is determinative of this appeal. [18] In Khan v Canada (MCI), 2020 FC 1101, Mr. Justice McHaffie succinctly articulated the two-prong test that is applied when considering whether a viable IFA exists: [10] In assessing whether there is a viable IFA, the decision maker must be satisfied, on a balance of probabilities, that (1) the claimant will not be subject to persecution/harm (on a \"serious possibility\" standard), or a danger or risk described in section 97 (on a \"more likely than not\" standard) in the proposed IFA; and (2) in all the circumstances, including circumstances particular to the claimant, conditions in the IFA are such that it would not be unreasonable for the claimant to seek refuge there: Thirunavukkarasu at pp 595-597, paras 12-15; Hamdan v Canada (Immigration, Refugees and Citizenship), 2017 FC 643 at paras 10-12. Once the potential for an IFA is raised, the claimant bears the onus of establishing that an IFA is not viable: Thirunavukkarasu at pp 594-595, para 9. [19] Once the prospect of an IFA has been raised, the onus is on the Appellants to establish that it is not viable. [20] With respect to the first prong, the main evidence of the means and motivation of the Appellants' family members was speculation on the part of the adult Appellants that their family is highly connected and could somehow get the police to find them if they were to return to Nigeria. This conjecture was based in part on the ability of the Principal Appellant's uncle to find Mrs. XXXX' mother's address and because the extended family was able to discover that they had left Nigeria. This evidence falls short of meeting the evidentiary onus on the Appellants to establish a serious possibility that the agents of harm could find them if they were to now return to Nigeria, more than four years after they left the country. [21] Nigeria is very large and the Appellants' family in Lagos lives over 700 kilometres from Abuja. We are also dealing with a densely populated country with a population of over 200 million people. This would make locating the Appellants in the IFA very difficult. [22] Even accepting that the agents of persecution knew that the Appellants left Nigeria in 2017, this is not cogent evidence that they would know if they returned there in 2022 and settled in Abuja. That the Principal Appellant's uncle was able to find Mrs. XXXXmother is not particularly compelling. Indeed, checking with immediate family members is where anyone would likely start if they were searching for the Appellants. It does not mean that the agents of harm would be able to find that the Appellants in a large city some distance away where they do not have any immediate family. [23] I also do not agree with the Appellants' characterization of their evidence regarding the means and abilities of the agents of harm. The Principal Appellant testified that he believes that his uncle and other family members can find and harm them. While his testimony in this regard was not undermined by any inconsistencies or implausibilities, that does not mean that his belief must be accepted as credible. In this regard, I note the Federal Court decision in Kassim in which the Honourable Mr. Justice Southcott upheld an RPD decision that Port Harcourt was a reasonable IFA because there was a lack of evidence to establish that the agent of harm had the influence and connections to find the claimant there.4 The Court confirmed that the RPD's finding that there was a lack of evidence was not an adverse credibility finding against the witness; she was not testifying to any facts in support of her persecutor's ability to find her, but rather to the belief that he was able to find her. This is also the case in this appeal. While the Appellants may believe that the Principal Appellant's uncle could track them down, the evidence does not support such a finding. [24] As noted, no submissions were provided regarding the possibility that they might be found by other agents of harm involved with the XXXX group. As such, I find that the Appellants have not established that the XXXX has the means or desire to find them in the proposed IFA. [25] Turning then to the second prong of the test, the Federal Court of Appeal has held that there is: a very high threshold for the unreasonableness test. It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions. The absence of relatives in a safe place, whether taken alone or in conjunction with other factors, can only amount to such condition if it meets that threshold, that is to say if it establishes that, as a result, a claimant's life or safety would be jeopardized. This is in sharp contrast with undue hardship resulting from loss of employment, loss of status, reduction in quality of life, loss of aspirations, loss of beloved ones and frustration of one's wishes and expectations.5 [26] Relocation will always involve some degree of hardship. However, the threshold to find an IFA unreasonable is quite high and the onus in on the Appellants to provide actual and concrete evidence of adverse conditions which would jeopardize their life and safety.6 In my view, the Appellants have not met this threshold. [27] In the memorandum, it is submitted that the adult Appellants' profiles of post-secondary and professional work experience in [REDACTED] XXXX does not make them necessarily a good fit to find employment in the economic environment in Abuja.7 I agree that they would not have a support network in Abuja as they did in Lagos, but they are both well-educated professionals who have significant experience working in Nigeria. While economic conditions will always be a concern, there is nothing in the country condition documents or the materials cited by counsel8 that would suggest that things are so dire that the adult Appellants would be unable to find gainful employment to support their family. [28] The Appellants also argue that healthcare in Nigeria is poor and that their daughters' well-being would be jeopardized. The youngest, a Canadian citizen, has been diagnosed with XXXX XXXX and is receiving [REDACTED] XXXX. It is suggested that such services might not be available to her in Nigeria. Similarly, the middle daughter (the youngest Appellant) suffers from XXXX XXXX and may require XXXX XXXX. Documentation has been provided by the Appellants that suggests that, inter alia, Nigeria has a shortage of doctors, its healthcare system is underfunded and its workers underpaid, and most healthcare expenses are not covered by the government and have to be paid out-of-pocket. The National Documentation Package (NDP) for Nigeria does not have much information on the healthcare system, but confirms that there are speech therapy specialists in the country.9 [29] In my view, while it is clear that the Nigerian healthcare system is not on par with Canada's, the evidence before me does not establish that the Appellants' children are unlikely to be able to access XXXX XXXX or other general assistance, although there is a good chance that they will have to pay for it out-of-pocket. I recognize that Mr. and Mrs. XXXXhave lost a son to leukemia and that they blame inadequacies in the Nigerian medical system, but there is no evidence that the daughters face any similarly life-threatening issues or that the therapies they may require are unavailable to them in Abuja. Indeed, as a national capital with a metropolitan population of over 3.6 million, that city seems likely to be an area where such services are more likely to be available. [30] Reference is also made to the general security situation in Nigeria. The Canadian government clearly has concerns about our citizens travelling there, as is evidenced by the 2022 travel advisory. However, the evidence regarding the state of insecurity in Abuja does not suggest that the Appellants' lives would be at risk. They would face the same general issues that they did in Lagos and the same general risks faced by Abuja's other 3.6 million residents. Indeed, residing in the national capital is likely much safer than other areas of the country. CONCLUSION [31] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection as they have a viable IFA in Abuja. (signed) \"Benjamin R. Dolin\" Benjamin R. Dolin April 13, 2022 Date 1 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paras. 70 and 103. 3 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). 4 Kassim v. Canada (Citizenship and Immigration), 2018 FC 621, paras 22 to 24. 5 Ranganathan v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA), [2001] 2 FC 164, at para. 15. 6 Singh v. M.C.I. IMM-826-13, Noël, September 26, 2013, 2013 FC 988 (CanLII), at para. 40. 7 Appellants' memorandum, at paragraph 55. 8 Ibid. 9 RAD-1, National Documentation Package NDP Nigeria, 30 November 2021, 1.9 Country Policy and Information Note. Nigeria: Medical and healthcare issues, Version 3.0. United Kingdom. Home Office. January 2020 at section 7.1.1. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MC1-02685 MC1-02686 / MC1-02687 / MC1-02688 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français", "response": "## Analysis of Refugee Decision: MC1-02685\n\n### Key Issues\nny similarly life-threatening issues or that the therapies they may require are unavailable to them in Abuja. Indeed, as a national capital with a metropolitan population of over 3\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: dated April 19, 2021 entitled ANALYSIS: Intelligence failure compounding insecurity in Nigeria. [8] Section 110(4) of the Immigration and Refugee Protection Act (IRPA) sets out that an Appellant may only present evidence that arose after the rejection of their claim, or that was not reasonably available, or that they could not r\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "What standard of review does this Federal Court of Canada decision apply to immigration decisions?\n\nSchnarr v. Markle Court (s) Database Federal Court Decisions Date 2023-07-21 Neutral citation 2023 FC 1004 File numbers T-1837-22, T-1860-21 Decision Content Date: 20230721 Dockets: T-1860-21 T-1837-22 Citation: 2023 FC 1004 Ottawa, Ontario, July 21, 2023 PRESENT: The Honourable Madam Justice Heneghan Docket: T-1860-21 BETWEEN: JEFF SCHNARR Plaintiff and LARRY MARKLE AND ATHELIE MARKLE ELRI OOSTHUIZEN AND CALEB LAMBERT Defendants AND BETWEEN: LARRY MARKLE AND ATHELIE MARKLE ELRI OOSTHUIZEN AND CALEB LAMBERT Plaintiffs by counterclaim and JEFF SCHNARR Defendant to the counterclaim Docket: T-1837-22 BETWEEN: JEFF SCHNARR Plaintiff and LARRY MARKLE AND ATHELIE MARKLE Defendants REASONS AND ORDER I. INTRODUCTION [1]By a Statement of Claim issued on December 6, 2021, Mr. Jeff Schnarr (the “Plaintiff”) commenced this action in cause number T-1860-21, seeking the establishment of a limitation fund, pursuant to the Marine Liability Act, S.C. 2001, c. 6 (the “MLA” or the “Act”), and related relief, in respect of a collision between two pleasure crafts, that occurred at Colpoy’s Bay on August 31, 2019 (the “Collision”). In this Statement of Claim, the Plaintiff claims the following relief: a)a declaration, without admission of liability, that he is entitled to limit his liability in relation to the accident of August 31, 2019 (referred to herein) to $1,000,000.00 plus interest to the date of the constitution of a limitation fund pursuant to ss. 29(a), 29.1 and 32 of the Marine Liability Act, S.C. 2001, c. 6 (\"MLA\"); b)an order constituting a limitation fund pursuant to s.33(1)(a) of the MLA (the \" Limitation Fund\"); c)an order approving the filing by the Plaintiffs of a guarantee in the form of a letter of undertaking from an insurer, in the amount of the Limitation Fund pursuant to s.33(1)(a) and 33(4)(b)of the MLA; d)an order enjoining any person from commencing or continuing proceedings in any court, tribunal or authority other than this Court in relation to the Incident, pursuant to s. 33(1)(c) of the MLA; e)an order postponing the distribution of the proceeds of the Limitation Fund pending a determination by this Court of the apportionment of fault as between the Plaintiff and Larry Markle and Athelie Markle, Elri Oosthuizen and Caleb Lambert, pursuant to s. 33(2) of the MLA, and pending the determination of any other defences; f)costs from any party opposing the Plaintiffs' claim to limit liability; g)directions for ascertaining the persons who are entitled to claim against the Limitation Fund; h)directions for the exclusion of the claims of persons who fail to file their claims within the time fixed by the Court for filing such claims; and i)such further and other relief as this Court may deem appropriate. [2]The Statement of Claim names Mr. Larry Markle, Ms. Athelie Markle, Mr. Elri Oosthuizen, and Mr. Caleb Lambert as Defendants (collectively the “Defendants”). [3]The Plaintiff is the owner of a 45-foot 1996 Searay 450 Sundance Caterpillar Vessel. He was also the operator of that craft on the date in question. [4]The Plaintiff alleges that Mr. Markle owns the 17-foot Bayliner Capri Vessel, that Ms. Markle was the operator, and that Mr. Oosthuizen and Mr. Lambert were aboard as passengers. [5]On August 22, 2022, a Statement of Defence was filed on behalf of the Defendants. In their Defence, they denied liability and in their Counterclaim, they claimed the following relief: (a)Dismissal of the Federal Court action and their costs; (b)If it is determined the Federal Court action should continue and the Ontario Superior Court action should be dismissed, their costs thrown away with respect to the Ontario Superior Court action; (c)The Defendant Larry Markle claims $100,000.00 for pecuniary damages and $100,000 for general damages and special damages inclusive of costs, plus prejudgment interest and post judgment interest; (d)The Defendant Athelie Markle claims $100,000 for pecuniary damages and $100,000 for general damages and special damages inclusive of costs, plus prejudgment and post judgment interest; (e)The Defendant Elri Oosthuizen claims pecuniary damages in the amount of $200,000 and general and special damages net the amount of $250,000 inclusive of costs, plus prejudgment and post judgment interest; (f)The Defendant Caleb Lambert claims pecuniary damages in the amount of $50,000 inclusive of costs and general and special damages in the amount of $100,000 inclusive of costs, plus prejudgment and post judgment interest. [6]On August 25, 2022, the Markle Defendants filed a Statement of Defence and Counterclaim. In their Defence, they denied liability for the Collision. In their Counterclaim, they advanced a claim for the following relief: (a)Dismissal of the Federal Court action and their costs; (b)If it is determined the Federal Court action should continue and the Ontario Superior Court Small Claims action should be dismissed, their costs thrown away with respect to the Ontario Superior Court Small Claims action; (c)Damages in the amount of $20,000.00 plus pre-judgment interest, post-judgment interest and costs; and (d)Such further and other relief as this Honourable Court deems just. [7]On September 8, 2022, the Plaintiff filed a Defence to the Markle Counterclaim. He also filed a Defence to the Defendants’ Counterclaim on September 8, 2022. [8]On September 8, 2022, the Plaintiff commenced a second action against Mr. Markle and Ms. Markle, that is cause number T-1837-22, seeking an Order for contribution and indemnity for any damages awarded against him in respect of the action commenced in T-1860-21. [9]The Markle Defendants filed a Defence to the Statement of Claim on October 17, 2022, denying that the collision on August 31, 2019, was caused and contributed to by any breach of duty or negligence on their part. [10]On November 17, 2022, the Plaintiff filed a Notice of Motion seeking the following relief: II. NOTICES OF MOTION a)giving advice and directions as to the manner in which the Plaintiff’s action for a declaration that his liability in respect of the boat accident of August 31st, 2019, as described in the Statement of Claim in this action, (the \"accident\") is limited pursuant to the provisions of the Marine Liability Act, S.C. 2001 c. 6 (the \"MLA\") to $1,000,000 plus interest from August 31st, 2019 to the date on which the statutory limitation fund is constituted, and for the constitution of a limitation fund (the \"Limitation Fund\"), may be heard and determined; b)for service of notice of this action on potential claimants by advertising in such forms as this Court deems just and appropriate, if deemed required in the circumstances; c)authorizing the Plaintiff to file a guarantee bond (the \"Guarantee Bond\") in the form of a letter of undertaking from an insurer in an amount to be fixed by the Court, being $1,000,000 plus interest from August 31, 2019 to the date of the institution of the Limitation Fund, and that the filing of the letter of undertaking shall constitute the Limitation Fund in respect of the Incident; d)setting the time limit within which the Defendants and other potential claimants must file their defences or claims against the Limitation Fund; e)directing that any claim against the Limitation Fund not filed within the time specified by the Court shall be barred from participation in the distribution of the Limitation fund; f)enjoining the Defendants, and any other person, from commencing or continuing proceedings before any court other than this Court against the Plaintiff in respect of the accident; g)declaring that the Limitation Fund be distributed to the extent necessary to satisfy the claims of the persons whom the Court decides are entitled to claim against the Limitation Fund, and rateably, if necessary; and h)for such further and other relief as counsel advise and this Court deems just and appropriate. [11]The motion was supported by the affidavits of the Plaintiff, sworn on May 3, 2022, and of Mr. Shane Marston, sworn on November 15, 2022. [12]In his affidavit, the Plaintiff described the operation of his vessel on the date of the Collision. He deposed that his vessel weighs less than 300 gross tons. [13]In his affidavit, the Plaintiff also deposed that on June 30, 2021, he was served with a Statement of Claim filed in the Ontario Superior Court of Justice bearing file number CV-21-0000885-0000 by the Markle Defendants, as Plaintiffs, seeking recovery of damages for personal injuries, and that on August 25, 2021, he was served with a Claim filed in the Ontario Small Claims Court bearing file number SC21000001670000 seeking recovery of damage done to their pleasure craft (collectively the “Ontario proceedings”). [14]Mr. Marston is a lawyer with the law firm Smockum Zarnett LLP, lawyers for the Plaintiff in this action. In his affidavit, he provided a timeline of the relevant filings and hearings in T-1860-21 and T-1837-22 (collectively the “Federal Court proceedings”). He also deposed that the Ontario proceedings are in the early stages of litigation and that no steps have been taken in the Ontario proceedings to stay and enjoin the Federal Court proceedings. [15]In his affidavit, Mr. Marston also deposed that on May 5, 2022, the Defendants issued an amended Statement of Claim and Jury Notice in the Superior Court action. He deposed that the amended claim reduced each of the Defendants’ alleged damages to arrive at a collective total of $1,000,000.00 inclusive of costs, excluding pre-judgment and post-judgment interest. [16]On November 30, 2022, the Defendants filed a Notice of Motion seeking the following relief: a)An order to stay this action and related contribution action in T-1837-22 b)For such other and further relief as counsel may advise and this Court deems just and appropriate. [17]This Notice of Motion was supported by the affidavits of Mr. Markle and Mr. Bruce Kelly. The affidavit of Mr. Markle was sworn on November 24, 2022. The affidavit of Mr. Kelly was sworn on November 24, 2022. [18]In his affidavit, Mr. Markle deposed that Mr. Schnarr was at fault in the Collision. He also deposed that Mr. Schnarr has not filed a defence in the Ontario proceedings and has been noted in default in those proceedings. [19]Mr. Markle further deposed in his affidavit that the Defendants amended their Statement of Claim to “comply with the limitation on damages” as per the MLA and that they would prefer to proceed by a jury trial. [20]Mr. Kelly is a lawyer with the law firm Morell Kelly Professional Corporation, lawyers for the Defendants. In his affidavit, he provided a timeline of the relevant filings and events in the Ontario Superior Court action, the Federal Court proceedings, and correspondence between the lawyers for the parties. [21]Both the Plaintiff and the Defendants, in cause number T-1860-21, filed written Memoranda of Fact and Law in their respective motion records. [22]On January 31, 2023, the Markle Defendants filed a responding motion record in T-1860-21. [23]The Markle Defendants’ motion record was supported by the affidavits of Ms. Janice Brooks, affirmed on January 26, 2023, and Ms. Heather Farr, affirmed on January 30, 2023. [24]Ms. Brooks is the Vice President of Claims with Dumfries Mutual Insurance Company (“Dumfries”), the insurer for Mr. Markle and Ms. Markle. In her affidavit, she deposed that after the Collision, the Markles submitted a claim for the damage to their boat and contents, and that Dumfries paid approximately $20,000.00 to the Markles in satisfaction of the claim. [25]Ms. Brooks also deposed in her affidavit that Dumfries retained Strigberger Brown Armstrong LLP to pursue a subrogated claim in the Ontario Small Claims Court against Mr. Schnarr for the damages paid to the Markles. [26]Ms. Brooks also deposed that Dumfries instructed Strigberger Brown Armstrong LLP to file defences in the Federal Court proceedings. She further deposed that if Dumfries becomes involved in the Superior Court action, it would prefer for the matter to be heard by a jury. [27]Ms. Farr is a law clerk with the law firm Shillington McCall LLP, lawyers for the Markle Defendants. In her affidavit, she provided emails between the lawyers for the parties about proceeding with the Superior Court action, and deposed that the Markle Defendants are agreeable to have the Small Claims matter consolidated with the Superior Court action. [28]The Markle Defendants filed written representations in their responding motion record. [29]Three issues arise from the Motions before the Court. The first is whether a limitation fund should be established; the second is whether the Federal Court proceedings should be dismissed or stayed; and the third is whether the proceedings in any other Court should be enjoined. [30]The Defendants agree that a limitation fund be established, in light of the provisions of the MLA. Part 3 of the Act incorporates by reference the Convention on Limitation of Liability for Maritime Claims, 1976 (the “Convention”). [31]Section 25 of the MLA defines “ship” as follows: III. DISCUSSION AND DISPOSITION A. Limitation Fund Extended meaning of expressions 25 (1) For the purposes of this Part and Articles 1 to 15 of the Convention, (a) ship means any vessel or craft designed, used or capable of being used solely or partly for navigation, without regard to method or lack of propulsion, and includes (i) a ship in the process of construction from the time that it is capable of floating, and (ii) a ship that has been stranded, wrecked or sunk and any part of a ship that has broken up, but does not include an air cushion vehicle or a floating platform constructed for the purpose of exploring or exploiting the natural resources or the subsoil of the sea-bed; (b) the definition shipowner in paragraph 2 of Article 1 of the Convention shall be read without reference to the word “seagoing” and as including any person who has an interest in or possession of a ship from and including its launching; and (c) the expression “carriage by sea” in paragraph 1(b) of Article 2 of the Convention shall be read as “carriage by water”. Inconsistency (2) In the event of any inconsistency between sections 28 to 34 of this Act and Articles 1 to 15 of the Convention, those sections prevail to the extent of the inconsistency. Extension de sens 25 (1) Pour l’application de la présente partie et des articles 1 à 15 de la Convention : a) navire s’entend d’un bâtiment ou d’une embarcation conçus, utilisés ou utilisables, exclusivement ou non, pour la navigation, indépendamment de leur mode de propulsion ou de l’absence de propulsion, à l’exclusion des aéroglisseurs et des plates-formes flottantes destinées à l’exploration ou à l’exploitation des ressources naturelles du fond ou du sous-sol marin; y sont assimilés les navires en construction à partir du moment où ils peuvent flotter, les navires échoués ou coulés ainsi que les épaves et toute partie d’un navire qui s’est brisé; b) la définition de propriétaire de navire, au paragraphe 2 de l’article premier de la Convention, vise notamment la personne ayant un intérêt dans un navire ou la possession d’un navire, à compter de son lancement, et s’interprète sans égard au terme « de mer »; c) la mention de « transport par mer », à l’alinéa 1b) de l’article 2 de la Convention, vaut mention de « transport par eau ». Incompatibilité (2) Les articles 28 à 34 de la présente loi l’emportent sur les dispositions incompatibles des articles 1 à 15 de la Convention. [32]Article 1, paragraph 2 of the Convention defines “shipowner” as follows: Article 1 Persons entitled to limit liability […] 2 The term shipowner shall mean the owner, charterer, manager and operator of a seagoing ship. Article 1 Personnes en droit de limiter leur responsabilité […] 2 L’expression propriétaire de navire, désigne le propriétaire, l’affréteur, l’armateur et l’armateur-gérant d’un navire de mer. [33]The definition of “maritime claim” in section 24 of the MLA is cross-referenced to paragraphs (1) and (2) of Article 2 of the Convention as follows: maritime claim means a claim described in Article 2 of the Convention for which a person referred to in Article 1 of the Convention is entitled to limitation of liability. (créance maritime) créance maritime Créance maritime visée à l’article 2 de la Convention contre toute personne visée à l’article 1 de la Convention. (maritime claim) [34]Article 11 of the Convention provides for the creation of a limitation fund, as follows: Article 11 Constitution of the fund 1 Any person alleged to be liable may constitute a fund with the Court or other competent authority in any State Party in which legal proceedings are instituted in respect of claims subject to limitation. The fund shall be constituted in the sum of such of the amounts set out in Articles 6 and 7 as are applicable to claims for which that person may be liable, together with interest thereon from the date of the occurrence giving rise to the liability until the date of the constitution of the fund. Any fund thus constituted shall be available only for the payment of claims in respect of which limitation of liability can be invoked. 2 A fund may be constituted, either by depositing the sum, or by producing a guarantee acceptable under the legislation of the State Party where the fund is constituted and considered to be adequate by the Court or other competent authority. 3 A fund constituted by one of the persons mentioned in paragraph 1(a), (b) or (c) or paragraph 2 of Article 9 or his insurer shall be deemed constituted by all persons mentioned in paragraph 1(a), (b) or (c) or paragraph 2, respectively. Article 11 Constitution du fonds 1 Toute personne dont la responsabilité peut être mise en cause peut constituer un fonds auprès du tribunal ou de toute autre autorité compétente de tout État Partie dans lequel une action est engagée pour des créances soumises à limitation. Le fonds est constitué à concurrence du montant tel qu’il est calculé selon les dispositions des articles 6 et 7 applicables aux créances dont cette personne peut être responsable, augmenté des intérêts courus depuis la date de l’événement donnant naissance à la responsabilité jusqu’à celle de la constitution du fonds. Tout fonds ainsi constitué n’est disponible que pour régler les créances à l’égard desquelles la limitation de la responsabilité peut être invoquée. 2 Un fonds peut être constitué, soit en consignant la somme, soit en fournissant une garantie acceptable en vertu de la législation de l’État Partie dans lequel le fonds est constitué, et considérée comme adéquate par le tribunal ou par toute autre autorité compétente. 3 Un fonds constitué par l’une des personnes mentionnées aux alinéas a), b) ou c) du paragraphe 1 ou au paragraphe 2 de l’article 9, ou par son assureur, est réputé constitué par toutes les personnes visées aux alinéas a), b) ou c) du paragraphe 1 ou au paragraphe 2 respectivement. [35]Section 32 of the MLA sets out the procedure to be followed in the establishment of a limitation fund under Articles 11 to 13 of the Convention, as follows: Jurisdiction of Admiralty Court 32 (1) The Admiralty Court has exclusive jurisdiction with respect to any matter relating to the constitution and distribution of a limitation fund under Articles 11 to 13 of the Convention. Right to assert limitation defence (2) Where a claim is made or apprehended against a person in respect of liability that is limited by section 28, 29 or 30 of this Act or paragraph 1 of Article 6 or 7 of the Convention, that person may assert the right to limitation of liability in a defence filed, or by way of action or counterclaim for declaratory relief, in any court of competent jurisdiction in Canada. Compétence exclusive de la Cour d’amirauté 32 (1) La Cour d’amirauté a compétence exclusive pour trancher toute question relative à la constitution et à la répartition du fonds de limitation aux termes des articles 11 à 13 de la Convention. Droit d’invoquer la limite de responsabilité (2) Lorsque la responsabilité d’une personne est limitée aux termes des articles 28, 29 ou 30 de la présente loi ou du paragraphe 1 des articles 6 ou 7 de la Convention, relativement à une créance — réelle ou appréhendée — , cette personne peut se prévaloir de ces dispositions en défense, ou dans le cadre d’une action ou demande reconventionnelle pour obtenir un jugement déclaratoire, devant tout tribunal compétent au Canada. [36]“Admiralty Court” is defined in section 2 of the MLA as meaning the Federal Court. [37]It is clear from the language of section 32 of the MLA that only the Federal Court has jurisdiction with respect to “any matter relating to the constitution and distribution of a limitation fund” under the applicable Articles of the Convention. [38]Paragraph 1 of Article 9 of the Convention is also relevant and provides as follows: Article 9 Aggregation of claims 1 The limits of liability determined in accordance with Article 6 shall apply to the aggregate of all claims which arise on any distinct occasion: (a) against the person or persons mentioned in paragraph 2 of Article 1 and any person for whose act, neglect or default he or they are responsible; or (b) against the shipowner of a ship rendering salvage services from that ship and the salvor or salvors operating from such ship and any person for whose act, neglect or default he or they are responsible; or (c) against the salvor or salvors who are not operating from a ship or who are operating solely on the ship to or in respect of which the salvage services are rendered and any person for whose act, neglect or default he or they are responsible. Article 9 Concours de créances 1 Les limites de la responsabilité déterminée selon l’article 6 s’appliquent à l’ensemble de toutes les créances nées d’un même événement : a) à l’égard de la personne ou des personnes visées au paragraphe 2 de l’article premier et de toute personne dont les faits, négligences ou fautes entraînent la responsabilité de celle-ci ou de celles-ci; ou b) à l’égard du propriétaire d’un navire qui fournit des services d’assistance ou de sauvetage à partir de ce navire et à l’égard de l’assistant ou des assistants agissant à partir dudit navire et de toute personne dont les faits, négligences ou fautes entraînent la responsabilité de celui-ci ou de ceux-ci; c) à l’égard de l’assistant ou des assistants n’agissant pas à partir d’un navire ou agissant uniquement à bord du navire auquel ou à l’égard duquel des services d’assistance ou de sauvetage sont fournis et de toute personne dont les faits, négligences ou fautes entraînent la responsabilité de celui-ci ou de ceux-ci. [39]The combined effect of Articles 9 and 11 of the Convention, which forms part of the MLA, is that only one fund is established to answer the “aggregate of all claims which arise on any distinct occasion”. [40]There is no evidence filed to contradict the Plaintiff’s claim that his vessel weighs less than 300 gross tons. Accordingly, the limitation amount set out in subsection 29(a) of the Act applies. Subsection 29(a) provides as follows: Other claims 29 The maximum liability for maritime claims that arise on any distinct occasion involving a ship of less than 300 gross tonnage, other than claims referred to in section 28, is (a) $1,000,000 in respect of claims for loss of life or personal injury; and Autres créances 29 La limite de responsabilité pour les créances maritimes — autres que celles mentionnées à l’article 28 — nées d’un même événement impliquant un navire d’une jauge brute inférieure à 300 est fixée à : a) 1 000 000 $ pour les créances pour décès ou blessures corporelles; [41]The limitation fund is available for the benefit of the shipowner, as determined in the limitation proceedings and for “any person for whose act, neglect or default” it is responsible; see Article 9, paragraph 1(a). [42]The Plaintiff seeks directions relative to the limitation action, including directions as to the manner in which his action for a declaration that his liability in respect of the Collision is limited pursuant to the provisions of the MLA, should proceed. [43]In my opinion, a limitation fund should be established in this case. [44]The Plaintiff has proposed a guarantee bond be filed in an amount to be set by the Court, that is $1,000,000.00 plus interest pursuant to subsection 33(5). The Court can determine the form of the guarantee pursuant to paragraph 33(4)(b). [45]The matter of setting time limits within which the Defendants and other claimants must file their defences or claims against the limitation fund is a matter that can be addressed by the Case Management Judge who was appointed by Order made on August 15, 2022, pursuant to the Federal Courts Rules, SOR/98-106 (the “Rules”). [46]The Case Management Judge can also deal with setting other time limits as may be required. [47]The authority to stay proceedings in this Court comes from subsection 50(1) of the Federal Courts Act, R.S.C., 1985, c. F-7, which provides as follows: B. Defendants’ Stay Motion Stay of proceedings authorized 50 (1) The Federal Court of Appeal or the Federal Court may, in its discretion, stay proceedings in any cause or matter (a) on the ground that the claim is being proceeded with in another court or jurisdiction; or (b) where for any other reason it is in the interest of justice that the proceedings be stayed. Suspension d’instance 50 (1) La Cour d’appel fédérale et la Cour fédérale ont le pouvoir discrétionnaire de suspendre les procédures dans toute affaire : a) au motif que la demande est en instance devant un autre tribunal; b) lorsque, pour quelque autre raison, l’intérêt de la justice l’exige. [48]In Canadian Pacific Railway Co. v. Sheena M (The), [2000] 4. F.C. 159 (F.C.T.D.) at paragraph 17, the late Prothonotary Hargrave discussed the difference between staying and enjoining as follows: To complete this line of reasoning, there is a difference between enjoining and staying. The former, is defined in the revised 4th edition of Black's Law Dictionary in terms of an injunctive direction to perform or to abstain from some act […] In contrast a stay, or a stay of proceedings as it is correctly called, is an order by which a court suspends its own proceedings, either temporarily, until something is done, or permanently, where it is improper to proceed […] The test for a stay, in the interests of justice, is generally acknowledged to be the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, being the three-part American Cyanamid test [American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.)] although in this instance the appropriate test for a stay of proceedings is a two-part test set out in Mon-Oil Ltd. v. Canada (1989), 26 C.P.R. (3d) 379 (F.C.T.D.), a point that I shall touch on again in due course. The test for a stay is very different concept and test from that of an enjoinment of a proceeding in another court under the Canada Shipping Act. Indeed, this is to be expected for in one statute the draftsman has used the term enjoin and in the other the reference is to a stay […] [49]At paragraph 32, Prothonotary Hargrave, after reviewing two lines of cases that addressed the onus and test for a stay, reached the following conclusion: In summary, that the two-part test is appropriate where a stay of the Court's own proceeding is at issue, while the three-part RJR-MacDonald test is appropriate where the stay is that of proceedings before some tribunal or an order of the Court pending an appeal… [50]In my opinion, the same approach applies here. The two-part test of Mon-Oil Ltd. v. Canada (1989), 26 C.P.R. (3d) 379 (F.C.T.D.), should be considered in respect of the Defendants’ motion for a stay. That test requires the Court to consider two questions, that is, will the continuation of the action cause prejudice to the defendants, and will the stay cause an injustice to the plaintiff. [51]As noted by Chief Justice Thurlow in Nisshin Kisen Kaisha Ltd. v. CN, [1982] 1 F.C. 530 (C.A.), a limitation action is “incidental” to any action for determination of liability. It is an action for the establishment and distribution of a fund, and its apportionment after findings of liability. [52]I agree that duplicate proceedings and inconsistent findings should be avoided. However, as Prothonotary Milczynski held in Jazz Air LP v. Ontario Port Authority (2009), 343 F.T.R. 165 (F.C.) at paragraph 32, “accepting that duplication must be avoided does not answer the question of which court should be preferred…”. [53]The Federal Court has full jurisdiction over the Defendants’ claims. The Defendants can fully pursue their claims in this Court. In my opinion, their submissions that duplication and inconsistency should be avoided, without more, do not demonstrate that they will be prejudiced if the stay of proceedings in this Court is denied. [54]On the other hand, a stay of the limitation action would work an injustice to the Plaintiff. [55]There is a presumptive right to limit liability. Section 33 of the MLA allows a party seeking to limit liability to bring its own action in this Court, and to apply for directions. The very purpose of the limitation regime is to avoid multiple proceedings; see Bayside Towing Ltd. v. Canadian Pacific Railway Co., [2001] 2 F.C. 258 (F.C.T.D.) at paragraph 30. [56]Staying these proceedings would restrict the Plaintiff in advancing his limitation action. Although he could raise limitation as a defence in the Ontario action, he can only address the constitution of the limitation fund in the proceedings before this Court. If the right to limit is not broken and liability is limited, the limitation fund will be distributed. These aspects of a limitation action, that is the constitution and distribution of a fund, are exclusively within the jurisdiction of this Court. [57]I refer again to the decision in Jazz Air LP, supra, where Prothonotary Milczynski at paragraph 35, said that “stays are to be granted only in the clearest of cases”. Having considered the submissions of the parties, I am not persuaded that the limitation action should be stayed either on an interlocutory or permanent basis. [58]As noted above, the Plaintiff seeks an order enjoining the Defendants, and any other person, from commencing or continuing proceedings before any court other than this Court against him in respect of the Collision. His motion is brought pursuant to section 33 of the MLA. [59]The first question is the test to be applied in exercising the power to enjoin, pursuant to section 33(1) of the MLA. That section provides as follows: C. Plaintiff’s Motion to Enjoin Powers of Admiralty Court 33 (1) Where a claim is made or apprehended against a person in respect of liability that is limited by section 28 or 29 of this Act or paragraph 1 of Article 6 or 7 of the Convention, the Admiralty Court, on application by that person or any other interested person, including a person who is a party to proceedings in relation to the same subject-matter before another court, tribunal or authority, may take any steps it considers appropriate, including (a) determining the amount of the liability and providing for the constitution and distribution of a fund under Articles 11 and 12 of the Convention; (b) joining interested persons as parties to the proceedings, excluding any claimants who do not make a claim within a certain time, requiring security from the person claiming limitation of liability or from any other interested person and requiring the payment of any costs; and (c) enjoining any person from commencing or continuing proceedings in any court, tribunal or authority other than the Admiralty Court in relation to the same subject-matter. Pouvoirs de la Cour d’amirauté 33 (1) Lorsque la responsabilité d’une personne est limitée aux termes des articles 28 ou 29 de la présente loi ou du paragraphe 1 des articles 6 ou 7 de la Convention, relativement à une créance — réelle ou appréhendée —, la Cour d’amirauté peut, à la demande de cette personne ou de tout autre intéressé — y compris une partie à une procédure relative à la même affaire devant tout autre tribunal ou autorité —, prendre toute mesure qu’elle juge indiquée, notamment : a) déterminer le montant de la responsabilité et faire le nécessaire pour la constitution et la répartition du fonds de limitation correspondant, conformément aux articles 11 et 12 de la Convention; b) joindre tout intéressé comme partie à la procédure, exclure tout créancier forclos, exiger une garantie des parties invoquant la limitation de responsabilité ou de tout autre intéressé et exiger le paiement des frais; c) empêcher toute personne d’intenter ou de continuer quelque procédure relative à la même affaire devant tout autre tribunal ou autorité. [60]Paragraph 33(1)(c) specifically allows the Federal Court to enjoin the commencement or continued prosecution of proceedings in any Court “other than the Admiralty Court in relation to the same subject-matter”. [61]The language of section 33 of the MLA is broad. [62]Subsection 33(1) says that the “Admiralty Court… may take any steps it considers appropriate”, including the extraordinary remedy identified in paragraph 33(1)(c) of enjoining proceedings before any other court, tribunal or authority. The availability of this remedy indicates the value attached to the importance of adjudicating all issues relevant to the constitution and distribution of a limitation fund, in one forum. Proceeding in one Court contributes to the expeditious disposition of issues relating to the limitation of liability. [63]The applicable test under subsection 33(1) of the MLA is that of “appropriateness”. I refer to the decision of the Federal Court of Appeal in Siemens Canada Limited v. J.D. Irving Limited, [2014] 1 F.C.R. 676 at paragraph 107: [107] This test is, no doubt, a broad and discretionary one. The words of the provision could not be clearer in that Parliament has directed the Federal Court to make an order of enjoinment where it is of the view that it would be appropriate to make such an order. Thus, I am of the view that the Court may enjoin if, in all of the circumstances, that is the appropriate order to make. […] [64]The concept of “appropriate” includes the element of suitability. In this regard, I refer to the decision in Levitt v. Carr et al., [1992] 4 W.W.R. 160 (B.C.C.A.) at paragraph 51. [65]I refer as well to the decision in R. v. McIvor (2006), 210 C.C.C. (3d) 161 (B.C.C.A.) where the British Columbia Court of Appeal, in the context of a criminal proceeding, said the following at paragraph 30: […] in its ordinary meaning, the word “appropriate” connotes suitability for a particular purpose, something that is fit and proper in the circumstances. [66]In my opinion, having regard to the facts alleged in the evidence submitted in the present case, it is appropriate that the proceedings outside the Federal Court be enjoined, to allow adjudication in this Court of all issues relating to the Collision, including the issues of liability which are the subject of the current proceeding before the Ontario Superior Court of Justice. [67]In my view, the “subject matter” of both the Ontario and Federal Court proceedings is the Collision, liability, and any limitation of that liability. [68]The Convention, which forms part of the MLA, clearly shows that there is a presumptive right to limit liability. [69]In the within proceedings, the Plaintiff asserts a right to limit his liability, if any, relative to the Defendants. [70]The determination of liability, and limitation thereof, for the Collision can be determined in the Federal Court, as well as in the Ontario Superior Court of Justice. [71]I do not accept that the Defendants’ choice of forum militates in favour of the Ontario proceedings. As discussed, the MLA provides the Plaintiff with his own cause of action to limit liability, a proceeding which is meant to be expeditious. He too has a choice of forum in which to bring his action, and that choice must be balanced with the choice made by the Defendants. [72]While the Ontario Rules of Practice and Procedure may allow a broader range of discovery, a Case Management Judge of this Court can also allow for broader discovery, if warranted. [73]The question of the availability of a jury trial is an appropriate factor to consider, but it is not determinative. In my opinion, depriving the Defendants of the option to have their claims considered by a jury is outweighed by the inconvenience, expense and repetition that would be required by determination of the issue of limitation in this Court, and determination of the issue of liability in the Ontario Superior Court of Justice. [74]The Defendants can pursue their claim for personal injury and property damage in the Federal Court. Those claims can be accommodated by filing pleadings in this action, including counterclaims. [75]Contrary to the Defendants’ submissions, the Federal Court is the most efficient forum to determine all the issues relative to the Collision. It is beyond doubt that the Federal Court has jurisdiction over the issue of liability. Only the Federal Court has jurisdiction over the constitution and distribution of a limitation fund. While such a fund may be incidental to the determinations of liability and limitation, having the entirety of the proceedings considered in one Court would be the most efficient. [76]In the result, the Plaintiff’s motion to enjoin the Defendants, and any other person, from commencing or continuing proceedings before any court other than this Court, against the Plaintiff in respect of the Collision is allowed. [77]The Plaintiff’s Motion is granted in part, with costs. [78]The Motion to enjoin the Defendants, and any other person, from commencing or continuing proceedings before any court other than the Federal Court, against the Plaintiff in respect of the Collision, is granted. [79]The Motion of the Defendants is dismissed in its entirety. [80]If the parties cannot agree on costs, that issue may be addressed in brief submissions, not exceeding five (5) pages, to be served and filed on or before August 31, 2023. IV. CONCLUSION ORDER in T-1860-21 and T-1837-22 THIS COURT ORDERS that: The Motion to stay these proceedings is dismissed. The Defendants and any other person are enjoined from commencing or continuing proceedings before any other Court or tribunal than the Federal Court against Jeff Schnarr in T-1860-21, in respect of the Collision. Any claim in respect of the Collision which may be subject to limitation of liability shall be asserted either by way of a counterclaim or cross-claim in these actions, or by way of a separate action before this Court. The issues determined and the procedure established by this Order does not preclude any of the Defendants or claimants from alleging that: Jeff Schnarr, as Plaintiff, and any other party, are not entitled to limit liability as contemplated by the MLA; and One or more of the parties do not fall within the category of those entitled to invoke pursuant to the MLA, the right to limit liability. The parties herein are directed to consult and to submit a draft order to give effect to the Reasons for Order, concerning the establishment of a limitation fund in the amount of $1,000,000.00 plus interest from August 31, 2019, to the date on which the statutory limitation fund is constituted, pursuant to subsection 33(5) of the Act. The parties shall specifically address the relief sought in paragraphs (a), (b), (c), (d), (e), (g), and (h) of the Plaintiff’s Notice of Motion. The draft order will be submitted to the Court on or before August 31, 2023. The establishment of a limitation fund, in accordance with the MLA, in the amount of $1,000,000.00 and interest, shall not preclude any party or person from denying liability or legal responsibility and contesting the quantum of any claim. These actions are specially managed proceedings and following constitution of the limitation fund, any party shall be at liberty to seek orders and directions from the Case Management Judge concerning the completion of pre-trial steps, the consolidation of the actions, the fixing of a single or separate hearing and any other relevant matter mentioned in the MLA or the Rules. If the parties cannot agree on costs, that issue may be addressed in submissions to be served and filed on or before August 31, 2023. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKETS: T-1860-21 and T-1837-22 STYLE OF CAUSE: JEFF SCHNARR v. LARRY MARKLE AND ATHELIE MARKLE AND ELRI OOSTHUIZEN AND CALEB LAMBERT PLACE OF HEARING: HELD BY WAY OF VIDEOCONFERENCE DATE OF HEARING: FEBRUARY 9, 2023 REASONS AND ORDER: HENEGHAN J. DATED: JULY 21, 2023 APPEARANCES: Patrick Monaghan and Shane Marston FOR JEFF SCHNARR Lindsay Rodenburg Lisa Morell Kelly FOR LARRY MARKLE AND ATHELIE MARKLE FOR ELRI OOSTHUIZEN, CALEB LAMBERT, LARRY MARKLE, AND ATHELIE MARKLE SOLICITORS OF RECORD: Smockum Zarnett LLP Toronto, Ontario FOR JEFF SCHNARR Shillington McCall LLP London, Ontario Morell Kelly Kitchener, Ontario FOR LARRY MARKLE AND ATHELIE MARKLE FOR ELRI OOSTHUIZEN, CALEB LAMBERT, LARRY MARKLE, AND ATHELIE MARKLE", "response": "## Analysis of Court Decision: Schnarr v. Markle\n\n### Key Issues\nding motion record. [29]Three issues arise from the Motions before the Court. The first is whether a limitation fund should be established; the second is whether the Federal Court\n\n### Standard of Review\nSchnarr v. Markle Court (s) Database Federal Court Decisions Date 2023-07-21 Neutral citation 2023 FC 1004 File numbers T-1837-22, T-1860-21 Decision Content Date: 20230721 Dockets: T-1860-21 T-1837-22 Citation: 2023 FC 1004 Ottawa, Ontario, July 21, 2023 PRESENT: The Honourable Madam Justice Heneghan Docket: T-1860-21 BETWEEN: JEFF SCHNARR Plaintiff and LARRY MARKLE AND ATHELIE MARKLE ELRI OOSTHUIZEN AND CALEB LAMBERT Defendants AND BETWEEN: LARRY MARKLE AND ATHELIE MARKLE ELRI OOSTHUIZEN AND CALEB LAMBERT Plaintiffs by counterclaim and JEFF SCHNARR Defendant to the counterclaim Docket: T-1837-22 BETWEEN: JEFF SCHNARR Plaintiff and LARRY MARKLE AND ATHELIE MARKLE Defendants REASONS AND ORDER I. INTRODUCTION [1]By a Statement of Claim issued on December 6, 2021, Mr. Jeff Schnarr (the “Plaintiff”) commenced this action in cause number T-1860-21, seeking the establishment of a limitation fund, pursuant to the Marine Liability Act, S.C. 2001, c. 6 (the “MLA” or the “Act”), and related relief, in respect of a collision between two pleasure crafts, that occurred at Colpoy’s Bay on August 31, 2019 (the “Collision”). In this Statement of Claim, the Plaintiff claims the following relief: a)a declaration, without admission of liability, that he is entitled to limit his liability in relation to the accident of August 31, 2019 (referred to herein) to $1,000,000.00 plus interest to the date of the constitution of a limitation fund pursuant to ss. 29(a), 29.1 and 32 of the Marine Liability Act, S.C. 2001, c. 6 (\"MLA\"); b)an order constituting a limitation fund pursuant to s.33(1)(a) of the MLA (the \" Limitation Fund\"); c)an order approving the filing by the Plaintiffs of a guarantee in the form of a letter of undertaking from an insurer, in the amount of the Limitation Fund pursuant to s.33(1)(a) and 33(4)(b)of the MLA; d)an order enjoining any person from commencing or continuing proceedings in any court, tribunal or authority other than this Court in relation to the Incident, pursuant to s. 33(1)(c) of the MLA; e)an order postponing the distribution of the proceeds of the Limitation Fund pending a determination by this Court of the apportionment of fault as between the Plaintiff and Larry Markle and Athelie Markle, Elri Oosthuizen and Caleb Lambert, pursuant to s. 33(2) of the MLA, and pending the determination of any other defences; f)costs from any party opposing the Plaintiffs' claim to limit liability; g)directions for ascertaining the persons who are entitled to claim against the Limitation Fund; h)directions for the exclusion of the claims of persons who fail to file their claims within the time fixed by the Court for filing such claims; and i)such further and other relief as this Court may deem appropriate. [2]The Statement of Claim names Mr. Larry Markle, Ms. Athelie Markle, Mr. Elri Oosthuizen, and Mr. Caleb Lambert as Defendants (collectively the “Defendants”). [3]The Plaintiff is the owner of a 45-foot 1996 Searay 450 Sundance Caterpillar Vessel. He was also the operator of that craft on the date in question. [4]The Plaintiff alleges that Mr. Markle owns the 17-foot Bayliner Capri Vessel, that Ms. Markle was the operator, and that Mr. Oosthuizen and Mr. Lambert were aboard as passengers. [5]On August 22, 2022, a Statement of Defence was filed on behalf of the Defendants. In their Defence, they denied liability and in their Counterclaim, they claimed the following relief: (a)Dismissal of the Federal Court action and their costs; (b)If it is determined the Federal Court action should continue and the Ontario Superior Court action should be dismissed, their costs thrown away with respect to the Ontario Superior Court action; (c)The Defendant Larry Markle claims $100,000.00 for pecuniary damages and $100,000 for general damages and special damages inclusive of costs, plus prejudgment interest and post judgment interest; (d)The Defendant Athelie Markle claims $100,000 for pecuniary damages and $100,000 for general damages and special damages inclusive of costs, plus prejudgment and post judgment interest; (e)The Defendant Elri Oosthuizen claims pecuniary damages in the amount of $200,000 and general and special damages net the amount of $250,000 inclusive of costs, plus prejudgment and post judgment interest; (f)The Defendant Caleb Lambert claims pecuniary damages in the amount of $50,000 inclusive of costs and general and special damages in the amount of $100,000 inclusive of costs, plus prejudgment and post judgment interest. [6]On August 25, 2022, the Markle Defendants filed a Statement of Defence and Counterclaim. In their Defence, they denied liability for the Collision. In their Counterclaim, they advanced a claim for the following relief: (a)Dismissal of the Federal Court action and their costs; (b)If it is determined the Federal Court action should continue and the Ontario Superior Court Small Claims action should be dismissed, their costs thrown away with respect to the Ontario Superior Court Small Claims action; (c)Damages in the amount of $20,000.00 plus pre-judgment interest, post-judgment interest and costs; and (d)Such further and other relief as this Honourable Court deems just. [7]On September 8, 2022, the Plaintiff filed a Defence to the Markle Counterclaim. He also filed a Defence to the Defendants’ Counterclaim on September 8, 2022. [8]On September 8, 2022, the Plaintiff commenced a second action against Mr. Markle and Ms. Markle, that is cause number T-1837-22, seeking an Order for contribution and indemnity for any damages awarded against him in respect of the action commenced in T-1860-21. [9]The Markle Defendants filed a Defence to the Statement of Claim on October 17, 2022, denying that the collision on August 31, 2019, was caused and contributed to by any breach of duty or negligence on their part. [10]On November 17, 2022, the Plaintiff filed a Notice of Motion seeking the following relief: II. NOTICES OF MOTION a)giving advice and directions as to the manner in which the Plaintiff’s action for a declaration that his liability in respect of the boat accident of August 31st, 2019, as described in the Statement of Claim in this action, (the \"accident\") is limited pursuant to the provisions of the Marine Liability Act, S.C. 2001 c. 6 (the \"MLA\") to $1,000,000 plus interest from August 31st, 2019 to the date on which the statutory limitation fund is constituted, and for the constitution of a limitation fund (the \"Limitation Fund\"), may be heard and determined; b)for service of notice of this action on potential claimants by advertising in such forms as this Court deems just and appropriate, if deemed required in the circumstances; c)authorizing the Plaintiff to file a guarantee bond (the \"Guarantee Bond\") in the form of a letter of undertaking from an insurer in an amount to be fixed by the Court, being $1,000,000 plus interest from August 31, 2019 to the date of the institution of the Limitation Fund, and that the filing of the letter of undertaking shall constitute the Limitation Fund in respect of the Incident; d)setting the time limit within which the Defendants and other potential claimants must file their defences or claims against the Limitation Fund; e)directing that any claim against the Limitation Fund not filed within the time specified by the Court shall be barred from participation in the distribution of the Limitation fund; f)enjoining the Defendants, and any other person, from commencing or continuing proceedings before any court other than this Court against the Plaintiff in respect of the accident; g)declaring that the Limitation Fund be distributed to the extent necessary to satisfy the claims of the persons whom the Court decides are entitled to claim against the Limitation Fund, and rateably, if necessary; and h)for such further and other relief as counsel advise and this Court deems just and appropriate. [11]The motion was supported by the affidavits of the Plaintiff, sworn on May 3, 2022, and of Mr. Shane Marston, sworn on November 15, 2022. [12]In his affidavit, the Plaintiff described the operation of his vessel on the date of the Collision. He deposed that his vessel weighs less than 300 gross tons. [13]In his affidavit, the Plaintiff also deposed that on June 30, 2021, he was served with a Statement of Claim filed in the Ontario Superior Court of Justice bearing file number CV-21-0000885-0000 by the Markle Defendants, as Plaintiffs, seeking recovery of damages for personal injuries, and that on August 25, 2021, he was served with a Claim filed in the Ontario Small Claims Court bearing file number SC21000001670000 seeking recovery of damage done to their pleasure craft (collectively the “Ontario proceedings”). [14]Mr. Marston is a lawyer with the law firm Smockum Zarnett LLP, lawyers for the Plaintiff in this action. In his affidavit, he provided a timeline of the relevant filings and hearings in T-1860-21 and T-1837-22 (collectively the “Federal Court proceedings”). He also deposed that the Ontario proceedings are in the early stages of litigation and that no steps have been taken in the Ontario proceedings to stay and enjoin the Federal Court proceedings. [15]In his affidavit, Mr. Marston also deposed that on May 5, 2022, the Defendants issued an amended Statement of Claim and Jury Notice in the Superior Court action. He deposed that the amended claim reduced each of the Defendants’ alleged damages to arrive at a collective total of $1,000,000.00 inclusive of costs, excluding pre-judgment and post-judgment interest. [16]On November 30, 2022, the Defendants filed a Notice of Motion seeking the following relief: a)An order to stay this action and related contribution action in T-1837-22 b)For such other and further relief as counsel may advise and this Court deems just and appropriate. [17]This Notice of Motion was supported by the affidavits of Mr. Markle and Mr. Bruce Kelly. The affidavit of Mr. Markle was sworn on November 24, 2022. The affidavit of Mr. Kelly was sworn on November 24, 2022. [18]In his affidavit, Mr. Markle deposed that Mr. Schnarr was at fault in the Collision. He also deposed that Mr. Schnarr has not filed a defence in the Ontario proceedings and has been noted in default in those proceedings. [19]Mr. Markle further deposed in his affidavit that the Defendants amended their Statement of Claim to “comply with the limitation on damages” as per the MLA and that they would prefer to proceed by a jury trial. [20]Mr. Kelly is a lawyer with the law firm Morell Kelly Professional Corporation, lawyers for the Defendants. In his affidavit, he provided a timeline of the relevant filings and events in the Ontario Superior Court action, the Federal Court proceedings, and correspondence between the lawyers for the parties. [21]Both the Plaintiff and the Defendants, in cause number T-1860-21, filed written Memoranda of Fact and Law in their respective motion records. [22]On January 31, 2023, the Markle Defendants filed a responding motion record in T-1860-21. [23]The Markle Defendants’ motion record was supported by the affidavits of Ms. Janice Brooks, affirmed on January 26, 2023, and Ms. Heather Farr, affirmed on January 30, 2023. [24]Ms. Brooks is the Vice President of Claims with Dumfries Mutual Insurance Company (“Dumfries”), the insurer for Mr. Markle and Ms. Markle. In her affidavit, she deposed that after the Collision, the Markles submitted a claim for the damage to their boat and contents, and that Dumfries paid approximately $20,000.00 to the Markles in satisfaction of the claim. [25]Ms. Brooks also deposed in her affidavit that Dumfries retained Strigberger Brown Armstrong LLP to pursue a subrogated claim in the Ontario Small Claims Court against Mr. Schnarr for the damages paid to the Markles. [26]Ms. Brooks also deposed that Dumfries instructed Strigberger Brown Armstrong LLP to file defences in the Federal Court proceedings. She further deposed that if Dumfries becomes involved in the Superior Court action, it would prefer for the matter to be heard by a jury. [27]Ms. Farr is a law clerk with the law firm Shillington McCall LLP, lawyers for the Markle Defendants. In her affidavit, she provided emails between the lawyers for the parties about proceeding with the Superior Court action, and deposed that the Markle Defendants are agreeable to have the Small Claims matter consolidated with the Superior Court action. [28]The Markle Defendants filed written representations in their responding motion record. [29]Three issues arise from the Motions before the Court. The first is whether a limitation fund should be established; the second is whether the Federal Court proceedings should be dismissed or stayed; and the third is whether the proceedings in any other Court should be enjoined. [30]The Defendants agree that a limitation fund be established, in light of the provisions of the MLA. Part 3 of the Act incorporates by reference the Convention on Limitation of Liability for Maritime Claims, 1976 (the “Convention”). [31]Section 25 of the MLA defines “ship” as follows: III. DISCUSSION AND DISPOSITION A. Limitation Fund Extended meaning of expressions 25 (1) For the purposes of this Part and Articles 1 to 15 of the Convention, (a) ship means any vessel or craft designed, used or capable of being used solely or partly for navigation, without regard to method or lack of propulsion, and includes (i) a ship in the process of construction from the time that it is capable of floating, and (ii) a ship that has been stranded, wrecked or sunk and any part of a ship that has broken up, but does not include an air cushion vehicle or a floating platform constructed for the purpose of exploring or exploiting the natural resources or the subsoil of the sea-bed; (b) the definition shipowner in paragraph 2 of Article 1 of the Convention shall be read without reference to the word “seagoing” and as including any person who has an interest in or possession of a ship from and including its launching; and (c) the expression “carriage by sea” in paragraph 1(b) of Article 2 of the Convention shall be read as “carriage by water”. Inconsistency (2) In the event of any inconsistency between sections 28 to 34 of this Act and Articles 1 to 15 of the Convention, those sections prevail to the extent of the inconsistency. Extension de sens 25 (1) Pour l’application de la présente partie et des articles 1 à 15 de la Convention : a) navire s’entend d’un bâtiment ou d’une embarcation conçus, utilisés ou utilisables, exclusivement ou non, pour la navigation, indépendamment de leur mode de propulsion ou de l’absence de propulsion, à l’exclusion des aéroglisseurs et des plates-formes flottantes destinées à l’exploration ou à l’exploitation des ressources naturelles du fond ou du sous-sol marin; y sont assimilés les navires en construction à partir du moment où ils peuvent flotter, les navires échoués ou coulés ainsi que les épaves et toute partie d’un navire qui s’est brisé; b) la définition de propriétaire de navire, au paragraphe 2 de l’article premier de la Convention, vise notamment la personne ayant un intérêt dans un navire ou la possession d’un navire, à compter de son lancement, et s’interprète sans égard au terme « de mer »; c) la mention de « transport par mer », à l’alinéa 1b) de l’article 2 de la Convention, vaut mention de « transport par eau ». Incompatibilité (2) Les articles 28 à 34 de la présente loi l’emportent sur les dispositions incompatibles des articles 1 à 15 de la Convention. [32]Article 1, paragraph 2 of the Convention defines “shipowner” as follows: Article 1 Persons entitled to limit liability […] 2 The term shipowner shall mean the owner, charterer, manager and operator of a seagoing ship. Article 1 Personnes en droit de limiter leur responsabilité […] 2 L’expression propriétaire de navire, désigne le propriétaire, l’affréteur, l’armateur et l’armateur-gérant d’un navire de mer. [33]The definition of “maritime claim” in section 24 of the MLA is cross-referenced to paragraphs (1) and (2) of Article 2 of the Convention as follows: maritime claim means a claim described in Article 2 of the Convention for which a person referred to in Article 1 of the Convention is entitled to limitation of liability. (créance maritime) créance maritime Créance maritime visée à l’article 2 de la Convention contre toute personne visée à l’article 1 de la Convention. (maritime claim) [34]Article 11 of the Convention provides for the creation of a limitation fund, as follows: Article 11 Constitution of the fund 1 Any person alleged to be liable may constitute a fund with the Court or other competent authority in any State Party in which legal proceedings are instituted in respect of claims subject to limitation. The fund shall be constituted in the sum of such of the amounts set out in Articles 6 and 7 as are applicable to claims for which that person may be liable, together with interest thereon from the date of the occurrence giving rise to the liability until the date of the constitution of the fund. Any fund thus constituted shall be available only for the payment of claims in respect of which limitation of liability can be invoked. 2 A fund may be constituted, either by depositing the sum, or by producing a guarantee acceptable under the legislation of the State Party where the fund is constituted and considered to be adequate by the Court or other competent authority. 3 A fund constituted by one of the persons mentioned in paragraph 1(a), (b) or (c) or paragraph 2 of Article 9 or his insurer shall be deemed constituted by all persons mentioned in paragraph 1(a), (b) or (c) or paragraph 2, respectively. Article 11 Constitution du fonds 1 Toute personne dont la responsabilité peut être mise en cause peut constituer un fonds auprès du tribunal ou de toute autre autorité compétente de tout État Partie dans lequel une action est engagée pour des créances soumises à limitation. Le fonds est constitué à concurrence du montant tel qu’il est calculé selon les dispositions des articles 6 et 7 applicables aux créances dont cette personne peut être responsable, augmenté des intérêts courus depuis la date de l’événement donnant naissance à la responsabilité jusqu’à celle de la constitution du fonds. Tout fonds ainsi constitué n’est disponible que pour régler les créances à l’égard desquelles la limitation de la responsabilité peut être invoquée. 2 Un fonds peut être constitué, soit en consignant la somme, soit en fournissant une garantie acceptable en vertu de la législation de l’État Partie dans lequel le fonds est constitué, et considérée comme adéquate par le tribunal ou par toute autre autorité compétente. 3 Un fonds constitué par l’une des personnes mentionnées aux alinéas a), b) ou c) du paragraphe 1 ou au paragraphe 2 de l’article 9, ou par son assureur, est réputé constitué par toutes les personnes visées aux alinéas a), b) ou c) du paragraphe 1 ou au paragraphe 2 respectivement. [35]Section 32 of the MLA sets out the procedure to be followed in the establishment of a limitation fund under Articles 11 to 13 of the Convention, as follows: Jurisdiction of Admiralty Court 32 (1) The Admiralty Court has exclusive jurisdiction with respect to any matter relating to the constitution and distribution of a limitation fund under Articles 11 to 13 of the Convention. Right to assert limitation defence (2) Where a claim is made or apprehended against a person in respect of liability that is limited by section 28, 29 or 30 of this Act or paragraph 1 of Article 6 or 7 of the Convention, that person may assert the right to limitation of liability in a defence filed, or by way of action or counterclaim for declaratory relief, in any court of competent jurisdiction in Canada. Compétence exclusive de la Cour d’amirauté 32 (1) La Cour d’amirauté a compétence exclusive pour trancher toute question relative à la constitution et à la répartition du fonds de limitation aux termes des articles 11 à 13 de la Convention. Droit d’invoquer la limite de responsabilité (2) Lorsque la responsabilité d’une personne est limitée aux termes des articles 28, 29 ou 30 de la présente loi ou du paragraphe 1 des articles 6 ou 7 de la Convention, relativement à une créance — réelle ou appréhendée — , cette personne peut se prévaloir de ces dispositions en défense, ou dans le cadre d’une action ou demande reconventionnelle pour obtenir un jugement déclaratoire, devant tout tribunal compétent au Canada. [36]“Admiralty Court” is defined in section 2 of the MLA as meaning the Federal Court. [37]It is clear from the language of section 32 of the MLA that only the Federal Court has jurisdiction with respect to “any matter relating to the constitution and distribution of a limitation fund” under the applicable Articles of the Convention. [38]Paragraph 1 of Article 9 of the Convention is also relevant and provides as follows: Article 9 Aggregation of claims 1 The limits of liability determined in accordance with Article 6 shall apply to the aggregate of all claims which arise on any distinct occasion: (a) against the person or persons mentioned in paragraph 2 of Article 1 and any person for whose act, neglect or default he or they are responsible; or (b) against the shipowner of a ship rendering salvage services from that ship and the salvor or salvors operating from such ship and any person for whose act, neglect or default he or they are responsible; or (c) against the salvor or salvors who are not operating from a ship or who are operating solely on the ship to or in respect of which the salvage services are rendered and any person for whose act, neglect or default he or they are responsible. Article 9 Concours de créances 1 Les limites de la responsabilité déterminée selon l’article 6 s’appliquent à l’ensemble de toutes les créances nées d’un même événement : a) à l’égard de la personne ou des personnes visées au paragraphe 2 de l’article premier et de toute personne dont les faits, négligences ou fautes entraînent la responsabilité de celle-ci ou de celles-ci; ou b) à l’égard du propriétaire d’un navire qui fournit des services d’assistance ou de sauvetage à partir de ce navire et à l’égard de l’assistant ou des assistants agissant à partir dudit navire et de toute personne dont les faits, négligences ou fautes entraînent la responsabilité de celui-ci ou de ceux-ci; c) à l’égard de l’assistant ou des assistants n’agissant pas à partir d’un navire ou agissant uniquement à bord du navire auquel ou à l’égard duquel des services d’assistance ou de sauvetage sont fournis et de toute personne dont les faits, négligences ou fautes entraînent la responsabilité de celui-ci ou de ceux-ci. [39]The combined effect of Articles 9 and 11 of the Convention, which forms part of the MLA, is that only one fund is established to answer the “aggregate of all claims which arise on any distinct occasion”. [40]There is no evidence filed to contradict the Plaintiff’s claim that his vessel weighs less than 300 gross tons. Accordingly, the limitation amount set out in subsection 29(a) of the Act applies. Subsection 29(a) provides as follows: Other claims 29 The maximum liability for maritime claims that arise on any distinct occasion involving a ship of less than 300 gross tonnage, other than claims referred to in section 28, is (a) $1,000,000 in respect of claims for loss of life or personal injury; and Autres créances 29 La limite de responsabilité pour les créances maritimes — autres que celles mentionnées à l’article 28 — nées d’un même événement impliquant un navire d’une jauge brute inférieure à 300 est fixée à : a) 1 000 000 $ pour les créances pour décès ou blessures corporelles; [41]The limitation fund is available for the benefit of the shipowner, as determined in the limitation proceedings and for “any person for whose act, neglect or default” it is responsible; see Article 9, paragraph 1(a). [42]The Plaintiff seeks directions relative to the limitation action, including directions as to the manner in which his action for a declaration that his liability in respect of the Collision is limited pursuant to the provisions of the MLA, should proceed. [43]In my opinion, a limitation fund should be established in this case. [44]The Plaintiff has proposed a guarantee bond be filed in an amount to be set by the Court, that is $1,000,000.00 plus interest pursuant to subsection 33(5). The Court can determine the form of the guarantee pursuant to paragraph 33(4)(b). [45]The matter of setting time limits within which the Defendants and other claimants must file their defences or claims against the limitation fund is a matter that can be addressed by the Case Management Judge who was appointed by Order made on August 15, 2022, pursuant to the Federal Courts Rules, SOR/98-106 (the “Rules”). [46]The Case Management Judge can also deal with setting other time limits as may be required. [47]The authority to stay proceedings in this Court comes from subsection 50(1) of the Federal Courts Act, R.S.C., 1985, c. F-7, which provides as follows: B. Defendants’ Stay Motion Stay of proceedings authorized 50 (1) The Federal Court of Appeal or the Federal Court may, in its discretion, stay proceedings in any cause or matter (a) on the ground that the claim is being proceeded with in another court or jurisdiction; or (b) where for any other reason it is in the interest of justice that the proceedings be stayed. Suspension d’instance 50 (1) La Cour d’appel fédérale et la Cour fédérale ont le pouvoir discrétionnaire de suspendre les procédures dans toute affaire : a) au motif que la demande est en instance devant un autre tribunal; b) lorsque, pour quelque autre raison, l’intérêt de la justice l’exige. [48]In Canadian Pacific Railway Co. v. Sheena M (The), [2000] 4. F.C. 159 (F.C.T.D.) at paragraph 17, the late Prothonotary Hargrave discussed the difference between staying and enjoining as follows: To complete this line of reasoning, there is a difference between enjoining and staying. The former, is defined in the revised 4th edition of Black's Law Dictionary in terms of an injunctive direction to perform or to abstain from some act […] In contrast a stay, or a stay of proceedings as it is correctly called, is an order by which a court suspends its own proceedings, either temporarily, until something is done, or permanently, where it is improper to proceed […] The test for a stay, in the interests of justice, is generally acknowledged to be the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, being the three-part American Cyanamid test [American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.)] although in this instance the appropriate test for a stay of proceedings is a two-part test set out in Mon-Oil Ltd. v. Canada (1989), 26 C.P.R. (3d) 379 (F.C.T.D.), a point that I shall touch on again in due course. The test for a stay is very different concept and test from that of an enjoinment of a proceeding in another court under the Canada Shipping Act. Indeed, this is to be expected for in one statute the draftsman has used the term enjoin and in the other the reference is to a stay […] [49]At paragraph 32, Prothonotary Hargrave, after reviewing two lines of cases that addressed the onus and test for a stay, reached the following conclusion: In summary, that the two-part test is appropriate where a stay of the Court's own proceeding is at issue, while the three-part RJR-MacDonald test is appropriate where the stay is that of proceedings before some tribunal or an order of the Court pending an appeal… [50]In my opinion, the same approach applies here. The two-part test of Mon-Oil Ltd. v. Canada (1989), 26 C.P.R. (3d) 379 (F.C.T.D.), should be considered in respect of the Defendants’ motion for a stay. That test requires the Court to consider two questions, that is, will the continuation of the action cause prejudice to the defendants, and will the stay cause an injustice to the plaintiff. [51]As noted by Chief Justice Thurlow in Nisshin Kisen Kaisha Ltd. v. CN, [1982] 1 F.C. 530 (C.A.), a limitation action is “incidental” to any action for determination of liability. It is an action for the establishment and distribution of a fund, and its apportionment after findings of liability. [52]I agree that duplicate proceedings and inconsistent findings should be avoided. However, as Prothonotary Milczynski held in Jazz Air LP v. Ontario Port Authority (2009), 343 F.T.R. 165 (F.C.) at paragraph 32, “accepting that duplication must be avoided does not answer the question of which court should be preferred…”. [53]The Federal Court has full jurisdiction over the Defendants’ claims. The Defendants can fully pursue their claims in this Court. In my opinion, their submissions that duplication and inconsistency should be avoided, without more, do not demonstrate that they will be prejudiced if the stay of proceedings in this Court is denied. [54]On the other hand, a stay of the limitation action would work an injustice to the Plaintiff. [55]There is a presumptive right to limit liability. Section 33 of the MLA allows a party seeking to limit liability to bring its own action in this Court, and to apply for directions. The very purpose of the limitation regime is to avoid multiple proceedings; see Bayside Towing Ltd. v. Canadian Pacific Railway Co., [2001] 2 F.C. 258 (F.C.T.D.) at paragraph 30. [56]Staying these proceedings would restrict the Plaintiff in advancing his limitation action. Although he could raise limitation as a defence in the Ontario action, he can only address the constitution of the limitation fund in the proceedings before this Court. If the right to limit is not broken and liability is limited, the limitation fund will be distributed. These aspects of a limitation action, that is the constitution and distribution of a fund, are exclusively within the jurisdiction of this Court. [57]I refer again to the decision in Jazz Air LP, supra, where Prothonotary Milczynski at paragraph 35, said that “stays are to be granted only in the clearest of cases”. Having considered the submissions of the parties, I am not persuaded that the limitation action should be stayed either on an interlocutory or permanent basis. [58]As noted above, the Plaintiff seeks an order enjoining the Defendants, and any other person, from commencing or continuing proceedings before any court other than this Court against him in respect of the Collision. His motion is brought pursuant to section 33 of the MLA. [59]The first question is the test to be applied in exercising the power to enjoin, pursuant to section 33(1) of the MLA. That section provides as follows: C. Plaintiff’s Motion to Enjoin Powers of Admiralty Court 33 (1) Where a claim is made or apprehended against a person in respect of liability that is limited by section 28 or 29 of this Act or paragraph 1 of Article 6 or 7 of the Convention, the Admiralty Court, on application by that person or any other interested person, including a person who is a party to proceedings in relation to the same subject-matter before another court, tribunal or authority, may take any steps it considers appropriate, including (a) determining the amount of the liability and providing for the constitution and distribution of a fund under Articles 11 and 12 of the Convention; (b) joining interested persons as parties to the proceedings, excluding any claimants who do not make a claim within a certain time, requiring security from the person claiming limitation of liability or from any other interested person and requiring the payment of any costs; and (c) enjoining any person from commencing or continuing proceedings in any court, tribunal or authority other than the Admiralty Court in relation to the same subject-matter. Pouvoirs de la Cour d’amirauté 33 (1) Lorsque la responsabilité d’une personne est limitée aux termes des articles 28 ou 29 de la présente loi ou du paragraphe 1 des articles 6 ou 7 de la Convention, relativement à une créance — réelle ou appréhendée —, la Cour d’amirauté peut, à la demande de cette personne ou de tout autre intéressé — y compris une partie à une procédure relative à la même affaire devant tout autre tribunal ou autorité —, prendre toute mesure qu’elle juge indiquée, notamment : a) déterminer le montant de la responsabilité et faire le nécessaire pour la constitution et la répartition du fonds de limitation correspondant, conformément aux articles 11 et 12 de la Convention; b) joindre tout intéressé comme partie à la procédure, exclure tout créancier forclos, exiger une garantie des parties invoquant la limitation de responsabilité ou de tout autre intéressé et exiger le paiement des frais; c) empêcher toute personne d’intenter ou de continuer quelque procédure relative à la même affaire devant tout autre tribunal ou autorité. [60]Paragraph 33(1)(c) specifically allows the Federal Court to enjoin the commencement or continued prosecution of proceedings in any Court “other than the Admiralty Court in relation to the same subject-matter”. [61]The language of section 33 of the MLA is broad. [62]Subsection 33(1) says that the “Admiralty Court… may take any steps it considers appropriate”, including the extraordinary remedy identified in paragraph 33(1)(c) of enjoining proceedings before any other court, tribunal or authority. The availability of this remedy indicates the value attached to the importance of adjudicating all issues relevant to the constitution and distribution of a limitation fund, in one forum. Proceeding in one Court contributes to the expeditious disposition of issues relating to the limitation of liability. [63]The applicable test under subsection 33(1) of the MLA is that of “appropriateness”. I refer to the decision of the Federal Court of Appeal in Siemens Canada Limited v. J.D. Irving Limited, [2014] 1 F.C.R. 676 at paragraph 107: [107] This test is, no doubt, a broad and discretionary one. The words of the provision could not be clearer in that Parliament has directed the Federal Court to make an order of enjoinment where it is of the view that it would be appropriate to make such an order. Thus, I am of the view that the Court may enjoin if, in all of the circumstances, that is the appropriate order to make. […] [64]The concept of “appropriate” includes the element of suitability. In this regard, I refer to the decision in Levitt v. Carr et al., [1992] 4 W.W.R. 160 (B.C.C.A.) at paragraph 51. [65]I refer as well to the decision in R. v. McIvor (2006), 210 C.C.C. (3d) 161 (B.C.C.A.) where the British Columbia Court of Appeal, in the context of a criminal proceeding, said the following at paragraph 30: […] in its ordinary meaning, the word “appropriate” connotes suitability for a particular purpose, something that is fit and proper in the circumstances. [66]In my opinion, having regard to the facts alleged in the evidence submitted in the present case, it is appropriate that the proceedings outside the Federal Court be enjoined, to allow adjudication in this Court of all issues relating to the Collision, including the issues of liability which are the subject of the current proceeding before the Ontario Superior Court of Justice. [67]In my view, the “subject matter” of both the Ontario and Federal Court proceedings is the Collision, liability, and any limitation of that liability. [68]The Convention, which forms part of the MLA, clearly shows that there is a presumptive right to limit liability. [69]In the within proceedings, the Plaintiff asserts a right to limit his liability, if any, relative to the Defendants. [70]The determination of liability, and limitation thereof, for the Collision can be determined in the Federal Court, as well as in the Ontario Superior Court of Justice. [71]I do not accept that the Defendants’ choice of forum militates in favour of the Ontario proceedings. As discussed, the MLA provides the Plaintiff with his own cause of action to limit liability, a proceeding which is meant to be expeditious. He too has a choice of forum in which to bring his action, and that choice must be balanced with the choice made by the Defendants. [72]While the Ontario Rules of Practice and Procedure may allow a broader range of discovery, a Case Management Judge of this Court can also allow for broader discovery, if warranted. [73]The question of the availability of a jury trial is an appropriate factor to consider, but it is not determinative. In my opinion, depriving the Defendants of the option to have their claims considered by a jury is outweighed by the inconvenience, expense and repetition that would be required by determination of the issue of limitation in this Court, and determination of the issue of liability in the Ontario Superior Court of Justice. [74]The Defendants can pursue their claim for personal injury and property damage in the Federal Court. Those claims can be accommodated by filing pleadings in this action, including counterclaims. [75]Contrary to the Defendants’ submissions, the Federal Court is the most efficient forum to determine all the issues relative to the Collision. It is beyond doubt that the Federal Court has jurisdiction over the issue of liability. Only the Federal Court has jurisdiction over the constitution and distribution of a limitation fund. While such a fund may be incidental to the determinations of liability and limitation, having the entirety of the proceedings considered in one Court would be the most efficient. [76]In the result, the Plaintiff’s motion to enjoin the Defendants, and any other person, from commencing or continuing proceedings before any court other than this Court, against the Plaintiff in respect of the Collision is allowed. [77]The Plaintiff’s Motion is granted in part, with costs. [78]The Motion to enjoin the Defendants, and any other person, from commencing or continuing proceedings before any court other than the Federal Court, against the Plaintiff in respect of the Collision, is granted. [79]The Motion of the Defendants is dismissed in its entirety. [80]If the parties cannot agree on costs, that issue may be addressed in brief submissions, not exceeding five (5) pages, to be served and filed on or before August 31, 2023. IV. CONCLUSION ORDER in T-1860-21 and T-1837-22 THIS COURT ORDERS that: The Motion to stay these proceedings is dismissed. The Defendants and any other person are enjoined from commencing or continuing proceedings before any other Court or tribunal than the Federal Court against Jeff Schnarr in T-1860-21, in respect of the Collision. Any claim in respect of the Collision which may be subject to limitation of liability shall be asserted either by way of a counterclaim or cross-claim in these actions, or by way of a separate action before this Court. The issues determined and the procedure established by this Order does not preclude any of the Defendants or claimants from alleging that: Jeff Schnarr, as Plaintiff, and any other party, are not entitled to limit liability as contemplated by the MLA; and One or more of the parties do not fall within the category of those entitled to invoke pursuant to the MLA, the right to limit liability. The parties herein are directed to consult and to submit a draft order to give effect to the Reasons for Order, concerning the establishment of a limitation fund in the amount of $1,000,000.00 plus interest from August 31, 2019, to the date on which the statutory limitation fund is constituted, pursuant to subsection 33(5) of the Act. The parties shall specifically address the relief sought in paragraphs (a), (b), (c), (d), (e), (g), and (h) of the Plaintiff’s Notice of Motion. The draft order will be submitted to the Court on or before August 31, 2023. The establishment of a limitation fund, in accordance with the MLA, in the amount of $1,000,000.00 and interest, shall not preclude any party or person from denying liability or legal responsibility and contesting the quantum of any claim. These actions are specially managed proceedings and following constitution of the limitation fund, any party shall be at liberty to seek orders and directions from the Case Management Judge concerning the completion of pre-trial steps, the consolidation of the actions, the fixing of a single or separate hearing and any other relevant matter mentioned in the MLA or the Rules. If the parties cannot agree on costs, that issue may be addressed in submissions to be served and filed on or before August 31, 2023. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKETS: T-1860-21 and T-1837-22 STYLE OF CAUSE: JEFF SCHNARR v. LARRY MARKLE AND ATHELIE MARKLE AND ELRI OOSTHUIZEN AND CALEB LAMBERT PLACE OF HEARING: HELD BY WAY OF VIDEOCONFERENCE DATE OF HEARING: FEBRUARY 9, 2023 REASONS AND ORDER: HENEGHAN J. DATED: JULY 21, 2023 APPEARANCES: Patrick Monaghan and Shane Marston FOR JEFF SCHNARR Lindsay Rodenburg Lisa Morell Kelly FOR LARRY MARKLE AND ATHELIE MARKLE FOR ELRI OOSTHUIZEN, CALEB LAMBERT, LARRY MARKLE, AND ATHELIE MARKLE SOLICITORS OF RECORD: Smockum Zarnett LLP Toronto, Ontario FOR JEFF SCHNARR Shillington McCall LLP London, Ontario Morell Kelly Kitchener, Ontario FOR LARRY MARKLE AND ATHELIE MARKLE FOR ELRI OOSTHUIZEN, CALEB LAMBERT, LARRY MARKLE, AND ATHELIE MARKLE\n\n### Legal Analysis\nThe court's analysis focuses on: a stay, reached the following conclusion: In summary, that the two-part test is appropriate where a stay of the Court's own proceeding is at issue, while the three-part RJR-MacDonald test is appropriate where the stay is that of proceedings before some tribunal or an order of the Court pending an appeal… [50]In my opinion, the s\n\n### Precedential Value\nThis Federal Court decision has persuasive value for similar cases before the court and provides guidance to the Immigration and Refugee Board on the proper interpretation of law and procedural requirements. While not binding on other Federal Court judges, it establishes a precedent that will often be followed for consistency."}
{"prompt": "Analyze this Refugee Appeal Division decision from the Immigration and Refugee Board of Canada and explain its implications for refugee determination:\n\nRAD File No. / No de dossier de la SAR : MC1-03403 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Date of decision February 7, 2022 Date de la décision Panel Nicole Ladouceur Tribunal Counsel for the person who is the subject of the appeal Barbara Brizuela Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX, the appellant and a citizen of Lebanon, is appealing the decision of the Refugee Protection Division (RPD) rendered on May 19, 2021, rejecting her refugee protection claim on the ground of lack of credibility. 1. In her Basis of Claim Form (BOC Form), the appellant alleges that she was a victim of violence perpetrated by her husband and son. She came to Canada with a visa on XXXX XXXX, 2020, and claimed refugee protection on December 11, 2020. She fears for her safety should she return to Lebanon. 2. In its decision, the RPD found that the appellant was not a credible witness due to inconsistencies in her testimony and her returns to Kuwait and Lebanon. The RPD considered that although the appellant's marital and family problems were unfortunate, they did not reach the required threshold to amount to persecution and that, as a result, the appellant had failed to demonstrate there would be a serious possibility of persecution or a risk to her life if she returns to Lebanon. 3. In her memorandum, the appellant argues that the representation provided by her former counsel, whom she believed to be a lawyer, was inadequate in that he failed to inform her that she could have her daughter testify. She argues that her daughter could have corroborated her testimony regarding the domestic violence and that this would have had a major impact on the outcome of her claim. 4. The appellant advised her former counsel of her allegations of inadequate representation in accordance with Practice Notice - Allegations Against Former Counsel,1 and he submitted his responses on the Refugee Appeal Division (RAD) record. 5. The determinative issues for the RAD are procedural fairness and credibility. DETERMINATION [2] The appeal is dismissed. Former counsel's actions did not deprive the appellant of her right to procedural fairness. The RPD correctly determined that the appellant was not a credible witness and that she is neither a Convention refugee nor a person in need of protection. NEW EVIDENCE [3] In her memorandum, the appellant does not indicate that she has new evidence; however, she included two affidavits, one signed by her and the other by her daughter. These affidavits describe new developments and are therefore subject to the provisions of subsection 110(4) regarding their admissibility as new evidence. [4] Under the Immigration and Refugee Protection Act2 (IRPA), I can allow only evidence i) that arose after the RPD rendered its decision; ii) that was not reasonably available at the time of the decision; or iii) that the person could not reasonably have been expected in the circumstances to have presented to the RPD before the decision was rendered. iv) If the evidence meets one or more of these requirements, I must decide whether the evidence is new, credible and relevant before admitting it.3 [5] Both affidavits are admitted as new evidence. [6] In their respective affidavits, the appellant and her daughter state that at their last meeting with a lawyer to prepare the appellant's appeal, they learned that the former counsel was not a lawyer, that the appellant's daughter, who had witnessed her father's violent acts toward her mother, could have testified before the RPD and that this could have changed the outcome of the refugee protection claim. This information meets the first three criteria of subsection 110(4) since, according to the memorandum, it was only while preparing the appeal with the appellant's lawyer that they discovered this information. It consequently arose after the RPD's decision. [7] The documents are credible because they are affidavits containing statements made under oath by the appellant and her daughter, new because they bring new evidence concerning the allegations of persecution and relevant because they could have an impact on the outcome of the claim. ANALYSIS [8] The role of the RAD is to review RPD decisions by applying the correctness standard of review.4 Having applied this standard of review and conducted my own analysis of the record, which included listening to the recording of the hearing held before the RPD on April 15, 2021, and ensuring that Chairperson's Guideline 45 was implemented, I consider that the rules of procedural fairness and natural justice were not breached and that the RPD did not err in finding that the appellant was not a credible witness. The reasons are as follows. [9] In its decision, the RPD concluded that due to contradictions, inconsistencies and behaviour inconsistent with a subjective fear directly related to her allegations of violence, the appellant was not a credible witness and that, consequently, she had failed to establish that she faced a serious possibility of persecution if she returned to Lebanon or, on a balance of probabilities, that she would be subjected personally to a risk to her life or to other treatment provided under section 97 of the IRPA. Professional qualifications of the former counsel were known to the appellant and her daughter [10] In her memorandum, the appellant argues that she did not know that her former counsel was not a lawyer and that had she known this, she would not have retained his services. She included an affidavit from herself and another from her daughter that both contain statements to the effect that the former counsel never disclosed to them that he was not a lawyer. [11] When claimants swear to the truth of certain allegations, they are presumed to be telling the truth. However, this presumption is rebuttable where the evidence is inconsistent with the testimony or where the RPD is unsatisfied with the explanation provided for those inconsistencies.6 [12] With respect, the appellant and her daughter are not credible when they assert in their respective affidavits that they did not know that the appellant's former counsel was not a lawyer. I reviewed the contents of the RPD record and the former counsel's response to the allegations of inadequate representation.7 These documents, of which I have reproduced the relevant excerpts, demonstrate that the former counsel disclosed clearly to the appellant and her daughter that he was an immigration consultant and member of the Immigration Consultants of Canada Regulatory Council (ICCRC). I note that according to the response from the former counsel, the appellant's daughter, who, based on her statement at paragraph 12 of the BOC Form, is proficient in English, went with her mother to all meetings with the former counsel. [13] Basis of Claim Form - Question 9(k), Refugee Protection Division record: The appellant checked the box indicating that she was represented by an immigration consultant (emphasis added). She states further on under question 11, Declaration B, that the BOC Form was interpreted to her in Arabic and that the information it contained was complete, true and correct. I note that at the RPD hearing, she stated that the information in her BOC Form was complete, true and correct.8 At paragraph 12 of this same document, under the heading \"Interpreter's Declaration,\" the appellant's daughter, XXXX XXXX, signed to declare that she had interpreted the BOC Form from Arabic to English for the appellant and provided any explanations to her and that the appellant had assured her that she understood the entire content of the document and all answers. [14] Use of a Representative, Form IMM 5476, Section B, question 6, Refugee Protection Division record, page 94: The appellant indicated that she was represented by a consultant who was a member of the ICCRC, membership number R421983, under question 10 in the document, and the appellant signed the declaration on XXXX XXXX, 2020, indicating that \"I have fully and truthfully answered all questions on this form.... I also declare that I have read and understood all the statements on this form, having asked and obtained an explanation for every point that was not clear to me.\" [15] Retainer agreement with the former counsel signed by the appellant (\"Retainer Agreement,\" Document 1 - RAD record): In his response to the allegations of inadequate representation, the former counsel indicates that the appellant signed, in the presence of her daughter, the \"Retainer Agreement\" - Refugee, which clearly stipulates that he is a member, under membership number R421983, of \"Regulated Canadian Immigration Consultants - RCIC,\" a member organization of the ICCRC. [16] In light of the foregoing, I am of the opinion that the presumption of truthfulness afforded to the appellant and her daughter is rebutted, because the documentary evidence contradicts their assertions in their affidavits to the effect that they did not know that the former counsel was not a lawyer. I consider that the information was disclosed to them by the former counsel and, consequently, that they knew that he was not a lawyer. In these circumstances, I consider that the affidavits are of little probative value and I give them only limited weight. Adequate representation by the former counsel [17] In her memorandum, the appellant argues that her former counsel did not represent her adequately in that he failed to inform her that she could have her daughter testify. She alleges that her daughter witnessed many of her husband's violent acts toward her and that her testimony would have had a major impact on the outcome of her claim. [18] In his response to the allegations of inadequate representation, the former counsel explains that he hesitated to have the appellant's daughter testify for the following reasons: she has lived in Canada for more than 12 years and was therefore [translation] \"distanced from the recent problems the mother had been having with her husband and the recently married son who was still living with her along with his wife.\"9 He adds that \"had the appellant known that her daughter could be with her during the hearing, she would have stopped making an effort to prepare on her own.\" [19] With respect, I disagree with the appellant when she argues that the former counsel did not adequately represent her. [20] In Rendon Segovia et al,10 the Federal Court established a tripartite test in which each of the following elements must be met to demonstrate that the incompetence of counsel amounted to a breach of procedural fairness: - a. Prior counsel's acts or omissions constituted incompetence or misconduct; - b. A miscarriage of justice resulted in the sense that, but for the alleged conduct, the result would have been different; and - c. Prior counsel was given an opportunity to respond. [21] The first two criteria must be analyzed in conjunction with one another since they are closely linked. To meet the allegation of incompetence, the appellant must prove that her counsel was incompetent in choosing not to have her daughter testify or negligent in failing to advise her of the option to have her daughter testify, that this failure resulted in an error and that had it not been for this failure, it is reasonably likely that the result of the claim would have been different. This requires a very high level of proof before the panel can accept the argument, which the appellant has failed to bring in this case.11 [22] The Federal Court of Appeal has noted that it is settled that an applicant must live with the consequences of the actions of his counsel.12 As counsel, it was up to him to decide whether to call witnesses at the hearing on the appellant's behalf. In the case at hand, the decision not to have the appellant's daughter-who had left Lebanon more than 12 years previous, a fact not known to the RPD-testify does not appear unreasonable in light of the circumstances and the limited relevance of such testimony in relation to the analysis of fear of future persecution. [23] Concerning the appellant's allegation in her affidavit that her former counsel failed to inform her that she could have her daughter testify, the evidence in this regard is somewhat ambiguous. In his response, the former counsel indicates that [translate] \"had the appellant known that her daughter could be with her during the hearing (emphasis added), she would have stopped making an effort to prepare on her own.\" Now, being present during a hearing is not the same as giving specific testimony regarding a particular point. [24] I also listened carefully to the recording of the hearing before the RPD on April 15, 2021. In response to the question put to her by the RPD regarding her daughter's absence, the appellant testified that her daughter had witnessed acts and that [translation] \"I could ask her to testify.\" When the RPD asked her why she had not done so, the appellant replied, [translation] \"I don't know.\" The RPD rejected the appellant's explanations as not credible13 since this went to the heart of her allegations of violence and she was represented by counsel. [25] Lastly, I note that this allegation is made in the same affidavit that I have decided not to give any weight to in view of the appellant's credibility issues in relation to another assertion made in the same document. Where the claimant's personal testimony is not credible, it is reasonable to have credibility concerns about the supporting documentary evidence and to accord it minimal weight.14 [26] In these circumstances, I am of the opinion that former counsel adequately represented the appellant and that principles of fairness were not violated. Outcome would have been the same [27] In her memorandum, the appellant argues that had she been able to have her daughter testify, the outcome of her claim would have been different. She does not contest the RPD's other findings regarding her credibility issues, specifically her behaviour inconsistent with that of a person in danger when she returned to live with her husband in Kuwait after leaving him, her return to Lebanon, her vague and superficial testimony, and her avoiding answering questions concerning her allegations of violence. [28] With respect, I cannot accept the argument that the RPD's decision was based on the absence of her daughter's testimony and that had it not been for this absence, the result would have been different. It is true that the RPD noted the absence of a witness whom it considered important, namely the appellant's daughter, but the RPD did not know that she had left Lebanon more than 12 years prior to the hearing. [29] Moreover, a review of the RPD reasons and decision and the recording of the hearing reveals that the RPD's decision did not ultimately revolve around the daughter's testimony. It revolved around the testimony of the appellant or refugee protection claimant, who was unable to establish on a balance of probabilities that there would be a serious possibility of persecution should she return to Lebanon or a risk to her life or other treatment under section 97, on a balance of probabilities, as set out below, hence the RPD's finding, which I consider correct, that the appellant was not credible. Vague and superficial testimony [30] The RPD noted immediately that the appellant was not always directly answering the questions put to her, particularly in relation to the allegations of violence, which were nonetheless central to her claim. In response to repeated questions from the RPD, the appellant was unable to provide details as to the persecution she alleges she experienced, remaining superficial: she replied that her husband would go out early in the morning and return in the evening, leaving her crying alone at home, that he was not clean, that he was stingy and would take her money, and that she did not love him. When asked again whether her husband had been violent toward her, she replied vaguely and evaded the question while indicating that he was not interested in her and that he had committed adultery. In light of the testimony, the RPD's decision that the appellant's evidence regarding the allegation of violence was essentially limited to marital problems is correct. [31] That said, the Supreme Court of Canada has stated that refugee law ought to concern itself with actions which deny human dignity and that the sustained or systemic denial of core human rights is the appropriate standard.15 Lack of subjective fear [32] The appellant testified that she had left her husband while they were living in Kuwait in 1991 to go live in Lebanon for three years. In 1994, she returned to Kuwait with her three children to live with her husband because she needed someone to provide for her financially, an explanation considered unsatisfactory by the RPD since she had been able to live for three years in Lebanon while providing for herself and her children. The RPD considered that the appellant's returning to her husband was behaviour inconsistent with that of a person who fears for their life. [33] In 2013, the appellant returned again to live in Lebanon with her children. After initially avoiding answering a question from the RPD as to whether her husband joined her in Lebanon, she went on to testify that she had agreed to have her husband come live with them because he had health problems. When then asked about the fears of violence if she returned to Lebanon, she testified that her husband would take her money and that he was not clean. [34] It is well established that remaining longer than necessary in a country where one fears persecution or voluntarily returning to that country is behaviour that can demonstrate a lack of subjective fear or is inconsistent with that of a person who genuinely fears for their life.16 In my view, the RPD's decision that the appellant demonstrated a lack of subjective fear by returning to live with her husband on two occasions and returning to Lebanon is correct. Contradiction in the evidence [35] When asked again about any violent acts, the appellant testified that her husband had cuffed her on the ear. However, this statement contradicts the statement in her BOC Form that it was her son who had cuffed her on the ear. Faced with this contradiction, she testified that it was her husband, not her son, who had struck her on the ear but that the son had put money in her mouth on one occasion during an argument about money. When questioned a second time concerning the contradiction, the appellant testified that it was her son who had struck her before going back on her testimony and stating that it was instead her husband.17 [36] The RPD's decision that this contradiction undermined the appellant's credibility is correct. [37] In the present case, after reading the RPD's decision, listening to the recording of the hearing and considering the arguments presented on appeal, I am of the opinion that the correct decision was to reject the refugee protection claim, as the inconsistencies and contradictions and the lack of subjective fear are fatal to the appellant's credibility. CONCLUSION [38] I conclude that the former counsel's actions did not deprive the appellant of her right to procedural fairness. The appellant had ample opportunity to argue her refugee protection claim. [39] I confirm the determination of the RPD, namely that XXXX XXXX is neither a refugee under section 96 nor a person in need of protection under section 97 of the IRPA. [40] The appeal is dismissed. (signed) Nicole Ladouceur Nicole Ladouceur February 7, 2022 Date IRB translation Original language: French 1 Practice Notice - Allegations Against Former Counsel, Immigration and Refugee Board of Canada (IRB), effective date August 13, 2018. 2 Subs. 110(4) of the Immigration and Refugee Protection Act. 3 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96. 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 5 Chairperson's Guideline 4 on Women Refugee Claimants Fearing Gender-Related Persecution, IRB, effective date November 13, 1996. 6 Lawani v. Canada (Citizenship and Immigration), 2018 FC 924, para. 21. 7 SAR-1, Refugee Appeal Division (RAD) record, Responses to allegations, Document 1: RetainerAgreement-Refugee. 8 SAR-2, Recording of the Refugee Protection Division (RPD) hearing on April 15, 2021, at approximately 00:10:14. 9 SAR-1, RAD record, Responses to allegations, at page 4. 10 Rendon Segovia v. Canada (Citizenship and Immigration), 2020 FC 99, para. 22. 11 Canada (Citizenship and Immigration) v. Singh, 2018 FCA 96, para. 66. 12 Ibid. 13 SPR-1, RPD record, RPD reasons and decision, paragraph 46, p. 12. 14 Ogaulu v. Canada (Citizenship and Immigration), 2019 FC 547, para. 26. 15 Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689. 16 Rivera v. Canada (Citizenship and Immigration), 2003 FC 1292, paras. 29 and 30; El-Khatib v. Canada (Citizenship and Immigration), 2016 FC 471, para. 12. 17 Supra, endnote 8, see approximately 00:04:12 to 00:08:55 (2nd cassette). --------------- ------------------------------------------------------------ --------------- RAD File No. / No de dossier de la SAR : MC1-03403 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français", "response": "## Analysis of Refugee Decision: MC1-03403\n\n### Key Issues\nrecord. 5. The determinative issues for the RAD are procedural fairness and credibility. DETERMINATION [2] The appeal is dismissed. Former counsel's actions did not deprive the ap\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: on the outcome of the claim. ANALYSIS [8] The role of the RAD is to review RPD decisions by applying the correctness standard of review.4 Having applied this standard of review and conducted my own analysis of the record, which included listening to the recording of the hearing held before the RPD on April 15, 2021, and ensurin\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "Explain how this Federal Court of Appeal of Canada decision clarifies immigration law:\n\nPerrin v. Canadian Union of Public Employees Court (s) Database Federal Court of Appeal Decisions Date 2023-05-15 Neutral citation 2023 FCA 104 File numbers A-132-22 Decision Content Date: 20230515 Docket: A-132-22 Citation: 2023 FCA 104 CORAM: RIVOALEN J.A. ROUSSEL J.A. GOYETTE J.A. BETWEEN: NADINE PERRIN, AND OTHER MEMBERS OF THE AIR CANADA COMPONENT OF CANADIAN UNION OF PUBLIC EMPLOYEES Applicants and CANADIAN UNION OF PUBLIC EMPLOYEES AND AIR CANADA Respondents Heard by online video conference hosted by the Registry on May 15, 2023. Judgment delivered from the Bench at Ottawa, Ontario, on May 15, 2023. REASONS FOR JUDGMENT OF THE COURT BY: ROUSSEL J.A. Date: 20230515 Docket: A-132-22 Citation: 2023 FCA 104 CORAM: RIVOALEN J.A. ROUSSEL J.A. GOYETTE J.A. BETWEEN: NADINE PERRIN, AND OTHER MEMBERS OF THE AIR CANADA COMPONENT OF CANADIAN UNION OF PUBLIC EMPLOYEES Applicants and CANADIAN UNION OF PUBLIC EMPLOYEES and AIR CANADA Respondents REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on May 15, 2023). ROUSSEL J.A. [1] The applicants seek judicial review of a decision of the Canada Industrial Relations Board dated May 20, 2022, dismissing their complaint against the Canadian Union of Public Employees (Union), for breach of the duty of fair representation under section 37 of the Canada Labour Code, R.S.C., 1985, c. L-2. [2] The applicants alleged in their complaint that the Union breached its duty by refusing to file a policy grievance challenging Air Canada’s mandatory vaccination policy. The applicants are a group of flight attendants, pursers and service directors employed with Air Canada. Ms. Perrin was mandated to bring the complaint on their behalf. [3] In its decision, the Board found that since the factual considerations and legal arguments raised in the complaint were substantially similar to those reviewed and addressed in its recently issued decision Ingrid Watson v. Canadian Union of Public Employees, 2022 CIRB 1002 [Watson], it could rely on its analysis and rationale. In Watson, it had concluded that the Union had not breached its duty of fair representation when it refused to file a policy grievance with respect to Air Canada’s mandatory vaccination policy. The Board’s decision has since been upheld by this Court in Watson v. Canadian Union of Public Employees, 2023 FCA 48 [Watson FCA]. [4] In their application to this Court, the applicants take issue with the Board referring to Watson as the basis for dismissing their complaint. They argue that their complaint differed from that of Ms. Watson as it was not only directed at the Union’s refusal to pursue the policy grievance, but also at the Union’s failure to file grievances against the disciplinary measures from the application of said policy. In omitting to address this argument, they say that the Board failed to engage with one of their arguments. [5] The applicants agree that the Board’s decision is reviewable on the standard of reasonableness (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 49 [Vavilov]; Watson FCA at para. 16; Paris c. Syndicat des employés de Transports R.M.T. (Unifor-Québec), 2022 CAF 173 at para. 2 [Paris]). [6] In its decision, the Board found that it could rely on its analysis in Watson because the applicants were in the same bargaining unit as Ms. Watson and represented by the same Union. The issues they raised with the Union regarding Air Canada’s mandatory vaccination policy were essentially the same as those the Board had considered and addressed in Watson, and the Union’s conduct and communications in this case were the same as those examined in Ms. Watson’s complaint. The Board had also reviewed Ms. Perrin’s communications to the Union in the Watson matter. The Board considered the allegations of the applicants but ultimately found that they had brought forward no new fact or argument that would cause it to come to a different conclusion than that reached in Watson. [7] In our view, the distinction raised by the applicants regarding the Union’s failure to contest the disciplinary consequences imposed on those refusing to be vaccinated is immaterial. The Board understood that disciplinary measures for non-compliance included economic consequences. It was also aware of the Union’s position that it would review all disciplinary measures on a case-by-case basis and that an individual grievance had indeed been filed for Ms. Watson. [8] We are also satisfied that the Board considered all of the other elements raised by counsel for the applicants at this hearing. [9] In their written submissions, the applicants criticize the Union’s failure to disclose to its members the second legal opinion obtained on the likelihood of success in challenging the vaccination policy through a grievance. They argue that the first opinion was obtained at a time when Air Canada had no concrete policy in place and was therefore speculative. They contend that the Board failed to consider this and therefore misinterpreted the facts and the law when it determined that the Union had complied with its obligation under section 37 of the Code by obtaining legal advice. They also submit that the Board failed to look at the Union’s alleged failure to fairly represent them, namely, by ignoring them, refusing to answer their concerns, and sharing false information. [10] The applicants have not identified any legal basis for the Union being required to provide them with copies of the second legal opinion nor have they demonstrated that the alleged deficiencies in legal advice would render the Board’s findings unreasonable. This argument was addressed and dismissed in Watson FCA (at paras. 37-41). Moreover, contrary to the applicants’ assertion, the Board did examine the Union’s conduct. It found that the Union had communicated regularly with its membership regarding the implementation of the policy, and that it had turned its mind to the issues raised by the members, including those who disapproved of the policy for various reasons. The Board was not required to refer to every document in the record, to respond to every argument or to make an explicit finding on each element leading to its conclusion (Vavilov at paras. 91, 128; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 16). There is no basis for concluding that the Board ignored evidence or that it failed to grapple with any of the issues raised by the applicants. [11] When the applicants asked the Board to consolidate their complaint with that of Ms. Watson, they recognized that their complaints were similar. In our view, they have not demonstrated that the Board’s decision to apply the analysis and rationale in Watson was unreasonable. Having examined the record and the Board’s reasons, we consider that the Board’s decision is based on an internally coherent and rational chain of analysis that was justified in relation to the facts and law that constrained it (Vavilov at para. 85). [12] Finally, we cannot agree with the applicants’ argument that the Board breached procedural fairness in failing to grant them an oral hearing. They claim that the Board never considered the circumstances set out in their complaint justifying an oral hearing, namely that the complaint raised issues “of possible bad faith and personal motives behind the failure to act” and that the “credibility of the witnesses” would be an important part of the Board’s evaluation. [13] This Court has repeatedly held that the Board is not required to hold an oral hearing on every occasion that one is requested (Paris at para. 5; Ducharme c. Air Transat A.T. Inc., 2021 CAF 34 at paras. 19, 21; Wsáneć School Board v. British Colombia, 2017 FCA 210 at para. 33; Madrigga v. Teamsters Canada Rail Conference, 2016 FCA 151 at paras. 26-28). Likewise, issues of credibility do not necessarily amount to exceptional circumstances requiring the Board to hold an oral hearing (Watson FCA at para. 51; Paris at para. 5). The Board’s decision under section 16.1 of the Code is entitled to considerable deference from this Court (Watson FCA at para 50; Paris at para. 5). [14] When the Court reviews issues of procedural fairness, its role is to determine whether the proceedings were fair in all of the circumstances (Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69 at paras. 54-56). Here, the applicants filed a detailed complaint with extensive documentation totalling several hundred pages. They have not demonstrated how the failure to hold an oral hearing prevented them from presenting their complaint fully and fairly. [15] During oral submissions, the applicants raised an additional breach of procedural fairness. They submit that the Board’s process was unfair as they were not provided an opportunity to reply as was afforded to Ms. Watson. Notwithstanding that this is a new argument, we find that it has no merit. Based on the record and the responses provided by the applicants’ counsel at this hearing, we are satisfied that there was no breach of procedural fairness. [16] Despite counsel’s able submissions, we will dismiss the application with costs. “Sylvie E. Roussel” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-132-22 STYLE OF CAUSE: NADINE PERRIN, AND OTHER MEMBERS OF THE AIR CANADA COMPONENT OF CANADIAN UNION OF PUBLIC EMPLOYEES v. CANADIAN UNION OF PUBLIC EMPLOYEES AND AIR CANADA PLACE OF HEARING: HEARD BY ONLINE VIDEO CONFERENCE HOSTED BY THE REGISTRY DATE OF HEARING: May 15, 2023 REASONS FOR JUDGMENT OF THE COURT BY: RIVOALEN J.A. ROUSSEL J.A. GOYETTE J.A. DELIVERED FROM THE BENCH BY: ROUSSEL J.A. APPEARANCES: Bruno-Pierre Allard For The ApplicantS Devon Paul Elizabeth Nurse Ella Henry For The Respondent CANADIAN UNION OF PUBLIC EMPLOYEES Cristina Toteda For The Respondent AIR CANADA SOLICITORS OF RECORD: Chabot, Mediators-Attorneys Laval, Québec For The ApplicantS Air Canada Center Law Branch Zip 1276 Dorval, Québec For The Respondent AIR CANADA Canadian Union of Public Employees Markham, Ontario For The Respondent CANADIAN UNION OF PUBLIC EMPLOYEES", "response": "## Analysis of Court Decision: Perrin v. Canadian Union of Public Employees\n\n### Key Issues\nsented by the same Union. The issues they raised with the Union regarding Air Canada’s mandatory vaccination policy were essentially the same as those the Board had considered and\n\n### Standard of Review\nreviewable on the standard of reasonableness (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 49 [Vavilov]; Watson FCA at para. 16; Paris c. Syndi\n\n### Legal Analysis\nThe court's analysis focuses on: Watson], it could rely on its analysis and rationale. In Watson, it had concluded that the Union had not breached its duty of fair representation when it refused to file a policy grievance with respect to Air Canada’s mandatory vaccination policy. The Board’s decision has since been upheld by this Court in Watson v. Canadian Uni\n\n### Precedential Value\nAs a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation."}
{"prompt": "Analyze this Federal Court of Canada decision related to immigration and explain its significance:\n\nYe v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2023-01-18 Neutral citation 2022 FC 1767 File numbers IMM-5398-21 Decision Content Date: 20230118 Docket: IMM-5398-21 Citation: 2022 FC 1767 Ottawa, Ontario, January 18, 2023 PRESENT: The Honourable Mr. Justice Favel BETWEEN: YUANBIAO YE Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I. Nature of the Matter [1] Yuanbiao Ye [Applicant] initially sought refugee protection in 2018. The Refugee Protection Division [RPD] dismissed his claim. This Court granted the Applicant’s application for judicial review in Ye v Canada (Citizenship and Immigration), 2019 FC 587, resulting in the Applicant’s refugee claim being remitted to the RPD for re-determination. The Applicant now seeks judicial review of the RPD’s July 2, 2021 re-determination decision that, once again, dismissed his refugee claim [Decision]. [2] The application for judicial review is dismissed. II. Background Facts [3] The Applicant is a citizen of China. On April 20, 2012, the Applicant claims that he, along with approximately 35 property owners, received notice to relocate from their homes by July 20, 2012 because the Chinese government wished to expropriate their properties. Approximately 10 days later, the property owners received a compensation notice, but felt that the compensation was insufficient. [4] The Applicant and four other representatives [Representatives] were selected by the property owners to speak with the town government about the insufficient compensation. The Representatives submitted documentation showing the value of their properties, but received no response. [5] Partial demolition of the homes began on July 18, 2012, and some individuals who tried to prevent the demolition were beaten. The demolition office threatened to demolish the properties by force. [6] On July 19 2012, the property owners held a protest without a permit. That evening, while the Applicant was away from his home, the Public Security Bureau [PSB] went to the Applicant’s home to arrest him. The Applicant’s wife told him that the PSB accused him of leading the protest. The Applicant fled to his cousin’s home. While hiding, the PSB arrested three other Representatives. [7] On July 20, 2012, the demolition officers, along with the police, arrived to destroy the homes. The PSB left a summons with the Applicant’s wife, requiring the Applicant to report to the PSB office. Thereafter, the PSB searched for the Applicant at his relatives’ homes. [8] The Applicant hired an agent to flee China. On October 5, 2012, the Applicant travelled from Hong Kong to the United States. On October 23, 2012, he crossed the border into British Columbia without reporting to customs or border officials. He then flew to Toronto. Five days later, the Applicant filed his refugee claim pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act, SC 2011, c 27 [IRPA]. [9] In January 2013, the Applicant learned that the three Representatives were sentenced to four years in prison. III. The Decision [10] The RPD held that the Applicant failed to establish a nexus to a Convention ground, namely, political opinion, with reliable and credible evidence. Accordingly, the RPD assessed the Applicant’s claim pursuant to subsection 97(1) of IRPA. The determinative issues for the RPD were credibility and a well-founded fear of persecution. [11] In first considering credibility, the RPD accepted that the events leading up to and immediately after the protest occurred as alleged by the Applicant. However, the RPD disbelieved that the PSB continued to visit the Applicant’s home and seek out the Applicant. [12] The RPD noted the Applicant’s testimony that the PSB most recently visited his home in February 2021. The RPD drew a negative inference from the absence of documents illustrating the PSB’s continued interest in him or an affidavit from the Applicant’s wife attesting to the PSB’s visits. When the RPD asked the Applicant why his wife did not swear an affidavit, the Applicant stated that he had not asked his wife. The RPD disbelieved that the PSB would continue to look for the Applicant for eight years and not leave any documents with his wife. [13] Turning to a well-founded fear of persecution, the RPD concluded that the evidence failed to show that the Applicant would face persecution if returned to China. Concerning the arrest of the three Representatives, the RPD noted that the Applicant did not know whether authorities had released those individuals or whether anyone had received compensation for the expropriation. [14] The RPD also concluded that the Applicant’s previous efforts to come to Canada on vacation undermined his fear of persecution. The RPD ultimately held that the evidence indicated that he had come to Canada for “economic reasons.” The RPD also found that the Applicant was not forthcoming about who assisted him in this process. [15] Finally, the RPD held that even if the PSB has a continued interest in the Applicant, there was insufficient evidence to show that the Applicant would be subject to persecution. Rather, the RPD concluded that the Applicant would be subject to prosecution for contravening a law of general application, protesting without a permit, which applies to the “whole population without differentiation”, and not for having a specific political opinion (Zolfagharkhani v Canada (Minister of Employment and Immigration), [1993] 3 FC 540 at 10-11, 155 NR 311 (FCA) [Zolfagharkhani]). The RPD noted that the punishment for “unlawfully opposing an expropriation” in China is harsher than in Canada, but that this does not itself amount to persecution. [16] Ultimately, the RPD held that the Applicant is not a Convention refugee or a person in need of protection. IV. Issues and Standard of Review [17] After considering the parties’ submissions, the sole issue is whether the Decision is reasonable. The sub-issues are best characterized as: Did the RPD reasonably conclude that the Applicant lacks a nexus to the definition of a Convention refugee? Are the RPD’s credibility findings reasonable? [18] The Respondent submits that the standard of review is reasonableness and emphasizes that Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] does not call for a more deferential review than past jurisprudence. The Applicant submits that the standard of review is both reasonableness and correctness. [19] I agree with the Respondent that the standard of review is reasonableness. None of the exceptions warranting a departure from the presumption of reasonableness are engaged in this matter (Vavilov at paras 16-17). In assessing the reasonableness of a decision, the Court must consider “the outcome of an administrative decision in light of its underlying rationale to ensure that the decision as a whole is transparent, intelligible and justified” (Vavilov at para 15). For a decision to be reasonable, a decision-maker must adequately account for the evidence before it and be responsive to the Applicant’s submissions (Vavilov at paras 125-28). A decision will be unreasonable if it contains flaws that are sufficiently central or significant (Vavilov at para 100). A reviewing court must refrain from reweighing evidence before the decision-maker, and it should not interfere with factual findings absent exceptional circumstances (Vavilov at para 125). V. Analysis A. Did the RPD reasonably conclude that the Applicant lacks a nexus to the definition of a Convention refugee? (1) Applicant’s Position [20] The RPD unreasonably concluded that the Applicant failed to establish a nexus to a Convention ground. The RPD quoted from Huang v Canada (Citizenship and Immigration), 2019 FC 148 [Huang] and, without any analysis, baldly concluded that the Applicant has not established a nexus. The RPD also failed to consider whether the law of general application is “inherently or for some other reason persecutory” (Zolfagharkhani at 10). [21] Further, the RPD’s conclusion that any prosecution for a contravention of a law of general application would not amount to persecution is difficult to reconcile with the evidence. For instance, the RPD should have considered the US Department of State Report included in Item 2.1 of the National Documentation Package [Item 2.1], which states that there are “serious restrictions” on petitioners’ freedom of expression, including “physical attacks” and restrictions on their right to assemble. Item 2.1 also describes petitioners being incarcerated for “brief periods” in “extralegal ‘black jails.’” [22] Finally, the Decision is unreasonable because it runs contrary to the definition of “political opinion”, which is “any opinion on any matter in which the machinery of the state government, and policy may be engaged” (Canada (AG) v Ward, [1993] 2 SCR 689 at 746, 103 DLR (4th) 1, citing Guy S Goodwin-Gill, The Refugee in International Law (Oxford: Clarendon Press, 1983) at 31; Zhou v Canada (Citizenship and Immigration), 2013 FC 619 at para 34 [Zhou]). While laws of general application are not generally persecutory, the source of persecution in this case is the state’s suppression of the protest. Protesting a law, even one of general application, is an expression of political opinion, and it is that political opinion for which the Applicant was being persecuted. (2) Respondent’s Position [23] The RPD reasonably concluded that the Applicant failed to establish a nexus to a Convention ground and that he would face persecution for breaking a law of general application. The RPD considered all of the evidence and reasonably concluded that if the PSB was still seeking the Applicant, it was because he broke a law of general application. To establish a risk of persecution, a refugee claimant must demonstrate that prosecution under a law of general application is linked to a Convention ground. The claimant must also demonstrate that they face more than a mere possibility of persecution, which the Applicant failed to do (Zolfagharkhani at 10). [24] The RPD’s findings are consistent with this Court’s jurisprudence (Huang at paras 40-41; Ni v Canada (Citizenship and Immigration), 2018 FC 948 at paras 24-27 [Ni]; Yan v Canada (Citizenship and Immigration), 2018 FC 781 at paras 13, 21-23 [Yan]; Jiang v Canada (Citizenship and Immigration), 2015 FC 486 at paras 11-16 [Jiang]; You v Canada (Citizenship and Immigration), 2013 FC 100 at paras 19-25 [You]). (3) Conclusion [25] To qualify as a Convention refugee, claimants must establish that the persecution they fear is linked to race, religion, nationality, membership in a particular social group, or political opinion (IRPA, s 96; Rizkallah v Canada (Minister of Employment and Immigration), [1992] FCJ No 412 at 1, 156 NR 1 (FCA)). [26] I disagree with the Applicant that the RPD failed to analyze whether the Applicant established a nexus to a Convention ground. While the RPD’s analysis on this issue occurs at two separate points in the Decision, when read holistically, the Decision is reasonable (Vavilov at para 97). [27] The RPD first considers the issue of nexus under the heading “NEXUS”. The RPD cites paragraphs 41-44 of Huang, in which Associate Chief Justice Gagné wrote: I note that in Ni v Canada (Citizenship and Immigration), 2018 FC 948, Justice Elizabeth Walker found reasonable the RPD's decision that being involved in a protest to demand fair compensation did not amount to persecution on a Convention ground. Further, shouting anti-government slogans does not necessarily mean that there is a nexus to a Convention ground (Yan v Canada (Citizenship and Immigration), 2018 FC 781 at para 22). Even if I had accepted that the Applicants were wanted, they have not established that they would be persecuted, they have only established that they would be prosecuted for contravening a law of general application. Mr. Huang testified that he did not want to return to China because he would be arrested and put in jail, not that he would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment, or a danger of torture. While it is true that the Applicants specifically pointed to objective country evidence documenting certain cases of abuse of individuals who protest against land expropriation, the RPD found there was insufficient evidence that the Applicants themselves would be subjected to treatment amounting to persecution. I find this conclusion to be reasonable. In other words, there is no evidence that persons who have opposed land expropriation are systematically subjected to treatment amounting to persecution, such that it renders unreasonable the RPD's conclusion that the Applicants will not be subjected to persecution. I also note that the government has already expropriated the Applicants' land and would have only a limited, if any, interest in the principal Applicant other than to prosecute him for having participated in an illegal gathering. Lastly, the fact that the sentence for unlawfully opposing an expropriation is harsher in China than in Canada does not amount to persecution. [Emphasis added.] [28] In the matter at hand, the RPD concluded that the Applicant failed to establish an imputed political opinion, and therefore failed to establish a nexus. However, the RPD did not end its analysis there. Toward the end of the Decision, the RPD analyzed the nature of the protest, noting that the protestors held banners and chanted slogans, the PSB told protestors to leave because the protest was illegal, and the protestors left peacefully without any arrests. The RPD concluded that the PSB pursued the Applicant because he broke a law of general application and that the protest was based on inadequate compensation, not political opinion. I find that reading these separate points of analysis together reveals that the RPD reasonably engaged with the evidence in determining whether the Applicant had established a nexus to a Convention ground. As such, the RPD’s reasons are sufficiently justified, transparent, and intelligible. [29] I also disagree with the Applicant that the RPD failed to consider whether the law of general application is inherently persecutory. This Court has previously held that the Chinese law of expropriation is presumptively neutral and valid (Ni at para 26, citing Jiang at para 14). The burden is on a claimant, not the RPD, to show that a law of general application is “inherently or for some other reason persecutory” (Zolfagharkhani at 10). The Applicant has not pointed to any submissions before the RPD about the law in question being inherently persecutory. [30] The Applicant cites Zhou for the proposition that protesting expropriation constitutes a political opinion. At paragraph 34 of Zhou, Justice O’Keefe stated: Finally, I note the Board’s finding that the applicant’s opinion concerning the expropriation of his home was apolitical. I would note, however, that the protest was about more than the value of the applicant’s home. If he is found to be credible, his PIF clearly states that a large crowd of people attended the protest and were shouting slogans such as “The government is unfair”. Such conduct to me sounds to be an anti-government protest. [31] The applicant in Yan similarly cited Zhou for the same proposition (Yan at para 12). Justice McVeigh rejected Ms. Yan’s argument, noting that “[t]he decision in Zhou does not stand for the proposition that a nexus is always established when certain statements are made during a protest” (Yan at para 22). [32] I agree that “each case will turn on its facts” (Yan at para 22). In this case, the RPD considered the nature and the circumstances of the protest. The RPD’s approach is consistent with this Court’s jurisprudence. For instance, Justice Phelan noted at paragraphs 20-21 of You: The real dispute was over money not a grounds under the Convention. The monetary dispute cannot be dressed up as a political dispute just because it is against a government decision. It was not unreasonable to conclude that there was no nexus to a Convention grounds given the nature of the dispute and protest activities. [Emphasis added.] [33] In Yan, Justice McVeigh similarly considered the nature and circumstances of the protest. Ms. Yan testified that she shouted, “[g]overnment corrupt, compensation unfair, destroy our homes, respect human rights… [and] police assaulting people.” Justice McVeigh also considered Ms. Yan’s testimony about the importance of her home and the inadequacy of the compensation and found that the RPD reasonably concluded that the protest was primarily about compensation (Yan at paras 16-21). [34] In the present matter, the Applicant has not made submissions about any specific slogans chanted during the protest. The RPD transcript indicates that the Applicant only described the broader topics of the chants. The RPD considered the Applicant’s answers and reasonably characterized the protest as pertaining to unfair compensation rather than an anti-government political opinion. In the absence of anything in the record pointing to the contrary, the RPD’s finding that the Applicant failed to establish a nexus to a Convention ground is reasonable. [35] Finally, the Applicant argues that the RPD failed to consider Item 2.1. In my view, this submission has no merit. The RPD clearly cites Item 2.1 and acknowledges the restrictions that petitioners face at paragraph 49 of the Decision: The panel acknowledges that unauthorized protests and demonstrations are restricted in China, and that administrative detentions, such as that this claimant fears, may be used to deter such activities. In this regard, the panel, however, notes that the mere fact that the sentence for unlawfully opposing an expropriation may be harsher in China than in Canada does not amount to persecution. [36] In my view, the Applicant is simply asking the Court to reweigh the evidence on this point, which is not the function of judicial review (Vavilov at para 125). This aspect of the Decision is also reasonable. B. Are the RPD’s credibility findings reasonable? (1) Applicant’s Position [37] The RPD erred in making a negative credibility finding on the basis that the PSB did not leave any documents with the Applicant’s wife (Wang v Canada (Citizenship and Immigration), 2018 FC 1124 at paras 39-44). Unlike Huang, the absence of documents in this case is clearly determinative to the RPD’s negative credibility findings (Huang at paras 28-31). [38] The RPD similarly erred in requiring the Applicant to provide corroborating evidence from his wife (Mora Zapata v Canada (Citizenship and Immigration), 2008 FC 329 at paras 7-8). The requirement for corroborating evidence runs contrary to the presumption of truth articulated by the Federal Court of Appeal in Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC 302, [1979] FCJ No 248 (FCA) [Maldonado]. Further, it is not incumbent on refugee claimants to seek written or oral testimony from persons in the country they fear persecution. To do so would put both the Applicant and his wife at risk, thereby running contrary to the intention of subparagraph 166(b)(i) of IRPA. The evidence before the RPD indicates that the Chinese government frequently intercepts private communications. (2) Respondent’s Position [39] The RPD’s negative credibility findings were reasonable. The RPD may draw an adverse credibility finding from an applicant’s failure to produce corroborating evidence (Cekim v Canada (Citizenship and Immigration), 2011 FC 177 at para 14; Muchirahondo v Canada (Citizenship and Immigration), 2008 FC 546 at para 18). (3) Conclusion [40] After reviewing the totality of the record, I find the RPD’s credibility findings reasonable. [41] The onus is always on refugee claimants to prove their case. While I agree that gathering evidence from individuals in the country they fear may put the claimant and witnesses at risk, the Applicant never offered this justification before the RPD. Rather, when the RPD asked why the Applicant failed to tender an affidavit sworn by his wife, he simply stated that he thought it was unnecessary. [42] I also disagree with the Applicant that this case is distinguishable from Huang. In Huang, Associate Chief Justice Gagné considered this Court’s divergent perspectives on whether a decision-maker may draw a negative credibility finding where an applicant fails to produce a PSB summons (at paras 28-31). [43] In this case, the Applicant’s failure to produce a summons was not a determinative credibility finding (Huang at para 30; Sun v Canada (Citizenship and Immigration), 2008 FC 1255 at para 13; Deng v Canada (Citizenship and Immigration), 2015 FC 176 at para 14). To the contrary, the RPD drew multiple adverse inferences based on the Applicant’s demeanour, his previous efforts to come to Canada, and his failure to tender an affidavit sworn by his wife. [44] At paragraph 44 of the Decision, the RPD considered the Applicant’s unsuccessful Canadian visa application that he applied for “before his problems started on July 19, 2012.” More importantly, the RPD noted inconsistencies pertaining to why the Applicant initially applied for the visa, and that the Applicant was not forthcoming about who assisted him in this process. In my view, when the Decision is considered in light of the record, the RPD reasonably drew negative credibility findings (Vavilov at paras 91-98). The RPD transcript illustrates the inconsistencies the RPD member took issue with: Member: Okay, so when you filed your visa application to come to Canada Did you get somebody help? … Interpreter: Yes, yes. That was someone who helped me to to fill in it. Member: Who will help you Interpreter: It was long time ago I don't remember Member: Did you pay the person money to help you? Interpreter: At that time, we might have to hire some someone to help us to like for this application but it was long time ago. I don't I don't really remember. Member: You don't remember paying anything. Interpreter: We should just pay for the visa fee. Member: Okay, you paid for the visa fee. But did you pay the person who help you anything? If you remember if you don't remember? That's fine. Interpreter: I don't remember. … Member: Now why did you apply for the visa? Why did you want to come to Canada Interpreter: So at that time we were as for commercial for business to to go there to check it out. Member: Sorry to come for the business and ? Interpreter: yeah to check it out. mainly for commercial Member: So after the hearing and also in your paper document that you have [filed]. You have said that you were coming for sightseeing. they were no mention also coming for business purposes. Interpreter: I don't remember but as I remember it should be for commercial and like it's just like to check it to check the place. Member: To check the place you mean to check opportunity in Canada? Interpreter: Yes. To you see whether there's any development for business? yeah, for like the business market Member: and what kind of business you were exploring or you were planning to explore? Interpreter: So because our company's involved in the business, say for the like, Wi fi, the speaker for the sound equipment. So just wanted to check whether there were any opportunities in that field Member: was it a company sponsored trip? was your company sending you? Interpreter: yes the company send me Member: sir I know you told me you don't remember but there's no reference of any of this in your previous testimony or the documentation. [Emphasis added.] [45] In light of the above excerpt of the hearing transcript, I find that the RPD reasonably drew a negative inference from inconsistencies in the Applicant’s evidence and demeanour. In this regard, I note that credibility findings fall within the heartland of the RPD’s expertise (Giron v Canada (Minister of Employment and Immigration), [1992] FCJ No 481 at 1, 143 NR 238 (FCA)). I also note that deference is owed to administrative decision-makers, partially because of the “relatively advantageous position of the first instance decision maker” (Vavilov at para 125). [46] In He v Canada (Citizenship and Immigration), 2020 FC 825 [He], Justice McHaffie considered the relationship between the presumption of truth and corroborating evidence. He noted, “the presumption is that a claimant is telling the truth in sworn testimony, and a claimant is thus not required to present corroborative evidence unless there are reasons to doubt their testimony” (He at para 20; Luo v Canada (Citizenship and Immigration), 2019 FC 823 at paras 18-22; Maldonado at 305; He v Canada (Citizenship and Immigration), 2019 FC 2 at paras 22-25). The RPD correctly noted this rule at paragraph 39 of the Decision. [47] I also note that this case is similar to Yan, Su v Canada (Citizenship and Immigration), 2015 FC 666 [Su], Liu v Canada (Citizenship and Immigration), 2012 FC 1362 [Liu], and Jia v Canada (Citizenship and Immigration), 2012 FC 444 [Jia]. In those cases, the Court held that it was reasonable to expect a warrant or summons since the claimants testified that the PSB was relentlessly pursuing them (Yan at paras 37-38; Su at para 16; Liu at para 56; Jia at paras 37-38). Here, the Applicant testified that he was being pursued by the PSB for eight years. As noted by the RPD at paragraph 40 of the Decision: The panel finds it not credible, on a balance of probabilities, that the PSB would continue to visit the claimant's home, his relatives’ homes on numerous occasions as alleged, for more than eight years, yet leave no documents with his wife. This finding detracts from the claimant's credibility in that the PSB has continued to look for the claimant in order to arrest him, or that he would be persecuted upon return to China as alleged. [48] Given this Court’s decisions in Yan, Su, Liu, and Jia, it was reasonably open to the RPD to reach this conclusion. In light of the RPD’s various negative credibility findings and the jurisprudence noted above, the RPD did not err in drawing a negative inference due to a lack of corroborating evidence. VI. Conclusion [49] In my view, the Decision is intelligible, justified, and transparent. Accordingly, the application for judicial review is dismissed. [50] The parties have not proposed questions for certification and I agree that none arise. JUDGMENT in IMM-5398-21 THIS COURT’S JUDGMENT is that: The application for judicial review is dismissed. There is no question of general importance for certification. \"Paul Favel\" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5398-21 STYLE OF CAUSE: YUANBIAO YE v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY VIDEOCONFEENCE DATE OF HEARING: June 22, 2022 JUDGMENT AND REASONS: FAVEL J. DATED: january 18, 2023 APPEARANCES: Wennie Lee For The Applicant Margherita Braccio David DeMelo For The Respondent SOLICITORS OF RECORD: Lee & Company Immigration Advocacy, Counsel and Litigation Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent", "response": "## Analysis of Court Decision: Ye v. Canada (Citizenship and Immigration)\n\n### Key Issues\n1) of IRPA. The determinative issues for the RPD were credibility and a well-founded fear of persecution. [11] In first considering credibility, the RPD accepted that the events le\n\n### Standard of Review\nof protection. IV. Issues and Standard of Review [17] After considering the parties’ submissions, the sole issue is whether the Decision is reasonable. The sub-issues are best char\n\n### Legal Analysis\nThe court's analysis focuses on: ces (Vavilov at para 125). V. Analysis A. Did the RPD reasonably conclude that the Applicant lacks a nexus to the definition of a Convention refugee? (1) Applicant’s Position [20] The RPD unreasonably concluded that the Applicant failed to establish a nexus to a Convention ground. The RPD quoted from Huang v Canada (Citizenship\n\n### Precedential Value\nThis Federal Court decision has persuasive value for similar cases before the court and provides guidance to the Immigration and Refugee Board on the proper interpretation of law and procedural requirements. While not binding on other Federal Court judges, it establishes a precedent that will often be followed for consistency."}
{"prompt": "How does this Federal Court of Canada decision impact immigration procedures?\n\nSerna Medina v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2023-01-20 Neutral citation 2023 FC 100 File numbers IMM-13524-22 Decision Content Date: 20230120 Docket: IMM-13524-22 Citation: 2023 FC 100 Ottawa, Ontario, January 20, 2023 PRESENT: Mr. Justice Norris BETWEEN: JOSE ANTONIO SERNA MEDINA ERIKA GARCIA ESPINO Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS I. OVERVIEW [1] The applicants are citizens of Mexico. They have been directed to report for removal from Canada on January 23, 2023. They have applied for an order staying the order for their removal pending the final determination of their application for leave and judicial review of a decision dated October 26, 2022, refusing their application for a Pre-Removal Risk Assessment (“PRRA”) under subsection 112(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”). [2] For the reasons that follow, I am satisfied that the applicants have met the three-part test for a stay. II. BACKGROUND [3] The applicants (a married couple) sought refugee protection in Canada on the basis of their fear of harm at the hands of a criminal cartel in Mexico. The Refugee Protection Division (“RPD”) of the Immigration and Refugee Board of Canada (“IRB”) found the applicants to be credible but rejected their claim on the basis that they had a viable Internal Flight Alternative (“IFA”) in Cancun, Manzanilla or Mexico City. The applicants appeared before the RPD without the assistance of counsel. Assisted by a social worker, they appealed the RPD’s decision to the Refugee Appeal Division (“RAD”) of the IRB. The RAD dismissed the appeal and upheld the RPD’s determination on the basis that the applicants have a viable IFA in Mexico City. [4] After receiving the negative RAD decision, the applicants retained a lawyer (“former counsel”). The lawyer applied for leave and judicial review of the RAD’s decision. Leave was refused in February 2022. [5] The applicants were offered the opportunity to submit an application for a PRRA. Their first application was submitted in January 2022. While it was refused in February 2022, for reasons that are not germane to the present motion, the applicants were offered the opportunity to re-submit their application. They did so in August 26, 2022. Throughout this process, the applicants continued to be assisted by their former counsel. [6] The PRRA application was refused again on October 26, 2022. The applicants have applied for leave and judicial review of this decision. They have also sought an order staying their removal from Canada until that application has been finally determined. III. ANALYSIS A. Preliminary Issue: The Late Filing of the Application for Leave [7] The applicants served and filed their notice of application for leave and judicial review of the negative PRRA decision out of time. They have included a request for an extension of time in their application for leave. While their request for an extension of time will not be determined until a decision is made on the leave application (see Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, rule 6(2)), having regard to all the circumstances, I am satisfied that it is appropriate to consider this motion for interlocutory relief on its merits. B. The Test for a Stay of Removal [8] The test for obtaining an interlocutory stay of a removal order is well-known. The applicants must demonstrate three things: (1) that the underlying application for judicial review raises a “serious question to be tried;” (2) that they will suffer irreparable harm if the stay is refused; and (3) that the balance of convenience (i.e. the assessment of which party would suffer greater harm from the granting or refusal of a stay pending a decision on the merits of the judicial review application) favours granting a stay: see Toth v Canada (Employment and Immigration) (1988), 86 NR 302, 6 Imm LR (2d) 123 (FCA); R v Canadian Broadcasting Corp, 2018 SCC 5, [2018] 1 SCR 196 at para 12; Manitoba (Attorney General) v Metropolitan Stores Ltd, [1987] 1 SCR 110; and RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 at 334. [9] The purpose of an interlocutory order like the one sought here is to ensure that the subject matter of the underlying litigation will be preserved so that effective relief will be available should the applicants be successful on their application for judicial review: see Google Inc v Equustek Solutions Inc, 2017 SCC 34 at para 24. A decision to grant or refuse such interlocutory relief is a discretionary one that must be made having regard to all the relevant circumstances: see Canadian Broadcasting Corp at para 27. As the Supreme Court stated in Google Inc, “The fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case. This will necessarily be context-specific” (at para 25). [10] In the present case, under the first part of the test, the threshold for establishing a serious question to be tried is a low one. The applicants only need to show that the underlying application for judicial review is not frivolous or vexatious: RJR-MacDonald at 335 and 337; see also Gateway City Church v Canada (National Revenue), 2013 FCA 126 at para 11 and Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 at para 25. [11] Under the second part of the test, “the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants’ own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application” (RJR-MacDonald at 341). This is what is meant by describing the harm that must be established as “irreparable”. It concerns the nature of the harm rather than its magnitude (ibid.). Generally speaking, irreparable harm is harm that cannot be quantified in monetary terms or that could not be cured for some other reason even if it can be quantified (e.g. the other party is judgment-proof). [12] To establish irreparable harm, the moving party “must demonstrate in a detailed and concrete way that it will suffer real, definite, unavoidable harm – not hypothetical and speculative harm – that cannot be repaired later” (Janssen Inc v Abbvie Corporation, 2014 FCA 112 at para 24). Unsubstantiated assertions of harm will not suffice. The moving party must establish a “real probability” of irreparable harm (Glooscap Heritage Society at para 31). [13] The third part of the test requires an assessment of which party would suffer greater harm from the granting or refusal of a stay of the removal order pending a decision on the merits of the application for judicial review. To meet this part of the test, the applicants must establish that the harm they would suffer if the stay is refused is greater than the harm the respondent would suffer if the stay is granted. The harm found under the second part of the test is considered again at this stage, only now it is assessed in comparison with other interests that will be affected by the Court’s decision. This weighing exercise is neither scientific nor precise: see Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2020 FCA 181 at para 17. It is, however, at the heart of the determination of what is just and equitable in the particular circumstances of the case at hand. [14] Taking a step back, while each part of the test is important, and all three must be met, they are not discrete, watertight compartments. Each part focuses the Court on factors that inform its overall exercise of discretion in a particular case: Wasylynuk v Canada (Royal Mounted Police), 2020 FC 962 at para 135. The test should be applied in a holistic fashion where strengths with respect to one factor may overcome weaknesses with respect to another: see RJR-MacDonald at 339; Wasylynuk at para 135; Spencer v Canada (Attorney General), 2021 FC 361 at para 51; British Columbia (Attorney General) v Alberta (Attorney General), 2019 FC 1195 at para 97 (rev’d on other grounds 2021 FCA 84); and Power Workers Union v Canada (Attorney General), 2022 FC 73 at para 56. See also Robert J Sharpe, “Interim Remedies and Constitutional Rights” (2019) 69 UTLJ (Supp 1) at 14. [15] Together, the three parts of the test help the Court to assess and assign what has been termed the risk of remedial injustice (see Sharpe, above). They guide the Court in answering the following question: Is it more just and equitable for the moving party or the responding party to bear the risk that the outcome of the underlying litigation will not accord with the outcome on the interlocutory motion? C. The Test Applied (1) Serious Question to be Tried [16] The applicants’ principal ground on which they seek judicial review of the negative PRRA decision is that they received ineffective assistance from their former counsel. They contend that they received ineffective assistance because their former counsel failed to advance their case fully and properly before the PRRA officer by omitting or overlooking material information that is relevant to their risk profile. They allege that, among other things, this failure appears to stem from a misunderstanding on the part of their former counsel about the nature of their risk profile and the sort of evidence that can be relied on in a PRRA application under paragraph 113(a) of the IRPA. [17] The framework within which an allegation of ineffective assistance of counsel is adjudicated in the context of an application for judicial review under the IRPA is well-established. First, as a prerequisite to having the issue considered by the reviewing Court, the applicants must establish that their former counsel has had a reasonable opportunity to respond to the allegations. Then, on the merits of the allegation, the applicants must establish that the conduct of their former counsel was negligent or incompetent (the performance component) and that this resulted in a miscarriage of justice (the prejudice component). See, among other cases, Hamdan v Canada (Immigration, Refugees and Citizenship), 2017 FC 643 at paras 36-38; Gombos v Canada (Citizenship and Immigration), 2017 FC 850 at para 17; Satkunanathan v Canada (Citizenship and Immigration), 2020 FC 470 at paras 33-39; and Nik v Canada (Citizenship and Immigration), 2022 FC 522 at paras 22-24. [18] For the purpose of the present motion, the applicants have alerted their former counsel to their concerns in a preliminary way and have solicited responses from him. Those responses have been included in the motion record, as has their complaint against their former counsel to the Law Society of Ontario. [19] With respect to the performance component, the applicants will have to discharge a two-fold burden. They will have to establish the facts on which they rely in impugning the conduct of their former counsel and they will have to establish that that conduct fell below the standard of reasonable professional assistance or judgment. See R v GDB, [2000] 1 SCR 520 at para 27. [20] The applicants will be required to meet a high threshold to establish the performance component of an allegation of ineffective assistance. This is because there is a strong presumption that their former counsel’s conduct fell within the wide range of professional assistance (GDB at para 27). The reviewing court will be careful to avoid second-guessing the tactical decisions of counsel; the wisdom of hindsight will have no place in the assessment (ibid.). Moreover, an expression of general dissatisfaction with counsel’s conduct is insufficient; the allegation of negligence or incompetence must be specific and clearly supported by the evidence (Shirwa v Canada (Minister of Employment and Immigration), [1994] 2 FC 51 (CA) at para 12). [21] With respect to the prejudice component, the applicants will have to establish that the misconduct of their former counsel resulted in a miscarriage of justice. Miscarriages of justice may take many forms in the context of ineffective assistance of counsel (GDB at para 28). This includes where former counsel’s conduct has compromised the reliability of the result of the earlier proceeding and where former counsel’s conduct has affected the fairness of the earlier proceeding (ibid.). [22] In the present case, the applicants allege that the conduct of their former counsel calls into question the reliability of the negative PRRA decision. To succeed on this basis, they will have to demonstrate a reasonable probability that, but for the incompetence of their former counsel, the result would have been different (Bisht v Canada (Public Safety and Emergency Preparedness), 2022 FC 1178 at para 24). A “reasonable probability” falls somewhere between a mere possibility and a likelihood: see Satkunanathan at para 96, adopting the test set out in R v Dunbar, 2003 BCCA 667 at para 26, which in turn adopted the test set out in R v Joanisse (1995), 102 CCC (3d) 35 (Ont. C.A.) at 64; see also Bi v Canada (Citizenship and Immigration), 2012 FC 293 at para 33 and Corpuz Ledda v Canada (Public Safety and Emergency Preparedness), 2012 FC 811 at para 15. [23] The respondent contends that the ineffective assistance of counsel ground does not meet the not frivolous or vexatious test because it is obvious that the applicants will not be able to satisfy either the performance or the prejudice components of the test. The Supreme Court of Canada has emphasized that, at this stage, the Court should conduct only a limited and preliminary assessment of the merits of the underlying application for leave and judicial review: see Metropolitan Stores at 127-28 and 130; and RJR-MacDonald at 337. On the basis of that assessment, I am satisfied that the allegation of ineffective assistance is neither frivolous nor vexatious. The applicants have therefore met the first part of the test. (2) Irreparable Harm [24] I am satisfied that removal of the applicants prior to the final determination of their application for leave and judicial review of the negative PRRA decision would render that application nugatory. This is sufficient to satisfy the second part of the test because of the apparent strength of the underlying application for judicial review. [25] If the applicants were to be removed to Mexico at this time, their application for leave and judicial review of the negative PRRA decision would become moot (Solis Perez v Canada (Citizenship and Immigration), 2009 FCA 171 at para 5). The potential mootness of an underlying application for judicial review does not necessarily constitute irreparable harm; whether this is so must be determined in the individual circumstances of the particular case at hand: see El Ouardi v Canada (Solicitor General), 2005 FCA 42 at para 8; and Canada (Public Safety and Emergency Preparedness) v Shpati, 2011 FCA 286 at paras 34-38. [26] In the present case, I am satisfied that the ineffective assistance ground is clearly arguable. Even at this preliminary stage, the applicants make a strong argument with respect to both the performance and prejudice components of the test. This is a sufficient basis on which to find that the applicants would suffer irreparable harm if they were removed to Mexico before their application for leave and judicial review has been finally determined. This is because, if the applicants were to be removed at this time, they would lose the right to advance a clearly arguable ground challenging the negative PRRA decision. They would also, as a result, be deprived of the right to seek a meaningful and effective remedy in this Court with respect to an arguably flawed decision. Even if the Court were prepared to hear the judicial review application despite its mootness, and even if the applicants were able to persuade the Court that the decision was made in breach of the requirements of procedural fairness (because of the ineffective assistance of former counsel), setting aside the PRRA decision and remitting the matter to another officer for redetermination would be neither meaningful nor effective relief if the applicants are already in Mexico. This is a circumstance that could not be remedied in any other way. [27] Before leaving this part of the test, it is important to underscore that, in approaching the issue of irreparable harm as I have, the apparent strength of the underlying application for judicial review is a key consideration. In the present case, this is what has elevated the risk of remedial injustice from the speculative or merely hypothetical to a real probability. However, to be clear, the applicants were not required to establish – nor have I found – that their application for judicial review is likely to succeed. Rather, I have simply found that their application is sufficiently strong to give rise to a real risk of remedial injustice if they are required to leave Canada before it is finally determined. This is sufficient to satisfy the second part of the test. In contrast, grounds for review that satisfied the first part of the test because they were not frivolous or vexatious but which nevertheless did not appear strong may not support such a finding. Of course, in such a case, a party seeking a stay could still seek to satisfy the second part of the test by establishing other forms of irreparable harm. [28] In seeking a stay of their removal, the applicants also contend that they face another form of irreparable harm – namely, harm at the hands of their agents of persecution. Since I have found that the loss of the right to seek a meaningful and effective remedy in the underlying proceeding is sufficient to meet the second part of the test, it is not necessary to assess the other form of irreparable harm they advance. (3) Balance of Convenience [29] I am also satisfied that the balance of convenience favours the applicants. [30] In assessing the balance of convenience, in addition to the applicants’ interests, the public interest must be taken into account since this is a case involving the actions of a public authority (RJR-MacDonald at 350). The applicants are subject to valid and enforceable removal orders. These orders were made pursuant to statutory and regulatory authority. They are therefore presumed to have been made in the public interest. Further, under subsection 48(2) of the IRPA, a removal order “must be enforced as soon as possible” once it is enforceable. It is also presumed that an action that suspends the effect of a removal order (as would an interlocutory stay) would be detrimental to the public interest: see RJR-MacDonald at 346 and 348-49. Whether this is sufficient to defeat a request for an interlocutory stay in a given case will, of course, depend on all the circumstances of the case. This can also depend on how long the effect of the removal order would be suspended: see Canadian Council for Refugees at para 27. [31] Further, the impact on the public interest of suspending the effect of an act by a public authority is a matter of degree that varies depending on the subject matter of the litigation. As the Supreme Court noted in RJR-MacDonald, the impact on the public interest of exempting an individual litigant from the application of lawfully enacted legislation is less than suspending the effect of that legislation entirely. The impact of suspending temporarily the implementation of a removal order is arguably of an even lesser degree than this (although again the precise calibration of that impact will depend on the particular circumstances of the case). [32] In the present case, the only “inconvenience” to the respondent if the applicants are not removed now and their application for judicial review is subsequently dismissed is that their removal from Canada will have been delayed; it will not have been frustrated entirely. [33] On the other hand, the “inconvenience” to the applicants of losing the right to a meaningful remedy is significant and, as I have determined above, irreparable. The interest in ensuring that the applicants retain the right to a meaningful and effective remedy is not theirs alone. It is shared by the public and by the administration of justice. This is a factor that also tips the balance in favour of a stay. In the particular circumstances of this case, it outweighs the public interest in the immediate enforcement of the removal orders. [34] For these reasons, I am therefore satisfied that the balance of convenience favours the applicants. IV. CONCLUSION [35] Balancing all of the relevant considerations, I am satisfied that it is more just and equitable for the respondent to bear the risk that the outcome of the underlying litigation will not accord with the outcome on this motion than it would be for the applicants to bear that risk. A stay of removal is the only way to ensure that the subject matter of the underlying litigation is preserved so that effective relief will be available should the applicants be successful on their application for judicial review (cf. Google Inc at para 24). The countervailing considerations are insufficient to outweigh this fundamentally important consideration. [36] Accordingly, the motion is granted. The applicants shall not be removed from Canada prior to the final determination of the underlying application for leave and judicial review. [37] Finally, the style of cause names the respondent as the Minister of Immigration, Refugees and Citizenship. Although that is how the respondent is now commonly known, its name under statute remains the Minister of Citizenship and Immigration: Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, s 5(2) and IRPA, s 4(1). Accordingly, as part of this order, the style of cause is amended to name the respondent as the Minister of Citizenship and Immigration. ORDER IN IMM-13524-22 THIS COURT ORDERS that The motion for a stay of removal is granted. The applicants shall not be removed from Canada until their application for leave and judicial review of the PRRA decision dated October 26, 2022, is finally determined. The style of cause is amended to reflect the Minister of Citizenship and Immigration as the correct respondent. “John Norris” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-13524-22 STYLE OF CAUSE: JOSE ANTONIO SERNA MEDINA ET AL v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY VIDEOCONFERENCE DATE OF HEARING: January 20, 2023 ORDER AND REASONS: NORRIS J. DATED: January 20, 2023 APPEARANCES: Penny Yektaeian For The Applicants Sally Thomas For The Respondent SOLICITORS OF RECORD: Penny Yektaeian Barrister and Solicitor Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent", "response": "## Analysis of Court Decision: Medina v. Canada (Citizenship and Immigration)\n\n### Key Issues\ncial review raises a “serious question to be tried;” (2) that they will suffer irreparable harm if the stay is refused; and (3) that the balance of convenience (i.e. the assessment\n\n### Standard of Review\nSerna Medina v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2023-01-20 Neutral citation 2023 FC 100 File numbers IMM-13524-22 Decision Content Date: 20230120 Docket: IMM-13524-22 Citation: 2023 FC 100 Ottawa, Ontario, January 20, 2023 PRESENT: Mr. Justice Norris BETWEEN: JOSE ANTONIO SERNA MEDINA ERIKA GARCIA ESPINO Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS I. OVERVIEW [1] The applicants are citizens of Mexico. They have been directed to report for removal from Canada on January 23, 2023. They have applied for an order staying the order for their removal pending the final determination of their application for leave and judicial review of a decision dated October 26, 2022, refusing their application for a Pre-Removal Risk Assessment (“PRRA”) under subsection 112(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”). [2] For the reasons that follow, I am satisfied that the applicants have met the three-part test for a stay. II. BACKGROUND [3] The applicants (a married couple) sought refugee protection in Canada on the basis of their fear of harm at the hands of a criminal cartel in Mexico. The Refugee Protection Division (“RPD”) of the Immigration and Refugee Board of Canada (“IRB”) found the applicants to be credible but rejected their claim on the basis that they had a viable Internal Flight Alternative (“IFA”) in Cancun, Manzanilla or Mexico City. The applicants appeared before the RPD without the assistance of counsel. Assisted by a social worker, they appealed the RPD’s decision to the Refugee Appeal Division (“RAD”) of the IRB. The RAD dismissed the appeal and upheld the RPD’s determination on the basis that the applicants have a viable IFA in Mexico City. [4] After receiving the negative RAD decision, the applicants retained a lawyer (“former counsel”). The lawyer applied for leave and judicial review of the RAD’s decision. Leave was refused in February 2022. [5] The applicants were offered the opportunity to submit an application for a PRRA. Their first application was submitted in January 2022. While it was refused in February 2022, for reasons that are not germane to the present motion, the applicants were offered the opportunity to re-submit their application. They did so in August 26, 2022. Throughout this process, the applicants continued to be assisted by their former counsel. [6] The PRRA application was refused again on October 26, 2022. The applicants have applied for leave and judicial review of this decision. They have also sought an order staying their removal from Canada until that application has been finally determined. III. ANALYSIS A. Preliminary Issue: The Late Filing of the Application for Leave [7] The applicants served and filed their notice of application for leave and judicial review of the negative PRRA decision out of time. They have included a request for an extension of time in their application for leave. While their request for an extension of time will not be determined until a decision is made on the leave application (see Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, rule 6(2)), having regard to all the circumstances, I am satisfied that it is appropriate to consider this motion for interlocutory relief on its merits. B. The Test for a Stay of Removal [8] The test for obtaining an interlocutory stay of a removal order is well-known. The applicants must demonstrate three things: (1) that the underlying application for judicial review raises a “serious question to be tried;” (2) that they will suffer irreparable harm if the stay is refused; and (3) that the balance of convenience (i.e. the assessment of which party would suffer greater harm from the granting or refusal of a stay pending a decision on the merits of the judicial review application) favours granting a stay: see Toth v Canada (Employment and Immigration) (1988), 86 NR 302, 6 Imm LR (2d) 123 (FCA); R v Canadian Broadcasting Corp, 2018 SCC 5, [2018] 1 SCR 196 at para 12; Manitoba (Attorney General) v Metropolitan Stores Ltd, [1987] 1 SCR 110; and RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 at 334. [9] The purpose of an interlocutory order like the one sought here is to ensure that the subject matter of the underlying litigation will be preserved so that effective relief will be available should the applicants be successful on their application for judicial review: see Google Inc v Equustek Solutions Inc, 2017 SCC 34 at para 24. A decision to grant or refuse such interlocutory relief is a discretionary one that must be made having regard to all the relevant circumstances: see Canadian Broadcasting Corp at para 27. As the Supreme Court stated in Google Inc, “The fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case. This will necessarily be context-specific” (at para 25). [10] In the present case, under the first part of the test, the threshold for establishing a serious question to be tried is a low one. The applicants only need to show that the underlying application for judicial review is not frivolous or vexatious: RJR-MacDonald at 335 and 337; see also Gateway City Church v Canada (National Revenue), 2013 FCA 126 at para 11 and Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 at para 25. [11] Under the second part of the test, “the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants’ own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application” (RJR-MacDonald at 341). This is what is meant by describing the harm that must be established as “irreparable”. It concerns the nature of the harm rather than its magnitude (ibid.). Generally speaking, irreparable harm is harm that cannot be quantified in monetary terms or that could not be cured for some other reason even if it can be quantified (e.g. the other party is judgment-proof). [12] To establish irreparable harm, the moving party “must demonstrate in a detailed and concrete way that it will suffer real, definite, unavoidable harm – not hypothetical and speculative harm – that cannot be repaired later” (Janssen Inc v Abbvie Corporation, 2014 FCA 112 at para 24). Unsubstantiated assertions of harm will not suffice. The moving party must establish a “real probability” of irreparable harm (Glooscap Heritage Society at para 31). [13] The third part of the test requires an assessment of which party would suffer greater harm from the granting or refusal of a stay of the removal order pending a decision on the merits of the application for judicial review. To meet this part of the test, the applicants must establish that the harm they would suffer if the stay is refused is greater than the harm the respondent would suffer if the stay is granted. The harm found under the second part of the test is considered again at this stage, only now it is assessed in comparison with other interests that will be affected by the Court’s decision. This weighing exercise is neither scientific nor precise: see Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2020 FCA 181 at para 17. It is, however, at the heart of the determination of what is just and equitable in the particular circumstances of the case at hand. [14] Taking a step back, while each part of the test is important, and all three must be met, they are not discrete, watertight compartments. Each part focuses the Court on factors that inform its overall exercise of discretion in a particular case: Wasylynuk v Canada (Royal Mounted Police), 2020 FC 962 at para 135. The test should be applied in a holistic fashion where strengths with respect to one factor may overcome weaknesses with respect to another: see RJR-MacDonald at 339; Wasylynuk at para 135; Spencer v Canada (Attorney General), 2021 FC 361 at para 51; British Columbia (Attorney General) v Alberta (Attorney General), 2019 FC 1195 at para 97 (rev’d on other grounds 2021 FCA 84); and Power Workers Union v Canada (Attorney General), 2022 FC 73 at para 56. See also Robert J Sharpe, “Interim Remedies and Constitutional Rights” (2019) 69 UTLJ (Supp 1) at 14. [15] Together, the three parts of the test help the Court to assess and assign what has been termed the risk of remedial injustice (see Sharpe, above). They guide the Court in answering the following question: Is it more just and equitable for the moving party or the responding party to bear the risk that the outcome of the underlying litigation will not accord with the outcome on the interlocutory motion? C. The Test Applied (1) Serious Question to be Tried [16] The applicants’ principal ground on which they seek judicial review of the negative PRRA decision is that they received ineffective assistance from their former counsel. They contend that they received ineffective assistance because their former counsel failed to advance their case fully and properly before the PRRA officer by omitting or overlooking material information that is relevant to their risk profile. They allege that, among other things, this failure appears to stem from a misunderstanding on the part of their former counsel about the nature of their risk profile and the sort of evidence that can be relied on in a PRRA application under paragraph 113(a) of the IRPA. [17] The framework within which an allegation of ineffective assistance of counsel is adjudicated in the context of an application for judicial review under the IRPA is well-established. First, as a prerequisite to having the issue considered by the reviewing Court, the applicants must establish that their former counsel has had a reasonable opportunity to respond to the allegations. Then, on the merits of the allegation, the applicants must establish that the conduct of their former counsel was negligent or incompetent (the performance component) and that this resulted in a miscarriage of justice (the prejudice component). See, among other cases, Hamdan v Canada (Immigration, Refugees and Citizenship), 2017 FC 643 at paras 36-38; Gombos v Canada (Citizenship and Immigration), 2017 FC 850 at para 17; Satkunanathan v Canada (Citizenship and Immigration), 2020 FC 470 at paras 33-39; and Nik v Canada (Citizenship and Immigration), 2022 FC 522 at paras 22-24. [18] For the purpose of the present motion, the applicants have alerted their former counsel to their concerns in a preliminary way and have solicited responses from him. Those responses have been included in the motion record, as has their complaint against their former counsel to the Law Society of Ontario. [19] With respect to the performance component, the applicants will have to discharge a two-fold burden. They will have to establish the facts on which they rely in impugning the conduct of their former counsel and they will have to establish that that conduct fell below the standard of reasonable professional assistance or judgment. See R v GDB, [2000] 1 SCR 520 at para 27. [20] The applicants will be required to meet a high threshold to establish the performance component of an allegation of ineffective assistance. This is because there is a strong presumption that their former counsel’s conduct fell within the wide range of professional assistance (GDB at para 27). The reviewing court will be careful to avoid second-guessing the tactical decisions of counsel; the wisdom of hindsight will have no place in the assessment (ibid.). Moreover, an expression of general dissatisfaction with counsel’s conduct is insufficient; the allegation of negligence or incompetence must be specific and clearly supported by the evidence (Shirwa v Canada (Minister of Employment and Immigration), [1994] 2 FC 51 (CA) at para 12). [21] With respect to the prejudice component, the applicants will have to establish that the misconduct of their former counsel resulted in a miscarriage of justice. Miscarriages of justice may take many forms in the context of ineffective assistance of counsel (GDB at para 28). This includes where former counsel’s conduct has compromised the reliability of the result of the earlier proceeding and where former counsel’s conduct has affected the fairness of the earlier proceeding (ibid.). [22] In the present case, the applicants allege that the conduct of their former counsel calls into question the reliability of the negative PRRA decision. To succeed on this basis, they will have to demonstrate a reasonable probability that, but for the incompetence of their former counsel, the result would have been different (Bisht v Canada (Public Safety and Emergency Preparedness), 2022 FC 1178 at para 24). A “reasonable probability” falls somewhere between a mere possibility and a likelihood: see Satkunanathan at para 96, adopting the test set out in R v Dunbar, 2003 BCCA 667 at para 26, which in turn adopted the test set out in R v Joanisse (1995), 102 CCC (3d) 35 (Ont. C.A.) at 64; see also Bi v Canada (Citizenship and Immigration), 2012 FC 293 at para 33 and Corpuz Ledda v Canada (Public Safety and Emergency Preparedness), 2012 FC 811 at para 15. [23] The respondent contends that the ineffective assistance of counsel ground does not meet the not frivolous or vexatious test because it is obvious that the applicants will not be able to satisfy either the performance or the prejudice components of the test. The Supreme Court of Canada has emphasized that, at this stage, the Court should conduct only a limited and preliminary assessment of the merits of the underlying application for leave and judicial review: see Metropolitan Stores at 127-28 and 130; and RJR-MacDonald at 337. On the basis of that assessment, I am satisfied that the allegation of ineffective assistance is neither frivolous nor vexatious. The applicants have therefore met the first part of the test. (2) Irreparable Harm [24] I am satisfied that removal of the applicants prior to the final determination of their application for leave and judicial review of the negative PRRA decision would render that application nugatory. This is sufficient to satisfy the second part of the test because of the apparent strength of the underlying application for judicial review. [25] If the applicants were to be removed to Mexico at this time, their application for leave and judicial review of the negative PRRA decision would become moot (Solis Perez v Canada (Citizenship and Immigration), 2009 FCA 171 at para 5). The potential mootness of an underlying application for judicial review does not necessarily constitute irreparable harm; whether this is so must be determined in the individual circumstances of the particular case at hand: see El Ouardi v Canada (Solicitor General), 2005 FCA 42 at para 8; and Canada (Public Safety and Emergency Preparedness) v Shpati, 2011 FCA 286 at paras 34-38. [26] In the present case, I am satisfied that the ineffective assistance ground is clearly arguable. Even at this preliminary stage, the applicants make a strong argument with respect to both the performance and prejudice components of the test. This is a sufficient basis on which to find that the applicants would suffer irreparable harm if they were removed to Mexico before their application for leave and judicial review has been finally determined. This is because, if the applicants were to be removed at this time, they would lose the right to advance a clearly arguable ground challenging the negative PRRA decision. They would also, as a result, be deprived of the right to seek a meaningful and effective remedy in this Court with respect to an arguably flawed decision. Even if the Court were prepared to hear the judicial review application despite its mootness, and even if the applicants were able to persuade the Court that the decision was made in breach of the requirements of procedural fairness (because of the ineffective assistance of former counsel), setting aside the PRRA decision and remitting the matter to another officer for redetermination would be neither meaningful nor effective relief if the applicants are already in Mexico. This is a circumstance that could not be remedied in any other way. [27] Before leaving this part of the test, it is important to underscore that, in approaching the issue of irreparable harm as I have, the apparent strength of the underlying application for judicial review is a key consideration. In the present case, this is what has elevated the risk of remedial injustice from the speculative or merely hypothetical to a real probability. However, to be clear, the applicants were not required to establish – nor have I found – that their application for judicial review is likely to succeed. Rather, I have simply found that their application is sufficiently strong to give rise to a real risk of remedial injustice if they are required to leave Canada before it is finally determined. This is sufficient to satisfy the second part of the test. In contrast, grounds for review that satisfied the first part of the test because they were not frivolous or vexatious but which nevertheless did not appear strong may not support such a finding. Of course, in such a case, a party seeking a stay could still seek to satisfy the second part of the test by establishing other forms of irreparable harm. [28] In seeking a stay of their removal, the applicants also contend that they face another form of irreparable harm – namely, harm at the hands of their agents of persecution. Since I have found that the loss of the right to seek a meaningful and effective remedy in the underlying proceeding is sufficient to meet the second part of the test, it is not necessary to assess the other form of irreparable harm they advance. (3) Balance of Convenience [29] I am also satisfied that the balance of convenience favours the applicants. [30] In assessing the balance of convenience, in addition to the applicants’ interests, the public interest must be taken into account since this is a case involving the actions of a public authority (RJR-MacDonald at 350). The applicants are subject to valid and enforceable removal orders. These orders were made pursuant to statutory and regulatory authority. They are therefore presumed to have been made in the public interest. Further, under subsection 48(2) of the IRPA, a removal order “must be enforced as soon as possible” once it is enforceable. It is also presumed that an action that suspends the effect of a removal order (as would an interlocutory stay) would be detrimental to the public interest: see RJR-MacDonald at 346 and 348-49. Whether this is sufficient to defeat a request for an interlocutory stay in a given case will, of course, depend on all the circumstances of the case. This can also depend on how long the effect of the removal order would be suspended: see Canadian Council for Refugees at para 27. [31] Further, the impact on the public interest of suspending the effect of an act by a public authority is a matter of degree that varies depending on the subject matter of the litigation. As the Supreme Court noted in RJR-MacDonald, the impact on the public interest of exempting an individual litigant from the application of lawfully enacted legislation is less than suspending the effect of that legislation entirely. The impact of suspending temporarily the implementation of a removal order is arguably of an even lesser degree than this (although again the precise calibration of that impact will depend on the particular circumstances of the case). [32] In the present case, the only “inconvenience” to the respondent if the applicants are not removed now and their application for judicial review is subsequently dismissed is that their removal from Canada will have been delayed; it will not have been frustrated entirely. [33] On the other hand, the “inconvenience” to the applicants of losing the right to a meaningful remedy is significant and, as I have determined above, irreparable. The interest in ensuring that the applicants retain the right to a meaningful and effective remedy is not theirs alone. It is shared by the public and by the administration of justice. This is a factor that also tips the balance in favour of a stay. In the particular circumstances of this case, it outweighs the public interest in the immediate enforcement of the removal orders. [34] For these reasons, I am therefore satisfied that the balance of convenience favours the applicants. IV. CONCLUSION [35] Balancing all of the relevant considerations, I am satisfied that it is more just and equitable for the respondent to bear the risk that the outcome of the underlying litigation will not accord with the outcome on this motion than it would be for the applicants to bear that risk. A stay of removal is the only way to ensure that the subject matter of the underlying litigation is preserved so that effective relief will be available should the applicants be successful on their application for judicial review (cf. Google Inc at para 24). The countervailing considerations are insufficient to outweigh this fundamentally important consideration. [36] Accordingly, the motion is granted. The applicants shall not be removed from Canada prior to the final determination of the underlying application for leave and judicial review. [37] Finally, the style of cause names the respondent as the Minister of Immigration, Refugees and Citizenship. Although that is how the respondent is now commonly known, its name under statute remains the Minister of Citizenship and Immigration: Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, s 5(2) and IRPA, s 4(1). Accordingly, as part of this order, the style of cause is amended to name the respondent as the Minister of Citizenship and Immigration. ORDER IN IMM-13524-22 THIS COURT ORDERS that The motion for a stay of removal is granted. The applicants shall not be removed from Canada until their application for leave and judicial review of the PRRA decision dated October 26, 2022, is finally determined. The style of cause is amended to reflect the Minister of Citizenship and Immigration as the correct respondent. “John Norris” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-13524-22 STYLE OF CAUSE: JOSE ANTONIO SERNA MEDINA ET AL v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY VIDEOCONFERENCE DATE OF HEARING: January 20, 2023 ORDER AND REASONS: NORRIS J. DATED: January 20, 2023 APPEARANCES: Penny Yektaeian For The Applicants Sally Thomas For The Respondent SOLICITORS OF RECORD: Penny Yektaeian Barrister and Solicitor Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent\n\n### Legal Analysis\nThe court's analysis focuses on: been finally determined. III. ANALYSIS A. Preliminary Issue: The Late Filing of the Application for Leave [7] The applicants served and filed their notice of application for leave and judicial review of the negative PRRA decision out of time. They have included a request for an extension of time in their application for leave. W\n\n### Precedential Value\nThis Federal Court decision has persuasive value for similar cases before the court and provides guidance to the Immigration and Refugee Board on the proper interpretation of law and procedural requirements. While not binding on other Federal Court judges, it establishes a precedent that will often be followed for consistency."}
{"prompt": "How does this Refugee Appeal Division decision from the Immigration and Refugee Board of Canada impact refugee claimants?\n\nRAD File / Dossier de la SAR : MC1-05698 MC1-05699 / MC1-05700 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal [REDACTED][REDACTED]XXXX Personnes en cause Date of decision January 10, 2022 Date de la décision Panel Laura Ko Tribunal Counsel for the persons who are the subject of the appeal Gaurav Sharma Conseil des personnes en cause Designated representative XXXX XXXXfor XXXXXXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] These are my reasons for dismissing the appeals of XXXX XXXX (Principal Appellant), XXXX XXXX and XXXX (Associate Appellants). The Principal Appellant acts as designated representative for the minor Associate Appellant, XXXX. [2] The Appellants are citizens of India. They fear harm in India at the hands of the Punjab and Delhi police, as well as at the hands of certain individuals suspected by police to be involved in criminal activity. The Principal Appellant refers to these individuals as \"smugglers\" or \"militants\". For consistency, these individuals have been referred to as \"smugglers\" throughout these reasons. [3] The Refugee Protection Division (RPD) rejected the Appellants' refugee claims for the following main reasons: a. The RPD found that there were inconsistencies and omissions in the Appellants' evidence that raised questions about some of their allegations. It found that the Appellants did not establish, on a balance of probabilities, that the Punjab police or the Delhi police are looking for the Principal Appellant; b. The RPD found that it was speculative that the smugglers are looking for him in India; and c. The RPD found that the Appellants have a viable internal flight alternative (IFA) in New Delhi, Mumbai, Kolkata and Bangalore. [4] The Appellants have appealed the RPD Decision and asks the Refugee Appeal Division (RAD) to grant the appeal and make all other orders judged appropriate. [5] On appeal, the Appellants: a. Attempt to rectify the issues of credibility with explanations and new evidence; b. Argue that the police and smugglers have the means and motivation to locate them anywhere in India; c. Argue that it is not reasonable for them to relocate to any of the IFA locations; and d. Argue that for the benefit of the minor Associate Appellant, the RPD decision should be overturned. DECISION [6] I dismiss the appeal. I find that the RPD correctly concluded that the Appellants have a viable IFA in Mumbai, Kolkata, and Bangalore. The RPD was correct in finding that the Appellants are neither Convention1 refugees nor persons in need of protection. BACKGROUND [7] According to the Basis of Claim (BOC) form narrative of the Principal Appellant and the testimony of the adult Appellants before the RPD, the Appellants' fear arose in April 2018 after the Principal Appellant, who owned and operated a taxi service, drove two men from Ludhiana towards Delhi. The taxi was stopped at a police roadblock outside Karnal, Haryana, where the two passengers exited the taxi and ran away, leaving behind two bags containing arms, ammunition and drugs in the taxi. The Appellants allege that the police wrongly accused the Principal Appellant of being involved in a militant and/or criminal group, having been left responsible for the bags of illegal items in his taxi. [8] The Appellants allege that both adult Appellants were detained and tortured by the Punjab police in Ludhiana in relation to these accusations. They were released after the payment of bribes and assurances from the Municipal Councillor in their area and the Principal Appellant's father that they would bring the Appellants to the police upon request. The Appellants stayed with the Principal Appellant's aunt in Delhi and then other locations within Delhi before leaving for Canada in XXXX 2018. NEW EVIDENCE AND ORAL HEARING [9] According to the law,2 I can only accept evidence that: (i) arose after the RPD decision; (ii) was not reasonably available at the time of the decision; or (iii) that the Appellants could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [10] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.3 [11] The Appellants have submitted two pieces of evidence for consideration as new evidence pursuant to section 110(4) of the Immigration and Refugee Protection Act (IRPA): * Document A: A three-page affidavit from the father of the Principal Appellant, dated XXXX XXXX, 2021; and * Document B: A one-page document containing a picture of the Principal Appellant's work identification card and business card for XXXX XXXX, [REDACTED] XXXX Ludhiana. [12] I find that a portion of the affidavit from the father of the Principal Appellant constitutes new evidence while other portions do not. I find that the document regarding the Principal Appellant's employment does not constitute new evidence. My reasons are as follows. Document A - accepted in part [13] The affidavit of the father post-dates the RPD Decision of July 23, 2021. However, portions of the affidavit pertain to facts that pre-date the RPD Decision, including statements regarding how the Principal Appellant first came to the attention of police, how the father learned of the Principal Appellant's arrest, steps taken to get the Principal Appellant and the adult Associate Appellant released from police custody, the subsequent visits by police to the home of the parents and other relatives, and the fact that the Municipal Councillor took the responsibility to produce the adult Appellants to police as soon as they return to India. Evidence regarding these events was already before the RPD, in the form of testimony from the Principal Appellant. [14] I find that the evidence in the affidavit of the Principal Appellant's father regarding these events did not arise after the RPD Hearing, as the Principal Appellant testified to these events himself at the RPD Hearing. I also find that the Appellants have not established that the information from the father was not reasonably available at the time of the decision, or that the Appellants could not reasonably have been expected to present the evidence to the RPD before the decision. [15] Most of the facts that relate to these events were accepted by the RPD. However, with respect to the evidence that there were visits by police to the home of the parents and other relatives, the RPD found the Principal Appellant's testimony not to be credible. At the hearing, the RPD raised its concern with the fact that the visits from police were not documented in the Appellants' BOC form narrative and stated that the father's evidence regarding police visits was important.4 The RPD noted that the Appellants were able to get statements from other individuals. [16] At the conclusion of the hearing, the RPD reserved its decision. The Appellants had five weeks from the conclusion of the RPD Hearing until the decision was rendered, during which time they could have requested the opportunity to submit further evidence but did not do so. [17] On appeal, the Appellants state that they are now submitting an affidavit from the Principal Appellant's father \"certifying about the police visits.\"5 However, the Appellants do not explain in their Appellants' Memorandum why this information was not presented to the RPD. A RAD appeal is not a second chance to submit evidence to answer weaknesses identified by the RPD and supplement a deficient record. Refugee claimants are expected to put their best foot forward at the RPD stage.6 [18] I find that the Appellants reasonably could have requested an affidavit from the Principal Appellant's father before the RPD made its decision on the refugee claims: the Appellants were able to get written statements from other family members; they were in regular telephone contact with the father and had been informed by him of the visits with police; and they were advised of the RPD's position that this was evidence that was important to the RPD's consideration of the refugee claims. [19] I find that this portion of the affidavit did not arise after the RPD Decision, was reasonably available and could reasonably have been expected to be presented to the RPD. It does not meet the criteria under section 110(4) of the IRPA to be admitted as new evidence. [20] The affidavit of the Principal Appellant's father contains some information for which it is unclear when the events occurred, including the following: a. The father sometimes receives anonymous phone calls asking about the whereabouts of the Principal Appellant. The phone calls are from unknown numbers and never disclosed to the Principal Appellant. b. Whenever there are national day celebrations or police visit their locality, the police enquire about the Principal Appellant's date of return to India. c. The police started alleging that the Appellants have joined with terrorists abroad and that they will be arrested whenever they return to India or relocate anywhere in India. d. Terrorist activities are increasing in India and whenever there are any incidents, the police enquire about the whereabouts of the Principal Appellant and his date of returning, either with the father or other people in the area. Terrorists attacked Dina Nagar, Pathankot airfield in Punjab and Uri in Jammu and Kashmir. e. Since the Principal Appellant has violated police conditions, the police have become more violent now. [21] Again, the Appellants do not explain whether this information arose before or after the RPD Decision and why it was not presented to the RPD. In the absence of information regarding when these events occurred or why these specific statements regarding police harassment were not presented before the RPD when other evidence of conversations with the Principal Appellant's father regarding police harassment was presented, I find that the Appellants have not established that this evidence arose after the RPD Decision, was not reasonably available at the time of the decision, or that the Appellants could not reasonably have been expected to present the evidence to the RPD before the decision. This portion of the affidavit does not meet the criteria under section 110(4) of the IRPA to be admitted as new evidence. [22] The affidavit does refer to some events or evidence that arose after the RPD Hearing, including the following: a. On XXXX XXXX, 2021, a new police inspector came and alleged the police received information that the Principal Appellant had returned to India to disrupt Republic Day celebrations. The father told police that the Appellants are residing in Montreal, Canada and have no plans to return to India. b. The inspector slapped the father and pushed around the mother. He was aggressive and threatened to circulate the name of the Appellants to all police headquarters such that they will not be able to relocate anywhere in India. [23] I find that these particular statements in the affidavit meet the criteria of new evidence under section 110(4) of the IRPA, as they relate to events that occurred on [REDACTED] 2021, which is after the date of the RPD Decision. [24] I have gone on to consider the credibility, relevance, and newness of the evidence, as required by the case law.7 The evidence is new in that it arose after the RPD Decision. The evidence is relevant to the issue of whether the police in Punjab have an ongoing interest in the Appellants. The evidence appears to be credible in that there are no internal inconsistencies, concerns regarding the genuineness of the document, or other circumstances that lead me to doubt its credibility. This portion of the affidavit is accepted as new evidence. Document B - rejected [25] I find that the evidence regarding the Principal Appellant's work at XXXX XXXX does not meet the criteria for acceptance as new evidence in this appeal. The Appellants do not indicate clearly in their Appellants' Memorandum how this evidence meets section 110(4) of the IRPA or how this evidence is new, relevant, or credible. They state that when filing their refugee claims, they communicated through an interpreter and the interpreter did not indicate on their background declaration form the complete information regarding the Principal Appellant's employment in India, only mentioning that the Principal Appellant had owned a business. While the RPD had questioned the Principal Appellant on the evidence regarding his employment in India, it did not draw any negative conclusions about his employment in its decision. When assessing the reasonableness of the IFA locations, it accepted that the Principal Appellant had been employed as a collections manager at a finance company before starting his own taxi business in India. [26] I find, on a balance of probabilities, that the evidence of the Principal Appellant's employment at XXXX XXXX existed prior to the RPD Decision considering that he worked there prior to coming to Canada. I find that the Appellants have not established that the evidence was not reasonably available or that they could not reasonably have been expected to provide the evidence before the RPD Decision. I find this evidence does not meet the criteria under section 110(4) of the IRPA to be admitted as new evidence. No oral hearing required [27] The Appellants do not request an oral hearing. A portion of the proposed new evidence has been accepted; however, I find the criteria to hold an oral hearing pursuant to section 110(6) of the IRPA has not been met. As will be explained in my analysis below, the information in Document A that has been accepted as new evidence would not justify allowing the appeals, as I find that the Appellants have viable IFAs even in light of the new evidence. As such, no oral hearing is required. ANALYSIS [28] My role is to look at all the evidence and decide if the RPD made the correct decision.8 Scope of the appeal [29] I find that the determinative issue in this appeal is whether the Appellants have a viable IFA. In addition to a finding of IFA, the RPD also made a negative credibility finding regarding the allegation that the police in Punjab have continued to visit the family home of the Principal Appellant, inquiring about his whereabouts, and indicating that they suspect him to be involved in militant activities. [30] I find that it is not necessary to review the RPD's credibility finding or the arguments by the Appellants regarding the credibility finding by the RPD. For the purposes of the IFA analysis, I have assumed without deciding that the Appellants' evidence is credible and that the events occurred as alleged, including that there has been continued inquiries by police in Ludhiana in the whereabouts and activities of the Principal Appellant. I have also accepted as credible the new evidence submitted on appeal that there has been a recent visit by police to the home of the Principal Appellant's family, inquiring about his whereabouts and accusing him of being involved in militant activities. [31] I find that the Appellants have a viable IFA in Mumbai, Kolkata and Bangalore. While the RPD also made a finding that there is a viable IFA in New Delhi, I have not considered New Delhi as an IFA location. I find that it is not necessary to review the RPD's findings regarding New Delhi as an IFA location, as there are viable IFAs in three other cities. Internal Flight Alternative [32] The RPD correctly identified the two-pronged test for assessing an IFA:9 (1) The Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA. (2) The conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the claim, for the claimant to seek refuge there. [33] Both prongs of the test must be satisfied to find that a claimant has an IFA. Once the issue of IFA has been raised and potential IFAs identified, the burden of proof rests with the claimant to show that they do not have an IFA. The first prong - No serious possibility of persecution or likelihood to be harmed in Mumbai, Kolkata or Bangalore [34] I find that the Appellants have not established that there is a serious possibility of persecution, or that, on a balance of probabilities, they face a risk to their lives, a danger of torture, or a risk of cruel and unusual treatment or punishment (collectively, section 97 harm) in Mumbai, Kolkata or Bangalore. Risk at the hands of the Punjab police [35] I find that the Appellants have not established that there is a serious possibility of persecution, or that, on a balance of probabilities, they face section 97 harm at the hands of the Punjab police if they relocate to Mumbai, Kolkata, or Bangalore. [36] The Appellants allege that they are at risk because police in Punjab suspect the Principal Appellant of being involved with the individuals who left arms, ammunition and drugs in his taxi and that they therefore suspect him of being a terrorist, militant, or criminal. The Appellants allege that if the Principal Appellant is not found by the police, the Associate Appellants are at risk of persecution or harm from police in his stead, as was the case when the police arrested and tortured the adult Associate Appellant in XXXX 2018 when they could not locate the Principal Appellant at the family's residence. [37] The RPD found that, even if it accepted that the police have visited the Principal Appellant's family looking for him, it appears that the motivation of the police is not necessarily to find the Principal Appellant but rather to extort money from his family. It found that this appears to be the actions of some corrupt police officers in Ludhiana, rather than the Punjab police force as a whole. [38] On appeal, the Appellants argue that the police have the means and motivation to pursue them in the proposed IFA locations. They concede that when the Principal Appellant was apprehended with the two bags of objectionable items, there was no other proof and hence no legal charge was levied. However, they argue that \"the police wanted a scapegoat to be presented in greed of prizes.\"10 The Appellants quote evidence from the National Documentation Package (NDP) for India, which states that illegal detentions are quite common in India and that sections of the Indian Penal Code regarding the arrest and detention procedures are often not honoured. They argue that the Principal Appellant does not have an official charge or warrant against him but that the police or security agencies can detain him anytime without following the protocols and that \"even if a person is not officially wanted by the police (as there is no legal case against him) but the police need him for their own purpose, there is high possibility of him being apprehended as the \"wanted database also works according to the daily police dairy [sic].\"11 [39] I find that the RPD was correct to conclude that the treatment experienced by the Appellants at the hands of the police, and the ongoing threats and harassment of the Principal Appellant's family by police, are a result of the corrupt actions of police officials in Ludhiana who are motivated by greed rather than a genuine interest in pursuing a criminal investigation against the Principal Appellant. The Appellants concede that the Principal Appellant is not facing terrorism charges and that the Punjab police have been motivated by greed. The documentary evidence in the NDP indicates that corruption is widespread in India and officials frequently engaged in corrupt practices with impunity.12 The evidence indicates that significant human rights issues included unlawful and arbitrary killings, torture, and cruel, inhuman or degrading treatment or punishment by some police, and a lack of trained police officers.13 The evidence indicates that police fail to file required arrest reports for detained persons and use torture as a means to extort money or as summary punishment.14 [40] I find that, in the particular circumstances of the Appellants, the risk they face is limited to Punjab state and that there is not a serious possibility of forward-looking risk of persecution or, on a balance of probabilities, a risk of section 97 harm in Mumbai, Kolkata or Bangalore. The police in India fall under state jurisdiction.15 The activities and interests of the police in one state do not necessarily extend to other states within India. [41] I have considered the new evidence on appeal that a new police inspector visited the family of the Principal Appellant in Ludhiana in XXXX 2021 and threatened to circulate information regarding the Appellants to all police headquarters such that they will not be able to relocate anywhere in India. I find that this threat is insufficient to establish that there is a serious possibility of persecution to the Appellants in the proposed IFA locations. Accepting as credible that the police inspector made this threat to the Principal Appellant's father, I do not find that there is a serious possibility that the threat will be acted upon. According to the Appellants, the police in Ludhiana has been harassing the Principal Appellant's family and requesting bribes for the past three years. Throughout this time the police have not opened an official investigation into the Principal Appellant. The allegations by the Ludhiana police inspector that the Appellants are involved in recent militant activities within India are clearly without foundation, as they have been in Canada since 2018. Given that the Principal Appellant is not the subject of an official investigation, warrant, or charge, and given my findings that the police in Punjab were, on a balance of probabilities, pursuing the family for extortion rather than a legitimate investigation, I find that there is not a serious possibility that the Punjab police would pursue the Appellants outside their area of jurisdiction in Punjab or that the police in any of the proposed IFA locations would have any interest in the Appellants. I find that any risk of future illegal detention in any of the IFA locations is speculative. [42] While the Appellants argue that there are some resources for state law enforcement to coordinate with other states regarding individuals identified as criminals, I find that the Appellants have not established, on a balance of probabilities, that their prior arrests or detention were documented by the Punjab police in any database or diary entry that would be accessible through inter-state criminal information systems such as the Crime and Criminal Tracking Network and System (CCTNS) or in any other police database that would bring them to the attention of authorities in the proposed IFA locations or that would allow the Punjab police to locate them outside that state. [43] Documentary evidence regarding CCTNS states that it is intended to be used to input all First Incident Reports (FIRs), which serve as the first official record of a criminal complaint and serves to activate a police investigation.16 As noted by the Appellants in their Appellants' Memorandum, other documentary evidence indicates that daily diary or general diary accounts and other forms are also recorded in CCTNS.17 However, the documentary evidence also indicates that no official record of extra-judicial arrests is maintained in official criminal databases, including CCTNS.18 [44] In this case, the Principal Appellant testified that the police in Punjab arrested and detained him after his taxi was stopped at the police roadblock in Haryana. The Principal Appellant testified that the police did not file any complaint or charge against him and only threatened to do so.19 His evidence is that he was not brought before a court or magistrate.20 The Appellants' evidence is that the adult Associate Appellant was detained as a proxy when the Punjab police later could not locate the Principal Appellant. The evidence does not establish, on a balance of probabilities, that an FIR or any other record of the Appellants' detentions were documented by police or input into a database. [45] Citing evidence from the NDP, the Appellants argue on appeal that concerned officers can seek information through normal official channels. This evidence does not assist the Appellants, as they have not established that there is a serious possibility that the Punjab police or the police in the proposed IFA locations would seek out information regarding the Appellants. [46] Even in the event that the Appellants are required to undergo tenant verification or other background checks to settle in the IFA locations, the evidence in the NDP indicates that the tenant verification process involves a search of databases include the CCTNS for records of registered cases or charges.21 While the evidence in the NDP indicates that the police do not follow through with all verifications once filed,22 even if a local police force in the IFA locations did process a tenant verification or other background check regarding the Appellants, there is not a serious possibility that it would uncover a record of their past interaction with the Punjab police. [47] I conclude that the Appellants do not face a serious possibility of persecution or, on a balance of probabilities, a risk of section 97 harm at the hands of Punjab police or local police in the IFA locations, if they return to India and relocate to Mumbai, Kolkata, or Bangalore. Risk at the hands of the Delhi police [48] In their BOC form narratives, the Appellants do not allege any risk at the hands of the Delhi police. However, at the RPD Hearing, the Principal Appellant stated that he fears the Delhi police.23 He testified that he approached the Delhi police seeking their protection due to the threats and mistreatment from the Punjab police. He testified that rather than provide the Appellants with protection, he believes the Delhi police informed the Punjab police of their presence in Delhi, as the Punjab police attended their home in Ludhiana the following day looking for the Appellants. The Principal Appellant also testified that the Delhi police searched for the Principal Appellant at his aunt's home in Delhi on XXXX XXXX, 2018. [49] Accepting as credible that the Delhi police searched for the Principal Appellant in 2018, even where the RPD found this not to be credible, I find that there is not a serious possibility of forward-looking persecution at the hands of the Delhi police in the IFA locations. The Appellants do not allege, and the evidence does not establish, that there have been any inquiries by the Delhi police into the whereabouts of the Appellants in the past three years. The XXXX 2019 affidavit of the Appellant's aunt, who continues to live in Delhi and who accompanied the Principal Appellant to request the Delhi police's protection, does not indicate that there have been any subsequent visits by police to her home or inquiries with her regarding the whereabouts of the Appellants. The Appellants are not accused of any crimes for which the Delhi police have jurisdiction. The Appellants do not allege, on appeal, that there is an ongoing risk to them at the hands of the Delhi police. I find that the Appellants have not established that they face a serious possibility of persecution at the hands of the Delhi police or that, on a balance of probabilities, they face a risk of section 97 harm at the hands of the Delhi police in Mumbai, Kolkata or Bangalore. Risk at the hands of the smugglers [50] The Appellants allege that they are at risk of persecution or harm at the hands of the individuals who left the bags of arms, ammunition, and drugs in the taxi of the Principal Appellant. The Principal Appellant testified that he believes the smugglers are looking for him and will want to harm or kill him.24 When asked how he knew that the smugglers are looking for him, he stated, \"I do not have any information but it's the fear in my mind.\"25 [51] The RPD found that it was speculative that the smugglers are looking for the Principal Appellant in the IFA locations. It considered that the Principal Appellant remained in Delhi for many months without being contacted by the smugglers. It considered that the Principal Appellant did not have any knowledge that the smugglers were looking for him, only that it was a fear that he had. [52] On appeal, the Appellants argue that the RPD was incorrect in its finding that the risk to the Appellants at the hands of the smugglers is speculative. In response to the RPD's concern that the Principal Appellant was able to stay in Delhi for several months without getting approached by the smugglers, they argue that it can only be speculated as to whether the smugglers had a base in Delhi or were using Delhi as a transit point. They also argue that the smugglers have the motivation to seek the Principal Appellant as the Principal Appellant had seen them firsthand and could be used by the police to apprehend them at any point in time, or because they are looking for their bags. The Appellants also point to the evidence in the Principal Appellant's father's affidavit that he has received anonymous phone calls asking the whereabouts of the Appellants. [53] I find that the RPD was correct to conclude that the risk at the hands of the smugglers is speculative. It has been established that, during the time that the Principal Appellant was in Delhi after the incident, he had no contact with the smugglers. It is speculative that the smugglers are interested in the Appellants at all three years later, whether because they would be looking for their bags or because of a concern that the Principal Appellant would identify them to police. The evidence that the Principal Appellant's father has received anonymous phone calls, which was rejected as new evidence, does not establish, on a balance of probabilities, that the phone calls are coming from the smugglers. I find that the Appellants have not established that they face a serious possibility of persecution at the hands of the smugglers or that, on a balance of probabilities, they face a risk of section 97 harm at the hands of the smugglers in Mumbai, Kolkata or Bangalore. The second prong - Relocation to Mumbai, Kolkata or Bangalore is not objectively unreasonable [54] The RPD found that it would not be objectively unreasonable for the Appellants to relocate to New Delhi, Mumbai, Kolkata or Bangalore. The RPD noted that, although the Appellants argued that without money they would not be able to survive, they did not articulate why they could not earn money. The RPD considered that the Appellants are highly educated with bachelor's degrees, the Principal Appellant has work experience in India as a XXXX XXXX at a XXXX XXXX and XXXX XXXX at a XXXX XXXX, and operated his XXXX XXXX business, and the adult Associate Appellant has work experience as a XXXX XXXX in India. Both have further work experience in Canada. Both adult Appellants speak Hindi, Punjabi and English. The RPD concluded that the Appellants were well positioned to find employment in the proposed IFAs and earn income to provide for their family. [55] On appeal, the Appellants argue that relocation to any of the proposed IFA locations is not reasonable for the following reasons: a. The Principal Appellant would be required to undergo a background check as a mandatory procedure for any job in the organized sector, which would reveal their location; b. For the Principal Appellant to start a XXXX business again, he would have to apply for a loan, which involves a background check, which would reveal their location; c. It would be next to impossible to build a reputation in a new place; and d. It would be impossible for the Appellants to establish a good level job or business in India, in order to live a decent life like they have been used to. [56] The Federal Court of Appeal in Thirunavukkarasu held that a claimant cannot be required to encounter great physical danger or to undergo undue hardship in travelling to or in staying in an IFA location; however, it is not enough for refugee claimants to say that they do not like the weather in a safe area, or that they have no friends or relatives there, or that they may not be able to find suitable work there.26 [57] I find that the RPD was correct to conclude that it is not objectively unreasonable for the Appellants to relocate to Mumbai, Kolkata, or Bangalore. I have already concluded that the Appellants have not established, on a balance of probabilities, that they face any formal charges or that their detentions by the Punjab police were documented in any databases or systems accessible by police in other states. I find that there is a not a serious possibility that applying for a job or a loan will trigger a concern by police in the IFA locations or trigger notification to the Punjab police if a query is conducted through CCTNS. Furthermore, while it may take time and effort for the Appellants to achieve the lifestyle to which they have become accustom either in Punjab or in Canada, the threshold for assessing the reasonableness of an IFA location is whether it would jeopardize the lives and safety of the Appellants. I find that the Appellants have not established that their lives or safety would be jeopardized in the IFA locations. The adult Appellants both have university educations, work experience in various fields, and speak Hindi, Punjabi, and English. I agree with the finding of the RPD that they are well positioned to find employment in the proposed IFAs and earn income to provide for their family. [58] I note that the Appellants argue that, for the benefit of the minor Associate Appellant, the appeal should be allowed. The Appellants do not make any specific arguments as to any risk faced by their child in India or any reason why she could not relocate with the Appellants to any of the IFA locations. I find that the Appellants have not established a basis for the appeal to be granted in respect of the minor Associate Appellant. [59] I have also considered that the adult Appellants allege that they were tortured by Punjab police and that the adult Associate Appellant alleges that she was tortured and sexually assaulted by Punjab police. However, I have already found that there is not a serious possibility that the Punjab police will pursue the Appellants in the IFA. The Appellants have not raised any additional arguments before the RPD or on appeal regarding the impact of their experiences in detention on the reasonableness of relocating within India. Conclusion on Internal Flight Alternative [60] Having conducted an independent assessment of the evidence, I conclude that the Appellants have a viable IFA in Mumbai, Kolkata and Bangalore. They do not face a serious possibility of persecution or, on a balance of probabilities, a risk to their lives or a risk of cruel and unusual treatment or punishment in Mumbai, Kolkata or Bangalore. It would not be objectively unreasonable in all the circumstances for the Appellants to live in any of these locations. CONCLUSION [61] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) Laura Ko Laura Ko January 10, 2022 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, \"Handbook on Procedures and Criteria for Determining Refugee Status\", under the 1951 Convention. 2 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended, subsection 110(4). 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 4 Transcript of RPD hearing (June 16, 2021), at p. 20. 5 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at p. 14. 6 Eshetie v. Canada (Citizenship and Immigration), 2019 FC 1036 (CanLII), at paras 33-34; see also Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, at para 54. 7 Supra., footnote 3. 8 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 9 Rasaratnam v. Canada ( Employment and Immigration), [1991] F.C.J. No. 1256, [1992] 1 F.C. 706 (F.C.A.). 10 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at p. 14. 11 Ibid., at p. 15. 12 Exhibit RAD-1, National Documentation Package (NDP) for India (June 30, 2021), item 2.1: India. Country Reports on Human Rights Practices for 2020., United States. Department of State., at p. 38. 13 Ibid. 14 Ibid., at pp. 5-6. 15 Ibid., at p. 1. 16 Ibid., item 10.6: Surveillance by state authorities; communication between police offices across the country, including use of the Crime and Criminal Tracking Network and Systems (CCTNS); categories of persons that may be included in police databases; tenant verification; whether police authorities across India are able to locate an individual (2016-May 2018), Immigration and Refugee Board of Canada (IRB), at p. 8. 17 Ibid., item 10.13, Police databases and criminal tracking, particularly the Crime and Criminal Tracking Network and Systems (CCTNS); relationship with the Aadhaar and tenant verification systems; capacity to track persons through these systems (2019-May 2021), IRB, at p. 6. 18 Ibid., at p. 7. 19 Transcript of RPD hearing (June 16, 2021), at p. 34. 20 Ibid. 21 Exhibit RAD-1, NDP for India (June 30, 2021), item 10.13, at pp. 7-8; item 14.8: Requirements and procedures for tenant registration (or tenant verification), including implementation, particularly in Delhi, Mumbai, Kolkata and Bengaluru (2016-May 2019), IRB. 22 Ibid. 23 Transcript of RPD hearing (June 16, 2021), at p. 21. 24 Ibid., at p. 26. 25 Ibid., at p. 27. 26 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 FC 589. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MC1-05698 MC1-05699 / MC1-05700 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français", "response": "## Analysis of Refugee Decision: MC1-05698\n\n### Key Issues\nts: a. Attempt to rectify the issues of credibility with explanations and new evidence; b. Argue that the police and smugglers have the means and motivation to locate them anywhere\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: t. As will be explained in my analysis below, the information in Document A that has been accepted as new evidence would not justify allowing the appeals, as I find that the Appellants have viable IFAs even in light of the new evidence. As such, no oral hearing is required. ANALYSIS [28] My role is to look at all the evidence an\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "What standard of review does this Federal Court of Canada decision apply to immigration decisions?\n\nIzumi v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2023-01-03 Neutral citation 2023 FC 1 File numbers IMM-7858-21 Decision Content Date: 20230103 Docket: IMM-7858-21 Citation: 2023 FC 1 Ottawa, Ontario, January 3, 2023 PRESENT: The Honourable Mr. Justice Ahmed BETWEEN: JUNKO IZUMI Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I. Overview [1] The Applicant, Junko Izumi, seeks judicial review of a decision dated October 12, 2021, by a Senior Immigration Officer (the “Officer”) with Immigration, Refugees and Citizenship Canada (“IRCC”). The Officer refused the Applicant’s application for permanent residence on humanitarian and compassionate (“H&C”) grounds, pursuant to subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”). [2] The Officer found that the Applicant provided insufficient evidence to indicate that she would experience hardship upon removal to warrant relief on H&C grounds. [3] The Applicant submits that the Officer erred in applying the statutory test for exercising discretion under section 25 of IRPA, engaged in an improper consideration of the Applicant’s evidence, and conducted an imbalanced assessment of the application as a whole. [4] For the reasons that follow, I find the Officer’s decision is unreasonable. This application for judicial review is granted. II. Facts A. The Applicant [5] The Applicant is a 53-year-old citizen of Japan. Throughout her childhood, the Applicant, her mother, and her brother were subject to domestic violence by her father. [6] The Applicant claims she pursued travel and education abroad as soon as she was able, to escape these circumstances. In 1991, the Applicant obtained a bachelor’s degree in linguistics at Konan University in Kobe, Japan. She worked as an office administrator for three years and then traveled to Australia. In 1995, the Applicant obtained a language/tourism certificate from the Williams Business School in Sydney, Australia. [7] After completing her education in Australia, the Applicant returned to Japan and worked as a secretary at a language school for one year, while living in her parents’ home. Her father was continually abusive during this time. [8] The Applicant first entered Canada on a working holiday visa in March 1999, which was extended until March 2000. She had a valid visitor visa between February 21, 2000 and August 21, 2000. [9] In her H&C application, the Applicant submitted that she returned to Canada in 2004. She claims she has called Canada home and worked here since 2004 as a cook. She also owns an income-producing property in Japan, which she has owned since 2001. [10] The Applicant had another valid visitor visa between January 15, 2008 and May 10, 2008. The Applicant remained close to her mother and in 2010, she returned to Japan to be with her mother, who was sick with ovarian cancer. Her mother passed away in June 2010. [11] The Applicant has had the same address in Toronto, Ontario since March 2009. Her passport and her statement filed in support of her application indicate that she would leave Canada for several weeks at a time to travel abroad, re-entering Canada as a visitor and working here without authorization. Despite this travel, the Applicant claims she had established her home in Canada, with a community and ongoing employment. [12] The Applicant was granted a multiple-entry extended stay temporary resident visa (“TRV”) on December 3, 2016, which was valid until November 30, 2021. In 2016, the Applicant returned to Japan for three weeks when she needed surgery and stayed at her father’s home during this time. She claims that her father became more abusive to her during her stay. [13] The Applicant’s father passed away in 2019. The Applicant’s brother resides in Japan and now runs the family roofing business. She does not have a positive relationship with her brother or his family. [14] In August 2019, at the request of Applicant’s counsel, a clinical psychologist conducted an independent psychological assessment for the Applicant. This involved a clinical interview and a psychological test known as the Minnesota Multiphasic Personality Inventory F-PTSD Scale (“MMPI”). The assessment concluded that the Applicant continues to experience the “deleterious psychological after-effects” of being “trapped in a psychologically destructive, abusive family in Japan.” The assessment also resulted in the Applicant’s diagnosis of stressor-related disorder with prolonged duration, with dissociative and stress-response symptoms, requiring ongoing mental health treatment. [15] The Applicant claims that Canada has provided her with a safe place away from her abusive upbringing in Japan and has allowed her to pursue the process of overcoming the ongoing negative impacts of this abuse. [16] The Applicant first applied to regularize her status in Canada in December 2019, submitting her initial application for permanent residence on H&C grounds. This initial application was refused in a decision dated March 19, 2021 (“March 19, 2021 Decision”). The Applicant filed an application for judicial review of the March 19, 2021 Decision, which was settled and sent back for reconsideration. [17] On reconsideration, the Applicant filed further documents in support of her application, including 20 letters of support from people in her community and updated H&C submissions by her counsel. The application was again refused in a decision dated October 12, 2021 (“October 12, 2021 Decision”). This decision is the subject of this application for judicial review. B. Initial Decision [18] In the March 19, 2021 Decision, the initial officer found that the Applicant should not be able to benefit from the time she has spent working illegally in Canada since 2004, as this would encourage people to remain in Canada illegally in order to better position themselves for H&C relief, citing Joseph v Canada (Citizenship and Immigration), 2015 FC 904. The officer therefore gave little weight to the Applicant’s establishment in Canada from 2004 onwards, and attached negative weight to her “disregard for the immigration laws of Canada.” [19] The officer then considered the Applicant’s submissions and evidence regarding her experience of domestic violence and the psychological assessment indicating the need for ongoing treatment. The officer noted that the Applicant neglected to continue treatment, despite the recommendation to do so, as she cited the lack of funds for continued mental health treatment despite providing evidence of financial stability. The officer pointed to accessible counselling resources for Japanese nationals and visitors to Canada. The officer did not find the Applicant’s experience of abuse to be an exceptional circumstance warranting H&C relief. [20] The officer considered the Applicant’s income-producing property in Japan, her financial self-sufficiency, and her ability to travel. The officer found insufficient evidence to demonstrate that the Applicant would be unable to apply for permanent residence from outside Canada, and determined that her decision to remain in Canada is a personal choice. The officer therefore found that an H&C exemption was not warranted. [21] The Applicant applied for judicial review of the March 19, 2021 Decision. The matter was settled and reconsidered by another officer. C. Decision Under Review [22] In the October 12, 2021 Decision, the Officer began by noting that H&C relief under subsection 25(1) of IRPA requires consideration of whether relief is justified by the Applicant’s circumstances, taking into account the best interests of a child directly affected. The Officer also noted that the Applicant bears the onus to provide sufficient evidence to substantiate H&C grounds, that officers are not required to elicit information or satisfy that grounds exist, and that evidence of hardship upon removal is not itself sufficient to warrant H&C relief. [23] The Officer identified three factors as the basis for the application: potential hardship upon return to Japan due to her experiences with domestic violence at the hands of her father, personal ties to Canada, and her establishment in Canada. [24] With respect to hardship, the Officer outlined the Applicant’s personal history, particularly her experiences with domestic violence in Japan, and considered the Applicant’s psychological assessment. The Officer highlighted that the assessment was based on a single interview rather than an ongoing relationship, it was done at the request of the Applicant’s counsel, and the Applicant did not seek mental health treatment during her 20 years in Canada. The Officer determined that the psychologist’s opinion that the Applicant’s mental health would deteriorate upon her turn to Japan is speculative, and found insufficient evidence to demonstrate that the Applicant could not access mental health treatment in Japan. [25] The Officer also noted that the assessment was performed prior to the death of the Applicant’s father in 2019, and it is therefore reasonable to assume that the threat of harm in Japan is now nonexistent. The Officer concluded that although it would be emotionally difficult for the Applicant to return to Japan, it is reasonable to expect that reintegration would be minimal. [26] On the second factor of personal ties, the Officer considered the letters of support provided as evidence of the Applicant’s personal ties in Canada. While the reasons state that these letters are afforded some positive weight, the Officer noted that the letters do not explain how the supporters would assist the Applicant in Canada or what hardship she would experience if forced to leave. The Officer found insufficient evidence to show a mutual dependence between the Applicant and her personal ties such that her departure would cause difficulties, or an inability to maintain contact with her personal ties through other means. [27] On the third factor of establishment in Canada, the Officer noted that the Applicant’s employment, volunteerism, and connections in Canada are afforded some positive weight, but a certain level of establishment is reasonably expected given that she has been traveling to Canada for more than 20 years. The Officer did not find that the Applicant’s establishment in Canada is sufficient to warrant H&C relief, stating that it is not unusual compared to others who have been here for a similar amount of time, nor does it indicate a level of integration into Canadian society to the extent that hardship upon her removal would be beyond her control. [28] The Officer noted that the Applicant’s desire to remain in Canada and her unwillingness to return to Japan are not determinative of an exemption on H&C grounds. The Officer ultimately found that the Applicant provided insufficient evidence to justify granting H&C relief. III. Issue and Standard of Review [29] This application for judicial review raises the sole issue of whether the Officer’s decision is reasonable. [30] The standard of review is not disputed. The parties agree that the applicable standard of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25) (“Vavilov”). I agree. [31] Reasonableness is a deferential, but robust, standard of review (Vavilov at paras 12-13). The reviewing court must determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible and justified (Vavilov at para 15). A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker (Vavilov at para 85). Whether a decision is reasonable depends on the relevant administrative setting, the record before the decision-maker, and the impact of the decision on those affected by its consequences (Vavilov at paras 88-90, 94, 133-135). [32] For a decision to be unreasonable, an applicant must establish the decision contains flaws that are sufficiently central or significant (Vavilov at para 100). Not all errors or concerns about a decision will warrant intervention. A reviewing court must refrain from reweighing evidence before the decision-maker, and it should not interfere with factual findings absent exceptional circumstances (Vavilov at para 125). Flaws or shortcomings must be more than superficial or peripheral to the merits of the decision, or a “minor misstep” (Vavilov at para 100; Canada (Citizenship and Immigration) v Mason, 2021 FCA 156 at para 36). IV. Analysis [33] The Applicant submits that the Officer erred in the following ways: by applying the incorrect statutory test for granting H&C relief pursuant to subsection 25(1) of IRPA, by improperly assessing the Applicant’s psychological report and other evidence, and by unfairly conducting an imbalanced assessment of the application as a whole. My analysis focuses on the assessment of the psychological report, which I find is improper and renders the decision as a whole unreasonable. [34] The Applicant submits that the Officer erred in their assessment of the psychological report by undermining the report in favour of irrelevant considerations, such as the assessment resulting from a singular visit and the assessment being performed at the request of Applicant’s counsel, instead of a medical professional. The Applicant submits that the Officer misunderstood the purpose of the assessment: to establish the Applicant’s mental health situation and corroborate her assertions that she is continually impacted by her past experiences, and not to provide ongoing therapeutic treatment. The Applicant further submits that the Officer erroneously found the psychologist’s opinion that the Applicant’s mental health would deteriorate upon her return to Japan to be speculative, because this assertion negates the psychologist’s expertise and the thoroughness of the assessment, which included the performance of a MMPI psychological test. [35] The Applicant also submits that the Officer’s overall assessment of the H&C application as a whole was unfair and imbalanced. The Officer asserted that the Applicant did not wish to return to Japan due to her fear of being further harmed there, but that no such harm exists because her father passed away in 2019. However, the Applicant never pleaded a fear of harm in Japan and, rather, based her application on her establishment in Canada, her negative memories associated with Japan, and her ability to effectively heal from her past in Canada. The Applicant also submits that the Officer’s finding regarding her “not wishing to return” undermines the core of her application, which is rooted in her experiences of abuse and her positive establishment in Canada. She submits that the Officer was unreasonably dismissive of the 23 letters of support proffered in support of her application and of her extensive establishment in Canada. [36] The Respondent maintains that the Officer engaged in a reasonable assessment of the evidence and the application as a whole. On the psychological report, the Respondent relies on this Court’s decision in Garcia Diaz v Canada (Citizenship and Immigration), 2021 FC 321 (“Garcia Diaz”) to submit that an officer is not required to agree with psychological reports submitted in an H&C application and is entitled to give them little weight, so long as there are clear reasons for doing so (at para 97). The Respondent contends that the Officer provided a reasonable explanation for undermining the Applicant’s psychological assessment. The Respondent further submits that the Officer did not misunderstand the purpose of the psychological assessment and, rather, reasonably found that the Applicant’s reintegration in Japan would be minimal because she does not face a threat, she owns property, potential support from her brother, and familiarity with the language and culture. [37] The Respondent maintains that the Officer carried out a reasonable and balanced assessment of the Applicant’s circumstances as a whole, based on a cumulative assessment of the evidence. The Respondent submits that the support letters proffered by the Applicant were brief, and the Officer reasonably found that they provided limited evidence that the Applicant’s removal would cause difficulties for those involved, or that she would be unable to maintain contact with her connections from Japan. The Respondent submits that the Applicant’s submissions on the Officer’s assessment of the application as a whole are merely a request to reweigh the evidence, which is not this Court’s role on review. [38] I note that the Officer’s reasons state that the Applicant’s traumatic experiences of abuse at the hands of her father were “given substantial weight in the assessment.” However, stating so is not the same as doing so. This statement does not mean that the decision, when reviewed as a whole, exhibits an attentiveness and consideration for the Applicant’s situation, assessing H&C factors holistically (Vavilov at para 15). In my view, the Officer’s assessment of the psychological report lacks consideration for the true extent of the impact of abuse on the Applicant and therefore contains gaps in reasoning. [39] The psychological report contains a detailed assessment of the Applicant’s mental health and the negative impact that her removal would have on her ability to effectively heal from her past. This evidence, extracted from a thorough psychological assessment of the Applicant for the purposes of corroborating her application, is central to the H&C factors that the Officer ought to have considered in assessing the Applicant’s circumstances. However, the Officer undermines this evidence by stating that the assessment was based on a singular visit rather than an ongoing therapeutic relationship, and that the assessment was performed at the request of Applicant’s counsel. [40] I do not find that these considerations are relevant to an assessment of the risk to the Applicant’s mental health upon her return to Japan. The fact that the assessment was based on a single visit, or that the assessment was completed upon counsel’s request, are not factors that undermine the thoroughness, credibility and value of the psychological assessment of the Applicant and the resulting diagnosis. Although entitled to grant a psychological report little weight, there must be clear and well-founded reasons for doing so (Garcia Diaz at para 97). In my view, the Officer failed to adequately consider a central aspect of the Applicant’s evidence, connected to the core of her H&C application, based on reasons that are not well founded, rendering the assessment of the Applicant’s evidence regarding her mental health unreasonable. [41] I also take issue with the Officer’s assertion that the psychologist’s opinion that the Applicant would face negative effects to her mental wellbeing if removed to Japan is speculative. First, I agree with the Applicant that this unfairly undermines the credibility of the report, based on an unsupported assertion. Second, I find this finding particularly problematic because it constitutes a failure to account for the foundation of the Applicant’s claim and reflects a narrow lens of the effects of domestic abuse on survivors, unfairly assuming that a risk to a survivor’s wellbeing is strictly connected to the risk of further physical harm. Neither the Applicant’s submissions nor the psychological report assert that the ongoing threat to the Applicant’s mental health is the physical embodiment of this abuse in Japan: her father. The Applicant does not claim that she fears returning to Japan because she will be physically abused there. In fact, the Applicant’s H&C application clearly states: While she may not have realized it before, Ms. Izumi is seeking safe haven, where she could finally make a firm break from her family, could health and could establish a home, free from the pain she endured growing up and free from the memory ‘triggers’ surrounding her in Japan. […] Ms. Izumi still needs to address the impact of the abuse on her as Dr. Devins recommends. She wants to do this, but she is still paying the balance of her medical bills and, aside from the cost, she really needs secure status to enter into a long-term program of therapy. She has managed to cope and make strides in overcoming some of effects of the abuse on her. She feels safe in Canada. The harsh memories of her past are in a distant country, Japan. Unfortunately, Japan is the only country where she has status to live permanently: she does not feel that she could cope with a return there. It holds only bitter memories for her. She has only her brother in Japan. He is married with children and she is not part of their lives and does not want to be. [Emphasis added] [42] The psychological report also states that Japan “holds bitter memories” for the Applicant, and that during her life in Canada, she is “finally finding it possible to trust a man,” she is “gainfully employed, finds meaning and satisfaction in her work, and has established an active, stimulating and satisfying life.” The report states that these “hard-won gains augur well for Ms. Izumi’s future mental health” but these gains “will be lost, however, should Ms. Izumi be refused permission to stay in Canada.” Contrary to the Officer’s finding, these opinions go beyond the existence of the threat of physical violence in Japan. Despite this, the Officer’s reasons appear to assume that no threat exists to a survivor of abuse such as the Applicant, as long as the physical threat of violence no longer exists. The Officer’s reasoning creates the unfair expectation that the lasting impacts of abuse are limited to the physical threat of continued violence, thereby ignoring the significant psychological footprint that abuse leaves behind. This is an unreasonable line of reasoning, and fails to adequately grapple with the consequences of removal on the Applicant (Vavilov at paras 102, 134). [43] On numerous occasions, the Officer’s reasons characterize the Applicant’s H&C application as being “a wish” to remain in Canada. In oral submissions, the Applicant’s counsel stated, and I agree, that the Officer mischaracterized and undermined the core of the Applicant’s claim by labeling it as a simple wish to live in Canada. In my view, the Applicant’s claim amounts to more than a mere wish. The evidence shows that she is facing lasting psychological impacts of abuse at the hands of her father, affecting her ability to return and reintegrate into a country that holds nothing but painful memories. She has established an extensive community in Canada, evidenced by the 23 letters of support on the record. The Officer’s consistent undermining of the core aspects of the Applicant’s claim and failure to grapple with the key evidence renders the decision as a whole unreasonable. V. Conclusion [44] The Officer’s decision is unreasonable because the Officer engaged in an improper consideration of the Applicant’s evidence, particularly relating to her psychological assessment. This application for judicial review is granted. JUDGMENT in IMM-7858-21 THIS COURT’S JUDGMENT is that: The application for judicial review is granted. The decision under review is set aside and the matter remitted back for redetermination by a different officer. There is no question to certify. “Shirzad A.” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-7858-21 STYLE OF CAUSE: JUNKO IZUMI v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: by videoconference DATE OF HEARING: October 19, 2022 JUDGMENT and reasons: AHMED J. DATED: January 3, 2023 APPEARANCES: Barbara Jackman For The Applicant Ian Hicks For The Respondent SOLICITORS OF RECORD: Jackman & Associates Barristers and Solicitors Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent", "response": "## Analysis of Court Decision: Izumi v. Canada (Citizenship and Immigration)\n\n### Key Issues\nifferent officer. There is no question to certify. “Shirzad A.” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-7858-21 STYLE OF CAUSE: JUNKO IZUMI v THE MINISTER OF CITIZENSH\n\n### Standard of Review\nng H&C relief. III. Issue and Standard of Review [29] This application for judicial review raises the sole issue of whether the Officer’s decision is reasonable. [30] The standard\n\n### Legal Analysis\nThe court's analysis focuses on: oherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker (Vavilov at para 85). Whether a decision is reasonable depends on the relevant administrative setting, the record before the decision-maker, and the impact of the decision on those affected by its conse\n\n### Precedential Value\nThis Federal Court decision has persuasive value for similar cases before the court and provides guidance to the Immigration and Refugee Board on the proper interpretation of law and procedural requirements. While not binding on other Federal Court judges, it establishes a precedent that will often be followed for consistency."}
{"prompt": "How does this Refugee Appeal Division decision from the Immigration and Refugee Board of Canada impact refugee claimants?\n\nRAD File No. / No de dossier de la SAR : MC1-02834 MC1-02835 / MC 1-02836 / MC1-02837 MC1-02838 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision [Translation of the original verion] Persons who are the subject of the appeal [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED][REDACTED] [REDACTED] [REDACTED] Personnes en cause Date of decision July 25, 2022 Date de la décision Panel Anne Revil Tribunal Counsel for the persons who are the subject of the appeal Virginie Beaubien Conseil des personnes en cause Designated representative [REDACTED] XXXX Représentant(e) désigné(e) Counsel for the Minister Amy Gelin Conseil du ministre REASONS FOR DECISION OVERVIEW [1] [REDACTED] XXXX, his wife, [REDACTED] XXXX, and their minor children, [REDACTED] XXXX, [REDACTED] XXXX and [REDACTED] XXXX, are citizens of Chile. They arrived in Canada on March 7, 2018, and claimed refugee protection, alleging that they fear the fish mafia in Chile. [2] The Refugee Protection Division (RPD) found their allegations credible and granted them the status of persons in need of protection, stating that [translation] \"the panel is not satisfied on a balance of probabilities that the claimants would not face a serious possibility of persecution if they were to avail themselves of an internal flight alternative (IFA) in Chile. The panel considers that the claimants' situation in another part of the country is such that it would be unreasonable, in their particular case, to seek refuge there.\"1 [3] The Minister of Immigration, Refugees and Citizenship (hereinafter the Minister) appealed that decision to the Refugee Appeal Division (RAD). He argues that the RPD erred in analyzing state protection and should have considered an IFA in other cities, such as Arica, Iquique, Antofagasto, Concepción and Puerto Montt, and not only in the small town of XXXX. He argues that the appellants can obtain state protection. [4] The respondents submit that the RPD's decision is correct. In particular, they argue that the fish mafia is everywhere, that they tried to settle in XXXX but that their business failed. They claim that the RPD accepted evidence that their agents of harm were members of the mafia and point out that the mafia is present throughout Chile. [5] On November 3, 2021, the RAD sent a notice to the parties seeking their submissions on an IFA in the cities of Arica, Iquique, Antofagasta, Puerto Montt and Concepción. [6] The parties did not respond within the time limit provided, and the RAD rendered its decision allowing the appeal on December 3, 2021. [7] On January 7, 2022, the RAD allowed the application to reopen submitted by the respondents' new counsel. [8] Counsel filed additional submissions on March 10, 2022, with new documents and a sworn statement from Mr. XXXX XXXX. The respondents argue in these new submissions that the fishing mafia is tied to criminal groups involved in the narcotics trade, and that their assailants have the motivation to locate them, as Mr. XXXX XXXX filed a complaint for death threats and physical assault. They argue that the fact that the agents of harm were aware that a complaint had been filed proves that they had access to official information and that the fact that the police are not effective does not affect the motivation of the agents of harm. They point out that the agents of harm questioned Mr. XXXX XXXX brother and assaulted his father, and that the period from XXXX XXXX to their departure in XXXX 2018 is quite short, and that the agents of harm know his name and have information about his family and the places he frequented. They stress that the proposed IFAs are port cities and that it would be easy to find them there. With respect to the second prong of the IFA, they claim that the IFAs are unreasonable because they would not be able to find employment there and that they did not have much education and tried to settle in XXXX but failed because of financial problems. They claim they will not be able to find work and point out that many Chileans are homeless and living in camps. [9] On June 23, 2022, in response to a notice from the RAD, counsel for the respondents clarified that the submissions filed by previous counsel on December 9, 2021, between the first RAD decision and the reopening of the case, were not part of their record. She filed amended submissions to reflect the updated National Documentation Package (NDP) on Chile of April 29, 2022. These amended submissions point out that drugs are transported and trafficked via waterways and ports and that certain criminal organizations with ties to narcotics trafficking are located in the proposed IFA cities. DETERMINATION [10] The appeal is allowed. The RAD substitutes the RPD's determination with its own determination that the respondents are not Convention refugees or persons in need of protection. NEW EVIDENCE [11] The evidence presented by the respondents is admitted. [12] According to the Immigration and Refugee Protection Act,2 the RAD can only admit evidence that: i. arose after the RPD decision; ii. was not reasonably available at the time of the decision; or that iii. the person could not reasonably have been expected in the circumstances to have presented to the RPD before the decision was made. [13] Thereafter, if the evidence meets one or more of these requirements, the RAD must decide whether the evidence is new, credible and relevant before admitting it.3 [14] In support of their additional submissions, the respondents filed seven articles and a sworn statement from Mr. XXXX XXXX. Newspaper articles [15] The respondents filed the following articles: A. \"Pesca ilegal: La inédita querella de los pesqueros industriales [Illegal fishing: The unprecedented dispute between industrial fishermen],\" Latercera, March 13, 2021. B. \"La mitad de las municipalidades está siendo investigada por corrupción [Half of municipalities are under investigation for corruption],\" Cooperativa Chile, January 19, 2022. C. \"23 detenidos en Puerto Montt: desviaban camiones con salmones muertos para venderlos ahumados [23 arrests in Puerto Montt: trucks containing dead salmon hijacked to sell them smoked],\" BiobioChile, June 2, 2021. D. \"Homicidios por ajustes de cuentas aumentaron un 28% el año pasado [Revenge killings increased by 28% last year],\" BiobioChile El Narco, June 22, 2021. E. \"Los homicidios por ajustes de cuentas aumentaron 17 puntos en cinco años [Revenge killings have increased by 17 points in five years],\" Cooperativa Chile, February 9, 2022. F. \"Caso Corpesca: ¿Logrará la mafia pesquera y la casta política bloquear a la Fiscal Chong? [Corpesca case: Will the fishing mafia and the political caste succeed in blocking Prosecutor Chong?],\" elDESCONCIERTO, September 2, 2016. G. \"Las 7 familias que tendrían el mar chileno a perpetuidad [The 7 families that are allegedly the perpetual owners of the Chilean sea],\" elmostrador, July 11, 2012. [16] The respondents contend that these documents are submitted in response to the RAD's notice requesting their submissions on the IFA and therefore could not reasonably have been expected under the usual circumstances to have been submitted. They also point out that these documents are documentary evidence and therefore credible and relevant because they are credible documents as they provide information on the proposed cities and on how the agents of harm operate. [17] After conducting its analysis, the RAD considers that these documents meet the criteria of subsection 110(4) because the respondents could not reasonably have been expected in the usual circumstances to have presented them, because the cities of Arica, Iquique, Antofagasto, Concepción, and Puerto Montt were not proposed as IFAs by the RPD, because these cities are coastal cities and because the respondents claim to fear the fishing mafia there. They also meet the newness, relevance and credibility criteria set out in the case law. These articles are therefore admitted as new evidence. Mr. XXXX XXXX affidavit [18] The respondents also filed an affidavit by Mr. XXXX XXXX, which contains new allegations concerning, among other things, the fish mafia. These allegations are also connected to the proposal of port cities as IFAs and therefore meet, for the reasons set out above, the criteria of subsection 110(4) and the newness, relevance and credibility criteria set out in the case law. ANALYSIS [19] The RAD's role is to decide whether the RPD's decision is correct or if, as the appellant claims, it erred. [20] To this end, the RAD listened to the recording of the RPD hearing, conducted its own analysis of the record and of all the evidence, and applied the correctness standard. I - Facts found credible by the Refugee Protection Division [21] The RPD set out the alleged facts as follows: [Translation] The claimant owned a XXXX and XXXX (XXXX) XXXX in Santiago. In the course of his commercial activities, the male claimant obtained supplies at the XXXX XXXX terminal. On XXXX XXXX, 2017, the male claimant purchased mollusks from one of his suppliers. Once at his business, the male claimant noticed that the mollusks were spoiled. The next day, he went to meet with his supplier to return the mollusks. However, the supplier refused to take the product back and threatened to kill the male claimant with a machete. Upon returning to his business, the male claimant told the female claimant (his wife) what had happened to him. Afterward, the male claimant used other suppliers to make his purchases until they refused to sell to him. On XXXX XXXX, 2017, the male claimant and his wife watched a television report according to which the mafia was present at the XXXX XXXX terminal. On XXXX XXXX, 2017, the male claimant and his wife decided to file a complaint with the police and the internal tax department against the supplier who had threatened him. On XXXX XXXX, 2017, the said supplier and two accomplices came to the male claimant's store and threatened him because he had filed a complaint. On XXXX XXXX, 2017, the claimant closed his business because the police could not protect him and because he was afraid for his children. The male claimant subsequently took steps to leave Chile with his family members. Fearing for their lives, the claimants left Chile on [REDACTED] 2018, for Canada, notably passing through XXXX and the XXXX XXXX. The next day they arrived in Canada, where they asked for protection on March 9, 2018. In XXXX 2018, the male claimant's father was attacked by members of the mafia, resulting in his hospitalization. On XXXX XXXX, 2018, while leaving the hospital, the male claimant's father saw his assailants again and decided to relocate.4 [22] While the RPD did not clearly state that it found all of these allegations to be credible, it is clear from its decision that it found them so. The parties do not make any submissions on this matter. After conducting its own analysis, the RAD finds these allegations credible. II-Legal test in paragraph 97(1)(b) of the Immigration and Refugee Protection Act [23] The RPD granted the appellants status as persons in need of protection under paragraph 97(1)(b) of the IRPA. It conducted its analysis under this section, asking the question: [translation] \"Are the claimants subjected to a risk to their lives or to a risk of cruel and unusual treatment or punishment?\"5 It assessed this legal test on a balance of probabilities as set out in paragraph 27. The RAD therefore concludes that it was through a slip of the pen that the RPD indicated in the conclusion to its IFA analysis that it was not satisfied [translation] \"that the claimants are not at serious risk of persecution\" instead of stating that they would be subjected to a risk within the meaning of paragraph 97(1)(b). [24] This slip of the pen does not detract from the meaning of the RPD's decision, which clearly grants the appellants protected person status on a balance of probabilities and not refugee status within the meaning of section 96 of the IRPA. [25] The RAD further notes that neither party identified this error. [26] For the reasons that follow, the RAD concludes that, while the RPD did not err in finding that the appellants would be subjected to a risk within the meaning of section 97 of the IRPA in the Santiago area, it did err in finding that they would be subjected to a risk in the proposed IFA cities. III-Internal flight alternative [27] The case law indicates6 that, if someone who is seeking refugee protection can seek refuge in their own country, and therefore has an IFA, there is no reason to conclude that they cannot remain in their country and that they ought to be granted refugee status. [28] Assessing an IFA is a two-pronged approach:7 1) The decision-maker must be satisfied on a balance of probabilities that there is no serious possibility of the asylum claimant being persecuted or tortured, of a risk to life or a risk of cruel and unusual treatment or punishment in the proposed IFAs; 2) The conditions in the proposed IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for them to seek refuge there. [29] Lastly, once the issue of an IFA is raised, the appellant must establish that there are no IFAs in the proposed cities. 1) First prong of the internal flight alternative [30] The RPD considered that the respondents are still being targeted by the Chilean mafia and that they would be subjected to a risk throughout Chile. [31] The RAD notes that it has been established in the case law that assessing the risk to which the respondents would be subjected in the proposed cities is based on the ability and motivation of the agents of harm to locate them.8 a) Capacity of the agents of harm [32] The appellant submits that, contrary to the RPD's conclusion, the distance between and size of the cities of Arica, Iquique, Antofagasta, Puerto Montt and Concepción reduce the likelihood of the agents of harm pursuing them. [33] The respondents argue that the proposed IFAs are coastal cities, that their attackers presumably have connections to the mafia and to narcotics trafficking groups. They point out that they had to have contacts among these authorities because they were informed of his complaint and know the family of the respondent, whose father was assaulted. They submit that the RPD accepted evidence that their agents of harm were members of the mafia and point out that the mafia is present throughout Chile. [34] The RAD notes that the RPD did not clarify what it meant by the Chilean mafia, which may overlap with different notions and affect the determination of the agent of harm's ability to locate the appellants. [35] The RAD has reviewed the articles submitted on appeal by the respondents in support of their allegations that the fish mafia is very powerful in Chile. [36] It is apparent from these articles, and particularly from documents A, F and G, that the fisheries sector is very important in Chile and that it is controlled by large groups that use fishing quotas to their advantage. Small-scale fishers are trying to oppose these large groups' stranglehold. As a result of some fishers operating illegally, in summer 2021, a union representing the main fishing companies in central and southern parts of the country had to file a complaint against those responsible for the illegal hake fishing according to the article in Exhibit A. This article equates illegal fishing operators with a mafia that has a [translation] \"fairly complex structure allowing it to operate and evade controls.\" This article does not, however, state that these operators act violently, let alone against XXXX XXXX like Mr. XXXX XXXX. According to the articles in exhibits G and F, seven business clans referred to by Mr. XXXX XXXX as the seven major families, apparently have agreed to control the sector and bribe politicians and public servants to appropriate fishery resources. These articles do not mention these groups using violence against XXXX XXXX but do underscore the inequality of access to resources. Lastly, articles C, D and E indicate that there are criminal groups in Chile, including one that hijacked dead salmon meant to make meat and bone flour. There is an increase in the activity of groups relating to drug trafficking and the settling of scores between these groups. [37] Before the RPD, the respondents submitted, on page 290, a document titled \"Dossier de reportage de Megavision Que cache le Terminal XXXX XXXX\" in which the author states that he conducted an investigation at XXXX XXXX terminal after learning of complaints about thefts, threats and murders there. He notes that some are driven by profit and that hygiene rules were not followed, but does not mention violence. [38] The documentary evidence in the NDP, particularly that cited by the respondents, contains information on drug cartels and gangs, but nothing concerning a link between the fishing mafia and drug cartels.9 [39] Based on these documents, the fishing mafia in Chile is tied to the sharing of fishing resources and is not a criminal group that targets merchants, contrary to what Mr. XXXX XXXX stated at the hearing and what he describes in his affidavit. There is no information that criminal groups with ties to drug trafficking allegedly target fish mongers. [40] Therefore, assuming that there was a mafia group operating in the fish trade at the Santiago terminal and that Mr. XXXX XXXX's attackers were members of this mafia group, he failed to provide any evidence to support his claim that that this network is present elsewhere and in particular in the port cities proposed as IFAs. [41] In addition, the RAD notes that the attack sustained by the respondents, the interrogation undergone by Mr. XXXX XXXX's brother and the assault committed against his father all occurred in the Santiago area, where the respondents used to reside. While the respondents allege in their additional submissions that, contrary to what the Minister says, the assaults did not take place only in the Santiago area, because the assailants moved to XXXX, the RAD notes that this is not reflected in the respondents' statements at the hearing or in their written accounts. Indeed, they indicated that they left XXXX during the first week of XXXX 2018 and then travelled to Santiago, to the commune of XXXX XXXX.10 However, they saw the assailants when they left the hospital with their daughter on the evening of XXXX XXXX, 2018,11 after their return to the Santiago area. Their father was in the commune of XXXX XXXX, which is in the Santiago area, when he was attacked.12 Therefore, all the assaults or contacts with the attackers took place in the Santiago region without the need for the attackers to travel to other areas. [42] Lastly, if the agents of harm were informed, perhaps by corrupt officials as the respondents assume but have not established, that Mr. XXXX XXXX had filed a complaint against them, it is not established that they would have the ability to be informed of the respondents' presence in the IFAs. Indeed, it is not established that there is a network of organized criminals in the fisheries sector across the country attacking fish mongers. Although, as noted by the respondents, the proposed IFA cities are port cities, the RAD finds that the documentary evidence does not indicate that there is an organized criminal group in the various port cities that allegedly preys on fish mongers. [43] The whole of these factors undermines the credibility of the allegation that the agents of harm have the ability to locate the respondents in the IFAs. Motivation of the agents of harm [44] Mr. XXXX XXXX claims that these assailants are after him because he filed a complaint after being assaulted and that he informed the Ministry of Health that seafood products were being handled and stored improperly at the terminal. He points out that they had to have contacts among these authorities because they were informed of his complaint and know his family, his father having been assaulted. [45] The RAD notes that Mr. XXXX XXXX filed a complaint in 2017 and that, according to him, these complaints were not pursued. The RAD notes that there is no documentary evidence to support the fact that persons who have filed a complaint for assault or reported sanitary problems (known problems as indicated in the above-mentioned document and in Mr. XXXX XXXXs Basis of Claim Form [BOC Form], which states that he saw television reports on the subject) are allegedly targeted by members of a criminal group. There is no further information about the fact that these people are allegedly being sought out in other cities. [46] Even if we do believe the respondent when he claims that his assailants want to show he is no match for them, the fact that the complaint was not pursued lessens his assailants' need to demonstrate their power. [47] Moreover, the facts reported by the respondents occurred over three years ago. Mr. XXXX XXXX was assaulted on XXXX XXXX, 2017; individuals came to their XXXX XXXX on XXXX XXXX, 2017; these individuals were at the hospital parking lot on XXXX XXXX, 2018, and Mr. XXXX XXXX's father was assaulted on XXXX XXXX, 2018. These events therefore took place within a period of one year and over three years ago. Finally, as described above, they took place in the Santiago area. [48] Furthermore, Mr. XXXX XXXX no longer owns the XXXX XXXX. Mr. XXXX XXXX's arguments that he will not be able to find employment related to his profession will be examined under the second prong of the IFA. [49] Consequently, the RAD considers that these factors, taken together, undermine the allegation that the agents of harm are motivated to locate the respondents. [50] In addition, the fact that the police are victims of violence in Chile, as noted by the RPD, is not relevant to the nature of the alleged fear or to the respondents' profile. Conclusion on the first prong [51] In light of these factors concerning the ability and motivation of the agents of harm, the RAD concludes that, on a balance of probabilities, the respondents did not establish that they would be subjected to a risk within the meaning of subsection 97(1) of the IRPA in the proposed IFA cities. [52] The RPD erred in concluding otherwise. 2) Second prong of the internal flight alternative [53] The Minister argues that the principal respondent has held various types of employment and that the diversity of his work history will enable him to find work in the IFAs. [54] The respondents argue primarily that they will not be able to find employment in the IFAs because they have limited education. Without income, they would be forced to live in homeless camps. [55] According to the documentary evidence, Chile is a country of 19.8 million people with the highest human development index in Latin America. Its unemployment rate in 2019 was 7.2%. [56] The RAD notes that Mr. XXXX XXXX has a XXXX degree and Ms. XXXX XXXX has XXXX years of XXXX education. According to their BOC Form, they have owned a XXXX XXXX since 2008 in several locations. They also had a XXXX XXXX in XXXX, which they closed for financial reasons. However, the fact that their XXXX XXXX was not successful is not sufficient to establish that they could not find work in one of the IFAs. Mr. XXXX XXXX also worked in XXXX. They both know the language and culture of Chile. [57] While the respondents claim that Mr. XXXX XXXX's inability to find employment in his profession, namely the XXXX XXXX, renders the IFA unreasonable, the RAD notes that \"it is only in exceptional circumstances that a mere lack of employment opportunities in the identified IFA would be sufficient to render the IFA unreasonable.\"13 However, the respondents did not explain why it would be unreasonable for Mr. XXXX XXXX to work another job. Moreover, the RAD notes that the XXXX XXXX's trade is not connected to an immutable aspect of the respondent's personality and that he can therefore be expected to pursue another occupation if he fears being in contact with the fishing community again. [58] The respondents also claim that he is hard-pressed to find employment in another field and therefore compelled to return to working in the XXXX XXXX, subjecting him to a risk. [59] The RAD disagrees with the respondents. The RAD finds that, given the appellants' profile and the situation in Chile as outlined above, they will be able to find employment in the IFAs in a field other than running a XXXX XXXX. [60] Consequently, it is not established that they would be forced to live in homeless camps in the cities proposed as IFAs. Furthermore, they were reminded that they went to live with their family before leaving Chile, particularly in one of the two homes of Ms. XXXX XXXX mother. [61] It is therefore not unreasonable for the respondents to live in Arica, Iquique, Antofagasta, Puerto Montt or Concepción. The RPD erred in concluding that the respondents could not avail themselves of an IFA. [62] Therefore, the RAD finds that there is no need to consider whether state protection would be available to the appellants in the greater Santiago area. CONCLUSION [63] Based on the RAD's analysis, the respondents did not establish that they would be subjected to a serious possibility of persecution or that they would be subjected, on a balance of probabilities, to a danger of torture, a risk to their lives or a risk of cruel and unusual treatment or punishment if they returned to Chile to the cities of Arica, Iquique, Antofagasta, Puerto Montt and Concepción, which were identified as IFAs. [64] Accordingly, the RAD allows the appeal and substitutes the RPD's determination with its determination that [REDACTED] XXXX, [REDACTED] XXXX, [REDACTED] XXXX, [REDACTED] XXXX and [REDACTED] XXXX are not refugees or persons in need of protection under sections 96 and 97 of the IRPA. (Signed) Anne Revil Anne Revil July 25, 2022 IRB translation Original language: French Date Original language: French IRB 1 Refugee Protection Division (RPD) decision, para. 27. 2 Subs. 110(4) of the Immigration and Refugee Protection Act. 3 Canada (Citizenship and Immigration v. Singh), 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza, FC 385. 4 RPD decision, paras. 3 to 8. 5 RPD decision, para. 17. 6 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 FC 589 (CA). 7 In particular, Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706, at paras. 9 and 10, [1991] FCJ No. 1256 (QL) FCA. 8 See in particular Gomez Dominguez v. Canada (Citizenship and Immigration), 2020 FC 1098 para. 31. 9 National Documentation Package on Chile, April 29, 2022, Tab 7.7: Gangs, cartels and organized criminal groups, including their areas of influence and alliances within and outside the country; presence of Colombian drug cartels in the country, including whether they may pose...Tab 7.3: By Land and Sea-Chile Dealing with Surge of Creepy Marijuana. InSight Crime. Henry Shuldiner. January 20, 2022. 10. RPD record, paragraph 18 of the written account faxed on January 6, 2021, pp. 12 or 284. 11 RPD record, written account, p. 16. 12 Wikipedia: [translation] \"XXXX XXXX is a municipality in the Santiago area of Chile. It is located southeast of the metropolitan area.\" 13 Ambroise v. Canada (Citizenship and Immigration), 2021 FC 62. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC1-02834 MC 1-02835 / MC1-02836 / MC1-02837 MC1-02838 RAD.25.02 (August 20, 2021) Disponible en français 5 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français", "response": "## Analysis of Refugee Decision: MC1-02834\n\n### Key Issues\nt out that the agents of harm questioned Mr. XXXX XXXX brother and assaulted his father, and that the period from XXXX XXXX to their departure in XXXX 2018 is quite short, and that\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: te. [17] After conducting its analysis, the RAD considers that these documents meet the criteria of subsection 110(4) because the respondents could not reasonably have been expected in the usual circumstances to have presented them, because the cities of Arica, Iquique, Antofagasto, Concepción, and Puerto Montt were not proposed\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "What legal errors did the Federal Court of Appeal identify in this Federal Court of Appeal of Canada decision?\n\nSaskatchewan (Attorney General) v. Witchekan Lake First Nation Court (s) Database Federal Court of Appeal Decisions Date 2023-05-17 Neutral citation 2023 FCA 105 File numbers A-359-21 Decision Content Date: 20230517 Docket: A-359-21 Citation: 2023 FCA 105 CORAM: RENNIE J.A. MONAGHAN J.A. ROUSSEL J.A. BETWEEN: HIS MAJESTY THE KING IN RIGHT OF SASKATCHEWAN as represented by the ATTORNEY GENERAL OF SASKATCHEWAN Appellant and WITCHEKAN LAKE FIRST NATION and HIS MAJESTY THE KING IN RIGHT OF CANADA as represented by the ATTORNEY GENERAL OF CANADA Respondents Heard at Regina, Saskatchewan, on October 26, 2022. Judgment delivered at Ottawa, Ontario, on May 17, 2023. REASONS FOR JUDGMENT BY: RENNIE J.A. CONCURRED IN BY: MONAGHAN J.A. ROUSSEL J.A. Date: 20230517 Docket: A-359-21 Citation: 2023 FCA 105 CORAM: RENNIE J.A. MONAGHAN J.A. ROUSSEL J.A. BETWEEN: HIS MAJESTY THE KING IN RIGHT OF SASKATCHEWAN as represented by the ATTORNEY GENERAL OF SASKATCHEWAN Appellant and WITCHEKAN LAKE FIRST NATION and HIS MAJESTY THE KING IN RIGHT OF CANADA as represented by the ATTORNEY GENERAL OF CANADA Respondents REASONS FOR JUDGMENT TABLE OF CONTENTS En Blank/En blanc Para. I. The Saskatchewan Treaty Land Entitlement Framework Agreement 1 II. WLFN’s action against Saskatchewan and Canada 6 III. General principles on motions for summary judgment 22 IV. What constitutes a genuine issue 30 V. Rule 214 and the evidence before the Federal Court 42 (i) Reliance on evidence that might be adduced and might shed light on the Agreement 42 (ii) Evidence of surrounding circumstances does not require a trial 47 (iii) The evidence was already before the Court 54 VI. Implied Term – no genuine issue for trial 64 (i) Implied term – General Principles 64 (ii) The term sought to be implied 73 (iii) Efficacy and frustration 82 (iv) Inconsistent with express provisions in the Agreement 87 VII. Other asserted genuine issues 97 (i) Willing buyer/willing seller 97 (ii) The release provision 102 (iii) Favourable consideration 107 VIII. Miscellaneous issues 122 IX. Honour of the Crown / Reconciliation 127 RENNIE J.A. I. The Saskatchewan Treaty Land Entitlement Framework Agreement [1] The failure of Canada to fully honour the terms of the historic treaties entered into with Indigenous Canadians has been well documented in decisions of this Court and others (Canada v. Jim Shot Both Sides, 2022 FCA 20, 468 D.L.R. (4th) 98, leave to appeal to SCC granted, 40153 (2 February 2023); Pasqua First Nation v. Canada (Attorney General), 2016 FCA 133, [2017] 3 F.C.R. 3 [Peigan 1]; Canada v. Long Plain First Nation, 2015 FCA 177, 388 D.L.R. (4th) 209 [Long Plain]; Canada v. Brokenhead First Nation, 2011 FCA 148, 419 N.R. 289; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; George Gordon First Nation v. Saskatchewan, 2022 SKCA 41, 2022 CarswellSask 136 (WL Can), leave to appeal to SCC refused, 40184 (16 March 2023) [George Gordon]; Goodswimmer v. Canada (Attorney General), 2017 ABCA 365, 418 D.L.R. (4th) 157, leave to appeal to SCC refused, 37899 (5 July 2018) [Goodswimmer]). For reasons ranging from indifference and error, to neglect and deceit, treaty commitments with respect to land entitlement were not always fully implemented. Treaties No. 4, 6 and 10 are cases in point. [2] The 1992 Saskatchewan Treaty Land Entitlement Framework Agreement (Framework Agreement or Agreement)—a tripartite agreement between Canada, Saskatchewan and Saskatchewan First Nations—was designed to redress some of these breaches. [3] Executed in 1992 by the Prime Minister, the Premier of Saskatchewan, the Chief of the Federation of Saskatchewan Indian Nations (the FSIN), the Treaty Commissioner of Saskatchewan, and the Chiefs of many Saskatchewan First Nations, the Framework Agreement establishes the process by which First Nations can purchase private, provincial and federal Crown lands to fulfil outstanding treaty land entitlement (TLE) obligations owed to Saskatchewan First Nations. The FSIN negotiated the Framework Agreement on behalf of 25 bands in Saskatchewan, including the respondent, Witchekan Lake First Nation (WLFN). Eight additional bands subsequently signed on, and four Saskatchewan bands are currently in negotiations of the band-specific agreements contemplated by the Agreement (WLFN executed its band-specific agreement in June 1993). The Agreement also committed Canada and Saskatchewan to provide financial assistance to the signatory First Nations in purchasing their TLE. [4] Under the Agreement, over 877,000 acres of provincial Crown land have been acquired by bands and added to existing reserve lands. The vast majority of those lands carried with them Crown mineral rights. The respondent WLFN acquired all 7,923 acres of its TLE shortfall by 1998, and has acquired a further 8,310 acres since that time. Not all of the reserve lands that WLFN acquired under the Framework Agreement have been Crown lands; some 60% of its acquisitions were of private lands. [5] Canada and Saskatchewan have paid “hundreds of millions of dollars” (Saskatchewan’s Memorandum of Fact and Law at para. 3) to facilitate acquisitions under the TLE agreements. Saskatchewan made its final payment to Canada in respect of its specific obligations to WLFN two decades ago, in 2003, and has paid approximately $273 million to Canada in full satisfaction of its obligations under the Agreement. II. WLFN’s action against Saskatchewan and Canada [6] On July 22, 2016, Saskatchewan wrote to the Chief and Council of the WLFN advising of its intention to sell certain Crown lands. Entitled “Duty to Consult Notification of Proposed Sale of Vacant Crown Lands”, the letter indicated that the “[g]overnment [was] seeking to understand how [WLFN was] using this land to hunt, fish and trap for food and carry out traditional uses, and how the proposed decision [had] the potential to adversely impact the community’s rights and traditional uses.” [7] The evidence is uncontroverted that no decision had been made to sell the land when the letter was sent, and that the lands would not have been sold pending the outcome of consultations had there been a response. [8] WLFN did not respond to the letter. [9] On January 26, 2017, Saskatchewan notified WLFN that it intended to sell further vacant Crown lands. No response was received. Later that same year, on September 15, 2017, Saskatchewan wrote again, this time to the FSIN, advising of an upcoming auction through which it intended to sell the lands. Again, no response was received. [10] The auction commenced on October 23, 2017. The next day, WLFN wrote to Saskatchewan and requested to purchase three parcels of land that Saskatchewan intended to sell through the auction. Saskatchewan refused WLFN’s request on the basis that the three parcels had already been placed in the auction, and that costs had been incurred in relation to the auction sale. [11] On January 19, 2018, Saskatchewan wrote to WLFN and advised that Saskatchewan intended to sell vacant Crown lands once more. On February 19, 2019, Saskatchewan sent an email to the FSIN stating that the province “wanted to ensure [the FSIN was] aware of Sask. Ag Crown Lands that are for sale through public auction in advance of the ‘go live’ date,” and that “[t]he auction [would open] on February 25, 2019.” Again, no response was received until two days after the auction had commenced, when WLFN wrote to Saskatchewan “selecting” its desired lands under the Agreement. Saskatchewan rejected WLFN’s mid-auction selection. [12] In the letters of July 22, 2016, January 26, 2017, and January 19, 2018, Saskatchewan offered to discuss the proposed sale of vacant Crown lands with WLFN and invited a response by email or telephone. [13] WLFN commenced an action in the Federal Court against Saskatchewan and Canada. It principally contended that the Framework Agreement included an implied term requiring Saskatchewan to provide notice of any impending auction and a reasonable opportunity to purchase lands before they were put up for auction. It claimed that in refusing to sell the lands to WLFN, Saskatchewan had frustrated the purpose of the Framework Agreement. WLFN also sought declarations that Saskatchewan and Canada were in breach of certain express terms of the Agreement. Relying on these asserted failures, WLFN sought consequential declarations and monetary relief against Canada. [14] Saskatchewan moved for summary judgment dismissing WFLN’s statement of claim, arguing that the sought-after implied term contradicted the express terms of the Framework Agreement and that Saskatchewan had not frustrated the Framework Agreement. Saskatchewan argued that the issue before the Federal Court was a matter of contractual interpretation, that the evidentiary record before the Federal Court established every fact necessary to adjudicate the issue, and that none of these facts were in dispute. WLFN, on the other hand, argued that there were gaps in the evidence adduced by Saskatchewan such that a trial would be required to resolve the remaining issues. [15] Canada filed no evidence in response to Saskatchewan’s motion for summary judgment, and instead relied on its written submissions on the motion (Reasons at para. 23). [16] In its reasons, the Federal Court (2021 FC 1074, per Favel J.) considered Rule 215 of the Federal Courts Rules, S.O.R./98-106 (the Rules), as well as the criteria applicable to motions under this Rule that were first articulated by Mactavish J., as she then was, in Milano Pizza Ltd. v. 6034799 Canada Inc., 2018 FC 1112, 159 C.P.R. (4th) 275 at paragraphs 25-41 [Milano Pizza] and later recapitulated in Rallysport Direct LLC v. 2424508 Ontario Ltd., 2019 FC 1524, 315 A.C.W.S. (3d) 756 [Rallysport]. The Federal Court noted that Saskatchewan bore the burden of establishing the facts necessary for summary judgment, that WLFN bore the burden of proving a genuine issue for trial, and that both parties had to “put their best foot forward” on the motion (Reasons at para. 27, citing Gemak Trust v. Jempak Corporation, 2020 FC 644, 174 C.P.R. (4th) 176 at para. 133). [17] The judge dismissed the motion. He determined that “Saskatchewan ha[d] not met its onus under Rule 215 and the legal principles set forth in [Rallysport],” whereas “WLFN ha[d] established that there [was] a genuine issue for trial” (Reasons at para. 40). The reasons turn on the judge’s conclusion that Saskatchewan had not submitted a “complete record of the surrounding circumstances known to [the] parties at the time that the Framework Agreement was executed” (Reasons at para. 43), and that “it would be unjust to make factual findings based on the limited affidavit evidence and cross-examination transcripts provided” (Reasons at para. 45). [18] The Attorney General of Saskatchewan appeals and asks that this Court set aside the Federal Court’s order and grant its application for summary judgment. The Attorney General of Canada advised, in a letter to the Court dated April 4, 2022, that it “does not advocate for a given disposition of this appeal” and therefore would not be presenting written or oral submissions before this Court. The Attorney General did, however, make written submissions to the Federal Court on his understanding of the operation of the Agreement (Appeal Book at 822-833). As I will explain later, the Attorney General’s analysis and understanding of the Agreement and its operation aligns with the Attorney General of Saskatchewan’s. [19] Appeals from judgments and orders of the Federal Court are reviewed on the appellate standard of review. Questions of law are reviewable on a correctness basis and questions of fact and of mixed fact and law are reviewable on the basis of palpable and overriding error (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235). Whether the Federal Court identified the correct legal test or properly instructed itself on the law is assessed on a correctness basis. Whether the Federal Court erred in concluding that there was no genuine issue requiring a trial is a question of mixed fact and law that must be reviewed on the standard of palpable and overriding error (Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 81 [Hryniak]). [20] For the reasons that follow, I would allow the appeal, set aside the order of the Federal Court, and grant the motion for summary judgment. The Federal Court erred in its understanding of the Rules and jurisprudence, including that of the Supreme Court of Canada, with respect to summary judgment. With respect to the merits of the motion, there is no foundation, in law or in the evidence, to grant the declarations sought by WLFN. The declarations are not necessary to make the Agreement efficacious; they also collide, directly, with express terms of the Agreement. To imply the terms sought would result in a very different Agreement from that negotiated by the parties. [21] Before setting forth my analysis, it is important to be clear on what this appeal is about and what it is not about. This appeal is not about whether the Crown in right of Saskatchewan has discharged its duty to consult with respect to the sale of public lands. The jurisprudence with respect to the process and content of meaningful consultation was not argued before us, nor does WLFN contest the adequacy of the notices received. Rather, this appeal is about WLFN’s pursuit of an implied term: a right to receive notice of an intention to sell coupled with a right to purchase the lands in respect of which the notice has been sent. III. General principles on motions for summary judgment [22] The Federal Court, and both parties to this appeal, rely on the following summary of principles relevant to motions for summary judgment (Rallysport at para. 42): In Milano Pizza, Mactavish J (as she then was) thoroughly canvassed the law of summary judgment as applied to the Federal Courts following the Supreme Court’s decision in Hryniak, above: Milano Pizza, above at paras 24-41. These principles are as follows: A. The purpose of summary judgment is to allow the Court to (i) dispense summarily with an action if there is no genuine issue to be tried, (ii) conserve scarce judicial resources, and (iii) improve access to justice: Milano Pizza, above at para 25. B. Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to affordable, timely and just adjudication; to be “fair and just” the process “must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found”: Milano Pizza, above at para 29, citing Hryniak, above at paras 5 and 28. C. The test of whether no genuine issue for trial exists is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial; or, alternatively, whether there is “no legal basis” to the claim based on the law or the evidence brought forward. It is not restricted to the “clearest of cases”: Milano Pizza, above at paras 31 and 33, citing Canada (Citizenship and Immigration) v Campbell, 2014 FC 40 at para 14, Itv Technologies Inc. v Wic Television, 2001 FCA 11 at paras 4-6, Premakumaran v Canada, 2006 FCA 213 at paras 9-11; Canada (Minister of Citizenship and Immigration) v Schneeberger, 2003 FC 970 at para 17; Manitoba v Canada, 2015 FCA 57 at para 15-16; and Burns Bog Conservation Society v Canada, 2014 FCA 170 at paras 35-36. D. Where the necessary facts cannot be found to resolve the dispute fairly and justly, or where it would be unjust to make a finding on those facts alone, summary judgment should not be granted: Milano Pizza, above at paras 29 and 36, citing Hryniak, above at para 28. E. It would be unjust to make a finding on the facts alone where issues were not raised by one party, as doing so would preclude them from knowing the case to meet: Milano Pizza, above at paras 107-108 and 112, citing Albian Sands Energy Inc. v Positive Attitude Safety System Inc., 2005 FCA 332 [Albian Sands] at para 45. F. Issues of credibility should not be decided on a motion for summary judgment. Observing live testimony and cross-examination often places a judge in a better position to draw appropriate inferences, and to weigh evidence, than can be done on affidavit evidence alone: Milano Pizza, above at paras 37-38, citing TPG Technology Consulting Ltd. v Canada, 2013 FCA 183 at para 3; Newman v Canada, 2016 FCA 213 at para 57; Suntec Environmental Inc. v Trojan Technologies, Inc., 2004 FCA 140 [Suntec] at paras 20, 28-29; MacNeil Estate v Canada (Department of Indian and Northern Affairs), 2004 FCA 50 at para 38. G. Not all conflicting evidence will raise credibility issues and preclude summary judgment. Courts should “take a hard look at the merits of the case” to determine if credibility issues need be resolved: Milano Pizza, above at para 39, citing Granville Shipping Co. v Pegasus Lines Ltd. SA, 1996 CanLII 4027 (FC) at para 7. H. The effect of granting summary judgment will be to preclude a party from presenting any evidence at trial; in other words, the unsuccessful party will lose its day in court: Milano Pizza, above at para 40, citing Apotex Inc. v Merck & Co. Inc., 2004 FC 314 at para 12, aff’d 2004 FCA 298. [23] The bar to be met by the moving party on a motion for summary judgment is high (Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 11 [Lameman]). It must show that no genuine issue for trial exists (CanMar Foods Ltd. v. TA Foods Ltd., 2021 FCA 7, [2021] 1 F.C.R. 799 at para. 27 [CanMar]). If the moving party meets this threshold, then “the evidentiary burden falls on the responding party, who cannot rest on its pleadings and must come up with specific facts showing that there is a genuine issue for trial” (CanMar at para. 27). While both parties must “put [their] best foot forward” in establishing that no genuine issue for trial exists (Lameman at para. 11), a responding party may do so by identifying gaps in the moving party’s evidence that can only be addressed by evidence at trial (Apotex Inc. v. Merck & Co. Inc., 2004 FC 314, 248 F.T.R. 82 at para. 28 [Apotex FC], aff’d 2004 FCA 298). [24] However, and importantly for the purposes of this appeal, “[a] summary judgment motion cannot be defeated by vague references to what may be adduced in the future, if the matter is allowed to proceed” (Lameman at para. 19). The point was also made in CanMar that a party must come up with “specific facts” to establish a genuine issue for trial (CanMar at para. 27). This principle is expressly codified in Rule 214: A response to a motion for summary judgment shall not rely on what might be adduced as evidence at a later stage in the proceedings. It must set out specific facts and adduce the evidence showing that there is a genuine issue for trial. La réponse à une requête en jugement sommaire ne peut être fondée sur un élément qui pourrait être produit ultérieurement en preuve dans l’instance. Elle doit énoncer les faits précis et produire les éléments de preuve démontrant l’existence d’une véritable question litigieuse. [25] I note that Lameman addressed the question of whether limitations legislation barred an Indigenous band’s claim against the Crown for breach of fiduciary duty. The Supreme Court of Canada was clear that there are no special rules or exceptions to the use of summary judgment simply because Indigenous issues are involved (Lameman at para. 19). [26] I conclude this review of the principles governing summary judgment by noting that, in the decision under appeal, the Federal Court relied on Ochapowace v. Canada, 2019 FC 1288, [2019] F.C.J. No. 1619 (QL) [Ochapowace] in support of its conclusion that whether the Framework Agreement contained an implied term was an issue to be resolved at trial (Reasons at para. 52). It erred in so doing. Ochapowace involved a motion to strike, not a motion for summary judgment. This is a distinction with consequences. [27] While the reasons a court gives on a motion to strike may inform the consideration of a subsequent motion for summary judgment (Apotex FC at para. 19), the two types of relief are fundamentally different. On a motion to strike under Rule 221(1)(a), a court will take the facts pleaded as true, whereas a court hearing a summary judgment motion will determine the outcome based on the evidence tendered (Cabral v. Canada (Citizenship and Immigration), 2018 FCA 4, 56 Imm. L.R. (4th) 175 at para. 50). Further, motions to strike require courts to measure the merits of a claim against a low legal threshold, whereas motions for summary judgment require courts to decide whether there is a genuine legal basis for the claim based on the law and evidence (Hryniak at para. 66). [28] Unlike a motion to strike, a motion for summary judgment requires a judge to weigh the parties’ arguments and evidence to determine whether there is a genuine issue that can only be resolved at trial. That is the raison d’être of the rule. Again, in contrast to the motion to strike that was before the Federal Court in Ochapowace, the judge here had the parties’ best evidence and best arguments on the merits of their respective positions regarding the question of whether a genuine issue for trial existed. [29] To conclude on this point, the dismissal of a motion to strike an action asserting the existence of an implied term in the Agreement does not necessarily lead to the conclusion on a motion for summary judgment that the question is both genuine and in need of a trial for its resolution. IV. What constitutes a genuine issue [30] Rule 215 must be interpreted and applied consistently with the objectives in Rule 3 (ViiV Healthcare Company v. Gilead Sciences Canada, Inc., 2021 FCA 122, 460 D.L.R. (4th) 272 at para. 37 [ViiV Healthcare]). Rule 3 seeks to “secure the just, most expeditious and least expensive outcome of every proceeding,” and to do so in a manner proportionate to the proceeding’s complexity, the importance of the issues involved, and the amount in dispute. [31] Rule 215 provides that the Federal Court shall grant summary judgment where it is satisfied that there is no genuine issue for trial with respect to a claim or defence. There is no genuine issue for trial where the judge has the evidence required to fairly and justly adjudicate the dispute on a summary basis, i.e., where the process allows the judge to make the necessary findings of fact, allows the judge to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak at paras. 49 and 66; ViiV Healthcare at paras. 32-34; see also Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22 at para. 25 [Aga] and Manitoba v. Canada, 2015 FCA 57, 470 N.R. 187 at para. 11 [Manitoba]). [32] Put another way, a case ought not to proceed to trial, with the consequences that would follow for the parties and the costs involved for the administration of justice, unless there is a genuine issue that can only be resolved through the full apparatus of a trial (CanMar at para. 24). Even if there is a genuine issue of fact or law for trial with respect to a claim or defence, the Court may nevertheless determine that issue by way of summary trial (Rule 215(3)). In such cases, judges have greater powers to decide disputed questions of fact (Manitoba at para. 16; Milano Pizza at para. 32). [33] Summary judgment has been refused where there are issues of fact that cannot be resolved on the basis of the affidavits and cross-examinations. I note, however, that complicated and important cases, constitutional and otherwise, often proceed by way of applications and affidavit evidence alone. The critical point is not whether the legal issue is important, but whether the matter presents credibility concerns or complex evidence that can only be adequately appreciated by means of a trial (Kyorin Pharmaceutical Co. v. Novopharm Ltd., 132 F.T.R. 307, 1997 CanLII 17736 (FC) at para. 24; Brown v. Canada, 2014 FC 831, 252 A.C.W.S. (3d) 320 at paras. 47 and 114, rev’d on other grounds 2016 FCA 37; Garford Pty Ltd. v. Dywidag Systems International, Canada, Ltd., 2010 FC 996, 375 F.T.R. 38 at para. 10, aff'd 2012 FCA 48). [34] The mere fact that a summary judgment motion might have broader implications is not a ground for refusing it. Matters with legal, social and economic dimensions have been determined by way of summary judgment. For example, the Supreme Court has upheld or restored orders granting summary judgment in cases that required examination of the scope of Crown copyright (Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43, [2019] 3 S.C.R. 418), the duty of care that a manufacturer owes franchisees when supplying food products (1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, 450 D.L.R. (4th) 181), the legal implications of membership in a religious association (Aga), and the degree of knowledge required to discover a claim and thereby trigger a limitation period (Grant Thornton LLP v. New Brunswick, 2021 SCC 31, 461 D.L.R. (4th) 613). [35] Hryniak marked a departure from the pre-existing approach to summary judgment, in which courts had found that it was not fair and just to grant summary judgment unless the facts were incontrovertible and the ultimate trial outcome was obvious. Echos of that old approach are still heard today. However, the standard for granting summary judgment now requires that the judge have sufficient confidence in the state of the record that he or she is prepared to exercise judicial discretion to resolve the dispute (Hryniak at para. 57; Weir-Jones Technical Services Incorporated v. Purolator Courier Ltd., 2019 ABCA 49, 86 Alta. L.R. (6th) 240 at para. 47 [Weir-Jones]; Hannam v. Medicine Hat School District No. 76, 2020 ABCA 343, 15 Alta. L.R. (7th) 213 at paras. 12 and 135, leave to appeal to SCC refused, 39442 (18 March 2021)). [36] Broader public policy considerations are also in play. The Supreme Court has observed that summary judgment rules lighten the burden on parties to the litigation and to the justice system as whole (Lameman at para. 10): The summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial. [37] It is in this spirit that this Court has noted that judges have a responsibility to ensure that the publicly funded judicial process is used to its greatest efficiency (Canada v. Olumide, 2017 FCA 42, [2018] 2 F.C.R. 328 at paras. 17-20; ViiV Healthcare at para. 24). The Court of Appeal of Alberta has made similar remarks (Stoney Tribal Council v. Canadian Pacific Railway, 2017 ABCA 432, 66 Alta. L.R. (6th) 33 at para. 77). Allowing a case to proceed to trial that could be decided by summary judgment delays the hearing of a case that does require a trial. Litigants do not have a right of access to all stages of the litigation process, nor do they presumptively have a right to a trial (Stoney Tribal Council at para. 79, citing O’Hanlon Paving Ltd. v. Serengetti Developments Ltd., 2013 ABQB 428, 91 Alta. L.R. (5th) 1 at para. 33). Judges’ responsibility in this regard, together with the call for judicial confidence in Hryniak, frames the approach to summary judgment motions. [38] The determination of whether a genuine issue for trial exists must, either explicitly or implicitly, follow a certain analytical path. The legal issues in dispute and their associated evidentiary requirements must be identified. The factual issues in dispute must then be extracted and assessed in light of their relevancy to the legal issues. Only when these questions have been answered can the sufficiency of the motion record be assessed. As I will canvass in the course of these reasons, no genuine issue, procedural or substantive, has been identified that requires the question raised in the motion for summary judgment to go to trial. [39] Issues of credibility are generally not to be decided on motions for summary judgment; a judge who hears and observes witnesses giving evidence orally will often be better positioned to assess witnesses’ credibility than a judge who has only affidavits and documentary evidence before them (Gemak Trust v. Jempak Corporation, 2022 FCA 141, 196 C.P.R. (4th) 215 at para. 68 [Gemak]). [40] Credibility disputes do not, however, presumptively defeat a motion for summary judgment. The Court may grant summary judgment even where an apparent conflict in the evidence exists, if a “hard look” at the merits of the case indicates that the credibility issue need not be resolved to dispose of the matter (Gemak at para. 72). Indeed, to dismiss a motion for summary judgment, the disputed facts or credibility issues must be relevant to an issue that needs to be determined. Some credibility disputes can be settled on the face of the record and, where a live issue remains, the motions judge can direct a summary trial on that issue alone (Rule 215(3)(a)). It is not necessary to leap to the conclusion that a full trial is required when in fact only narrow or singular issues are contested. [41] Turning to the case at hand, the statement of claim filed by WLFN asserts that the Agreement contains implied terms necessary to render it efficacious and without which the Agreement is frustrated. Consideration of whether a genuine issue for trial exists begins with an appreciation of the legal content of these doctrines; implied terms, contract efficacy and frustration, and what they require by way of evidence. As the Federal Court did not analyze the legal requirements of the issues—and in particular, the jurisprudence of the Supreme Court on implied terms, contract efficacy, and frustration—no decision could be made whether there was a genuine issue for trial. V. Rule 214 and the evidence before the Federal Court (i) Reliance on evidence that might be adduced and might shed light on the Agreement [42] In assessing the sufficiency of the evidence adduced by Saskatchewan, the Federal Court noted that individuals who observed the negotiations leading to the execution of the Framework Agreement “may have relevant evidence to provide with respect to the surrounding circumstances,” and that the individual Chiefs who signed the Framework Agreement “may be available to provide some additional insight into the process and discussions leading to the signing of the Framework Agreement” (Reasons at para. 43; emphasis added). [43] This was an error. [44] Supreme Court jurisprudence, jurisprudence of this Court, and the express requirements of Rule 214 preclude consideration of “what might be adduced as evidence at a later stage in the proceedings.” On a motion for summary judgment, a judge is limited to assessing the evidence on the record and is not to proceed on the basis of potential evidence that might exist beyond the motion (Lameman at para. 19). [45] The Federal Court dismissed Saskatchewan’s motion for summary judgment on the basis of what it described as a lack of information about the surrounding circumstances that existed when the Agreement was executed. However, the judge did not identify any specific evidentiary element in this additional factual matrix that was missing. While the Federal Court did not accept Saskatchewan’s evidence as a complete record, it did not identify the nature of any further evidence that it required, nor how that evidence might be relevant. Nor did the Court identify an ambiguity in the Framework Agreement that required clarification through contextual evidence. It instead found Saskatchewan’s evidence to be incomplete on the basis that additional relevant evidence might arise at trial through witnesses who might be available to the parties. I emphasize the layers of speculation in this reasoning. [46] The judge assumed that other evidence might be attainable, reliable, admissible, and relevant, and therefore that the record was insufficient. This assumption was not one that the judge could legally make, nor, in any event, was it one that was open to him in light of the evidence before him. (ii) Evidence of surrounding circumstances does not require a trial [47] The judge found that none of the witnesses who filed affidavits on the motion had direct knowledge of the negotiations, and therefore only a trial could provide the additional factual matrix necessary to resolve the legal issues (Reasons at para. 45). [48] The judge also referenced generic witnesses who might have evidence to give. There was no evidence of who the phantom witnesses might be, whether they were still alive, the role they had in the negotiations, and how their recollection, today, might shed light on either of the main questions at the heart of the motion: whether a term should be implied into the Agreement or how the express terms of the Agreement should be interpreted. Rather, the judge’s reasons pivot on the conclusion that, as the purpose of the Framework Agreement was to remedy treaty commitments, and as the Agreement developed from complex negotiations, a “full trial [was] needed to interpret [the Agreement]” and “may” give rise to “gaps” in the evidence (Reasons at paras. 64-65). [49] This latter comment is telling. It is an admission that while no further relevant evidence has in fact been specifically identified, maybe, in the course of a trial, it might appear. [50] This approach to summary judgment collides with the overarching objective of the Rules, which is to ensure that disputes are resolved as expeditiously and inexpensively as possible. It also diverges from the express requirements of Rule 215 and the guidance of the Supreme Court in Hryniak and Lameman regarding summary judgment’s role in streamlining the litigation process where possible (Hryniak at para. 27; Lameman at para. 10). It is an error of law to defer making a final determination due to speculation that additional evidence might arise during a trial. This reticence is precisely what Rule 3, Hryniak, and Lameman seek to eliminate. [51] The issue is whether the record is sufficient to allow the fair and just adjudication of the matter. This standard aligns with the guidance of Hryniak, which calls for judicial confidence instead of judicial certainty (Hryniak at para. 50). The Federal Court failed to consider this standard, along with its underpinning principles of proportionality and economy, in dealing with the motion for summary judgment before it. [52] To dismiss a motion for summary judgment on the possibility that something might show up at trial undermines the culture shift toward proportionate adjudication processes endorsed in Hryniak at paragraphs 2 and 28. As the Court of Appeal of Alberta wrote, “[p]resuming that summary disposition will always be ‘unjust’ unless it meets some high standard of irrefutability defeats the whole concept of the ‘culture shift’ [towards alternative forums of adjudication] mandated by Hryniak v. Mauldin” (Weir-Jones at para. 25). I agree with the Court of Appeal of Alberta that imposing standards like “high likelihood of success” or “obvious” or “unassailable” is inconsistent with the purposes of summary judgment motions (Weir-Jones at para. 33). A disposition does not have to be beyond doubt to be fair. Perfection in the record is not the standard. [53] I turn to the third error. (iii) The evidence was already before the Court [54] Again, the Federal Court speculated that witnesses, observers and signatories to the Agreement might be able to shed light on the meaning of the Agreement’s terms (Reasons at para. 43). To the extent that this evidence might be relevant and admissible, it was already in the hands of WLFN itself. [55] Chief Mike Fineday and Mr. Ron Fineday attended the plenary negotiations on behalf of WLFN, and the former signed the Framework Agreement on behalf of WLFN; neither provided an affidavit in response to Saskatchewan’s motion. Notably, Heather Bear, who did swear an affidavit on behalf of WLFN, was the Vice Chief of the FSIN, which was the principal signatory to the Agreement. If the observers to the negotiations had something relevant to say with respect to the existence of a genuine issue, the motion was the time to say so. As this Court has said, the responding party must “lead trump or risk losing” (Gemak at para. 67). [56] Hryniak and Rule 214 prohibit a party from simultaneously contending that there is a genuine issue for trial while not disclosing evidence that supports the argument. This is precisely what WLFN did here. I note as well that WLFN only cross-examined two of the four Saskatchewan affiants. [57] As I have noted, the Federal Court concluded that there was a “gap” in Saskatchewan’s evidence relating to the circumstances surrounding the Framework Agreement’s execution (Reasons at paras. 64-66). According to the Federal Court, as the purpose of the Agreement was to remedy broken treaty promises related to outstanding TLE claims (Reasons at para. 66), a trial was necessary to fill gaps in the evidence concerning the negotiations. [58] The purpose and objective of the Framework Agreement in satisfying treaty obligations is well known and understood. Treaty No. 6 required Canada to set aside “one square mile for each family of five, or in that proportion for larger or smaller families”; however, the land set aside did not fulfil the Crown’s obligations. This outstanding obligation was recognized in the 1930 Canada-Saskatchewan Natural Resources Transfer Agreement (Schedule 3 of Constitution Act, 1930 (U.K.), 20-21 George V, c. 26, reprinted in R.S.C. 1985, Appendix II, No. 26). Saskatchewan had an obligation to Canada to facilitate the transfer of what were to become provincial Crown lands to Canada. The Preamble to the Framework Agreement notes that these mutual obligations would be satisfied by the Agreement’s terms. [59] WLFN’s statement of claim also describes the context giving rise to the Framework Agreement, and the affidavits filed by WLFN itself on the motion further recount the events leading up to the implementation of the Framework Agreement (Bear Affidavit at paras. 3-7; Wendy Jim Affidavit at paras. 4-8). [60] In addition to the evidence filed by both Saskatchewan and WLFN, the historical context, purpose, and mechanics of the Framework Agreement have been extensively considered by three appellate courts: by this Court in Peigan 1, Long Plain, and Saskatchewan (Attorney General) v. Pasqua First Nation, 2018 FCA 141 [Peigan 2]; by the Court of Appeal for Saskatchewan in the recent scholarly analysis in George Gordon; and by the Court of Appeal of Alberta in Goodswimmer. In sum, the “gap” in the evidence of the Agreement’s “surrounding circumstances” evidence urged by WLFN and accepted by the Federal Court was not a gap at all. [61] Further, the Treaty Commissioner’s Report and Recommendations on Treaty Land Entitlement is the seminal document that motivated the Framework Agreement and informed both the content of the Framework Agreement and the mechanisms necessary to achieve its objectives. So too was the document entitled Chiefs Policy Committee: Principles in the Settlement of Treaty Land Entitlements in Saskatchewan. In this latter document, the FSIN established its specific land acquisition objectives, described how they were to be achieved, and identified potential issues that might arise during the negotiations. Both of these documents were before the Federal Court. [62] I note, parenthetically, that the Framework Agreement was signed by the Chief of the FSIN and the Treaty Commissioner. If there were something in the deep context leading up to the execution of the Framework Agreement that supported the declarations sought by WLFN, or raised an uncertainty that warranted a trial, it presumably would lie in these documents. Yet WLFN pointed to nothing specific in these seminal documents that could sustain its position. [63] To conclude, the “surrounding circumstances” of the execution of a contract or agreement must be defined with some precision if a party wishes to rely on them to defeat a motion for summary judgment; the party must also establish the surrounding circumstances’ relevancy to the issues that the Federal Court must decide. The mere assertion that additional context will be helpful is insufficient to require a full trial on an issue. To the extent that the observers to the negotiations might have had something to add, it was WLFN’s obligation to file affidavits outlining what that evidence might be and demonstrate its relevance to a genuine legal issue. VI. Implied term – no genuine issue for trial (i) Implied term – General Principles [64] I turn to the substance of the motion and the question of whether the declarations sought—principally that of an implied term of notice of an impending auction and a reasonable opportunity to purchase the lands—raised a genuine issue that required a trial. [65] There is no genuine issue for trial if there is no legal basis for the claim based on the law or evidence brought forward or if the judge has the evidence necessary to adjudicate the dispute (Canada v. Bezan Cattle Corporation, 2023 FCA 95 at para. 138; Manitoba at para. 15; Hryniak at para. 66). As I will explain, the terms sought to be read into the Agreement are inconsistent with the Agreement itself and would, if accepted, result in a much different Agreement than the one negotiated. [66] The clear language of a contract must always prevail over the surrounding circumstances when interpreting contractual obligations (Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633 at para. 57 [Sattva]; Toronto Real Estate Board v. Canada (Commissioner of Competition), 2017 FCA 236, [2018] 3 F.C.R. 563 at paras. 168-169; Canada (Office of the Information Commissioner) v. Calian Ltd., 2017 FCA 135, 414 D.L.R. (4th) 165 at para. 59). [67] While evidence of surrounding circumstances can be helpful, it cannot be used to rewrite the express terms of an agreement such as the Framework Agreement (Sattva at para. 57): The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract (Hall, at pp. 15 and 30-32). While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement (Glaswegian Enterprises Inc. v. B.C. Tel Mobility Cellular Inc. (1997), 101 B.C.A.C. 62). [68] A party may show that an implied term exists within a contract by establishing that the term is necessary “to give business efficacy to a contract or [by] otherwise meeting the ‘officious bystander’ test [by describing] a term which the parties would say, if questioned, that they had obviously assumed” (M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619, 1999 CanLII 677 (SCC) at para. 27 [Defence Construction], citing Canadian Pacific Hotels Ltd. v. Bank of Montreal, [1987] 1 S.C.R. 711, 1987 CanLII 55 (SCC) at 775). WLFN relies on this principle, along with the doctrine of frustration. [69] The Federal Court put particular emphasis on the fact that the Agreement was designed to fulfil treaty obligations, and because of this, concluded that the matter could not be disposed of fairly or justly by summary judgment (Reasons at para. 66). But the parties took a very different view of the nature of the Agreement during their negotiations, and expressly said so in the Agreement. [70] Article 20.22 of the Framework Agreement states that “[e]ach of the parties agrees that nothing in this Agreement is intended, nor shall it be interpreted or construed in any way… as confirming, acknowledging or creating any obligation under any treaty as between Saskatchewan and any Band.” What was before the Court was the interpretation of a tripartite agreement, not a treaty. The fact that the Agreement is remedial of treaty commitments does not overwhelm the carefully crafted and plain language of the Agreement, which WLFN itself describes as setting out a “robust procedural framework” (WLFN’s Statement of Claim at para. 27); nor does it displace the principles relevant to interpreting agreements and determining when an implied term is to be read in. [71] In Peigan 2, this Court explained how the Framework Agreement was to be interpreted (at para. 12). The reasons bring the errors below into sharper relief: The honour of the Crown as it relates to this agreement requires that the terms of the agreement be implemented in a fair and forthright manner (Peigan 1 at para. 64; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 (Wewaykum))… This does not mean that the terms of the agreement are to be ignored or require that important aspects of the agreement be re-written or interpreted in a manner both at odds with the terms of the agreement and as expressly contemplated by the parties to the agreement. The respondents are, in effect, asking the Court to re-write the agreement through a series of constitutionally based declarations. The agreement is not a treaty nor was it meant to determine all aspects of treaty land entitlements that may be outstanding as between the Crown and the respondents. Rather, it is an important tool in settling these outstanding treaty land entitlements in an orderly and fair way as agreed by the parties to the agreement. [72] To conclude on this point, having failed to canvass the jurisprudence governing implied terms, having overlooked the express terms of the Agreement, and having adopted the incorrect approach to its interpretation, the Federal Court was in no position to properly analyze the question of whether a genuine issue for trial existed. (ii) The term sought to be implied [73] WLFN argues that its sought-after implied term does not amount to a right of first refusal. However, the judge noted that WLFN had “state[d] that notice of a sale of provincial Crown lands and a reasonable opportunity to purchase those lands prior to their committal to auction must be read into the Framework Agreement as implied terms” (Reasons at para. 50), and determined that “[w]hether or not notice and a reasonable opportunity to purchase amounts to a right of first refusal is an issue for the trial judge” (Reasons at para. 62). [74] I disagree. So too does the Court of Appeal for Saskatchewan, as I will explain. [75] WLFN has not defined the extent of “notice” required by the implied term, suggesting only that notice must be sufficient to give it a “reasonable opportunity” to purchase any Crown lands that Saskatchewan intends to sell. Nor has WLFN proposed any parameters as to what may constitute a “reasonable opportunity”. As will later become self-evident, the amorphous nature of the term sought to be read into the Agreement contrasts with the precise, carefully delineated terms of the Agreement that address when and how bands may purchase land, and when, and for how long, Saskatchewan’s ability to dispose of lands is fettered. [76] In George Gordon, the Court of Appeal for Saskatchewan determined that the content of a similarly argued implied term in the Framework Agreement effectively amounted to a right of first refusal, regardless of a First Nation’s assertion otherwise (George Gordon at para. 115). [77] There, the George Gordon First Nation cloaked what was in essence a right of first refusal with language suggesting an implied right to notice of upcoming sales of mineral rights to third parties. Although no third parties are involved in the present matter, the content of the notice provision sought by WLFN amounts to the same as that sought by the George Gordon First Nation: an alert when any public sale of Crown land/mineral rights is anticipated, followed by the opportunity to intervene in the sale and purchase of the land/rights if desired. [78] At the outset of these reasons, I set out the factual background of WLFN’s original claim, including the relevant timelines, steps taken, and correspondence sent by Saskatchewan to WLFN. Certain conclusions may be drawn from this background. First, WLFN had adequate notice of the government’s intention to sell the lands in question. Second, at no time did WLFN engage with Saskatchewan’s offer to consult on the proposed sale of Crown lands. Finally, WLFN only expressed an interest in the purchase of the lands one or two days after the auction had commenced. [79] It is evident that the implied term sought by WLFN is something more than the notice that it received under Saskatchewan’s duty to consult. The implied term comprises a right to notice, but notice coupled with a power, which is a power to hold sales of Crown land in abeyance while WLFN—or any other of the 33 bands that are party to the Agreement—determines whether it wishes to buy the lands. [80] To read in the term sought would create a new right, one that was not included in the Framework Agreement. It is also inconsistent with the onus that the Agreement puts on First Nations to move forward with the selection of lands they wish to purchase. The Agreement puts First Nations in the “driver’s seat”, giving them “the right and the responsibility to find and acquire lands” (George Gordon First Nation v. Saskatchewan (Attorney General Of Canada), 2020 SKQB 90 at para. 120, aff’d 2022 SKCA 41). [81] WLFN’s interpretation stands this principle on its head. (iii) Efficacy and frustration [82] The law will imply a term into an agreement where it is necessary to ensure a result that accords with the intention of the parties. It does so where an “officious bystander” would assume that the term was understood and necessary to render the agreement efficacious. These principles are equally relevant to the interpretation of the Crown’s obligations to Indigenous peoples (R. v. Marshall, [1999] 3 S.C.R. 456, 1999 CanLII 665 (SCC) at para. 43). Here, the question of the implied term is necessarily interwoven with the question of whether the contract is efficacious or frustrated in its absence. [83] Although Saskatchewan raised contract efficacy before the Federal Court, the Federal Court did not address the issue. [84] The evidence demonstrates, beyond any shade of doubt, that the Framework Agreement is efficacious without the implied term. [85] WLFN admits that it was aware of the specific lands in question prior to the auctions (Jim Affidavit at paras. 14 and 19). WLFN also admits that it entered into its band-specific agreement to give effect to the Framework Agreement in 1993 (Jim Affidavit at para. 9) and that it could have made an offer to purchase the lands at any time after 1993. [86] The Agreement has allowed 29 of the 33 signatory First Nations to acquire their TLE lands—lands of their own choosing, pursued in their own time, and funded by the Crown in right of Canada and Saskatchewan. The evidence also demonstrates that, using the process and funding mechanisms of the Agreement, bands have significantly expanded reserve lands beyond their TLE. As a matter of necessary repetition, by 1998, WLFN itself had acquired all of its 7,923 shortfall acres, and it has acquired an additional 8,310 acres since that time. Put otherwise, the objective of the Framework Agreement has been fulfilled, rendering the Agreement efficacious without the implied term that WLFN seeks. (iv) Inconsistent with express provisions in the Agreement [87] A term will not be read into an agreement where the matter has been expressly addressed elsewhere by the parties. Here, the implied term sought is inconsistent with and would defeat express provisions of the Agreement. I note, parenthetically, that while the Attorney General of Canada took no position on the disposition of the appeal, his analysis and understanding of the Agreement and its operation aligns with the Attorney General of Saskatchewan’s. [88] The Framework Agreement addresses the circumstances in which Saskatchewan’s ability to dispose of Crown land is fettered. A band may offer to purchase any lands, and if the government is willing to sell them, an 18-month freeze period commences during which the parties are to come to an agreement on the terms of sale. Articles 4.05(c) and (d) of the Agreement govern this procedure: (c) If Canada or Saskatchewan agree to sell any federal or provincial Crown Lands or Crown Improvements as aforesaid, then for a period of eighteen (18) months following delivery by Canada or Saskatchewan of a notification to the Entitlement Band confirming their intention to sell, the identified Crown Lands or Crown Improvements shall be available for sale to the Entitlement Band, subject only to an agreement (or a determination hereunder) respecting the purchase price and satisfaction of any applicable conditions precedent. (d) During the eighteen (18) month period referred to in subsection (c), neither Canada nor Saskatchewan shall (other than for the benefit of the Entitlement Band) permit the sale of such federal or provincial Crown Lands or Crown Improvements, or grant any Third Party Interests in respect thereof without the prior written consent of the Entitlement Band, except: (i) any interests which any existing Third Party Interest Holder is entitled to pursuant to the terms of a contractual arrangement with Saskatchewan or Canada or pursuant to provincial legislation; (ii) Public Utility Easements; or (iii) any new Third Party Interest with a term of less than one (1) year. [89] The proposed implied term would directly conflict with Article 4.05, which stipulates that the freeze periods would last only 18 months, and only in relation to lands that Saskatchewan has agreed to sell to a band. [90] The implied term sought would also constitute an administrative and legal encumbrance on Crown lands, fettering Saskatchewan’s ability to alienate Crown lands beyond that contemplated by the Agreement. Lands put up for auction would be subject to the schedules of 33 bands, as each would be permitted to consider whether it wished to make an offer to purchase the lands. What constitutes a reasonable opportunity for one band may not for another, and this uncertainty may deter other potential bidders. [91] The implied term argument faces other hurdles. [92] Article 20.12 provides that the Agreement shall not be varied, modified, amended, supplemented or replaced except by written agreement executed by all parties to the Agreement. Article 20.04 reinforces the point, providing that no modification or waiver of the Agreement is binding unless it is in writing and has been executed by all parties affected, “with the same formality as the execution of the Agreement.” This latter point is critical. The Agreement was the result of tripartite negotiations over many years. A court should be skeptical about reading in new terms in these circumstances. [93] Article 20.13 provides that the terms within the Agreement represent the entire agreement between the parties, and establishes that “[n]o representation, inducement, promise, understanding, condition or warranty not set forth herein or therein has been made or relied upon by any party.” [94] Finally, were there any doubt about the parties’ intentions, Article 15.05 provides that the Agreement sets forth, “in [a] full and complete manner, the actions necessary to implement and fulfil the terms of [Treaty Number 6] in respect of land entitlement.” [95] In further support of Saskatchewan’s position, under Article 10.05 of the Framework Agreement, signatory First Nations confirmed that they received independent legal advice during negotiations up to and including the execution of the band-specific agreements that gave effect to the Framework Agreement. The late Dr. Lloyd Barber was the FSIN’s lead negotiator throughout the Framework Agreement negotiations. Dr. Barber’s expertise, credibility and reputation as a negotiator in disputes between governments and Indigenous Canadians is unquestioned. Article 10.05 also requires signatory First Nations to fully inform their members of the “nature and effect” of the band-specific agreements. WLFN’s negotiation, execution, and implementation of its band-specific agreement was informed by professional advice and undertaken in consultation with its membership (see Article 10.04 of WLFN’s band-specific agreement). [96] The proposed implied term undermines the purpose of the Agreement, which was to satisfy the TLE obligations in a fair, predictable and transparent manner. It is hard to imagine a more potent disrupter of the Agreement than to read in a new term, judicially, 30 years after the Agreement’s execution. Agreements such as this—which are, at their core, efforts at reconciliation—should not be interpreted in ways that upset the carefully negotiated agreement of the parties (Goodswimmer at paras. 47-50). VII. Other asserted genuine issues (i) Willing buyer/willing seller [97] In the face of these evidentiary and legal hurdles to its arguments regarding the implied contractual term, WLFN falls back on the “willing buyer/willing seller” provision in Article 4.05(a). It argues that in placing the lands up for auction, Saskatchewan became a “willing seller” and was required to sell the lands to WLFN in those circumstances. [98] This argument has been fully canvassed and rejected by the Saskatchewan Court of Queen’s Bench (Muskoday First Nation v. Saskatchewan, 2016 SKQB 73, [2016] 3 C.N.L.R. 123 [Bear]; One Arrow First Nation v. Saskatchewan, [2000] 1 C.N.L.R. 162, 1999 CanLII 12857 (SKQB) [One Arrow]). I agree with the reasons of the Court of Queen’s Bench, the basis for which is best set forth in the Attorney General of Saskatchewan’s written submissions, which I reproduce here: 111. However, the willing seller/willing buyer principle governs the process by which, if Saskatchewan has agreed to sell to a Band, Saskatchewan and that Band “are to reach a consensus ad idem on a purchase price”: Bear at para 45; One Arrow at para 28. Nothing in the Agreement can be interpreted as requiring Saskatchewan to sell any particular lands to a Band: Article 4.06. 112. Para 4.05(b) states that, if Saskatchewan agrees to sell to a Band, it must identify conditions precedent that the Band must satisfy to conclude the sale. Para 4.05(c) creates an eighteen-month period for the parties to negotiate a sale price and for the satisfaction of conditions precedent. 113. Para 4.05(d) identifies the limits on Saskatchewan’s ability to sell lands to third parties. It provides that, during the eighteen-month negotiation period (known as a “freeze period”), Saskatchewan cannot sell the lands in question to third parties without the Band’s consent. This provision shows that the parties turned their minds to the circumstance in which Saskatchewan would be fettered in its right to sell Crown lands to third parties. A parallel obligation burdens Saskatchewan with respect to selling mineral rights to third parties: Art 5.03(e). [99] The critical word, of course, is if. The 18-month freeze period and the willing buyer/willing seller provisions are only triggered if Saskatchewan has agreed to sell the lands. [100] In One Arrow, the Saskatchewan Court of Queen’s Bench assessed the “willing seller/willing buyer” provision in Article 4.05, as well as Saskatchewan’s obligations during the 18-month freeze period. The Court of Queen’s Bench determined that the term “willing seller” requires that “the terms and price [Saskatchewan] seeks [during negotiations] must not only be made in good faith but must also be commercially reasonable to the extent that they would be acceptable to a notional willing buyer” (One Arrow at para. 34). The Saskatchewan Court of Queen’s Bench in Bear endorsed this view (Bear at para. 45). It also found that the “willing seller/willing buyer” term references the process by which the First Nation and Saskatchewan set a price for the selected land, and does not relate to Saskatchewan’s decision to accept or decline the First Nation’s purchase requests (Bear at paras. 44-45). [101] I agree with this analysis. (ii) The release provision [102] The Federal Court held that “[t]he practical legal effect of a full release and indemnity provision requires a full consideration of the parties’ legal position and evidence of the negotiations leading to the Framework Agreement” (Reasons at para. 70). This, with respect, is not a reason; it is a conclusion made without analysis. The judge also found that as negotiations for four remaining band-specific agreements were outstanding, it might be helpful to interpret the release agreement. This was an irrelevant consideration. [103] Canada was released from its TLE obligations to WLFN upon ratification, execution, and delivery of a band-specific agreement under Article 15.01. Article 16.02 provides for Saskatchewan’s release: Canada and each of the Entitlement Bands hereby agree that, after ratification, execution and delivery of a Band Specific Agreement, as long as Saskatchewan is paying to Canada and the Treaty Land Entitlement (Saskatchewan) Fund the amount required to be paid by Saskatchewan in respect of each of the said Entitlement Bands in accordance with this agreement, and Saskatchewan has not failed, in any material way, to comply with its other obligations hereunder… Canada and each of the Entitlement Bands further agrees to forever release and discharge Saskatchewan… [104] Article 15.06 sets out precise and limited circumstances when Canada’s release may not be relied upon, none of which have been pled by WLFN. There is no evidence that either Saskatchewan or Canada has failed to make the financial contributions required or that either has failed “in any material way” to comply with its obligations as required. If there were evidence of that nature, it was WLFN’s to lead. [105] In its written submissions on the Framework Agreement’s release provisions, WLFN argues that the interpretation of the Agreement must acknowledge Canada’s history of broken treaty promises, and that, because a number of other First Nations might be affected by the judicial interpretation of the release provisions, “[i]t would be unjust to resolve issues of such significance on the basis of the limited record that Saskatchewan filed” (WLFN’s Memorandum of Fact and Law at para. 58). [106] There is no definition of the factual or legal issues with respect to the release; the genuine issue remains a chimera. At its highest, judicial consideration of the release might provide guidance for the four remaining bands. This is a speculative, academic justification that in reality would delay the negotiations of the remaining four agreements until the completion of WLFN’s action, which, if pursued, would not conclude for years. Quite apart from the fact that no uncertainty regarding the release was identified, if the terms of the release were to present an issue, it would be for the four bands affected to raise. (iii) Favourable consideration [107] WLFN argued that Saskatchewan did not give WLFN’s notice that it had “selected” the lands it wished to purchase the “favourable consideration” that was required under the Agreement. The Federal Court agreed and found that the interpretation of the “favourable consideration” provision in the Framework Agreement raised a genuine issue for trial. [108] The judge did not ask what more could have been added through a trial that was not already before him; all of the evidence as to how Saskatchewan organized the auction and why it declined to interrupt the auction was before the Federal Court. [109] WLFN invites this Court to substitute its own view of whether Saskatchewan reached the correct conclusion in deciding not to withdraw the lands from public auction, which would effectively amount to a judicial review of that decision on a correctness basis. That is not this Court’s task. It is sufficient that Saskatchewan considered WLFN’s requests in good faith and reached a reasoned decision based on relevant considerations. [110] I will explain why I reach this conclusion. [111] Article 4.06 of the Framework Agreement confirms that Saskatchewan is not required to sell any specific parcel of Crown land to an entitlement band. It stipulates, though, that Canada and Saskatchewan shall give “favourable consideration” to offers from WLFN to purchase Crown land: Subject to applicable law, each of Canada and Saskatchewan agrees to give favourable consideration to offers from an Entitlement Band to purchase federal or provincial Crown Land, including federal or provincial Crown Improvements thereon, and not to unreasonably withhold acceptance of the same, provided that nothing in this Agreement [(with the exception of subsection 4.05(c))] shall be interpreted as requiring Canada or Saskatchewan to sell or transfer any specific parcel of federal or provincial Crown Land (including Crown Improvements thereon) to, or for the benefit of, any Entitlement Band. [Emphasis added.] [112] The obligation to give “favourable” consideration to offers to purchase and to “not unreasonably withhold acceptance of the same” has been considered by the Saskatchewan Court of Queen’s Bench. [113] In Bear, the Saskatchewan Court of Queen’s Bench interpreted the meaning of the “willing seller/willing buyer”, “favourable consideration”, and “best efforts” phrases within the Framework Agreement. The Court of Queen’s Bench held that, reading the terms through the lens of the honour of the Crown, Saskatchewan was required to consider the requests in good faith and without engaging in sharp practice (Bear at para. 50). Bear at paragraph 72 is particularly apposite in that it also speaks to a situation where Saskatchewan declined to sell: Reasonable people may disagree about the validity of the reasons, but Saskatchewan’s reasons were arrived at through a process consonant with Saskatchewan’s obligations under the TLE Settlement Agreement and the honour of the Crown. As noted in articles 4.06 and 5.03, Saskatchewan has the right to say no. [114] Here, the request by WLFN to remove the lands from auction and allow WLFN to formulate an offer to purchase was reviewed and considered by thirteen different branches of the Saskatchewan government (Transcript of Cross-Examination of Megan Shaefer (1 October 2020) at 6-7, Appeal Book at 854-855). WLFN led no evidence that Saskatchewan’s consideration was anything but conducted in good faith and based on relevant public policy considerations. [115] To the contrary, the Federal Court had evidence before it demonstrating, both procedurally and substantively, that Saskatchewan had considered the public interest before denying WLFN’s requests to purchase the Crown lands. Indeed, the Federal Court itself specifically acknowledged Saskatchewan’s argument on this point at paragraph 60 of its reasons: Saskatchewan also states that removing land parcels for TLE purposes during an auction would disrupt the auction process and have financial costs for Saskatchewan. Saskatchewan points out that the extensive internal and external reviews that the province conducts before including any land parcel in an auction would be in vain if parcels had to be removed from auctions due to untimely TLE requests. They further point out that WLFN had since 1993 to select the lands in question. [116] While I do not put much weight on this, the motion record also included letters from Saskatchewan (Ministry of Agriculture) to the Lands Manager of WLFN that explained that it had denied WLFN’s requests because the lands had already been placed in the auction and that to withdraw them would incur additional fees (Schaefer Affidavit, Exhibits K and L, Appeal Book at 684-689). [117] The favourable consideration requirement from Article 4.06 of the Agreement applies to offers to purchase. No offer to purchase was made. However, assuming that it also applies to WLFN’s request that the lands be withdrawn from auction, I conclude that no genuine issue arises that requires a trial. [118] There is no dispute that, many months prior to each auction, Saskatchewan sent WLFN letters notifying it of the proposed sale of Crown land pursuant to Saskatchewan’s duty to consult. There is also no dispute that WLFN did not respond to these letters and instead, on all three occasions, waited until the auction was underway before it sent Saskatchewan a letter expressing an interest in the lands. No formal offer was ever made. [119] If it elects to sell lands through a public auction, Saskatchewan sets the minimum price for which the lands may be sold at 90% of the lands’ estimated fair market value. First Nations that participate in the auction may possibly pay less for their desired parcels of land than what they would pay for the parcels if they made a purchase request under the TLE agreements. [120] Where Crown lands do not sell at auction, they remain available for the First Nations to purchase through the Agreement selection process as Crown lands. Needless to say, a band may also bid on the lands placed in auction, which is one of the purposes of the province giving notice to bands of an impending auction. Lands sold to third parties by auction also remain available for First Nations to purchase as private lands under the Agreement. As noted, approximately 60% of all lands acquired under TLE agreements have been private lands. [121] Saskatchewan has provided publicly accessible information about the location and status of available provincial Crown lands since the Framework Agreement came into force in 1993. This information has been available to the public through the provincial land titles system and, since at least 2009, through databases on Saskatchewan’s website. VIII. Miscellaneous issues [122] The Federal Court also dismissed the motion on the basis that there was an outstanding issue of credibility regarding WLFN’s receipt of Saskatchewan’s consultation letters. This was an error. [123] Saskatchewan sent three letters to notify WLFN that Saskatchewan was considering selling Crown lands, acknowledging that this had triggered Saskatchewan’s duty to consult WLFN as a First Nation. These letters are dated July 2016, January 2017, and January 2018. Wendy Jim, Lands Manager of WLFN, asserts that she was “not aware” of the first two letters that Saskatchewan had sent, and only learned that Saskatchewan intended to sell certain parcels of vacant Crown land through a public auction in or around September 15, 2017. I note that Wendy Jim was not the Lands Manager of WLFN until April 2017, and her lack of awareness of the first two letters is therefore not suprising, and consequently of no value. [124] This issue is, in any event, a red herring. [125] The first two consultation letters were addressed to the Chief of WLFN (Chief Kenneth Thomas in 2016 and Chief Annie Thomas in 2017) and Council. There is no evidence that these letters did not reach the members of WLFN to whom they were addressed. As Saskatchewan points out, WLFN does not deny that it received duty to consult notices from Saskatchewan prior to the auctions. The auction did not commence until October 23, 2017. WLFN remained silent during that five-week window. Copies of the notices that Saskatchewan sent to WLFN were in evidence before the Federal Court (Reasons at para. 46). [126] There was, therefore, no issue of credibility arising on the evidence. Further, the issue is irrelevant to the question of whether, as a matter of law, a term is to be implied into the Agreement. IX. Honour of the Crown / Reconciliation [127] Agreements such as this are important facilitators of reconciliation. This, and the honour of the Crown, requires that the Agreement be interpreted in a fair and purposeful manner, in accordance with those twin objectives. While not a Treaty, the Agreement redresses historical grievances in a fair and orderly manner as agreed by the three parties. [128] This interpretive frame or lens, however, does not entitle a court to reopen and rewrite the settled terms of a modern agreement negotiated between sophisticated parties over many years and with independent legal advice. Failing to respect the finality and legal certainty of the Framework Agreement undermines reconciliation by allowing parties to renegotiate and to seek more favourable terms than those originally settled on. Allowing the parties “[t]o seek ambiguities [in the agreement] at all costs” in the hopes of reinterpreting its provisions can only diminish the value of the settlement, and “other signing parties [must] not feel themselves at the mercy of constant attempts to renegotiate in the courts” (Eastmain Band v. Canada (Federal Administrator), [1993] 1 F.C. 501, 1992 CanLII 14828 (FCA) at 518-519). A paradigm under which each generation can reopen, renegotiate, and rewrite previously settled matters is untenable (see also Goodswimmer at para. 49; Manitoba Metis Federation Inc v. Brian Pallister et al., 2021 MBCA 47, 458 D.L.R. (4th) 625 [Pallister] at para. 56). [129] While the Crown can never contract out of its constitutional responsibilities, the honour of the Crown cannot be used to read in obligations supplementary to or different from those that have been expressly agreed to by the parties, or to renegotiate a better deal than that agreed to. The point was made in Peigan 2 at paragraph 13: Counsel for the respondents repeated several times that the Crown cannot contract out of constitutional and treaty rights. This is not disputed. However, in my view it follows that one cannot later “contract in” constitutional and treaty rights arguments into every term of a modern agreement between the parties even where the parties agreed on specific terms to address outstanding issues, in a way that fundamentally changes the terms of the agreement retrospectively. Rather, the honour of the Crown requires that the Crown adhere to and implement the terms of the agreement in an open and fair manner (Wewaykum). [130] Put more simply, the honour of the Crown does not mean that an agreement can be rewritten, ignored or renegotiated simply to seek more favourable terms (Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557 at para. 6; Peigan 2 at paras. 12-13; Pallister at para. 56). The honour of the Crown as it relates to the Agreement requires that the terms of the Agreement be implemented in a fair and forthright manner (Peigan 1 at para. 64; Peigan 2 at para. 12). This serves to protect the First Nations’ interests as much as the signatory governments’. [131] The declarations sought by WLFN would result in a very different agreement than that negotiated. The role of the courts in the interpretation of agreements such as this is to interpret the agreement generously and purposefully, but not to rewrite, under the guise of reconciliation, the bargain struck. Viewed at a distance, the fundamental error that courses through the reasons under appeal is the failure to examine the bargain struck by the parties. Had that been done, the inconsistency of the terms sought to be implied with the Agreement would have been self-evident. [132] I would therefore allow the appeal, set aside the order of the Federal Court, grant the motion for summary judgment and dismiss the action. The parties may make written submissions on costs not exceeding three pages in length within 15 days of the date of this judgment. “Donald J. Rennie” J.A. “I agree. Monaghan J.A.” “I agree. Roussel J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-359-21 STYLE OF CAUSE: HIS MAJESTY THE KING IN RIGHT OF SASKATCHEWAN v. WITCHEKAN LAKE FIRST NATION ET AL. PLACE OF HEARING: Regina, Saskatchewan DATE OF HEARING: October 26, 2022 REASONS FOR JUDGMENT BY: RENNIE J.A. CONCURRED IN BY: MONAGHAN J.A. ROUSSEL J.A. DATED: may 17, 2023 APPEARANCES: R. James Fyfe For The Appellant Anjalika Rogers Aron Taylor For The Respondent WITCHEKAN LAKE FIRST NATION Melissa Nicolls For The Respondent HIS MAJESTY THE KING IN RIGHT OF CANADA as represented by the attorney general of canada SOLICITORS OF RECORD: Attorney General for Saskatchewan For The Appellant Maurice Law Calgary, Alberta For The Respondent WITCHEKAN LAKE FIRST NATION Shalene Curtis-Micallef Deputy Attorney General of Canada For The Respondent HIS MAJESTY THE KING IN RIGHT OF CANADA as represented by the attorney general of canada", "response": "## Analysis of Court Decision: Saskatchewan (Attorney General) v. Witchekan Lake First Nation\n\n### Key Issues\n7 VII. Other asserted genuine issues 97 (i) Willing buyer/willing seller 97 (ii) The release provision 102 (iii) Favourable consideration 107 VIII. Miscellaneous issues 122 IX. Hon\n\n### Standard of Review\nare reviewed on the appellate standard of review. Questions of law are reviewable on a correctness basis and questions of fact and of mixed fact and law are reviewable on the basis\n\n### Legal Analysis\nThe court's analysis focuses on: later, the Attorney General’s analysis and understanding of the Agreement and its operation aligns with the Attorney General of Saskatchewan’s. [19] Appeals from judgments and orders of the Federal Court are reviewed on the appellate standard of review. Questions of law are reviewable on a correctness basis and questions of fact\n\n### Precedential Value\nAs a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation."}
{"prompt": "Analyze this Federal Court of Canada decision related to immigration and explain its significance:\n\nEcolab USA Inc. v. Smart & Biggar Court (s) Database Federal Court Decisions Date 2023-01-23 Neutral citation 2023 FC 101 File numbers T-1008-22 Decision Content Date: 20230123 Docket: T-1008-22 Citation: 2023 FC 101 Ottawa, Ontario, January 23, 2023 PRESENT: Mr. Justice Pentney Docket: T-1008-22 BETWEEN: ECOLAB USA INC. Applicant and SMART & BIGGAR Respondent JUDGMENT AND REASONS [1] The Applicant, Ecolab USA Inc., appeals the Registrar of Trademarks’ decision expunging its trademark pursuant to section 45 of the Trademarks Act, RSC 1985, c T-13 [the Act]. The Applicant filed new evidence on this appeal, and claims that the Registrar’s decision is invalid, and that its new evidence is conclusive proof that it used its trademark in association with the sale of goods in Canada during the relevant period. I. Background [2] The Applicant, Ecolab USA Inc., is the current owner of Canadian Registration No. TMA919,091 for the trademark “NAVIGATOR” (the “Mark”), which is “in connection with goods described as ‘chemicals for use in the manufacture of paper products.’” The Mark was issued on November 2, 2015, and the original registrant was Georgia-Pacific Chemicals LLC. There was a transfer of ownership of the Mark, recorded by the Registrar in July 2019, with an effective date of November 1, 2017. [3] The Applicant describes its product in the following way: The NAVIGATOR chemical product is marketed and sold to manufacturers of paper products. The product is intended for use in a Yankee dryer, which is a pressure vessel used in the production of tissue paper. When applied, the NAVIGATOR product creates a film coating across the dryer face to protect the dryer and decrease wear due to its “creping” blade. This type of dryer is a main component of many paper tissue manufacturing operations. [4] At the request of the Respondent, Smart & Biggar (which took no part in the appeal), the Registrar forwarded a Notice to the Applicant’s predecessor, Georgia-Pacific, under section 45 of the Act. The relevant three-year period for the purposes of demonstrating use of the Mark is May 22, 2016 to May 22, 2019. As noted, the effective date for the transfer of ownership of the Mark from Georgia-Pacific to Ecolab was November 1, 2017, mid-way through the three-year period. [5] In the section 45 proceeding, the Applicant filed an affidavit of Mark Dunbar, Ecolab’s Area Vice President of Corporate Accounts. His evidence is discussed below. In March 2022, the Trademarks Opposition Board rendered its decision, concluding that the Applicant’s registration should be expunged. The TMOB accepted that the product marketed under the NAVIGATOR name fell within the scope of goods as defined by the Mark, and that the product was manufactured either by Georgia-Pacific, or by a licensee subject to its direction and control since November 2017, and that such use accrued to the benefit of the owner of the Mark. [6] The essence of the TMOB decision is that it found use of the Mark prior to November 2017, but no evidence of sales. For the period of November 2017 to May 2019, it found evidence of sales but not proof of use of the mark. Based on these findings, the TMOB concluded that Ecolab had not satisfied the requirements of section 45, and therefore ordered that the Mark be expunged from the Register. [7] The Applicant appealed this decision under section 56 of the Act, and filed new evidence: a second affidavit from Mr. Dunbar as well as an affidavit from Fouad Moukannas, the Senior Corporate Account Manager in the Paper Division of Nalco Water, which is the water division and licensee of Ecolab that now markets and sells the NAVIGATOR product. II. Issues and Standard of Review [8] The only issue in the appeal is whether Ecolab has met its onus to demonstrate use of the Mark during the relevant three-year period. [9] The proper approach to an appeal where new evidence is filed was recently described by the Federal Court of Appeal in Clorox Company of Canada, Ltd. v Chloretec S.E.C., 2020 FCA 76: [21] When the new evidence is found to be material—which has been interpreted to mean “sufficiently substantial and significant” (Vivat Holdings Ltd. v. Levi Strauss & Co., 2005 FC 707 at para. 27, 276 F.T.R. 40) and of “probative value” (Tradition Fine Foods Ltd. v. Groupe Tradition’l Inc., 2006 FC 858 at para. 58, 51 C.P.R. (4th) 342)—subsection 56(5) of the Act states that the Federal Court “may exercise any discretion vested in the Registrar”. This is in the nature of an appeal de novo and calls for the correctness standard… [10] I find that the new evidence is “material” in that it addresses the core issue in the appeal, and would undoubtedly have affected the TMOB’s decision if it had been placed before it. Therefore, this is in the nature of an appeal de novo. [11] It is not necessary to trace in detail the evolution of the evidentiary record that was before the TMOB and is now before this Court. Instead, I will consider the record as a whole, discussing the evidence that the Applicant argues meets its onus to demonstrate use of the Mark during the relevant three-year period. III. Analysis [12] Subsection 4(1) of the Act defines “use” in association with “goods” as follows: When deemed to be used Quand une marque de commerce est réputée employée 4 (1) A trademark is deemed to be used in association with goods if, at the time of the transfer of the property in or possession of the goods, in the normal course of trade, it is marked on the goods themselves or on the packages in which they are distributed or it is in any other manner so associated with the goods that notice of the association is then given to the person to whom the property or possession is transferred. 4 (1) Une marque de commerce est réputée employée en liaison avec des produits si, lors du transfert de la propriété ou de la possession de ces produits, dans la pratique normale du commerce, elle est apposée sur les produits mêmes ou sur les emballages dans lesquels ces produits sont distribués, ou si elle est, de toute autre manière, liée aux produits à tel point qu’avis de liaison est alors donné à la personne à qui la propriété ou possession est transférée. [13] The Applicant asserts that its evidence demonstrates use because, at the time of transfer of property or possession of its product, the NAVIGATOR brand is “so associated with the goods that notice of the association is then given to the person to whom the property or possession is transferred”, in accordance with the definition in the Act. [14] The Applicant’s NAVIGATOR trademark is used in association with an industrial chemical product that is in turn used in the manufacturing of tissue paper. Demonstrating “use” of this Mark in the normal course of trade requires an understanding of how the product is marketed, sold, and delivered. [15] The first Dunbar affidavit, filed before the TMOB, describes the sales process, including how customers are invoiced and pay for their orders: Because of the highly specialized and sophisticated nature of the paper manufacturing industry in that chemical products are purchased in bulk quantities for use in large scale operations, a typical purchase of the NAVIGATOR chemical product involves several steps, as discussed below, in the normal course of trade for this industry. Since November 2017 and through to today, a typical sale of the NAVIGATOR product commences with in-person product presentations provided by Nalco sales personnel to product managers, purchasing managers, and technical teams of paper manufacturers. These product presentations are generally accompanied by the provision of product bulletins either at the time of the presentation or in follow-up discussions between sales personnel and the customer. Test samples of the NAVIGATOR product are also provided to allow the customer to conduct trials before purchasing a large order for use in manufacture. The customer is also entered into Nalco’s customer management system and is able to place product orders directly through the system. Once a purchase is entered, a purchase order is sent from Nalco’s Canadian office to Nalco’s US headquarters in Naperville, Illinois which directs goods to be packaged in one of the third party manufacturing facilities and then shipped directly to the Canadian customer. In some cases, the goods are first received in one of Nalco’s warehouses located in Canada and then sent to the end customer. Because the NAVIGATOR chemical product is a liquid, it is typically shipped in large tote bins, which comprise a plastic bladder with a metal cage, via truck. The invoice pertaining to each sale is issued by Nalco Canada to the Canadian customer and is typically transmitted electronically. [16] Given how this process works in practice, the Applicant acknowledged that the evidence to demonstrate the use of its Mark involves connecting various elements of its evidence that showed how the sales, delivery and invoicing process actually works in practice. To do that, the Applicant pointed to its affidavits that show how Georgia-Pacific, and then Georgia-Pacific and Ecolab working together, marketed, sold, and delivered the NAVIGATOR product to Cascades, a major Canadian paper producer. [17] I find that the affidavit evidence demonstrates the following: In August 2017 (and thus within the relevant three-year period), Georgia-Pacific gave a presentation to Cascades in which there is a specific reference to the NAVIGATOR product; following that presentation, Georgia-Pacific sent product bulletins to Cascades, on which the NAVIGATOR brand, and its associated product number, were prominently displayed; Following this, Ecolab acquired the NAVIGATOR trademark from Georgia-Pacific, and the two companies agreed to work together on the product marketing pitches that were then in the marketplace, including the effort to sell it to Cascades; In January 2018, there is evidence that Cascades was testing the NAVIGATOR product in its facilities in Quebec; the evidence of the test results makes specific mention of the NAVIGATOR brand name, and includes test results associated with the product number; In August 2018, Cascades contacts Nalco to obtain samples of the NAVIGATOR product for testing in a facility in Ontario, and there is evidence that arrangements were made to ship the product to Cascades; the evidence shows that as between the two companies, and in discussions within Cascades, the product was associated with the NAVIGATOR brand and the Nalco product number; and The first Dunbar affidavit sets out the following evidence of sales of the product in Canada, within the relevant time-period: o In November 2018, Ecolab sold 5498.33 lbs of NAVIGATOR chemicals for use in the manufacture of paper products to Cascades Tissue Group, located in Scarborough, Ontario for $11,333.71 USD. o In February 2019, Ecolab sold 5498.33 lbs of NAVIGATOR chemicals for use in the manufacture of paper products to Cascades Tissue Group, located in Scarborough, Ontario totaling $11,875.55 USD. o In November 2019, Ecolab sold 10,996.66 lbs of NAVIGATOR chemicals for use in the manufacture of paper products to Kruger Products, located in Gatineau, Quebec, totaling $24,792.36 USD. [18] The law is clear that in assessing whether use has been demonstrated, it is necessary to take into account the nature of the goods and the process by which sales occur in the normal course of trade in the context of the industry in which the Mark owner operates (Institut National des Appellations d’Origine des Vins et Eaux-de-Vie v Registrar of Trademarks et al., [1983] FCJ No 1155 at paras 18-19). The fact that the customer comes to associate the Mark with the product by means of sales presentations, brochures, catalogues, or otherwise can demonstrate use, especially for products where affixing the Mark to the product at the time of sale is not feasible (BMB Compuscience Canada Ltd v Bramalea Ltd, [1988] FCJ No 962 at para 37-43; Gowling, Strathy & Henderson v Degrémont Infilco Ltd, 2000 CanLII 28561 (CA TMOB)). [19] I am satisfied that the evidence summarized above demonstrates use of the Mark in association with the goods, because the affidavits show that the Applicant’s customers would have been aware that they were acquiring goods associated with the Mark, either at the time they purchased the product or at the time it was delivered to them. The evidence shows that Cascades employees referred to the Ecolab product by its trade name (NAVIGATOR) or its associated product number, and sometimes both. The evidence of the test results shows that Cascades took possession of this product, and that its testing was followed by sales of the product. [20] The onus to demonstrate use is not a heavy burden. As Justice Janet Fuhrer held in Sim & McBurney v en Vogue Sculptured Nail Systems Inc, 2021 FC 172 (at paras 14-15): Evidentiary overkill is not required (meaning not all examples of use must be evidenced). The use threshold is not stringent. Evidence of a single sale may be sufficient, depending on the circumstances, to establish use of the trademark in the normal course of trade; the owner need only establish a prima facie case of use. Nonetheless, sufficient facts must be provided from which the Registrar can conclude that the trademark has been used during the relevant three-year period for each good (or service) specified in the registration. The sufficiency of the evidence in establishing use of the trademark is a question of mixed fact and law, rather than a question of law. Drawing an inference is a matter of reasonably probable, logical deductions from the evidence. Further, the decision maker properly may draw inferences from proven facts considering the evidence as a whole which, in turn, must make it possible for the decision maker to infer every element of Section 4 of the Trademarks Act. [citations omitted] (cited with approval in Vass v Leef Inc., 2022 FC 1192 at para 44). [21] In light of this, and considering the evidence as a whole, I am satisfied that the Applicant has met its onus to demonstrate use of its Mark in association with the goods within the three-year period. [22] Therefore, the Applicant’s appeal pursuant to section 56 of the Trademarks Act is granted, and the decision of the Registrar of Trademarks dated March 16, 2022 expunging the Applicant’s trademark registration no. TMA919,091 for the trademark NAVIGATOR, is quashed and set aside. [23] Regarding costs, the Applicant points out that although the record it filed before the TMOB was, in some respects, somewhat deficient, it served its appeal record, including the new affidavits on the Respondent, but the Respondent did not consent to the appeal. The Applicant was thus was put to the time and cost of preparing for and presenting the appeal. The Applicant submits that it should receive an award of costs for $1500. In exercise of my discretion under Rule 400, and considering the nature of the case on appeal, I am satisfied that this is an appropriate amount. The Respondent will pay all-inclusive lump sum costs to the Applicant in the amount of $1,500. JUDGMENT THIS COURT’S JUDGMENT is that: The Applicant’s appeal pursuant to section 56 of the Trademarks Act is granted, and the decision of the Registrar of Trademarks dated March 16, 2022 expunging the Applicant’s trademark registration no. TMA919,091 for the trademark NAVIGATOR, is quashed and set aside. The Respondent shall pay to the Applicant costs in the lump sum, all-inclusive amount of $1,500. \"William F. Pentney\" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1008-22 STYLE OF CAUSE: ECOLAB USA INC. v SMART & BIGGAR PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: January 19, 2023 REASONS FOR JUDGMENT AND JUDGMENT: PENTNEY J. DATED: January 23, 2023 APPEARANCES: AMRITA V. SINGH and JONATHAN G. COLOMBO For The Applicant ECOLAB USA INC. For The RESPONDENT SMART & BIGGAR SOLICITORS OF RECORD: Marks & Clerk Law LLP Barristers and Solicitors Toronto, Ontario For The Applicant ECOLAB USA INC. For The RESPONDENT SMART & BIGGAR", "response": "## Analysis of Court Decision: Ecolab USA Inc. v. Smart & Biggar\n\n### Key Issues\nls the NAVIGATOR product. II. Issues and Standard of Review [8] The only issue in the appeal is whether Ecolab has met its onus to demonstrate use of the Mark during the relevant t\n\n### Standard of Review\nGATOR product. II. Issues and Standard of Review [8] The only issue in the appeal is whether Ecolab has met its onus to demonstrate use of the Mark during the relevant three-year p\n\n### Legal Analysis\nThe court's analysis focuses on: evant three-year period. III. Analysis [12] Subsection 4(1) of the Act defines “use” in association with “goods” as follows: When deemed to be used Quand une marque de commerce est réputée employée 4 (1) A trademark is deemed to be used in association with goods if, at the time of the transfer of the property in or possession of\n\n### Precedential Value\nThis Federal Court decision has persuasive value for similar cases before the court and provides guidance to the Immigration and Refugee Board on the proper interpretation of law and procedural requirements. While not binding on other Federal Court judges, it establishes a precedent that will often be followed for consistency."}
{"prompt": "Analyze this Federal Court of Appeal of Canada decision and explain its precedential value for immigration cases:\n\nCanada (Attorney General) v. Rushwan Court (s) Database Federal Court of Appeal Decisions Date 2023-05-31 Neutral citation 2023 FCA 118 File numbers A-183-20 Decision Content Date: 20230531 Docket: A-183-20 Citation: 2023 FCA 118 CORAM: STRATAS J.A. RENNIE J.A. MACTAVISH J.A. BETWEEN: ATTORNEY GENERAL OF CANADA Applicant and ALYM RUSHWAN Respondent Heard at Ottawa, Ontario, on January 13, 2022. Judgment delivered at Ottawa, Ontario, on May 31, 2023. REASONS FOR JUDGMENT BY: THE COURT Date: 20230531 Docket: A-183-20 Citation: 2023 FCA 118 CORAM: STRATAS J.A. RENNIE J.A. MACTAVISH J.A. BETWEEN: ATTORNEY GENERAL OF CANADA Applicant and ALYM RUSHWAN Respondent REASONS FOR JUDGMENT BY THE COURT [1] This is an application for judicial review of a decision of the Federal Public Sector Labour Relations and Employment Board (2020 FPSLREB 66) allowing a grievance brought by the respondent employee, Alym Rushwan, against his employer, Transport Canada. After his employer denied his request to be designated for standby duties, the respondent filed the grievance before the Board under paragraph 209(1)(a) of the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 2 (the Act). The Board found that, based on its understanding of the collective agreement’s relevant clauses, the employer had failed to equitably distribute the standby duties requested by the respondent as required by the agreement. [2] The interpretation of collective agreements is “the heartland of [the Board’s] expertise”, and its decisions on such matters are owed deference on an application for judicial review (Canada (Attorney General) v. Fehr, 2018 FCA 159, 296 A.C.W.S. (3d) 170 at para. 4). The Board’s decision accordingly attracts reasonableness review, in which this Court will only intervene where it encounters a fatal flaw that is central to the merits of the decision (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 100 [Vavilov]). [3] A reasonable decision is based on an internally coherent and rational chain of analysis that is justified in relation to the relevant facts and law (Vavilov at para. 85). This standard signals two types of fundamental flaws that may show a decision to be unreasonable: the absence of reasoning that is both rational and logical, or the lack of a justifying constellation of law and facts relevant to the decision (Vavilov at paras. 102 and 105). Put simply, to characterize a decision as unreasonable, a reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, transparency and intelligibility (Vavilov at para. 100). Two such shortcomings are present in the Board’s decision. [4] The first shortcoming, in which the Board adopted an incorrect approach to reviewing the employer’s decision, is not fatal to the decision. What is fatal, however, is the failure of the Board to explain how clause 30.02 of the collective agreement imposes an obligation on the employer to provide training to unqualified employees so that they may become qualified to join a particular standby list. Specifically, the Board found that the respondent was not qualified for the standby duties that he requested, but that the employer was nevertheless obligated to take positive measures to provide him the training necessary to become qualified. This conclusion effectively imposes a new duty on the employer under the collective agreement to distribute standby duties equitably among both qualified and unqualified employees. This interpretation is unsupported by the Board’s reasons and the text of the collective agreement. [5] The circumstances that led to the respondent’s filing of a grievance may be briefly stated. [6] The respondent was a TI-07 Marine Safety Inspector in the Compliance and Enforcement Unit with Transport Canada. In this role, the respondent facilitated the docking of ships at the Port of Vancouver. Before certain organizational changes, which are described below, the Vancouver office of Transport Canada consisted of five units: Compliance and Enforcement, Cargo Services, Technical Services, Inspection Services, and Office of Boating Safety. Each unit had a different mandate and was led by a different manager. [7] In the respondent’s unit, the Compliance and Enforcement Unit, marine safety inspectors were responsible for regulatory compliance, responding to marine emergencies, and performing pollution investigations. The Cargo Services Unit, in contrast, consisted of port wardens responsible for ship cargo services and loading. Port wardens issue certifications for cargo loading and for fitness to proceed to sea, and are qualified to inspect different types of cargo including grain, concentrate and timber. They also investigate complaints and work stoppages under the Canada Labour Code, R.S.C., 1985, c. L-2. [8] Prior to 2012, Transport Canada’s Pacific Region had two separate standby lists, distinguished by different training and certification requirements, to address specific port-related after-hours work. These included the Port Warden Standby List, assigned to the Cargo Services Unit, and the Second Standby List, assigned to the Compliance and Enforcement Unit. As a marine safety inspector, the respondent was listed on the Second Standby List. On July 10, 2012, Transport Canada announced its plan to eliminate the Second Standby List and proceed with only one standby system in the Pacific Region, namely, the Port Warden Standby List. [9] At the time that the Second Standby List for the Compliance and Enforcement Unit was eliminated, the respondent was not authorized to carry out cargo inspections as required for the port warden position; he lacked both the requisite training as well as the required formal recognition of competence by the employer. The respondent was therefore not eligible to be added to the Port Warden Standby List. This fact is uncontested. [10] The respondent nevertheless emailed the manager of the Cargo Services Unit seeking to be included on that unit’s Port Warden Standby List, which by then was the only standby list in the Pacific Region. In a responding email, the manager refused the respondent’s request, stating that the unit already had sufficient staff on its standby list based on the unit’s operational requirements. The substance of this response figures prominently in the Board’s reasoning, a point to which we will return. [11] Six months later, on December 17, 2012, the former Compliance and Enforcement Unit and the former Cargo Services Unit integrated into one division called the Compliance, Enforcement and Cargo Services Division. That same day, the manager of the new Compliance, Enforcement and Cargo Services Division emailed all staff in the division indicating that training for port warden positions would begin the next day. [12] The respondent began the training required to become qualified as a port warden, and was added to the Port Warden Standby List on April 29, 2013. The respondent’s grievance was therefore a confined claim for retroactive pay for the period of time during which he was unqualified to be on the Port Warden Standby List. [13] We turn now to the Board’s decision. [14] The Board reviewed Transport Canada’s evidence with respect to the department’s new budgetary constraints, noting that Transport Canada was required to reduce its spending by 10.7 percent over three years and that abolishing the Second Standby List had been considered an “important cost-saving measure” within the department (Reasons at para. 69). The Board also observed that budget cuts had motivated the merger of the two units that created the new Compliance, Enforcement and Cargo Services Division (Reasons at para. 70). [15] The Board then considered whether the employer had breached clause 30.02 of the collective agreement by not placing the respondent on the Port Warden Standby List. Article 30 of the collective agreements reads as follows: ARTICLE 30 STANDBY 30.01 Where the Employer requires an employee to be available on standby during off-duty hours, such employee shall be compensated at the rate of one-half (1/2) hour for each four (4) hour period or part thereof for which the employee has been designated as being on standby duty. 30.02 An employee designated by letter or by list for standby duty shall be available during his or her period of standby at a known telephone number and be available for return to work as quickly as possible if called. In designating employees for standby, the Employer will endeavour to provide for the equitable distribution of standby duties. 30.03 No standby payment shall be granted if an employee is unable to report for work when required. 30.04 An employee on standby who is required to report for work shall be compensated in accordance with clause 29.01. 30.05 Other than when required by the Employer to use a vehicle of the Employer for transportation to a work location other than the employee’s normal place of work, time spent by the employee reporting to work or returning to his or her residence shall not constitute time worked. 30.06 (a) Payments referred to in clauses 30.01 and 30.04 shall be compensated in cash except where, upon request of an employee and with the approval of the Employer, or at the request of the Employer and the concurrence of the employee, the payment may be compensated in equivalent leave with pay. (b) Compensatory leave with pay not used by the end of a twelve (12) month period to be determined by the Employer will be paid for in cash at the employee’s hourly rate of pay as calculated from the classification prescribed in the certificate of appointment of his or her substantive position at the end of the twelve (12) month period. [16] The Board concluded that, although the respondent was ineligible for inclusion on the Port Warden Standby List due to his insufficient qualifications, the employer was nevertheless obligated to strive for an equitable distribution of standby duties by “address[ing] and possibly overcom[ing]” the respondent’s ineligibility (Reasons at para. 178). Relying on clause 30.02 of the collective agreement—and highlighting the clause’s specification that the employer “will endeavour” to provide for an equitable distribution of standby duties—the Board determined that the employer was obligated to take positive action and provide the approximately four months of training required to secure the respondent’s spot on the Port Warden Standby List (Reasons at paras. 179, 183, and 194). [17] Although it accepted that the budgeting pressures that drove Transport Canada’s reorganization were genuine (Reasons at para. 167), the Board based its conclusion on the employer’s email response to the respondent’s request to be added to the Port Warden Standby List. The employer’s initial reason for rejecting the respondent’s request was not based on the economic pressures at the time, nor was it based on the fact that the respondent was not authorized to inspect cargo; rather, the employer’s reason was based on the Cargo Services Unit’s operational needs. The Board found that this justification did not represent a legitimate operational objective (Reasons at para. 181). [18] The Board also noted that the employer’s decision to refuse to add someone to the Port Warden Standby List would not have saved Transport Canada any money (Reasons at para. 182). The Board reasoned that the standby duties had to be performed and the cost incurred in any event; the number of people on the list would not affect the department’s overall expenditures (Reasons at para. 182). In the Board’s view, the employer did not provide a reasonable and credible explanation for its refusal to add the respondent to the list; the Board went on to hold that, in denying the respondent’s request to be designated for standby duty because there was no operational need for his labour, the employer had not made the necessary effort to provide for an equitable distribution of standby duties as required by clause 30.02 (Reasons at para. 193). [19] This led to the first shortcoming. [20] The Board focused on the initial reasons offered by the employer for its decision to deny the respondent’s request. Indeed, the Board expressly considered itself as sitting in review of the employer’s decision as opposed to conducting a de novo hearing (Reasons at para. 174). [21] A hearing before an adjudicator of a grievance must, however, proceed as a de novo hearing (Patanguli v. Canada (Citizenship and Immigration), 2015 FCA 291, 486 N.R. 308 at para. 38). The Board’s task was therefore to interpret and apply the collective agreement to assess the employer’s decision; instead, the Board examined the reasons originally offered by the employer in denying the respondent’s request via email. The Board’s role on adjudication under paragraph 209(1)(a) of Act is not to assess the substantive reasonableness of an employer’s initial justification or explanation for its decision as if the Board were sitting in a judicial review capacity. The Board’s mandate under this provision, rather, is to determine whether the employer breached the collective agreement based on a de novo assessment of the relevant facts, law and argument. [22] This principle is well established in the Board’s jurisprudence. In Scanlon and Christianson v. Canada Revenue Agency, 2009 PSLRB 42, 97 C.L.A.S. 297 [Scanlon], the Board held that it would not consider whether an employer had sufficiently justified its decision to the affected employees (Scanlon at para. 49): Ultimately, as a legal matter, an employer is required to prove the reasonableness of its decision to an adjudicator and not the employees at the worksite. An explanation to employees about the reasons for a change may be important for the morale of a workplace, but it is not something that involves the Board. [23] Accordingly, the Board misunderstood its role on adjudication as one that required it to consider the legitimacy of the employer’s justification for refusing to add the respondent to the Port Warden Standby List. [24] Although the Board’s focus was misplaced, “[i]t would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep” (Vavilov at para. 100). As previously noted, any flaws or shortcomings capable of rendering the decision unreasonable must be sufficiently central to the merits of the decision (Vavilov at para. 100). Here, the Board’s reliance on the employer’s email does not strike at the core of the outcome, and does not, on its own, warrant setting aside the decision. [25] We turn to the second shortcoming in the Board’s reasons. It is far more significant and strikes at the core of the outcome. [26] This grievance was referred to adjudication under paragraph 209(1)(a) of the Act for the interpretation or application of a provision of the collective agreement. The Board’s role in this case was therefore limited to considering the terms of the collective agreement and their application. Specifically, the Board was required to determine whether the employer’s refusal to add the respondent to the Port Warden Standby List constituted a violation of the collective agreement. [27] The Board misconstrued the collective agreement by failing to consider, interpret and apply the whole of clause 30.02, which applies to employees designated “by letter or by list” for standby duty. The Board improperly based its reasoning on the last sentence in the clause, which states that when designating employees for standby, the employer must endeavour to provide for an equitable distribution of standby duties. [28] In so doing, the Board omitted the first step of the legal analysis, which required it to determine whether the respondent had been designated “by letter or by list” for the Port Warden Standby List. The Board’s failure to examine the first part of the clause led to an unreasonable interpretation of the latter portion of the clause. Again, it is uncontested that the respondent could not have been placed on the Port Warden Standby List at the time of his request. [29] During the period of time for which the respondent sought retroactive pay due to his allegedly wrongful exclusion from the Port Warden Standby List, the respondent was not qualified for port warden standby periods. As a result, the employer cannot have been required to equitably distribute standby duties to him pursuant to clause 30.02. Under the Board’s interpretation of the clause, management’s discretion to designate employees by letter or by list becomes redundant, because the employer would have no choice but to “endeavour” to distribute standby duties equitably to all employees, qualified or not. [30] Consequently, the Board rendered a decision that effectively amended the collective agreement. The Board imposed an obligation on the employer to provide training to qualify the respondent for duties that he was not otherwise required to perform in his position. [31] We reiterate that paragraph 209(1)(a) of the Act limits the Board’s jurisdiction to the interpretation or application of a provision of the collective agreement. The Act does not authorize the Board to create new terms and obligations when interpreting or applying a collective agreement. Here, nothing in the collective agreement can be read as imposing an obligation on the employer to train employees to qualify them for duties that they are not required to perform in the position they hold. The Board nevertheless introduced such an obligation into the agreement. [32] The Board reached this conclusion having considered its earlier decision in Scanlon, in which an adjudicator interpreted a provision identical to clause 30.02. In that case, the adjudicator held that the employer was required to make considerable effort to achieve the objective of the equitable distribution of standby duties (Reasons at paras. 163-164, citing Scanlon at para. 32). The Board concluded that, according to the adjudicator’s conclusion in Scanlon, Transport Canada must also have had a positive obligation to provide for an equitable distribution of standby duties under clause 30.02 by ensuring the respondent’s inclusion on the Port Warden Standby List. [33] This was the extent of the Board’s interpretation of clause 30.02. The Board did not consider whether any positive obligation under the clause applied to unqualified employees, and instead simply assumed that the employer’s obligation extended to the respondent (Reasons at paras. 119-125). This assumption is not one that can be made without explanation, as it is unsupported by either the text of the collective agreement or the decision in Scanlon. [34] The question that had been before the Board in Scanlon asked whether removing senior employees from a standby list, while leaving junior employees who were paid at lower rates on the list, violated the applicable collective agreement. There was no doubt in Scanlon that the provision applied to the grievors involved in the matter. The same cannot be said here. By relying almost exclusively on the adjudicator’s interpretation of clause 30.02 in that case, the Board failed to consider whether the clause applied to an employee who was not qualified to be on a standby list at the time in issue. [35] The Board’s unquestioning reliance on Scanlon, combined with its failure to consider whether clause 30.02 applied to both qualified and unqualified employees, renders the decision unreasonable. The Board failed to respond to the employer’s central argument that the clause could not apply to employees who were not qualified to be placed on the Port Warden Standby List. This omission constitutes a gap in a determinative point of the analysis. Responsive reasons, free of such gaps, are necessary to show that the decision maker actually listened to the parties and took into account the key issues or central arguments. Although decision makers are not expected to respond to every possible argument, the failure to consider key issues or central arguments raised by the parties may call into question whether the decision maker was alert to the matter before it (Vavilov at paras. 127-128). [36] A principled approach to reasonableness review puts reasons first (Vavilov at para. 84). Although administrative decisions need not be faultless in order to be upheld on judicial review, they must nevertheless be justified, intelligible and transparent (Vavilov at para. 95). In this case, it is impossible to discern a chain of analysis supporting the conclusion that clause 30.02 required the employer to assign standby duties to the respondent while he was not qualified to perform those duties. This amounts to a fatal flaw in the Board’s logic on a critical point of its analysis, rendering its decision unreasonable. [37] This application for judicial review will be allowed. The decision of the Board will be set aside. The matter will be remitted to the Board for redetermination. “David Stratas” J.A. “Donald J. Rennie” J.A. “Anne L. Mactavish” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-183-20 STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. ALYM RUSHWAN PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: January 13, 2022 REASONS FOR JUDGMENT BY THE COURT: stratas j.a. rennie j.a. mactavish j.a. DATED: May 31, 2023 APPEARANCES: Karl Chemsi Marie-France Boyer For The Applicant Andrew Astritis For The Respondent SOLICITORS OF RECORD: Shalene Curtis-Micallef Deputy Attorney General of Canada For The Applicant Raven, Cameron, Ballantyne & Yazbeck LLP Ottawa, Ontario For The Respondent", "response": "## Analysis of Court Decision: Canada (Attorney General) v. Rushwan\n\n### Key Issues\nand took into account the key issues or central arguments. Although decision makers are not expected to respond to every possible argument, the failure to consider key issues or ce\n\n### Standard of Review\ndecision accordingly attracts reasonableness review, in which this Court will only intervene where it encounters a fatal flaw that is central to the merits of the decision (Canada\n\n### Legal Analysis\nThe court's analysis focuses on: oherent and rational chain of analysis that is justified in relation to the relevant facts and law (Vavilov at para. 85). This standard signals two types of fundamental flaws that may show a decision to be unreasonable: the absence of reasoning that is both rational and logical, or the lack of a justifying constellation of law a\n\n### Precedential Value\nAs a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation."}
{"prompt": "Explain the purpose and application of this section of Asian Infrastructure Investment Bank Agreement Act:\n\n# Asian Infrastructure Investment Bank Agreement Act SC 2017, c 33, s 176 An Act to provide for the membership of Canada in the Asian Infrastructure Investment Bank Assented to 2017-12-14 ### Short title 1 This Act may be cited as the Asian Infrastructure Investment Bank Agreement Act. ### Definitions 2 The following definitions apply in this Act. *Agreement* means the Agreement respecting the Asian Infrastructure Investment Bank set out in the schedule. (accord) *Bank* means the Asian Infrastructure Investment Bank. (Banque) ### Approval of Agreement 3 The Agreement is approved. ### Acceptance of Agreement and implementation 4 The Governor in Council may authorize the acceptance of the Agreement on behalf of Canada and take any measure that is necessary in the opinion of the Governor in Council, including making appointments, orders and regulations, for carrying out the obligations or exercising the rights of Canada under the Agreement, and in particular for granting the privileges and immunities set out in the Agreement. ### Amendment to schedule 5 The Governor in Council may, by order, amend the schedule to take into account amendments to the Agreement that are consistent with the purpose and functions of the Bank. ### Depository 6 The Bank of Canada is the depository in Canada for the assets of the Bank. ### Payments out of Consolidated Revenue Fund — Initial subscription 7 The Minister of Finance may make payments out of the Consolidated Revenue Fund to the Bank in respect of Canada’s initial subscription of shares in an aggregate amount not more than US$ 375,000,000, or any greater amount that is specified in an appropriation Act.", "response": "## Analysis of LEGISLATION-FED: Asian Infrastructure Investment Bank Agreement Act\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nWhen applying this legislation to immigration cases, practitioners should consider both the explicit requirements and the underlying policy objectives. The provisions must be interpreted in light of the Canadian Charter of Rights and Freedoms, international obligations, and relevant jurisprudence. Particular attention should be paid to procedural fairness requirements and the proper exercise of discretionary authority."}
{"prompt": "What specific procedures does this Federal regulations from the Canadian government establish for immigration processes?\n\n# Pitt Meadows Airport Zoning Regulations CRC, c 102 Regulations Respecting Zoning at Pitt Meadows Airport Enabling authority: AERONAUTICS ACT ## Short Title 1 These Regulations may be cited as the Pitt Meadows Airport Zoning Regulations. ## Interpretation 2 In these Regulations, *airport* means Pitt Meadows Airport, in the Corporation of the District of Pitt Meadows, in the Province of British Columbia; (aéroport) *airport reference point* means the point determined in the manner set out in Part I of the schedule; (point de repère de l’aéroport) *approach surface* means an imaginary inclined plane extending upward and outward from each end of a strip along and at right angles to the projected centre line thereof which approach surface is more particularly described in Part III of the schedule; (surface d’approche) *Minister* means the Minister of Transport; (ministre) *outer surface* means an imaginary surface located above and in the immediate vicinity of the airport, which outer surface is more particularly described in Part IV of the schedule; (surface extérieure) *strip* means the rectangular portion of the landing area of the airport, including the runway prepared for the take-off and landing of aircraft in a particular direction, which strip is more particularly described in Part V of the schedule; (bande) *transitional surface* means an imaginary inclined plane extending upward and outward from the lateral limits of a strip and its approach surfaces, which transitional surface is more particularly described in Part VI of the schedule. (surface de transition) 3 For the purpose of these Regulations, the airport reference point is deemed to be 9 feet above sea level. ## Application 4 These Regulations apply to all the lands and lands under water, including public road allowances, adjacent to or in the vicinity of the airport, the outer limits of which are described in Part II of the schedule, other than such lands as from time to time form part of the airport. ## General 5 No person shall erect or construct, on any land or any land under water to which these Regulations apply, any building, structure or object or any addition to any existing building, structure or object, the highest point of which will exceed in elevation at the location of that point any of the surfaces hereinafter set out that project immediately over and above the surface of the land at that location, namely, (a) the approach surfaces; (b) the outer surface; or (c) the transitional surfaces. ## Natural Growth 6 Where an object of natural growth on any land to which these Regulations apply exceeds in elevation any of the surfaces referred to in section 5, the Minister may make a direction that the owner or occupier of the land on which that object is growing remove the excessive growth. 7 [Revoked, SOR/81-201, s. 1]", "response": "## Analysis of REGULATIONS-FED: Pitt Meadows Airport Zoning Regulations\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nThese regulations provide specific implementation details for broader legislative frameworks. Practitioners should ensure strict compliance with procedural requirements, timelines, and documentation standards. The regulations must be interpreted consistent with their enabling legislation and may be subject to challenge if they exceed the authority granted by the statute."}
{"prompt": "Analyze this Refugee Protection Division decision from the Immigration and Refugee Board of Canada and explain how it applies refugee definition:\n\nImmigration and Refugee Board Refugee Protection Division Commission de l'immigration et du statut de réfugié Section de la protection des réfugiés RPD File No. / Nº de dossier de la SPR : MA6-00156 Private Proceeding Huis Clos Claimant(s) Demandeur(e)s d'asile XXXXX XXXXX XXXXX Date(s) of Hearing Date(s) de l'audience May 8, 2008 Place of Hearing Lieu de l'audience Montréal, Quebec Date of Decision Date de la décision June 6, 2008 Panel Tribunal José wa Tshisungu Tshisungu Claimant's Counsel Conseil du demandeur d'asile Me Kathleen Gaudreau Tribunal Officer Agent du tribunal Donna Ramacieri [Filing of documents] Designated Representative Représentant désigné N/A Minister's Counsel Conseil du ministre Isabelle Bourgeau [1] XXXXX XXXXX XXXXX is a citizen of Haiti who is claiming refugee protection pursuant to section 961 and subsection 97(1)2 of the Immigration and Refugee Protection Act (the Act). [2] In support of his claim, he maintains that he was a police officer in Haiti. He alleges that in the line of duty, he was attacked, threatened with death, and was the victim of an assassination attempt by supporters of former president Jean Bertrand Aristide. The incidents allegedly occurred between XXXXX 2000 and XXXXX 2002. Fearing for his life, the claimant fled his country. ANALYSIS Identity [3] The claimant established his identity through his testimony and through a photocopy of his Haitian passport. The panel is satisfied with it. Exclusion of the claimant [4] The Minister's representative intervened in this case to request the claimant's exclusion under articles 1F (a) and (c) of the Convention. She alleged that, given his previous status as a police officer in Haiti from 1996 to 2002 and given the existence of documentary evidence showing that the Haitian police committed human rights violations, there are serious reasons for considering that the claimant may have been involved in or have been complicit in the commission of crimes against humanity or in acts that are contrary to the purposes and principles of the United Nations. [5] In response to these arguments, the claimant alleged that he held an administrative position with the Haitian police and did not have a high rank. He also alleged that there were no human rights violations at the locations where he worked. He concluded that he is innocent because he did not know anything about human rights violations in Haiti until he arrived in Canada. Issue(s) [6] Is the Haitian national police an organization directed to a limited, brutal purpose? [7] Do the activities of an individual who volunteers and pursues a career in an organization that commits human rights violations give serious reasons to consider that he could be complicit? Complicity factors [8] The jurisprudence sets out many factors to consider on the question of an individual's complicity in human rights violations. [9] In the instant case, we will consider six factors. Nature of the organization [10] The claimant was a member of the Haitian national police. The documentary evidence indicates that this organization is a state apparatus that Haiti established to ensure public order. The panel is of the opinion that any sovereign state has the right to create positions for the purpose of maintaining order. The panel concludes that it is not an organization directed to a limited, brutal purpose. Recruitment method and position held [11] The claimant willingly joined the Haitian national police. He served as a XXXXX at XXXXX, XXXXX and XXXXX XXXXX. He was promoted from XXXXX to XXXXX XXXXX XXXXX. [12] When questioned about his actual duties, he stated that he did two things: a) XXXXX b) XXXXX [13] The panel is of the opinion that it is a position of importance for two reasons. First, it enabled him to gather information on crime in the areas where he was working. Second, he exercised authority in assigning duties to police officers who were to report on their activities to him for assessment. Length of service in the organization [14] The claimant served for six years at several locations. The panel is of the opinion that it was enough time to immerse himself into and to understand the culture of the Haitian national police. The panel concludes that the claimant acquired a certain amount of information from this experience. Knowledge of human rights violations [15] The documentary evidence, particularly Exhibits M-3, M-6, M-10, M-20, M-38, P-37 and P-38, show that human rights violations were committed during the period when the claimant was a police officer in Haiti. [16] When questioned about his knowledge of the abuses, he alleged that he did not commit such acts where he worked, and furthermore, that he had not heard of such acts in Haiti. The panel cannot endorse this statement for the following reasons: [17] First, as a citizen, the claimant is able to analyze events and read. He holds a diploma (P-29) from the XXXXX XXXXX XXXXX XXXXX XXXXX [XXXXX XXXXX XXXXX XXXXX], which could have led him to a degree in XXXXX. In other words, he is an informed individual who is trying to plead wilful blindness. [18] Second, his duties led him to write many reports and talk with police officers. In the circumstances, he could not have been unaware of XXXXX abuses in Haiti. [19] Third, in Exhibit P-20, which was filed by the claimant, the author clearly mentions that he had some interesting conversations with the claimant as the person responsible for investigating police abuses. [20] When questioned about this exhibit, which contradicts his claim of ignorance, the claimant stated that their discussions were mainly about agronomy and that the author of Exhibit P-20 did not discuss any issues of law with him. [21] The panel rejects this denial of evidence filed by the claimant himself and concludes that the truth is quite opposite. Decision to resign from the police [22] The claimant never resigned from the police to distance himself from the abuses that were being committed by the organization. Questioned about this issue when confronted with Exhibits M-6 and M-30, he stated [translation] \"It comes as a surprise to me that there were abuses. I was never aware of this. Police officers are professionals.\" The panel rejects his explanation on the grounds that it is implausible based on the claimant's level of education and the responsibilities he was assigned. [23] Consideration of all the factors, except the nature of the organization, attests to the claimant's complicity in the commission of human rights abuses by the police in Haiti. In fact, having willingly performed duties that gave him an overall picture of the situation, he remained in the Haitian national police while he was aware of the abuses that he never chose to dissociate himself from. He should have done so by resigning from the organization. CONCLUSION [24] The panel determines that the claimant is excluded from the refugee protection system. José wa Tshisungu Tshisungu José wa Tshisungu Tshisungu June 6, 2008 REFUGEE PROTECTION DIVISION / OCCUPATIONS / MILITARY GOVERNMENT / MINISTER'S INTERVENTION / EXCLUSION CLAUSES / HUMAN RIGHTS VIOLATIONS / VOLUNTARY REPATRIATION / ACCOMPLICES / MALE / NEGATIVE / HAITI 1 The Immigration and Refugee Protection Act, S.C. (2001), c. 27, reads in part as follows: 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 2 The Immigration and Refugee Protection Act, S.C. (2001), c. 27, reads in part as follows: 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. --------------- --------------- --------------- --------------- RPD File No. / Nº de dossier de la SPR : MA6-00156 5", "response": "## Analysis of Refugee Decision: MA6-00156\n\n### Key Issues\nibit P-20 did not discuss any issues of law with him. [21] The panel rejects this denial of evidence filed by the claimant himself and concludes that the truth is quite opposite. D\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: he claimant fled his country. ANALYSIS Identity [3] The claimant established his identity through his testimony and through a photocopy of his Haitian passport. The panel is satisfied with it. Exclusion of the claimant [4] The Minister's representative intervened in this case to request the claimant's exclusion under articles 1F\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "Explain how these federal regulations implement immigration legislation:\n\n# Motor Vehicle Safety Regulations CRC, c 1038 Motor Vehicle Safety Regulations Enabling authority: MOTOR VEHICLE SAFETY ACT 1 [Repealed, SOR/2020-22, s. 2] ## Interpretation 2 (1) In these Regulations, *AATCC* means the American Association of Textile Chemists and Colorists; (AATCC) *accessory mass* [Repealed, SOR/2008-258, s. 1] *Act* means the Motor Vehicle Safety Act; (Loi) *adjacent seat* means a designated seating position so located that a portion of its occupant space is not more than 25.4 cm from an emergency exit for a distance of at least 38.1 cm measured horizontally and parallel to the emergency exit; (siège adjacent) *adjustment hardware* means hardware designed for adjusting the size of a seat belt assembly to fit the user, including such hardware as may be integral with a buckle, a retractor or attachment hardware; (pièces de réglage) *agricultural commodity trailer* [Repealed, SOR/99-357, s. 1] *aiming reference plane* [Repealed, SOR/96-366, s. 1] *air bag* means an inflatable automatic occupant protection system that may be deployed when a collision occurs; (sac gonflable) *air brake system* means a brake system that uses air as a medium for transmitting pressure or force from the driver control to the service brake, including an air-over-hydraulic brake subsystem, but does not include a system that uses compressed air or vacuum only to assist the driver in applying muscular force to hydraulic or mechanical components; (système de freinage à air comprimé) *all-terrain vehicle* means a wheeled or tracked vehicle, other than a snowmobile or work vehicle, designed primarily for recreational use or for the transportation of property or equipment exclusively on undeveloped road rights of way, marshland, open country or other unprepared surfaces; (véhicule tout terrain) *ambient temperature* means the surrounding air temperature measured at such a distance from a vehicle under test that the temperature is not significantly affected by heat from the vehicle; (température ambiante) *American compliance label* means a label referred to in section 30115, chapter 301, title 49 of the United States Code that is applied to a vehicle by a manufacturer that certifies that the vehicle conforms to the federal laws of the United States that are applicable on the date of manufacture; (étiquette de conformité américaine) *American specifications vehicle* [Repealed, SOR/95-147, s. 1] *ANSI* means the American National Standards Institute; (ANSI) *ANS Z26* [Repealed, SOR/94-717, s. 1] *ANSI Z26 Safety Code — 1990* means the American National Standard for Safety Glazing Materials for Glazing Motor Vehicles and Motor Vehicle Equipment Operating on Land Highways — Safety Code, Standard ANSI/SAE Z26.1 — 1990, published November 1990 and reprinted February 1992; (code de sécurité ANSI Z26 — 1990) *ANSI Z26 Safety Standard — 1996* means the American National Standard for Safety Glazing Materials for Glazing Motor Vehicles and Motor Vehicle Equipment Operating on Land Highways — Safety Standard, Standard ANSI/SAE Z26.1-1996, published on August 11,1997; (norme de sécurité ANSI Z26 — 1996) *anthropomorphic test device* means, except in section 202 of Schedule IV, a representation of a human being used in the measurement of the conditions that a human being would experience in a vehicle when the vehicle is subjected to approved test methods; (dispositif anthropomorphe d’essai) *antilock brake system* or *ABS* means the portion of a service brake system that automatically controls the degree of rotational wheel slip during braking by (a) sensing the rate of angular rotation of the wheels, (b) transmitting signals regarding the rate of wheel angular rotation to one or more controlling devices that interpret those signals and generate responsive controlling output signals, and (c) transmitting those controlling signals to one or more modulators that adjust brake actuating forces in response to those signals; ( dispositif de frein antiblocage ou ABS) *antilock system* [Repealed, SOR/97-200, s. 1] *antique reproduction vehicle* means a vehicle that is designed to be a scaled reproduction of an antique vehicle and (a) may contain contemporary design components, (b) has a motor that produces 8 kW (10.73 bhp) or less, (c) is intended for use exclusively in parades, exhibitions and demonstrations, and (d) bears a label, permanently affixed in a conspicuous position, stating that the vehicle is not to be used for public transportation, but is intended for use in parades, exhibitions and demonstrations; ( réplique d’ancien modèle) *antique vehicle* means a vehicle more than 30 years old that, when restored to a condition comparable to that on the date of its manufacture, retains the original components or incorporates replacement components with original design characteristics; (ancien modèle) *approved* means approved by the Minister; (approuvé) *armour* [Repealed, SOR/2007-180, s. 1] *assembler* [Repealed, SOR/95-147, s. 1] *ASTM* means the American Society for Testing Materials; (ASTM) *attachment hardware* means the hardware designed for securing the webbing of a seat belt assembly to a vehicle; (pièces de fixation) *automatic-locking retractor* means a retractor incorporating adjustment hardware that has a positive self-locking mechanism that is capable, when locked, of withstanding restraint forces; (rétracteur autobloquant) *automatic occupant protection system* means a protective restraining system for an occupant of a vehicle that does not require any deliberate action on the part of the occupant to be activated where that occupant enters, occupies or leaves the vehicle; (dispositif automatique de protection de l’occupant) *auto transporter* means a truck and a trailer designed for use in combination to transport motor vehicles where the truck is designed to carry cargo other than at the fifth wheel and that cargo is to be loaded only by means of the trailer; (porte-autos) *back door* means a door or door system on the back of a motor vehicle through which passengers can enter or leave the vehicle or cargo can be loaded or unloaded, but does not include (a) a trunk lid, or (b) a door or window that is composed entirely of glazing material and whose latches or hinge systems are attached directly to the glazing material; ( porte arrière) *backup system* means a portion of a service brake system, such as a pump, that automatically supplies energy in the event of a primary brake power source failure; (système de secours) *battery charging indicator* means a device showing whether the battery is being charged or discharged; (indicateur de charge) *battery charging tell-tale* means a signal that, when alight, indicates that the battery is not being charged; (témoin de charge) *beam contributor* [Repealed, SOR/96-366, s. 1] *blister* [Repealed, SOR/2007-180, s. 1] *body type* means the general configuration or shape of a vehicle distinguished by the number of doors or windows, cargo carrying features, the roofline (e.g., sedan, fastback, hatchback) or other characteristics; (type de carrosserie) *bonded construction sealed beam headlamp* [Repealed, SOR/96-366, s. 1] *booster cushion* [Repealed, SOR/98-160, s. 1] *booster seat* has the same meaning as in subsection 100(1) of the Motor Vehicle Restraint Systems and Booster Seats Safety Regulations; (siège d’appoint) *brake fluid* [Repealed, SOR/2007-180, s. 1] *brake hose* [Repealed, SOR/2007-180, s. 1] *brake hose assembly* [Repealed, SOR/2007-180, s. 1] *brake hose end fitting* [Repealed, SOR/2007-180, s. 1] *brake power assist unit* means a device installed in a hydraulic brake system that reduces the amount of muscular force that a driver must apply to actuate the system, and that, if inoperative, does not prevent the driver from braking the vehicle by a continued application of muscular force on the service brake control; (unité d’assistance de frein) *brake power unit* means a device installed in a brake system that provides the energy required to actuate the brakes, either directly or indirectly, through an auxiliary device, with driver action consisting only of modulating the energy application level; (unité de servo-frein) *braking interval* means the distance measured from the point of initiation of one brake application to the point of initiation of the next brake application; (intervalle de freinage) *buckle* means a quick-release connector that secures a person in a seat belt assembly or a built-in restraint system; (attache) *built-in booster cushion* [Repealed, SOR/2013-117, s. 1] *built-in booster seat* means a device that (a) is an integral part of a vehicle seat, and (b) is designed to seat a person whose mass is at least 18 kg, to ensure that the seat belt assembly fits properly; ( siège d’appoint intégré) *built-in child restraint system* [Repealed, SOR/2013-117, s. 1] *built-in dual-purpose restraint system* [Repealed, SOR/2013-117, s. 1] *built-in restraint system* means a device that (a) is an integral part of a vehicle seat, and (b) is designed to restrain only a person whose mass is more than 10 kg but not more than 41 kg; ( ensemble intégré de retenue) *bus* means a vehicle having a designated seating capacity of more than 10, but does not include a restricted-use vehicle or trailer; (autobus) *bus trailer* means a vehicle having a designated seating capacity of more than 10 and designed primarily to be drawn behind another vehicle; (remorque-autobus) *C-dolly* means a trailer converter dolly that is equipped with a single axle that is self-steering and with a coupling that is so designed that when the trailer converter dolly is coupled to a towing trailer, the trailer converter dolly cannot pivot horizontally with respect to the towing trailer; (chariot de conversion de type C) *cable reel trailer* means a vehicle designed to be drawn behind another vehicle for the exclusive purpose of carrying a drum or reel of cable; (chariot dérouleur) *cargo-carrying capacity* means the mass that is equal to or less than the result obtained by subtracting from the gross vehicle weight rating the sum of (a) the unloaded vehicle mass, (b) the product obtained by multiplying the designated seating capacity by 54 kg, in the case of a school bus, or by 68 kg, in any other case, and (c) in the case of a vehicle having living or sanitary accommodations, the mass of its fresh water, hot water and propane tanks, but not its waste water tanks, when full; ( capacité de chargement) *chassis-cab* means an incomplete vehicle, other than an incomplete trailer, with a completed occupant compartment that requires only the addition of a cargo-carrying surface, work-performing equipment or a load-bearing component to perform its intended functions; (châssis-cabine) *check digit* means a single number or the letter “X” used to verify the accuracy of the transcription of the vehicle identification number; (unité de contrôle) *child* means a person whose mass is more than 10 kg and not more than 30 kg; (enfant) *child restraint system* [Repealed, SOR/98-160, s. 1] *chipping* [Repealed, SOR/2007-180, s. 1] *CMVSS* is an abbreviation for Canada Motor Vehicle Safety Standard; (NSVAC) *competition car* [Repealed, SOR/2000-182, s. 1] *competition motorcycle* [Repealed, SOR/2000-182, s. 1] *competition snowmobile* [Repealed, SOR/2000-182, s. 1] *competition vehicle* means a vehicle that is designed for use exclusively in closed-course competition and (a) bears a label affixed by the manufacturer stating, in both official languages, that the vehicle is a competition vehicle and is for use exclusively in closed-course competition, or (b) is accompanied by a signed declaration clearly indicating that the vehicle is a competition vehicle and is for use exclusively in closed-course competition; ( véhicule de compétition) *completed vehicle* means a vehicle that needs no further manufacturing operations to perform its intended function, other than the addition of readily attachable components, such as mirrors or tire and rim assemblies, or minor finishing operations such as painting; (véhicule complet) *compliance label* means the label required to be applied to a completed vehicle under section 6 or 6.6; (étiquette de conformité) *compressed natural gas* or *CNG* means natural gas, composed predominantly of methane, compressed at pressures up to 20 680 kPa (3,000 psi); (gaz naturel comprimé or GNC) *contactable surface* [Repealed, SOR/98-160, s. 1] *control* means the part of a device that enables the driver to bring about a change in the state or functioning of a vehicle or vehicle component; (commande) *convertible* means a vehicle that has an A-pillar or windshield peripheral support, the upper portion of which is not joined by a fixed rigid structure to the B-pillar or other rear roof support to the rear of the B-pillar; (décapotable) *CSA* means the Canadian Standards Association; (CSA) *curb mass* means the mass of a vehicle with standard equipment and carrying its maximum capacity of fuel, oil and coolant and includes the mass of any air-conditioning equipment on the vehicle and the amount by which the mass of any optional engine with which the vehicle is equipped exceeds the mass of the standard engine; (masse à vide) *curb weight* means the weight of a vehicle with standard equipment and carrying its maximum capacity of fuel, oil and coolant and includes the weight of any air-conditioning equipment on the vehicle and the amount by which the weight of any optional engine with which the vehicle is equipped exceeds the weight of the standard engine; (poids à vide) *CUSMA* has the meaning assigned by the definition Agreement in section 2 of the Canada–United States–Mexico Agreement Implementation Act; (ACEUM) *custom restraint system for disabled persons* [Repealed, SOR/98-160, s. 1] *cutaway chassis* means an incomplete vehicle that has the back of the cab cut out for the intended installation of a structure that permits access from the driver’s area to the back of the vehicle; (châssis tronqué) *date of manufacture* means the day, month and year on which the main assembly of the vehicle was completed; (date de fabrication) *daytime running lamp* means a lamp that produces a steady-burning light signal intended to improve the visibility of a vehicle from the front and the front sides; (feu de jour) *demountable rim* means a supporting member for a tire or tire and tube assembly, that does not have a permanently attached centre component; (jante amovible) *designated seating capacity* means the designated seating capacity determined in accordance with section 2.3; (nombre désigné de places assises) *designated seating position* means a location in a vehicle that is likely to be used as a seating position and that has a seating surface width of at least 330 mm; (place assise désignée) *disabled person* means a person who, for orthopaedic reasons or because of the person’s build or other physical characteristics, requires a vehicle that has been adapted to accommodate their disability; (personne handicapée) *disc wheel* means a supporting member for a tire or tire and tube assembly, comprising a rim with a dish-shaped component that is permanently attached to the inner circumference of the rim; (roue à disque) *display* means, except in section 101 of Schedule IV, an indicator, a tell-tale or an alphanumeric readout, or a collection of indicators, tell-tales and alphanumeric readouts, on the instrument panel of a vehicle; (affichage) *distributor* [Repealed, SOR/95-147, s. 1] *driver* means the occupant of a vehicle seated immediately behind the steering control system; (conducteur) *driver-operated accelerator control system* means all components of a vehicle, except the fuel metering device, that regulate engine speed in direct response to movement of the driver-operated control and that return the throttle to the idle position upon release of the driver-operated control; (système de commande d’accélération actionné par le conducteur) *ECE* means the United Nations Economic Commission for Europe, Inland Transport Committee; (CEE) *effective projected luminous lens area* [Repealed, SOR/96-366, s. 1] *emergency brake* means a mechanism designed to stop a vehicle after a failure of the service brake system; (frein de secours) *emergency-locking retractor* means a retractor incorporating adjustment hardware that has a locking mechanism that is activated by vehicle acceleration, webbing movement in relation to the vehicle or other automatic action during an emergency, and is capable, when locked, of withstanding restraint forces; (rétracteur à blocage d’urgence) *emergency vehicle* means any fire-fighting vehicle, ambulance, police vehicle or other vehicle that is used for the purpose of an emergency; (véhicule de secours) *enclosed motorcycle* means a motorcycle that (a) has steering handlebars that are completely constrained from rotating in relation to the axle of only one wheel in contact with the ground, (b) is designed to travel on two wheels in contact with the ground, (c) has a minimum driver’s seat height, when the vehicle is unladen, of 650 mm, and (d) has a structure partially or fully enclosing the driver and passenger that is an integral part of the vehicle chassis; ( motocyclette à habitacle fermé) *engine coolant temperature indicator* means a device that presents information concerning the temperature of the coolant; (indicateur de température du liquide de refroidissement) *engine coolant temperature tell-tale* means a signal that, when alight, indicates that the temperature of the engine coolant is above the normal engine running temperature prescribed by the manufacturer; (témoin de température du liquide de refroidissement) *engine type* means a power source distinguished by the fuel utilized, number of cylinders, displacement, net power or other characteristics; (type de moteur) *ERBP* [Repealed, SOR/2007-180, s. 1] *final-stage manufacturer* means a company that performs the manufacturing operations on an incomplete vehicle that turn the incomplete vehicle into a completed vehicle; (fabricant à l’étape finale) *fixed collision barrier* means a device that (a) consists of (i) a structure with a flat, vertical, unyielding impact surface that is of a size sufficient to ensure that no portion of a vehicle striking the surface projects or passes beyond the surface, and (ii) a horizontal approach surface that does not impede vehicle motion during impact and that is of a size sufficient to ensure that a vehicle will be able to attain a stable attitude during its approach to the impact surface, and (b) does not absorb any significant portion of the kinetic energy of a vehicle striking the impact surface; ( barrière fixe pour essais de collision) *flash* means a cycle of automatic activation and deactivation of a lamp that continues until stopped either automatically or manually; (clignotement) *forward control configuration* means a configuration in which more than half of the engine length is rearward of the foremost point of the windshield base and the steering wheel hub is in the forward quarter of the vehicle length; (type à cabine avancée) *free length* [Repealed, SOR/2007-180, s. 1] *front outboard designated seating position* means the driver’s designated seating position and the forwardmost right outboard designated seating position, but does not include a school bus passenger designated seating position; (place assise désignée extérieure avant) *fuel container* means one or more fuel containers with integral valving, pressure relief devices, tubing, hoses and mounting brackets; (réservoir de carburant) *fuel level indicator* means a device that presents information concerning the amount of fuel in the tank; (indicateur de niveau de carburant) *fuel level tell-tale* means a signal that, when alight, indicates that the fuel level is close to zero or that the vehicle is running on its fuel reserve; (témoin de niveau de carburant) *fuel metering device* means the carburetor, fuel injector, fuel distributor or fuel injection pump; (dispositif de dosage du carburant) *fuel spillage* means the fall, flow or run of fuel from a vehicle but does not include wetness resulting from capillary action; (écoulement de carburant) *fuel system* means all components used to store fuel or supply fuel to a vehicle engine; (circuit d’alimentation en carburant) *full trailer*, for the purposes of Technical Standards Document No. 121, Air Brake Systems, means a trailer, except a pole trailer, that is equipped with two or more axles that support the entire weight of the trailer and its load; (remorque complète) *gasoline* [Repealed, SOR/2002-187, s. 1] *glazing material manufacturer* means a person engaged in the business of fabricating, laminating or tempering glazing material; (fabricant de vitrages) *grade* [Repealed, SOR/2007-180, s. 1] *gross axle weight rating* or *GAWR* means the value specified by the vehicle manufacturer as the load-carrying capacity of a single axle system, as measured at the tire-ground interfaces; (poids nominal brut sur l’essieu or PNBE) *gross vehicle weight rating* or *GVWR* means the value specified by the vehicle manufacturer as the loaded weight of a single vehicle; (poids nominal brut du véhicule or PNBV) *H-point* means the mechanically hinged hip point of a manikin that simulates the actual pivot centre of the human torso and thigh, described in SAE Standard J826, Devices for Use in Defining and Measuring Vehicle Seating Accommodation (July 1995); (point H) *H-V axis* [Repealed, SOR/2018-43, s. 1] *hardware*, when used in relation to a seat belt assembly, means any metal or rigid plastic part; (pièces) *head impact area* means the area described in subsection 201(1) of Schedule IV; (zone d’impact de la tête) *headlamp* means a lighting device that produces an upper beam, a lower beam, or both; (projecteur) *headlamp assembly* [Repealed, SOR/2018-43, s. 1] *head restraint* means a device that limits rearward angular displacement of the occupant’s head relative to their torso line; (appuie-tête) *hearse* means a vehicle that contains only one row of occupant seats, is designed exclusively for transporting a body and casket and is equipped with features to secure a casket in place during the operation of the vehicle; (corbillard) *heavy duty vehicle* [Repealed, SOR/2001-35, s. 1] *heavy hauler trailer* means a trailer that has (a) brake lines designed to adapt to separation or extension of the vehicle frame, or (b) a body that consists of only a platform the primary cargo-carrying surface of which is not more than 101.6 cm (40 inches) above the ground in an unloaded condition, but may include sides that are designed for easy removal and a permanent front end structure; ( remorque lourde) *high-pressure portion of the fuel system* means, for a vehicle that uses LPG or CNG as a source of energy for its propulsion, all the components of the fuel system from and including the fuel container to, but not including, the first stage regulator; (partie haute pression du circuit d’alimentation en carburant) *hub* means a rotating member that provides for mounting of disc wheels; (moyeu) *hydraulic brake system* means a system that uses hydraulic fluid as a medium for transmitting force from a service brake control to the service brake, and that may incorporate a brake power assist unit or a brake power unit; (système de freinage hydraulique) *hydraulic system mineral oil* [Repealed, SOR/2007-180, s. 1] *idle position* means the position of the throttle at which it first comes in contact with an engine idle speed control appropriate for existing conditions according to the manufacturers’ recommendations respecting engine speed adjustments for a cold engine, air conditioning, emission control and throttle setting devices; (position de ralenti) *imported used vehicle* [Repealed, SOR/92-173, s. 1] *importer* [Repealed, SOR/95-147, s. 1] *incomplete trailer* means a vehicle that is capable of being drawn and that consists, at a minimum, of a chassis structure and suspension system but that needs further manufacturing operations to become a completed vehicle; (remorque incomplète) *incomplete vehicle* means a vehicle (a) that is capable of being driven and that consists, at a minimum, of a chassis structure, power train, steering system, suspension system and braking system in the state in which they are to be part of the completed vehicle, but requires further manufacturing operations to become a completed vehicle, or (b) that is an incomplete trailer; ( véhicule incomplet) *incomplete vehicle manufacturer* means a company that manufactures an incomplete vehicle by assembling components none of which, taken separately, constitutes an incomplete vehicle; (fabricant de véhicules incomplets) *indicator* means the part of an instrument that shows the quantity of the physical characteristic that the instrument is designed to sense; (indicateur) *infant* means a person who is unable to walk unassisted and whose mass is not more than 10 kg; (bébé) *infant restraint system* [Repealed, SOR/98-160, s. 1] *information label* means the label required to be applied to an incomplete vehicle under section 6.2 or 6.4; (étiquette informative) *information readout display* [Repealed, SOR/93-31, s. 1] *initial brake temperature* [Repealed, SOR/99-357, s. 1] *inspector* [Repealed, SOR/95-147, s. 1] *integral headlamp aiming device* [Repealed, SOR/96-366, s. 1] *intermediate manufacturer* means a company, other than an incomplete vehicle manufacturer or final-stage manufacturer, that performs manufacturing operations on an incomplete vehicle; (fabricant intermédiaire) *IRHD* [Repealed, SOR/2007-180, s. 1] *leaded gasoline* means gasoline that contains more than (a) 0.06 grams of lead per Imperial gallon (0.013 grams per litre), or (b) 0.006 grams of phosphorous per Imperial gallon (0.0013 grams per litre); ( essence au plomb) *light duty vehicle* [Repealed, SOR/2001-35, s. 1] *lightly loaded vehicle weight* [Repealed, SOR/99-357, s. 1] *light source* [Repealed, SOR/96-366, s. 1] *light-truck tire* or *LT tire* means a tire designated by its manufacturer as primarily intended for use on lightweight trucks or multi-purpose passenger vehicles; (pneu pour camion léger) *limited-speed motorcycle* means a motorcycle that (a) has steering handlebars that are completely constrained from rotating in relation to the axle of only one wheel in contact with the ground, (b) has a maximum speed of 70 km/h or less, (c) has a minimum driver’s seat height, when the vehicle is unladen, of 650 mm, and (d) does not have a structure partially or fully enclosing the driver and passenger, other than that part of the vehicle forward of the driver’s torso and the seat backrest; ( motocyclette à vitesse limitée) *line* means the name that a manufacturer applies to a family of vehicles within a make that have a degree of commonality of body, chassis, cab type or other features of construction; (ligne) *liquefied petroleum gas* or *LPG* means a hydrocarbon product that meets National Standard of Canada CAN/CGSB-3.14-M88, Liquefied Petroleum Gas (Propane) (August 1988). (gaz de pétrole liquéfié ou GPL) *load divider dolly* means a trailer that consists of a trailer chassis and one or more axles, with no solid bed, body or container attached, and that is designed exclusively to support a portion of the load on a trailer or truck excluded from all the requirements of Technical Standards Document No. 121, Air Brake Systems; (chariot de répartition de charge) *load-limiter* means a seat belt assembly component or seat belt assembly feature that controls tension on a seat belt to modulate the forces that are imparted to an occupant who is restrained by the seat belt assembly during a collision; (limiteur de charge) *lower beam* means a beam that is intended to illuminate the road and its environs ahead of a vehicle when the vehicle is meeting or closely following another vehicle; (faisceau de croisement) *lower connector system* [Repealed, SOR/2013-117, s. 1] *lower universal anchorage system* means a device, other than a vehicle seat belt, that is designed to secure the lower portion of a restraint system or booster seat to a vehicle and that transfers the load from the restraint system or booster seat and its occupant to the vehicle structure or a vehicle seat structure; (dispositif universel d’ancrages d’attaches inférieurs) *low-speed vehicle* means a vehicle, other than a restricted-use vehicle, that (a) is designed for use primarily on streets and roads where access and the use of other prescribed classes of vehicles are controlled by law or agreement, (b) travels on four wheels, (c) is powered by an electric power train (an electric motor and, if present, a transmission) that is designed to allow the vehicle to attain a speed of 32 km/h but not more than 40 km/h in a distance of 1.6 km on a paved level surface, (d) does not use fuel as an on-board source of energy, and (e) has a GVWR of less than 1 361 kg; ( véhicule à basse vitesse) *make* means the name that a manufacturer applies to a group of vehicles; (marque) *manual seat belt assembly* means, with respect to a Type 1 or Type 2 seat belt assembly, an assembly that requires a deliberate action on the part of the occupant of a vehicle to be activated; (ceinture de sécurité manuelle) *manufacturer* [Repealed, SOR/95-147, s. 1] *master lighting switch* means a switch with one or more operational positions that controls the tail lamps, parking lamp, licence plate lamp, side marker lamps and headlamps and may control identification lamps and clearance lamps; (commutateur général d’éclairage) *maximum load* [Repealed, SOR/2008-258, s. 1] *maximum loaded vehicle mass* [Repealed, SOR/2008-258, s. 1] *maximum speed* means, with respect to a motorcycle, the speed specified by the manufacturer as the highest speed that the motorcycle is capable of attaining, measured in accordance with section 5.3; (vitesse maximale) *minibike* [Repealed, SOR/88-268, s. 1] *Minister* means the Minister of Transport; (ministre) *mobile home* means a vehicle that is more than 102 inches in overall width and that is designed to be drawn behind another vehicle and to be used as a living or working accommodation unit; (maison roulante) *mobility-impaired occupant* [Repealed, SOR/2013-117, s. 1] *model* means the name that a manufacturer applies to a family of vehicles of the same prescribed class, make, line, series and body type; (modèle) *model year* means the year used to designate a discrete vehicle model irrespective of the calendar year in which the vehicle was actually produced, so long as the period of such production is less than two years; (année de modèle) *moped* [Repealed, SOR/88-268, s. 1] *motorcycle* means a vehicle, other than a restricted-use vehicle, passenger car, truck, multi-purpose passenger vehicle, competition vehicle or three-wheeled vehicle, that (a) is an enclosed motorcycle, limited-speed motorcycle, open motorcycle or motor tricycle, (b) is designed to travel on not more than three wheels in contact with the ground, (c) has a minimum wheel rim diameter of 250 mm, and (d) has a minimum wheelbase of 1 016 mm; ( motocyclette) *motor driven cycle* [Repealed, SOR/88-268, s. 1] *motor home* means a multi-purpose passenger vehicle that is designed to provide temporary residential accommodations, as evidenced by the presence of at least four of the following: (a) cooking facilities, (b) a refrigerator or ice box, (c) a self-contained toilet, (d) a heating or air-conditioning system that can function independently of the vehicle engine, (e) a potable water supply system that includes a faucet and sink, and (f) a separate 110- to 125-V electric power supply or an LP gas supply; ( autocaravane) *motor tricycle* means a motorcycle, other than an antique reproduction vehicle, that (a) is designed to travel on three wheels that are in contact with the ground and symmetrically arranged in relation to the longitudinal median plane, (b) has seating on which the driver and passenger must sit astride, (c) has not more than four designated seating positions, (d) has a GVWR of 1 000 kg or less, (e) has a maximum speed of more than 70 km/h, and (f) does not have a structure partially or fully enclosing the driver and passenger, other than that part of the vehicle forward of the driver’s torso and the seat backrest; ( tricycle à moteur) *Motor Vehicle Safety Test Methods* [Repealed, SOR/97-141, s. 1] *Motor Vehicle Safety Test Methods, section 106, “Brake Hoses”* [Repealed, SOR/2007-180, s. 1] *Motor Vehicle Safety Test Methods, section 116, “Hydraulic Brake Fluid”* [Repealed, SOR/95-536, s. 7] *Motor Vehicle Safety Test Methods, section 116, “Hydraulic Brake Fluids”* [Repealed, SOR/2007-180, s. 1] *multifunction school activity bus* means a school bus that is designed to pick up and drop off students under circumstances in which there is no need to control traffic; (autobus multifonction pour les activités scolaires) *multiple compartment lamp* [Repealed, SOR/96-366, s. 1] *multiple lamp arrangement* [Repealed, SOR/96-366, s. 1] *multi-purpose passenger vehicle* means a vehicle having a designated seating capacity of 10 or less that is constructed either on a truck chassis or with special features for occasional off-road operation, but does not include an air cushion vehicle, all-terrain vehicle, low-speed vehicle, passenger car, restricted-use vehicle, three-wheeled vehicle or truck; (véhicule de tourisme à usages multiples) *non-locking retractor* means a retractor that does not have a locking mechanism, from which the webbing can be extended to substantially its full length by a small external force, that provides no adjustment for assembly length and that need not be capable of sustaining restraint forces at maximum webbing extension; (rétracteur sans blocage) *normal load* [Repealed, SOR/2008-258, s. 1] *normal occupants’ mass* [Repealed, SOR/2008-258, s. 1] *occupant* means a person or manikin seated in a vehicle and, unless otherwise specified, means a person or manikin having the dimensions and weight of a 95th percentile adult male; (occupant) *occupant compartment air space* [Repealed, SOR/2007-180, s. 1] *occupant distribution* [Repealed, SOR/2008-258, s. 1] *occupant space* means the space directly above the seat and footwell, bounded vertically by the ceiling and horizontally by the normally positioned seat back and the nearest obstruction of occupant motion in the direction the seat faces; (espace d’occupant) *off-road motorcycle* [Repealed, SOR/88-268, s. 1] *oil pressure indicator* means a device that presents information concerning the pressure of the oil in the engine lubrication circuit; (indicateur de pression d’huile) *oil pressure tell-tale* means a signal that, when alight, indicates that the oil pressure in the engine lubrication circuit is below the normal operating limit prescribed by the manufacturer; (témoin de pression d’huile) *on-highway vehicle* [Repealed, SOR/2004-250, s. 1] *on-off-highway vehicle* [Repealed, SOR/2004-250, s. 1] *open-body type vehicle* means a vehicle that has no top over the occupant compartment or that has a top over the occupant compartment that can be installed or removed by the operator of the vehicle; (véhicule de type ouvert) *open motorcycle* means a motorcycle that (a) has steering handlebars that are completely constrained from rotating in relation to the axle of only one wheel in contact with the ground, (b) is designed to travel on two wheels in contact with the ground or, if the wheels are asymmetrically arranged in relation to the longitudinal median plane, three wheels in contact with the ground, (c) has a minimum driver’s seat height, when the vehicle is unladen, of 650 mm, (d) has a maximum speed of more than 70 km/h, and (e) does not have a structure partially or fully enclosing the driver and passenger, other than that part of the vehicle forward of the driver’s torso and the seat backrest; ( motocyclette sans habitacle fermé) *optically combined lamps* [Repealed, SOR/2018-43, s. 1] *optional item* [Repealed, SOR/2008-258, s. 1] *outboard designated seating position* means a designated seating position where a longitudinal vertical plane tangent to the outboard side of the seat cushion is less than 305 mm from the innermost point on the inside surface of the vehicle, which point is located vertically between the seating reference point and the shoulder reference point and longitudinally between the front and rear edges of the seat cushion; (place assise désignée extérieure) *overall width* means, except in sections 104 and 108 of Schedule IV, the widest part of a vehicle with the doors and windows closed and the wheels in the straight-ahead position, exclusive of signal lamps, marker lamps, outside rearview mirrors, flexible fender extensions and mud flaps; (largeur hors tout) *parking brake* means a mechanism designed to prevent the movement of a stationary vehicle; (frein de stationnement) *parking mechanism* [Repealed, SOR/99-357, s. 1] *passenger car* means a vehicle having a designated seating capacity of 10 or less, but does not include an all-terrain vehicle, competition vehicle, low-speed vehicle, multi-purpose passenger vehicle, antique reproduction vehicle, motorcycle, restricted-use vehicle, truck, trailer or three-wheeled vehicle; (voiture de tourisme) *passenger car tire* means a tire intended for use on passenger cars, multi-purpose passenger vehicles and trucks with a GVWR of 4 536 kg or less; (pneu pour voiture de tourisme) *passive occupant protection* [Repealed, SOR/93-5, s. 1] *passive restraint system* [Repealed, SOR/93-5, s. 1] *pelvic restraint* means a seat belt assembly or portion thereof intended to restrain movement of the pelvis; (ceinture sous-abdominale) *perimeter-seating bus* means a bus with seven or fewer designated seating positions rearward of the driver’s designated seating position that are forward-facing or that can be adjusted to change the direction they are facing to forward-facing without the use of tools; (autobus muni de sièges de périmètre) *permanently attached hose end fitting* [Repealed, SOR/2007-180, s. 1] *plant of manufacture* means the plant at which the manufacturer affixes the vehicle identification number; (usine de construction) *pole trailer* means a vehicle designed to be drawn behind another vehicle by means of a reach or pole, or by being boomed or otherwise secured to the towing vehicle, for the purpose of transporting poles, pipes, structural members or other long or irregularly shaped loads capable generally of sustaining themselves as beams between the supporting connections; (remorque pour charges longues) *power-assisted bicycle* [Repealed, SOR/2020-22, s. 3] *power-operated roof panel* [Repealed, SOR/2007-180, s. 1] *power-operated roof panel system* means a panel or panels in the roof of a vehicle that move on slides or hinges, the opening or closing of which is operated by a power source within the vehicle, but does not include a convertible top system; (système de toit ouvrant à commande électrique) *prescribed class* [Repealed, SOR/2020-22, s. 3] *prime glazing material manufacturer* [Repealed, SOR/2002-187, s. 1] *prison bus* means a bus that is specially designed for the purpose of transporting inmates; (autobus pénitentiaire) *production options mass* [Repealed, SOR/2008-258, s. 1] *production restraint system for disabled persons* [Repealed, SOR/98-160, s. 1] *pulpwood trailer* [Repealed, SOR/99-357, s. 1] *push-out window* means a vehicle window designed to open outward to provide for emergency egress; (fenêtre basculante) *readily removable window* means a window that can be quickly and completely removed from a vehicle without tools and, in the case of a bus having a GVWR of more than 4 535.9 kg (10,000 pounds), shall include a push-out window and a window mounted in an emergency exit that can be manually pushed out of its location in the vehicle without the use of tools, regardless of whether the window remains hinged at one side to the vehicle; (fenêtre amovible) *rear outboard designated seating position* means any outboard designated seating position that is to the rear of a front outboard designated seating position, but does not include a designated seating position adjacent to a walkway located between the seat and the side of the vehicle interior that is designed to allow access to more rearward seating positions; (place assise désignée extérieure arrière) *recreational trailer* means a trailer designed to provide temporary living accommodation for travel, vacation or recreational use; (remorque de camping) *reflex reflector* means a device on a vehicle that is intended to indicate the position and dimensions of the vehicle to the driver of an approaching vehicle using light reflected from the lamps of the approaching vehicle; (cataphote) *replaceable bulb headlamp* [Repealed, SOR/96-366, s. 1] *restraint system* has the same meaning as in subsection 100(1) of the Motor Vehicle Restraint Systems and Booster Seats Safety Regulations; (ensemble de retenue) *restraint system for disabled persons* [Repealed, SOR/98-160, s. 1] *restricted-use motorcycle* [Repealed, SOR/2020-22, s. 3] *restricted-use vehicle* means a vehicle — excluding a competition vehicle but including an all-terrain vehicle designed primarily for recreational use — that (a) is designed to travel on not more than four wheels in contact with the ground, and (b) is not designed for use on public roads; ( véhicule à usage restreint) *retractor* means a device for storing part or all of the webbing in a seat belt assembly; (rétracteur) *rim base* [Repealed, SOR/2008-258, s. 1] *rim diameter* means the nominal diameter of the bead seat; (diamètre de jante) *rim size designation* [Repealed, SOR/2008-258, s. 1] *rim type designation* [Repealed, SOR/2008-258, s. 1] *rim width* [Repealed, SOR/2008-258, s. 1] *rupture* [Repealed, SOR/2007-180, s. 1] *SAE* means the Society of Automotive Engineers, Inc. (SAE International); (SAE) *SAE Compatibility Fluid* [Repealed, SOR/2007-180, s. 1] *school bus* means a bus designed or equipped primarily to carry students to and from school or to and from school-related events; (autobus scolaire) *scuffing* [Repealed, SOR/2007-180, s. 1] *sealed beam headlamp* [Repealed, SOR/2018-43, s. 1] *seat anchorage* means any component that transfers a vehicle seat load to the vehicle structure; (ancrage du siège) *seat back retainer* [Repealed, SOR/2007-180, s. 1] *seat belt anchorage* means any component of a vehicle, other than the webbing or straps, involved in transferring seat belt loads to the vehicle structure, including the attachment hardware, seat frames, seat pedestals, the vehicle structure and any part of the vehicle whose failure causes separation of the belt from the vehicle structure; (ancrage de ceinture de sécurité) *seat belt assembly* means any strap, webbing or similar device designed to secure a person in a vehicle in order to mitigate the results of any accident, and includes all necessary buckles and other fasteners and all attachment hardware but does not include any strap, webbing or similar device that is part of a built-in restraint system; (ceinture de sécurité) *seating reference point* means the unique Design H-Point, as defined in section 3.11.1 of SAE Recommended Practice J1100, Motor Vehicle Dimensions (February 2001), that (a) establishes the rearmost normal design driving or riding position of each designated seating position, taking into account all modes of adjustment — horizontal, vertical and tilt — in a vehicle, (b) has X, Y and Z coordinates, as defined in section 3.3 of SAE Recommended Practice J1100, Motor Vehicle Dimensions (February 2001), established relative to the designed vehicle structure, (c) simulates the position of the pivot centre of the human torso and thigh, and (d) is the reference point employed to position the H-Point template with the 95th percentile leg, as described in section 4.1 of SAE Standard J826, Devices for Use in Defining and Measuring Vehicle Seating Accommodation (July 1995), or, if that template cannot be positioned, the reference point when the seat is in its rearmost adjustment position; (point de référence de position assise) *seating surface width* means the maximum width of a seating surface when it is measured in a zone extending from a transverse vertical plane that is 150 mm behind the front leading surface of that seating surface to a transverse vertical plane that is 250 mm behind that front leading surface, measured horizontally and longitudinally; (largeur de la surface de siège) *seat orientation reference line (SORL)* [Repealed, SOR/2013-117, s. 1] *semi-trailer* means a trailer constructed in such a manner that a substantial part of its weight rests upon or is carried by another vehicle by means of a fifth-wheel or similar coupling, but does not include a pole trailer, or any trailer designed to be drawn behind a passenger car or multi-purpose passenger vehicle; (semi-remorque) *series* means the name that a manufacturer applies to a subdivision of a line denoting the price, size or weight identification and that is utilized by the manufacturer for marketing purposes; (série) *service brake* means the primary mechanism designed to stop a vehicle; (frein de service) *shoulder reference point* means the point 563 mm above the H-point along the torso line; (point de référence de l’épaule) *sloughing* [Repealed, SOR/2007-180, s. 1] *snowmobile* means a vehicle — excluding a competition vehicle but including a snowmobile conversion vehicle — that has a mass of not more than 450 kg, is designed primarily for travel on snow, has one or more steering skis and is driven by means of an endless belt or belts in contact with the ground; (motoneige) *snowmobile conversion vehicle* means a vehicle designed to be capable of conversion to a snowmobile by the repositioning or addition of parts; (véhicule convertible en motoneige) *snowmobile cutter* [Repealed, SOR/2016-318, s. 1] *snowmobile trailer* means a trailer designed primarily for the transportation of snowmobiles; (remorque pour motoneige) *snub* means the braking deceleration of a vehicle from a higher reference speed to a lower reference speed that is greater than zero; (ralentissement) *special driver accommodation* includes a driver’s seat that is designed to be removable or that has extended adjustment capability to allow a person to transfer from a wheelchair to the driver’s seat; (place du conducteur particulière) *speed attainable in 1.6 km (1 mile)* means the speed attainable by accelerating at maximum rate from a standing start for 1.6 km on a level surface; (vitesse à 1,6 km (1 mille)) *speed attainable in 3.2 km (2 miles)* means the speed attainable by accelerating at maximum rate from a standing start for 3.2 km on a level surface; (vitesse à 3,2 km (2 milles)) *spike stop* means a stop resulting from the application of 889.6 N (200 pounds) of force on the service brake control in 0.08 second; (arrêt d’urgence) *split service brake system* means a brake system consisting of two or more subsystems actuated by a single control, designed so that a single failure in any subsystem (such as a leakage-type failure of a pressure component of a hydraulic subsystem, except for the structural failure of a housing that is common to two or more subsystems, or an electrical failure in an electrical subsystem) does not impair the operation of any other subsystem; (système de frein de service partagé) *spoke wheel* means a rotating member that provides for mounting and support of demountable rims; (roue à rayons) *steering column* means the structural housing that surrounds a steering shaft; (colonne de direction) *steering control system* means the basic steering mechanism and its associated trim hardware including any portion of a steering column assembly that provides energy absorption upon impact; (système de commande de la direction) *steering shaft* means a component that transmits steering torque from the steering wheel to the steering gear; (arbre de direction) *stickiness* [Repealed, SOR/2007-180, s. 1] *stopping distance* means the distance travelled by a vehicle from the point at which force is applied to the brake control to the point at which the vehicle reaches a full stop; (distance d’arrêt) *strap* means a narrow band of non-woven material used in a seat belt assembly in place of webbing; (courroie) *suspension spring* means a leaf, coil, torsion bar, rubber, air bag, and every other type of spring used in vehicular suspensions; (ressort de suspension) *tell-tale* means an optical signal that, when alight, indicates the activation or deactivation of a device, its correct or defective functioning or condition, or its failure to function; (témoin) *tether belt hook* [Repealed, SOR/98-457, s. 1] *tether strap* means a device that is fitted with a tether strap hook and secured to the rigid structure of a restraint system or booster seat, and that transfers the load from the restraint system or booster seat and its occupant to the user-ready tether anchorage; (courroie d’attache) *tether strap hook* means a device that is used to attach a tether strap to a user-ready tether anchorage and that has an interface profile shown in Figure 1 of Schedule 7 to the Motor Vehicle Restraint Systems and Booster Seats Safety Regulations or, in the case of a device with integrated adjustment hardware, in Figure 2 of Schedule 7 to those Regulations; (crochet de la courroie d’attache) *three-wheeled vehicle* means a vehicle, other than a competition vehicle, antique reproduction vehicle, motorcycle, restricted-use vehicle or trailer, that (a) is designed to travel on three wheels in contact with the ground, (b) has no more than four designated seating positions, and (c) has a GVWR of 1 000 kg or less; ( véhicule à trois roues) *throttle* means the component of the fuel metering device that (a) connects to the driver-operated accelerator control system, and (b) controls the engine speed; ( papillon des gaz) *torso line* means the line connecting the H-point and the shoulder reference point, described in SAE Standard J826, Devices for Use in Defining and Measuring Vehicle Seating Accommodation (July 1995); (ligne de torse) *trailer* means a vehicle designed to carry or accommodate persons or property and to be drawn behind another vehicle, and includes a bus trailer, pole trailer and cable reel trailer, but does not include earth-moving equipment or a mobile home, trailer converter dolly or implement of farm husbandry; (remorque) *trailer converter dolly* means a conversion chassis that is equipped with one or more axles, the lower half of a fifth-wheel coupling and one or two drawbars; (chariot de conversion) *transit bus* means a bus that is specially designed with space for standing passengers and that is equipped with a stop-request system; (autobus urbain) *transparent cover* [Repealed, SOR/96-366, s. 1] *truck* means a vehicle designed primarily for the transportation of property or special-purpose equipment, but does not include a competition vehicle, crawler-mounted vehicle, three-wheeled vehicle, trailer, work vehicle, vehicle designed for operation exclusively off-road or low-speed vehicle; (camion) *truck tractor* means a truck designed primarily for drawing other vehicles and not constructed for carrying any load other than a part of the weight of the vehicle and load drawn, and includes a vehicle designed to accept a fifth-wheel coupling but does not include a crane-equipped breakdown vehicle; (camion-tracteur) *Type 1* [Repealed, SOR/2007-180, s. 1] *type 1 headlamp* [Repealed, SOR/91-692, s. 1] *Type 1 seat belt assembly* means a pelvic restraint; (ceinture de sécurité de type 1) *Type 2* [Repealed, SOR/2007-180, s. 1] *type 2 headlamp* [Repealed, SOR/91-692, s. 1] *Type 2 seat belt assembly* means a combination pelvic and upper torso restraint; (ceinture de sécurité de type 2) *Type 2A* [Repealed, SOR/2007-180, s. 1] *Type 2A shoulder belt* [Repealed, SOR/2013-9, s. 1] *unit magnification mirror* means a plane or flat mirror with a reflective surface through which the angular height and width of the image of an object is equal to the angular height and width of the object when viewed directly at the same distance except for flaws that do not exceed normal manufacturing tolerances and includes a prismatic day-night adjustment rearview mirror that provides unit magnification in one of its positions; (miroir plan) *unleaded gasoline* means gasoline that contains not more than (a) 0.06 grams of lead per Imperial gallon (0.013 grams per litre), or (b) 0.006 grams of phosphorous per Imperial gallon (0.0013 grams per litre); ( essence sans plomb) *unloaded vehicle mass* means the mass of a vehicle equipped with the containers for the fluids necessary for the operation of the vehicle filled to their maximum capacity but without cargo or occupants; (masse du véhicule sans charge) *unloaded vehicle weight* means the weight of a vehicle equipped with the containers for the fluids necessary for the operation of the vehicle filled to their maximum capacity, but without cargo or occupants; (poids du véhicule sans charge) *upper beam* means a beam that is intended primarily for distance illumination ahead of a vehicle when the vehicle is not meeting or closely following another vehicle; (faisceau de route) *upper torso restraint* means a portion of a seat belt assembly intended to restrain movement of the chest and shoulder regions; (ceinture-baudrier) *used vehicle* [Repealed, SOR/91-425, s. 1] *user-ready tether anchorage* means a device that transfers the tether strap load from a restraint system or booster seat and its occupant to the vehicle structure or a vehicle seat structure and that is designed to accept a tether strap hook directly, without requiring the installation of any other device; (ancrage d’attache prêt à utiliser) *vacuum tubing connector* [Repealed, SOR/2007-180, s. 1] *variable brake proportioning system* means a system that has one or more proportioning devices that automatically change the brake pressure ratio between any two or more wheels to compensate for changes in wheel loading resulting from static load changes or dynamic weight transfer, or from deceleration; (compensateur de freinage) *variable proportioning brake system* [Repealed, SOR/97-200, s. 1] *vehicle* [Repealed, SOR/95-536, s. 7] *vehicle capacity mass* [Repealed, SOR/2008-258, s. 1] *vehicle fuel tank capacity* means (a) the volume of fuel left at the bottom of the tank when the fuel pump of the vehicle can no longer draw fuel from the tank plus (b) the volume of fuel that can be pumped into the tank through the filler pipe when the vehicle is on a level surface and the volume of fuel referred to in paragraph (a) is already in the tank, except that the volume of fuel referred to in paragraph (b) does not include any volume of fuel that can be pumped into the fuel tank filler neck or into the space above the fuel tank filler neck; ( capacité du réservoir de carburant du véhicule) *vehicle identification number* means a number consisting of arabic numerals, roman letters, or both that the manufacturer assigns to the vehicle for identification purposes; (numéro d’identification du véhicule) *vehicle imported temporarily for special purposes* means a vehicle imported for a purpose prescribed in section 11.1; (véhicule importé temporairement à des fins spéciales) *vehicle manufactured for operation by persons with disabilities* [Repealed, SOR/2013-9, s. 1] *walk-in van* means a van type of truck in which a person having a height of 1 700 mm can enter the occupant compartment in an upright position by a front door; (fourgon à accès en position debout) *weather side* [Repealed, SOR/2008-258, s. 1] *webbing* means a narrow band of fabric woven with continuous filling yarns and finished selvages; (sangle) *wet ERBP* [Repealed, SOR/2007-180, s. 1] *wheelchair location* means a location in a vehicle that is designed to be used to secure an occupied wheelchair; (emplacement pour fauteuil roulant) *work vehicle* means a vehicle designed primarily for the performance of work in the construction of works of civil engineering and in maintenance, that is not constructed on a truck-chassis or truck-type chassis, but does not include a tractor or any vehicle designed primarily to be drawn behind another vehicle; (véhicule de travail) *5th percentile adult female* means a person having as physical characteristics a mass of 46.3 kg, height of 1499 mm, erect sitting height of 785 mm, normal sitting height of 752 mm, hip sitting breadth of 325 mm, hip sitting circumference of 925 mm, waist sitting circumference of 599 mm, chest depth of 191 mm, bust circumference of 775 mm, chest upper circumference of 757 mm, chest lower circumference of 676 mm, knee height of 455 mm, popliteal height of 356 mm, elbow rest height of 180 mm, thigh clearance height of 104 mm, buttock-to-knee length of 518 mm, buttock-to-poples length of 432 mm, elbow-to-elbow breadth of 312 mm and seat breadth of 312 mm; (5 e percentile adulte du sexe féminin) *50th percentile adult male* means a person having as physical characteristics a mass of 74.4 kg plus or minus 1.4 kg, erect sitting height of 907 mm plus or minus 3 mm, hip sitting breadth of 373 mm plus or minus 18 mm, hip sitting circumference of 1067 mm, waist sitting circumference of 813 mm plus or minus 15 mm, chest depth of 236 mm plus or minus 5 mm and chest circumference of 950 mm plus or minus 15 mm; (50 e percentile adulte du sexe masculin) *50th percentile six-year-old child* means a person having as physical characteristics a mass of 21.5 kg, erect sitting height of 645 mm, hip sitting breadth of 213 mm, hip sitting circumference of 607 mm and waist sitting circumference of 528 mm; (50 e percentile enfant de six ans) *95th percentile adult male* means a person having as physical characteristics a mass of 97.5 kg, height of 1849 mm, erect sitting height of 965 mm, normal sitting height of 930 mm, hip sitting breadth of 419 mm, hip sitting circumference of 1199 mm, waist sitting circumference of 1080 mm, chest depth of 267 mm, chest circumference of 1130 mm, knee height of 594 mm, popliteal height of 490 mm, elbow rest height of 295 mm, thigh clearance height of 175 mm, buttock-to-knee length of 640 mm, buttock-to-poples length of 549 mm, elbow-to-elbow breadth of 506 mm and seat breadth of 404 mm. (95 e percentile adulte du sexe masculin) (2) In these Regulations, if a document that is available in both official languages is incorporated by reference as amended from time to time, an amendment to one language version of that document is not incorporated until the corresponding amendment is made to the other language version. ## Metric or Imperial System 2.1 If, in the application to a vehicle of a portion of a section of these Regulations or a portion of a provision of a technical standards document, either the metric or the imperial system of measurement is used, the same system of measurement shall be used in the application to the vehicle of any other portion of the section or provision. ## Number of Wheels 2.2 For the purpose of determining the number of wheels on a motorcycle or a three-wheeled vehicle, two wheels are considered to be one wheel if they are mounted on the same axle and the distance between the centres of their areas of contact with the ground is less than 460 mm. ## Designated Seating Capacity 2.3 (1) Subject to subsections (2) and (3), the designated seating capacity of a vehicle is the sum of the number of designated seating positions and wheelchair locations in the vehicle. (2) The designated seating capacity of a motor home that has a GVWR greater than 4 536 kg may, at the option of the manufacturer, be the number of sleeping positions in the motor home. (3) If a folding or removable seat is positioned at one or more wheelchair locations, the greater of the following shall be used for the purposes of subsection (1): (a) the number of designated seating positions that the seat contains, and (b) the number of wheelchair locations. ## Number of Designated Seating Positions 2.4 (1) In subsection (3), *measurement zone* means the zone extending from a transverse vertical plane that is 150 mm behind the front leading surface of a seating surface to a transverse vertical plane that is 250 mm behind that front leading surface, measured horizontally and longitudinally. (2) If a location in a vehicle that is likely to be used as a seating position has a seating surface width of at least 700 mm, the number of designated seating positions at that location shall be determined by using whichever of the following formulae is applicable and rounding the quotient down to the nearest whole number: (a) if the location has a seating surface width of less than 1 400 mm, is the number of designated seating positions, is the seating surface width in millimetres, and is 350 or, at the option of the manufacturer, a number that is chosen by the manufacturer and is less than 350 but not less than 330; and (b) if the location has a seating surface width of 1 400 mm or more, is the number of designated seating positions, is the seating surface width in millimetres, and is 450 or, at the option of the manufacturer, a number that is chosen by the manufacturer and is less than 450 but not less than 330. (3) Adjacent seating surfaces are considered to form a single seating surface, unless (a) the seating surfaces are separated by a fixed trimmed surface that has an unpadded top surface and that has a width of not less than 140 mm in each transverse vertical plane, as measured in the measurement zone; (b) the seating surfaces are separated by a void whose cross section in each transverse vertical plane within the measurement zone is a rectangle that is not less than 140 mm wide and not less than 140 mm deep, and the top edge of the cross section in each of those planes is congruent with the transverse horizontal line that intersects the lowest point on the portion of the top profile of the seating surfaces that lie within the plane; (c) interior trim interrupts a line drawn between the H-points of adjacent seating surfaces; or (d) the seating surfaces are adjacent outboard seats, and the lateral distance between each point on the seat cushion of one seat and each point on the seat cushion of the other seat is not less than 140 mm. (4) Folding, removable and adjustable seats must be measured in the configuration that results in the largest seating surface width. (5) The number of designated seating positions in a bench type seat in a school bus shall be the number of seating positions determined in accordance with Technical Standards Document No. 222, School Bus Passenger Seating and Crash Protection. ## Transitional Provision (6) Until September 1, 2020, the number of designated seating positions referred to in subsection (5) may conform to the requirements of this section as it read on the day before the day on which this subsection came into force. ## Prescribed Class of a Vehicle 2.5 (1) For the purpose of determining the prescribed class of a vehicle, any wheelchair location is considered to be equivalent to four locations for the purpose of determining the designated seating capacity if (a) the vehicle was designed to have a designated seating capacity of more than 10; and (b) any of the intended designated seating positions are replaced by a wheelchair location. (2) For the purpose of determining the prescribed class of a vehicle resulting from the alteration of a bus by the replacement of any designated seating position with a wheelchair location, the location may, at the option of the manufacturer, be considered to be equivalent to four locations for the purpose of determining the designated seating capacity. ## National Safety Marks 3 (1) For the purposes of these Regulations, the symbol set out in Schedule I is prescribed as the national safety mark. (2) For the purposes of subsection 3(2) of the Act, on application by a company, the Minister may, in the form set out in Schedule II, authorize the company to apply the national safety mark to a vehicle. ## Prescribed Classes of Vehicles 4 (1) For the purposes of sections 4 and 5 of the Act, the classes of vehicles set out in Schedule III and incomplete vehicles are prescribed classes of vehicles. (2) The prescribed classes of vehicles do not include (a) vehicles whose date of manufacture is (i) in the case of a bus, earlier than January 1, 1971, or (ii) in all other cases, 15 years or more earlier than the date of its importation; or (b) restricted-use vehicles that have motive power and are designed so that their speed attainable in 1.6 km (1 mile) is less than 32 km/h. ## Safety and Emission Requirements 5 (1) Each requirement set out in Schedules IV to VI is prescribed as a Canada Motor Vehicle Safety Standard for vehicles of prescribed classes. (2) Every vehicle, other than an incomplete vehicle, must conform to each standard that is referred to by number in column I of Schedule III and opposite which the letter “X” is set out in the subcolumn designating the class or subclass of the vehicle. (2.1) [Repealed, SOR/2003-2, s. 46] (3) Every incomplete vehicle shall conform to each standard set out in Schedules IV, V.1 and VI for completed vehicles to the extent that the standard governs the components that are fitted on the incomplete vehicle. ## Interprovincial Shipments 5.1 (1) Notwithstanding section 4 of the Act, a manufacturer may ship from one province to another, or deliver to any person for the purpose of so shipping, a vehicle of a prescribed class manufactured in Canada that does not bear the national safety mark if (a) the manufacturer signs and files with the Minister a declaration setting out the information referred to in subsection (2); (b) the vehicle is being shipped or delivered for the purpose of exhibition, demonstration, evaluation or testing; and (c) the vehicle is destroyed or returned to the province of origin within one year. (2) A declaration made pursuant to subsection (1) shall set out the following information: (a) the name and address of the manufacturer of the vehicle; (b) the month and year of the date of manufacture of the vehicle; (c) the prescribed class, make, model and vehicle identification number of the vehicle; (d) the use to be made of the vehicle; (e) the estimated period of time the vehicle will be used on public roads; (f) whether the vehicle will be destroyed or returned to the province of origin after completion of the purpose for which it was shipped or delivered; and (g) the date the vehicle will be destroyed or returned to the province of origin. (3) The declarations made in accordance with subsection (2) (a) shall be filed prior to shipping or delivering the vehicle; or (b) in the case of a company whose world production of vehicles is 2,500 or more a year, may be filed with the Minister quarterly. ## Gross Vehicle Weight Rating 5.2 The gross vehicle weight rating of a vehicle shall be not less than the sum of (a) the unloaded vehicle mass, (b) the cargo-carrying capacity, (c) the product obtained by multiplying the designated seating capacity by 54 kg, in the case of a school bus, or by 68 kg, in any other case, and (d) in the case of a vehicle having living or sanitary accommodations, the mass of its fresh water, hot water and propane tanks, but not its waste water tanks, when full. ## Maximum Speed 5.3 (1) The maximum speed of a motorcycle shall be measured in accordance with International Organization for Standardization standard ISO 7117:1995, Motorcycles — Measurement of Maximum Speed. (2) Wherever the term *motorcycle* is used in International Organization for Standardization standard ISO 7117:1995, Motorcycles — Measurement of Maximum Speed, it shall have the same meaning as *motorcycle* in subsection 2(1) of these Regulations. ## Compliance Label 6 (1) Subject to subsections (1.1) and 6.6(1), a company that manufactures a vehicle of a prescribed class that is a completed vehicle and that meets the requirements of these Regulations must ensure that the vehicle bears a compliance label displaying at least (a) the name of the manufacturer of the completed vehicle; (b) the month and year of the date of manufacture of the vehicle; (c) a drawing at least 13 mm in diameter depicting the national safety mark, as set out in Schedule I, and showing in its centre, in figures at least 2 mm in height, the authorization number assigned by the Minister to the company pursuant to section 3; (d) the vehicle identification number; (e) in the case of a passenger car, multi-purpose passenger vehicle, low-speed vehicle, three-wheeled vehicle, truck, bus, trailer, trailer converter dolly or motorcycle, (i) the gross vehicle weight rating, expressed in kilograms, clearly identified by the words “Gross Vehicle Weight Rating” and “ Poids nominal brut du véhicule ” or the abbreviations “GVWR” and “PNBV”, and (ii) the gross axle weight rating, expressed in kilograms, for each axle of the vehicle listed in order from front to rear and clearly identified by the words “Gross Axle Weight Ratings” and “ Poids nominal brut sur l’essieu ” or the abbreviations “GAWR” and “PNBE”, unless the information is set out on the vehicle placard or on the tire inflation pressure label referred to in section S4.3 of Technical Standards Document No. 110, Tire Selection and Rims for Motor Vehicles With a GVWR of 4,536 kg or Less, or on the tire information label referred to in section S5.3(b) of Technical Standards Document No. 120, Tire Selection and Rims for Motor Vehicles With a GVWR of More Than 4,536 kg; (f) the type of vehicle, in both official languages, or the word “TYPE” along with the characters set out below that correspond to the type of vehicle: (i) “AMB” to refer to an ambulance, (i.1) “AT/PA” to refer to an auto transporter, (ii) “ATV/VTT” to refer to an all-terrain vehicle, (iii) “B/A” to refer to a bus, (iv) “BT/RA” to refer to a bus trailer, (v) “CD/CCC” to refer to a C-dolly, (vi) “EMC/MCH” to refer to an enclosed motorcycle, (vii) “HHT/RL” to refer to a heavy hauler trailer, (viii) “LSM/MVL” to refer to a limited-speed motorcycle, (ix) “LDD/CRC” to refer to a load divider dolly, (ix.1) “LSV/VBV” to refer to a low-speed vehicle, (x) “MH/AC” to refer to a motor home, (xi) “MC” to refer to an open motorcycle, (xii) “MPV/VTUM” to refer to a multi-purpose passenger vehicle, (xiii) “PC/VT” to refer to a passenger car, (xiv) “RUM/MUR” to refer to a restricted-use vehicle, (xv) “SB/AS” to refer to a school bus, (xvi) “TRA/REM” to refer to a trailer, (xvii) “TCD/CDC” to refer to a trailer converter dolly, (xviii) “TRI” to refer to a motor tricycle, (xix) “TRU/CAM” to refer to a truck, (xx) “TT/CT” to refer to a truck tractor, (xxi) “TWV/VTR” to refer to a three-wheeled vehicle, (xxii) ”SNO/MNG” to refer to a snowmobile, and (xxiii) “MFSAB/AMAS” to refer to a multifunction school activity bus; (g) in the case of a C-dolly, the mounting height, expressed in both official languages, of the coupling when the C-dolly is not loaded; and (h) in the case of a trailer that is designed to tow a C-dolly, the mounting height, expressed in both official languages, of the coupling when the trailer is not loaded; (i) [Repealed, SOR/2002-55, s. 4] (1.1) If an incomplete vehicle manufacturer or an intermediate manufacturer assumes legal responsibility for the completed vehicle’s conformity to the requirements of these Regulations, the incomplete vehicle manufacturer or the intermediate manufacturer, as the case may be, shall ensure that a compliance label is applied to the completed vehicle in accordance with this section, except that (a) the name of the incomplete vehicle manufacturer or the intermediate manufacturer, as the case may be, shall appear on the compliance label instead of the name of the manufacturer referred to in paragraph (1)(a); and (b) the date of manufacture of the completed vehicle may be no earlier than the date on which manufacturing operations on the vehicle are completed by the incomplete vehicle manufacturer and no later than the date on which manufacturing operations on the vehicle are completed by the final-stage manufacturer. (1.2) If an incomplete vehicle manufacturer assumes legal responsibility for the completed vehicle’s conformity to the requirements of these Regulations, the provisions related to vehicles manufactured in stages set out in sections 6.1 to 6.6 do not apply. (1.3) If an intermediate manufacturer assumes legal responsibility for the completed vehicle’s conformity to the requirements of these Regulations, the provisions related to vehicles manufactured in stages set out in sections 6.3 to 6.6 do not apply. (2) The drawing referred to in paragraph (1)(c) (a) may be displayed on a label applied to the vehicle beside the compliance label; or (b) in the case of an imported vehicle, may be replaced by the following statement indicating that the vehicle conforms to the standards — prescribed under these Regulations — that are applicable on the date of manufacture: “THIS VEHICLE CONFORMS TO ALL APPLICABLE STANDARDS PRESCRIBED UNDER THE CANADIAN MOTOR VEHICLE SAFETY REGULATIONS IN EFFECT ON THE DATE OF MANUFACTURE / CE VÉHICULE EST CONFORME À TOUTES LES NORMES QUI LUI SONT APPLICABLES EN VERTU DU RÈGLEMENT SUR LA SÉCURITÉ DES VÉHICULES AUTOMOBILES DU CANADA EN VIGUEUR À LA DATE DE SA FABRICATION ”. (3) The compliance label shall be applied (a) in the case of a bus, multi-purpose passenger vehicle, three-wheeled vehicle, passenger car, truck or low-speed vehicle, (i) to the hinge pillar, door latch post or the door edge that meets the door latch post next to the driver’s seating position, (ii) to the left side of the instrument panel or the inward-facing surface of the door next to the driver’s seating position, where it is impracticable to apply the label in accordance with subparagraph (i), or (iii) to a conspicuous and readily accessible location, where it is impracticable to apply the label in accordance with subparagraph (i) or (ii); (b) in the case of a trailer, to the forward half of the left side of the trailer so that it is easily readable from outside the trailer without moving any part of the trailer; (c) in the case of a motorcycle, to a permanent part of the motorcycle as close as is practicable to the intersection of the head tube and the handlebars, so that it is easily readable without moving any part of the motorcycle except the steering system; (c.1) in the case of a restricted-use vehicle, to a permanent part of the vehicle as close as is practicable to the intersection of the head tube and the handlebars or of the steering column and the steering wheel, so that it is easily readable without moving any part of the vehicle except the steering system; or (d) in the case of a snowmobile, to the rear half of the right side of the vehicle so that it is easily readable from outside the vehicle without moving any part of the vehicle. (4) to (7) [Repealed, SOR/2002-55, s. 4] (8) In the case of a multi-purpose passenger vehicle or bus manufactured from a cutaway chassis, a motor home or a recreational trailer, the compliance label shall display the following information in both official languages: (a) the cargo-carrying capacity of the vehicle; (b) the designated seating capacity, except in the case of a recreational trailer; (c) in the case of a motor home, the total mass of the occupants, which is obtained by multiplying the designated seating capacity by 68 kg; and (d) in the case of a motor home or a recreational trailer, (i) the mass of the fresh water, hot water and waste water tanks when full, and (ii) a statement that the displayed cargo-carrying capacity is determined with the fresh water and hot water tanks full and the waste water tanks empty. (8.1) The information referred to in subsection (8) may be displayed on a separate label applied to the vehicle beside the compliance label or in a conspicuous or readily accessible location. (9) In the case of a limited-speed motorcycle and a low-speed vehicle, a statement in both official languages that the use of the vehicle may be restricted by provincial authorities to certain roads shall appear on the compliance label or on a separate label permanently applied to the vehicle in a conspicuous location. (10) In the case of a restricted-use vehicle, a statement in both official languages that the vehicle is a restricted-use vehicle or all-terrain vehicle and is not intended for use on public roads must appear on the compliance label or on a separate label permanently applied to the vehicle in a conspicuous location. (11) In the case of a model of vehicle in respect of which the Minister has made an exemption order under section 9 of the Act, the compliance label or information label, as the case may be, must also display the words “Exemption/ Dispense [indicate here the identifier set out in the exemption order]”. (12) and (13) [Repealed, SOR/2000-182, s. 2] ## Vehicles Manufactured in Stages ## Incomplete Vehicle Manufacturer’s Document 6.1 (1) An incomplete vehicle manufacturer shall, at or before the time of delivery of an incomplete vehicle, provide to the intermediate manufacturer, the final-stage manufacturer or other purchaser, as the case may be, an incomplete vehicle document that contains the following information: (a) the name and mailing address of the incomplete vehicle manufacturer; (b) the month and year the incomplete vehicle manufacturer performed its last manufacturing operation on the incomplete vehicle; (c) the vehicle identification number; (d) the GVWR, expressed in kilograms, intended for the vehicle when it is a completed vehicle; (e) the GAWR, expressed in kilograms, intended for each axle of the vehicle when it is a completed vehicle, listed in order from front to rear, except that the GAWR for consecutive axles that have identical GAWRs when equipped with tires that have the same designated tire size may be stated once followed by the words “each” and “ chacun ”; (f) a list of the types of vehicles referred to in paragraph 6(1)(f) into which the incomplete vehicle is designed to be manufactured; and (g) the numbers of the prescribed standards that apply, at the date specified in paragraph (b), in respect of each type of vehicle listed, followed in each case by one or more of the following statements, as applicable: (i) a statement that the completed vehicle will conform to the standard if no alterations are made to the components of the incomplete vehicle that are identified by the incomplete vehicle manufacturer (for example, CMVSS 104 — This vehicle, when completed, will conform to Standard 104, Windshield Wiping and Washing System, if no alterations are made to the windshield or the windshield wiping and washing system), (ii) a statement that the completed vehicle will conform to the standard if the vehicle is manufactured in accordance with the conditions specified by the incomplete vehicle manufacturer (for example, CMVSS 121 — This vehicle, when completed, will conform to Standard 121, Air Brake Systems, if it does not exceed any of the GAWRs, if the centre of gravity at GVWR is not higher than 2.75 m above the ground and if no alterations are made in any brake system component), and (iii) a statement that conformity to the standard cannot be determined based upon the components that are fitted on the incomplete vehicle and that the incomplete vehicle manufacturer makes no representation as to conformity with the standard. (2) The document shall be kept in a weather-resistant container that is attached to the vehicle in a conspicuous and readily accessible location, or it may be sent directly to an intermediate manufacturer, a final-stage manufacturer or other purchaser, as the case may be. ## Incomplete Vehicle Manufacturer’s Information Label 6.2 (1) Every incomplete vehicle manufacturer shall apply to every incomplete vehicle it manufactures an information label that displays the following: (a) a statement, in both official languages, that the vehicle is an incomplete vehicle; (b) the name of the incomplete vehicle manufacturer; (c) the month and year the incomplete vehicle manufacturer performed its last manufacturing operation on the incomplete vehicle; (d) the vehicle identification number; (e) the GVWR intended for the vehicle when it is a completed vehicle, expressed in kilograms, clearly identified by the words “Gross Vehicle Weight Rating” and “ Poids nominal brut du véhicule ” or the abbreviations “GVWR” and “PNBV”; (f) the GAWR, expressed in kilograms, intended for each axle of the vehicle when it is a completed vehicle, listed in order from front to rear and clearly identified by the words “Gross Axle Weight Ratings” and “ Poids nominal brut sur l’essieu ” or the abbreviations “GAWR” and “PNBE”, except that (i) the GAWR for consecutive axles that have identical GAWRs when equipped with tires that have the same designated tire size may be stated once followed by the words “each” and “ chacun ”, and (ii) the information need not appear on the label if it is set out on the vehicle placard or the tire inflation pressure label referred to in section S4.3 of Technical Standards Document No. 110, Tire Selection and Rims for Motor Vehicles With a GVWR of 4,536 kg or Less, or on the tire information label referred to in section S5.3(b) of Technical Standards Document No. 120, Tire Selection and Rims for Motor Vehicles With a GVWR of More Than 4,536 kg; and (g) in the case of a vehicle manufactured in Canada for sale in Canada, a drawing of at least 20 mm in diameter depicting the national safety mark set out in Schedule I and showing in its centre, in figures of at least 2 mm in height, the authorization number assigned by the Minister to the company under section 3. (2) Subject to subsection (3), the information label shall be applied (a) to the hinge pillar, door latch post or the door edge that meets the door latch post next to the driver’s seating position; (b) to the left side of the instrument panel or the inward-facing surface of the door next to the driver’s seating position, if it is impracticable to apply the label in accordance with paragraph (a); or (c) to a conspicuous and readily accessible location, if it is impracticable to apply the label in accordance with paragraph (a) or (b) or if the vehicle does not have the components described in paragraph (a) or (b). (3) In the case of a stripped or cowl chassis, the information label may be applied to a conspicuous and readily accessible location on the steering column. (4) The drawing referred to in paragraph (1)(g) may be displayed on a label applied to the vehicle beside the incomplete vehicle manufacturer’s information label. ## Intermediate Manufacturer’s Document 6.3 (1) Every intermediate manufacturer of an incomplete vehicle shall, at or before the time of delivery of the incomplete vehicle to the subsequent manufacturer, provide to the subsequent manufacturer, in the manner specified in subsection 6.1(2), the incomplete vehicle document that was provided by the previous manufacturer. (2) An intermediate manufacturer shall, before complying with subsection (1), make an addendum to the incomplete vehicle document that contains the following information: (a) its name and mailing address; (b) a clear and precise description of all the changes it has made to the incomplete vehicle; and (c) if any of the changes affect the validity of a statement made by the incomplete vehicle manufacturer in accordance with paragraph 6.1(1)(g), an indication of the amendments that must be made to those statements to reflect the changes made by the intermediate manufacturer. ## Intermediate Manufacturer’s Information Label 6.4 (1) Subject to subsection (3), an intermediate manufacturer shall apply to every incomplete vehicle, beside the information label of the previous manufacturer, an information label that displays the following information: (a) a statement, in both official languages, that the vehicle is an incomplete vehicle; (b) the name of the intermediate manufacturer; (c) a statement, in both official languages, that the company is an intermediate manufacturer; (d) the month and year in which the intermediate manufacturer performed its last manufacturing operation on the incomplete vehicle; and (e) in the case of a vehicle manufactured in Canada for sale in Canada, a drawing of at least 20 mm in diameter depicting the national safety mark set out in Schedule I and showing in its centre, in figures of at least 2 mm in height, the authorization number assigned by the Minister to the company under section 3. (2) The drawing referred to in paragraph (1)(e) may be displayed on a label applied to the vehicle beside the intermediate manufacturer’s information label. (3) If the information label applied to an incomplete vehicle by the previous manufacturer is not in a location described in paragraph 6.2(2)(a) or (b), (a) the information label shall be applied in a location specified in paragraph 6.2(2)(a) or (b), or in a conspicuous and readily accessible location if it is impracticable to conform to paragraph 6.2(2)(a) or (b); and (b) subject to subsection (4), the information label shall display the GVWR and GAWRs set out on the label applied by the previous manufacturer. (4) If an intermediate manufacturer increases the GVWR or the GAWRs above those referred to in paragraphs 6.1(1)(d) and (e), the intermediate manufacturer shall ensure that the new ratings are displayed on that intermediate manufacturer’s information label and (a) are increased in accordance with the written recommendations of the incomplete vehicle manufacturer or, if applicable, of another previous manufacturer; or (b) are within the load-carrying capacity of the vehicle’s components when the vehicle is loaded for its intended use as a completed vehicle. ## Final-stage Manufacturer’s Document 6.5 (1) A final-stage manufacturer shall make an addendum to the incomplete vehicle document that contains the following information: (a) its name and mailing address; and (b) a clear and precise description of all the changes that it has made to the incomplete vehicle. (2) The final-stage manufacturer shall retain and make available to the Minister, on request, the incomplete vehicle documentation referred to in subsection (1) and sections 6.1 and 6.3, for a period of no less than five years after the date manufacturing operations on the vehicle are completed by the final-stage manufacturer. ## Final-stage Manufacturer’s Compliance Label 6.6 (1) Every final-stage manufacturer shall choose a date of manufacture for a completed vehicle that may be no earlier than the date specified by the incomplete vehicle manufacturer on its information label but no later than the date manufacturing operations on the vehicle are completed by the final-stage manufacturer and shall (a) complete the incomplete vehicle in such a manner that the completed vehicle conforms to the standards prescribed for a completed vehicle of that prescribed class as of the date chosen by the final-stage manufacturer; and (b) apply to the completed vehicle a compliance label in accordance with section 6, except that (i) the date of manufacture referred to in paragraph 6(1)(b) is the date of manufacture chosen by the final-stage manufacturer, and (ii) subject to subsection (2), the GVWR and GAWRs shall be those set out on the label applied by the previous manufacturer. (2) If a final-stage manufacturer increases the GVWR or the GAWRs above those referred to in paragraphs 6.1(1)(d) and (e) and subsection 6.4(4) or new ratings have been displayed on an intermediate manufacturer’s information label, the final-stage manufacturer shall ensure that the new ratings are displayed on the compliance label for the completed vehicle and (a) are increased in accordance with the written recommendations of the incomplete vehicle manufacturer or, if applicable, of another previous manufacturer; or (b) are within the load-carrying capacity of the vehicle’s components when the vehicle is loaded for its intended use as a completed vehicle. 7 All the labels applied to a vehicle under sections 6, 6.2, 6.4 and 6.6 shall (a) be permanently attached to the vehicle; (b) be resistant to or protected against any weather condition to which the label may be exposed; (c) have lettering that is (i) clear and indelible, (ii) indented, embossed or in a colour that contrasts with the background colour of the label, and (iii) in block capitals and numerals not less than 2 mm in height; and (d) have metric units identified by the appropriate name or symbol. 8 [Repealed, SOR/2002-55, s. 7] ## Altered Vehicle 9 (1) If a company alters a vehicle, other than an incomplete vehicle or a truck tractor not fitted with a fifth wheel coupling, that was in conformity with these Regulations in such a manner that its stated GVWR and GAWR are no longer accurate, or if the company alters the vehicle otherwise than by the addition, substitution or removal of readily attachable components such as mirrors or tire and rim assemblies or by minor finishing operations, the company shall (a) ensure that the compliance label and information label, if applicable, remain on the vehicle; (a.1) respect the gross axle weight ratings and gross vehicle weight rating of the vehicle recommended by the original manufacturer or, where the company increases the ratings, ensure that they are (i) increased in accordance with the original manufacturer’s written recommendations, or (ii) within the load-carrying capacity of the vehicle’s components when the altered vehicle is loaded for its intended use; (b) ensure that the vehicle conforms to the standards referred to in subsection 5(2), in respect of the work carried out by the company to alter the vehicle; and (c) subject to subsection (2), apply to the vehicle an additional label displaying (i) the words “THIS VEHICLE WAS ALTERED BY / CE VÉHICLE A ÉTÉ MODIFIÉ PAR ” or “ALTERED BY / MODIFIÉ PAR ” followed by the name of the company that altered the vehicle, (ii) the month and year during which the alteration of the vehicle was completed, (iii) the drawing referred to in paragraph 6(1)(c), (iv) in accordance with paragraph 6(1)(e), the new gross vehicle weight rating and gross axle weight ratings of the vehicle as altered, where they differ from those shown on the original compliance label, (v) in accordance with paragraph 6(1)(f), the type of vehicle, where it differs from the type shown on the original compliance label, and (vi) in the case of a multi-purpose passenger vehicle or bus manufactured from a cutaway chassis, a motor home or a recreational trailer, the information referred to in subsection 6(8). (2) The drawing referred to in paragraph (1)(c) may be displayed on a label applied to the vehicle beside the compliance label. (3) In the case of a motor home or a recreational trailer, the information referred to in subparagraph (1)(c)(vi) may be displayed on a separate label applied to the vehicle beside the compliance label or in a conspicuous or readily accessible location. ## Records 10 (1) A company shall maintain — for each vehicle to which it applies the national safety mark or that it imports into Canada — the records referred to in paragraph 5(1)(g) of the Act and retain those records, in paper form or in readily readable electronic form, for a period of at least five years after the day on which the vehicle is manufactured or imported. (2) If the records referred to in subsection (1) are maintained by a person on behalf of a company, the company shall keep the name and address of that person. (3) On request in writing from an inspector, a company shall send to that inspector a copy, in either official language, of the records referred to in subsection (1) within (a) 30 working days after the mailing of the request; or (b) where the records must be translated, 45 working days after the mailing of the request. ## Importation ## Vehicles Imported Under Sections 5 and 6 of the Act 11 (1) For the purposes of paragraph 5(1)(b) of the Act, a person that imports a vehicle of a prescribed class must, before importation, produce evidence that the vehicle conforms to the standards set out in these Regulations by providing the Minister with the following information: (a) the importer’s name, mailing address, telephone number, facsimile number and email address and, if the importer is a company, the contact information of a contact person at the company; (b) the name of the manufacturer of the vehicle; (c) the date on which the vehicle is to be presented for importation; (d) the prescribed class, make, model, model year and vehicle identification number of the vehicle; (e) the status of the vehicle; (f) the month and year of the date of manufacture of the vehicle; and (g) a statement indicating that the vehicle bears an information label or compliance label, as the case may be, or, if the importer is an individual, a statement from the manufacturer that the vehicle conformed to the standards — prescribed under these Regulations — that were applicable on the date of manufacture. (2) Despite subsection (1), a person that imports at least 2,500 vehicles annually is not required to provide the information referred to in subsection (1) unless the Minister makes a written request and, in that case, the person must provide that information to the Minister within 30 days after the day on which the request is made. (3) Subsection 5(3) of the Act does not apply to a vehicle sold at the retail level in the United States or a prescribed vehicle from Mexico, if the vehicle does not meet the condition set out in paragraph 7(2)(a) of the Act. (4) A company that imports a vehicle under subsection 5(3) of the Act must provide the Minister, before importation, with the information referred to in paragraphs (1)(a) to (d) and the following information: (a) a list of the applicable requirements of these Regulations to which the vehicle does not conform; (b) a statement from the manufacturer that completed the main assembly of the vehicle indicating that the vehicle, when completed in accordance with the manufacturer’s instructions, will conform to the standards — prescribed under these Regulations — that were applicable on the date of manufacture; (c) a statement indicating that the vehicle will be completed in accordance with the manufacturer’s instructions; and (d) the name of the company that will complete the vehicle. ## Vehicles Imported Temporarily for Special Purposes 11.1 For the purposes of paragraph 7(1)(a) of the Act, the prescribed purposes for which a vehicle may be imported temporarily are the following: (a) exhibition; (b) demonstration; (c) evaluation; (d) testing; (e) further manufacturing prior to export; (f) the conducting of works or operations that require a specially designed vehicle for entertainment industry productions, civil engineering projects or similar works or operations; (g) in the case of an armoured vehicle, use by a law enforcement agency; and (h) in the case of a vehicle that is licensed in the United States, a visit to Canada by its owner, if the owner has a residential address in Canada and is the holder of a driver’s licence issued in Canada. 11.2 For the purposes of paragraph 7(1)(a) of the Act, a vehicle imported temporarily for special purposes must have a vehicle identification number that conforms to the requirements of section 115 of Schedule IV or, if there is no vehicle identification number, a serial number. 11.3 (1) The declaration referred to in paragraph 7(1)(a) of the Act must be filed with the Minister, be signed by the person importing the vehicle and contain the following information: (a) the vehicle identification number or, if there is no vehicle identification number, the serial number; (b) the importer’s name, mailing address, telephone number, facsimile number and email address and, if the importer is a company, the contact information of a contact person at the company; (c) the date on which the vehicle is to be presented for importation; (d) the name of the manufacturer of the vehicle; (e) the month and year of the date of manufacture; (f) the type of vehicle; (g) the prescribed class, make, model and model year of the vehicle; (h) the purpose for which the vehicle is being imported and a statement that it will be used only for that purpose; (i) a statement indicating that the vehicle will remain in Canada for a period of not more than one year or the period specified by the Minister, as applicable; (j) a statement indicating that the vehicle will be exported or destroyed before the end of the one-year period or the period specified by the Minister, as applicable; (k) a statement that the vehicle conforms to the requirements of section 11.2; and (l) if the declaration is signed by a representative, a statement by the importer indicating that the representative is authorized to sign. (2) Despite subsection (1), a person that imports at least 2,500 vehicles annually is not required to include the information referred to in paragraphs (1)(a), (c), (e) to (g) and (k) in the declaration but must provide that information to the Minister within 30 days after the day on which a written request is made by the Minister. 11.4 For the purposes of subsection 7(1.02) of the Act, a person that imports a vehicle imported temporarily for special purposes may donate the vehicle to a public museum or to an educational institution designated by the Canada Revenue Agency, under the terms of an agreement that describes how the recipient will ensure that the vehicle will not be driven or drawn on public roads. 11.5 A person who imports fewer than 2,500 vehicles annually must provide, as applicable, evidence of the exportation, destruction or donation of any vehicle imported temporarily for special purposes to the Minister within 30 days after the day on which the period referred to paragraph 7(1)(a) of the Act ends. ## Vehicles Imported Under Subsections 7(2) and (2.1) of the Act ## General 12 (1) The person designated for the purposes of subsections 7(2) and (2.1) of the Act is the entity with which the Department of Transport has entered into a contract to operate the national program for the registration, inspection and certification of imported vehicles, known as the registrar of imported vehicles. (2) For the purposes of subsections 7(2) and (2.1) of the Act, a passenger car, multi-purpose passenger vehicle, truck or bus that is a “used vehicle” as defined in Article 2.1 of Chapter 2 of CUSMA is a prescribed vehicle from Mexico. ## Vehicles Sold at the Retail Level in the United States and Prescribed Vehicles from Mexico 12.1 (1) For the purposes of paragraph 7(2)(a) of the Act, the prescribed requirements that a vehicle sold at the retail level in the United States or a prescribed vehicle from Mexico must meet are the following: (a) in the case of a vehicle sold at the retail level in the United States — other than a restricted-use vehicle or a snowmobile — or a prescribed vehicle from Mexico, the vehicle conformed to the federal laws of the United States that were applicable on the date of manufacture, as indicated (i) by the vehicle’s American compliance label, or (ii) in a statement from the manufacturer of the vehicle or, if there is more than one manufacturer, from each manufacturer indicating that the vehicle conformed to the requirements of Parts 541, 565, 571 and 581, chapter V, Title 49 of the Code of Federal Regulations of the United States that were applicable on the date of manufacture; (b) in the case of a snowmobile sold at the retail level in the United States, it conformed to the standards published by the Snowmobile Safety and Certification Committee, Inc. that were applicable on the date of manufacture, as indicated (i) on the Snowmobile Safety and Certification Committee, Inc. certification label, (ii) in a statement from the manufacturer indicating that the snowmobile was certified by the Snowmobile Safety and Certification Committee, Inc., or (iii) in a statement from the manufacturer indicating that the snowmobile conformed to the standards referred to in section 1201 of Schedule VI on the date of manufacture; and (c) in the case of a restricted-use vehicle designed to travel on two or four wheels and sold at the retail level in the United States, it conformed to the requirements of sections 108 and 115 of Schedule IV on the date of manufacture. (2) For the purposes of paragraph 7(2)(b) of the Act, the prescribed requirements that a vehicle sold at the retail level in the United States or a prescribed vehicle from Mexico must meet to be certified by the registrar of imported vehicles are the following: (a) any defect or non-compliance with respect to the vehicle’s design, construction or functioning that was the subject of a notice of defect or non-compliance was corrected; (b) the vehicle conforms to the requirements of subsections 101(4) and (6) and sections 102 and 108 of Schedule IV; (c) the vehicle conforms to the requirements of subsection 114(4) of Schedule IV or was fitted with an electronic immobilization system on the date of manufacture or is fitted with an immobilization system that conforms to the National Standard of Canada CAN/ULC-S338-98, entitled Automobile Theft Deterrent Equipment and Systems: Electronic Immobilization (May, 1998), published by the Underwriters’ Laboratories of Canada; (d) in the case of a vehicle equipped with a fuel system that uses LPG as a source of energy for its propulsion, it conforms to the requirements of section 301.1 of Schedule IV; (e) in the case of a vehicle equipped with a fuel system that uses CNG as a source of energy for its propulsion, it conforms to the requirements of section 301.2 of Schedule IV; (f) in the case of a school bus, it conforms to the requirements of section 111 of Schedule IV and, if applicable, section 301.1 or 301.2 of that Schedule; (g) in the case of a truck or multi-purpose passenger vehicle, it conforms to the requirements of section 111 of Schedule IV; (h) in the case of a trailer with a GVWR greater than 4 536 kg, it conforms to the requirements of section 905 of Schedule IV; (i) in the case of a low-speed vehicle, it conforms to the requirements of section 500 of Schedule IV; (j) in the case of a C-dolly, it conforms to the requirements of section 903 of Schedule IV; and (k) in the case of an enclosed motorcycle, motor tricycle, limited-speed motorcycle or three-wheeled vehicle, it conforms to the applicable requirements of Schedule IV. 12.2 (1) The declaration referred to in paragraph 7(2)(b) of the Act, made by a person who imports a vehicle sold at the retail level in the United States or a prescribed vehicle from Mexico, must be signed by that person and contain the following information: (a) the vehicle identification number; (b) the importer’s name, mailing address, telephone number, facsimile number and email address and, if the importer is a company, the contact information of a contact person at the company; (c) the date on which the vehicle is to be presented for importation; (d) the name of the manufacturer of the vehicle; (e) the type of vehicle; (f) the make, model and model year of the vehicle; (g) the status of the vehicle; and (h) a statement indicating (i) in the case of a vehicle whose status is salvage and repairable or an equivalent status, that, within one year after the day on which it is imported, the vehicle will be brought into conformity with the applicable requirements of subsection 12.1 (2), will be taken to the registrar of imported vehicles for inspection and will not be presented for registration under the laws of a province unless a Canadian certification label is issued in respect of the vehicle by the registrar of imported vehicles, or (ii) in any other case, that, within 45 days after the day on which it is imported, the vehicle will be brought into conformity with the applicable requirements of subsection 12.1 (2), will be taken to the registrar of imported vehicles for inspection and will not be presented for registration under the laws of a province unless a Canadian certification label is issued in respect of the vehicle by the registrar of imported vehicles. (2) In the case of a vehicle sold at the retail level in the United States, the declaration must also contain the following information: (a) a statement indicating that the vehicle was sold at the retail level in the United States; (b) in the case of a vehicle other than a restricted-use vehicle or snowmobile, a statement indicating that the vehicle bears an American compliance label or a statement from the manufacturer indicating that the vehicle conformed to the requirements of Parts 541, 565, 571 and 581, chapter V, Title 49 of the Code of Federal Regulations of the United States that were applicable on the date of manufacture; (c) in the case of a snowmobile, a statement indicating that it bears a Snowmobile Safety and Certification Committee, Inc. certification label or a statement from the manufacturer indicating that the snowmobile was certified by the Snowmobile Safety and Certification Committee, Inc. or that the snowmobile conformed to the standards referred to in section 1201 of Schedule VI on the date of manufacture; and (d) the month and year of the date of manufacture. (3) In the case of a prescribed vehicle from Mexico, the declaration must also contain the following information: (a) the odometer reading; (b) the name of the country in which the vehicle was last registered for use on public roads; (c) a statement indicating that the vehicle bears an American compliance label or a statement from the manufacturer indicating that the vehicle conformed to the requirements of Parts 541, 565, 571 and 581, chapter V, Title 49 of the Code of Federal Regulations of the United States that were applicable on the date of manufacture; and (d) the month and year of the date of manufacture. 12.3 For the purposes of paragraph 7(2)(b) of the Act, the prescribed period during which a vehicle sold at the retail level in the United States or a prescribed vehicle from Mexico must be brought into compliance with the requirements of subsection 12.1 (2) and certified by the registrar of imported vehicles is the following: (a) in the case of a vehicle whose status is salvage and repairable or an equivalent status, one year beginning on the day on which the vehicle is imported; and (b) in any other case, 45 days beginning on the day on which the vehicle is imported. 12.4 (1) After recording the vehicle in its registration system and inspecting the vehicle, the registrar of imported vehicles must certify the vehicle by issuing a Canadian certification label in both official languages if it determines that the vehicle conforms to the requirements of subsection 12.1 (2). (2) The Canadian certification label must (a) display (i) the vehicle identification number, (ii) a statement that the necessary alterations have been made to bring the vehicle into conformity with the standards — prescribed under these Regulations — that were applicable on the date of manufacture, (iii) the date on which the vehicle was altered, and (iv) in the case of a passenger car, truck, multi-purpose passenger vehicle, low-speed vehicle, bus, trailer, trailer converter dolly, motorcycle or three-wheeled vehicle that has been sold at the retail level in the United States and in the case of a prescribed vehicle from Mexico, (A) the gross vehicle weight rating of the vehicle, expressed in kilograms, and (B) the gross axle weight rating for each axle of the vehicle, expressed in kilograms and listed in order from the front to the rear of the vehicle; (b) be permanently applied (i) to the same surface as that to which an American compliance label is applied, or (ii) if there is no American compliance label on the vehicle, in the appropriate location referred to in subsection 6(3); (c) be resistant to or protected against any weather condition to which the label may be exposed; and (d) have lettering that is (i) indelible, (ii) indented, embossed or in a colour that contrasts with the background colour of the label, and (iii) in block capitals and numerals not less than 2 mm in height. ## Vehicles Sold at the Retail Level in the United States and Prescribed Vehicles from Mexico — Importation for Components 12.5 (1) The declaration referred to in subsection 7(2.1) of the Act, made by a person that imports for components a vehicle sold at the retail level in the United States or a prescribed vehicle from Mexico, must be signed by that person and contain the following information: (a) the vehicle identification number; (b) the importer’s name, mailing address, telephone number, facsimile number and email address and, if the importer is a company, the contact information of a contact person at the company; (c) the date on which the vehicle is to be presented for importation; (d) the name of the manufacturer of the vehicle; (e) the type of vehicle; (f) the make, model and model year of the vehicle; (g) the status of the vehicle; (h) a statement indicating that the vehicle will not be presented for registration under the laws of a province; (i) a statement indicating that the declaration will be provided to the registrar of imported vehicles; and (j) a statement indicating that the vehicle will be dismantled for its components. (2) In the case of a vehicle sold at the retail level in the United States, the declaration must also contain the following information: (a) a statement indicating that the vehicle was sold at the retail level in the United States; (b) in the case of a vehicle other than a restricted-use vehicle or snowmobile, a statement indicating that the vehicle bears an American compliance label or a statement from the manufacturer indicating that the vehicle conformed to the requirements of Parts 541, 565, 571 and 581, chapter V, Title 49 of the Code of Federal Regulations of the United States that were applicable on the date of manufacture; (c) in the case of a snowmobile, a statement indicating that it bears a Snowmobile Safety and Certification Committee, Inc. certification label or a statement from the manufacturer indicating that the snowmobile was certified by the Snowmobile Safety and Certification Committee, Inc. or that the snowmobile conformed to the standards referred to in section 1201 of Schedule VI on the date of manufacture; and (d) the month and year of the date of manufacture. (3) In the case of a prescribed vehicle from Mexico, the declaration must also include the following information: (a) the odometer reading; (b) the name of the country in which the vehicle was last registered for use on public roads; (c) a statement indicating that the vehicle bears an American compliance label or a statement from the manufacturer indicating that the vehicle conformed to the requirements of Parts 541, 565, 571 and 581, chapter V, Title 49 of the Code of Federal Regulations of the United States that were applicable on the date of manufacture; and (d) the month and year of the date of manufacture. 12.6 After receiving the declaration referred to in section 12.5, the registrar of imported vehicles must record the vehicle in its registration system. ## Applications for Exemption 13 (1) Any company applying for an exemption pursuant to section 9 of the Act must submit in writing to the Minister (a) its name and address; (b) the province or country under the laws of which it is established; (c) the number, title and text or substance of the standards from which exemption is sought and the duration of that exemption; (d) the reason for requesting an exemption; (e) if applicable, the reasons for withholding from public disclosure any specific part of the information and data found in the application; and (f) the reasons why the granting of the exemption would be in the public interest and consistent with the objectives of the Act. (2) [Repealed, SOR/2023-222, s. 2] (3) If the basis of an application for exemption is the development of new safety features that are equivalent to or superior to those that conform to the prescribed standards, the applicant must include in the submission to the Minister (a) a description of the new features; (b) a copy of the research, development and testing documentation establishing the innovative nature of the new features; (c) an analysis of how the level of performance of the new features is equivalent to or superior to the level of performance established by the prescribed standards, including (i) a detailed description of how a vehicle equipped with the new features would, if exempted, differ from one that conforms to the prescribed standards, and (ii) the results of tests conducted on the new features that demonstrate a level of performance that is equivalent to or superior to that required by the prescribed standards; (d) evidence that an exemption would facilitate the development or the field evaluation of the vehicle; and (e) a statement as to whether the manufacturer intends, at the end of the exemption period, (i) to conform to the prescribed standards, (ii) to apply for a further exemption, or (iii) to request that the prescribed standards be amended to incorporate the new features. (4) If the basis of an application for exemption is the development of new kinds of vehicles, technologies, vehicle systems or components, the applicant must include in the submission to the Minister (a) a copy of the research, development and testing documentation establishing that an exemption would not substantially diminish the safe performance of the vehicle, including (i) a detailed description of how the vehicle equipped with the new kinds of vehicle systems or components would, if exempted, differ from one that conforms to the prescribed standards, (ii) the reasons why not conforming to the prescribed standards does not substantially diminish the safe performance of the vehicle, and (iii) a discussion of other means of conformity that were considered and the reasons for rejecting each of them; (b) the reasons why an exemption would facilitate the development or the field evaluation of the vehicle; and (c) a statement as to whether the company intends, at the end of the exemption period, the vehicle to conform to the prescribed standards. (5) If the Minister has made an exemption order under section 9 of the Act for a model of vehicle, the company must apply to every vehicle of that model a label that displays the following: (a) the features of the vehicle and the standards, by number and title, in respect of which the exemption has been granted; and (b) the short title of the exemption order and the identifier set out in the exemption order. (6) The label must be securely applied to the windshield or a side window of the vehicle. However, in the case of a vehicle without a windshield or side windows or with windshield or side window surfaces that are too small for the label to be applied, the label must be securely applied in a readily accessible location and in such a manner that it is easily readable from outside the vehicle without moving any part of the vehicle. 14 (1) Where a company wishes, on the expiration of the period of an exemption referred to in subsection 13(3), to obtain a new exemption, the company shall submit, in writing, to the Minister (a) the information required pursuant to that subsection; and (b) a statement of the total number of vehicles sold in Canada under the expiring exemption. (2) Where a company wishes, on the expiration of the period of an exemption referred to in subsection 13(4), to obtain a new exemption, the company shall submit, in writing, to the Minister (a) the information required pursuant to that subsection; and (b) a statement of the total number of vehicles sold in Canada under the expiring exemption. ## Notice of Defect 15 (1) For the purposes of subsection 10(1) of the Act, a person, other than the first retail purchaser, who obtained a vehicle from a company is a prescribed person. (2) A notice of defect that is required to be given under subsection 10(1) of the Act shall be in writing, in either paper or electronic form, and (a) in the case of a notice given to the Minister, be in either official language; and (b) in the case of a notice given to the vehicle’s current owner or a prescribed person (i) be in the person’s official language of choice, if it is known, or (ii) be in both official languages. (3) A company shall give the notice of defect to the vehicle’s current owner and to the prescribed person as soon as feasible, but not later than 60 days after the day on which the company gives the notice of defect to the Minister. (4) The notice of defect that is given to the Minister shall contain the following information: (a) the company’s name and its contact information for the purpose of correspondence; (b) the number, title or other identification that is assigned by the company to the notice; (c) for each vehicle that may contain the defect, its prescribed class, make, model and model year and any other information that is necessary to permit its identification; (d) the period during which the vehicles were manufactured; (e) the estimated number of vehicles that could potentially contain the defect; (f) the estimated percentage of the vehicles referred to in paragraph (e) that contain the defect; (g) a description of the nature of the defect, including the causes and contributing factors, if known, and a description of the location of the defect; (h) the vehicle systems or components that may be affected by the defect; (i) a chronology of the principal events that led to the determination of the existence of the defect; (j) all relevant information, including a summary of warranty claims, field reports and service reports, with their dates of receipt, that the company used to determine the existence of the defect; (k) a description of the safety risk to persons arising from the defect; (l) a description of the corrective measures to be taken in respect of the defect and how they are to be implemented; (m) any precautions that may be taken to minimize the safety risk until the corrective measures are implemented; and (n) the estimated date on which the notice of defect will be sent to the vehicle’s current owner and the estimated date on which the notice of defect will be sent to a prescribed person. (5) The company is not required to provide the Minister with the information referred to in paragraphs (4)(i), (j), (l) and (m) if it is not available on the day on which the notice is given but shall provide that information as soon as it is available. (6) A notice of defect that is given to the vehicle’s current owner shall contain the following information: (a) the company’s name; (b) the make, model, model year and the vehicle identification number; (c) the following statements: (i) “This notice is sent to you in accordance with the requirements of the Motor Vehicle Safety Act.”, and (ii) “This is to inform you that your vehicle may contain a defect that could affect the safety of a person.”; (d) the number, title or other identification that is assigned by the company to the notice; (e) the motor vehicle safety recall number that is issued by the Department of Transport; (f) a description of the nature of the defect, including the causes, and a description of the location of the defect; (g) the vehicle systems or components that may be affected by the defect; (h) operating conditions or other factors that may cause a malfunction of the vehicle system or component; (i) the warning signs, if any, of any malfunction that could arise as a result of the defect; (j) a description of the safety risk to persons arising from the defect; (k) a statement that the defect could cause a crash, if applicable; (l) if the defect is not likely to cause a crash, the type of injury that may result from the defect; (m) a description of the corrective measures to be taken in respect of the defect and how they are to be implemented, including (i) a general description of the work involved, (ii) the estimated time required in order to take the corrective measures, (iii) a statement that the company will cover the costs of the corrective measures or an estimate of the cost of the corrective measures to the vehicle’s current owner, and (iv) information identifying the persons who can implement the corrective measures; (n) any precautions that may be taken to minimize the safety risk until the corrective measures are implemented; and (o) a statement indicating that if the vehicle’s current owner has leased the vehicle, the owner shall send to the lessee a copy of the notice and any subsequent notice within 10 working days after the day on which the notice is received. (7) The company is not required to provide to the current owner the information referred to in paragraph (6)(m) if it is not available on the day on which the notice is given but shall provide that information (a) as soon as it is available; or (b) at the same time as the company provides the information required under subsection 10.4(1) of the Act. (8) The words “SAFETY”, “RECALL”, “ RAPPEL ” and “ SÉCURITÉ ” are required to be clearly visible (a) on the envelope, or through a window of the envelope, in upper case and in a font size that is larger than the one used for the recipient’s address, if the notice of defect is given to the current owner in paper form; or (b) in the subject line of the communication, in upper case, if the notice of defect is given to the current owner in electronic form. (9) A notice of defect that is given to a prescribed person shall contain the following information: (a) the company’s name; (b) for each vehicle that may contain the defect, its make, model, model year and vehicle identification number and any other information that is necessary to permit its identification; (c) the number, title or other identification that is assigned by the company to the notice; (d) a description of the nature of the defect, including the causes, and a description of the location of the defect; (e) operating conditions or other factors that may cause a malfunction of the vehicle system or component; (f) a description of the safety risk to persons arising from the defect; (g) a description of the corrective measures to be taken in respect of the defect and how they are to be implemented; and (h) any precautions that may be taken to minimize the safety risk until the corrective measures are implemented. (10) The company is not required to provide to the prescribed person the vehicle identification number required under paragraph 9(b) if that vehicle identification number is published on the company’s website with the number, title or other identification that is assigned by the company to the associated notice of defect. (11) The company is not required to provide to the prescribed person the information referred to in paragraph (9)(g) if it is not available on the day on which the notice is given but shall provide that information as soon as it is available. ## Notice of Non-compliance 15.01 (1) For the purposes of subsection 10.1(1) of the Act, a person, other than the first retail purchaser, who obtained a vehicle from a company is a prescribed person. (2) A notice of non-compliance that is required to be given under subsection 10.1(1) of the Act shall be in writing, in either paper or electronic form, and (a) in the case of a notice given to the Minister, be in either official language; and (b) in the case of a notice given to the vehicle’s current owner or a prescribed person, (i) be in the person’s official language of choice, if it is known, or (ii) be in both official languages. (3) Unless the notice of non-compliance contains a statement under subparagraph (4)(j)(i), a company shall give the notice of non-compliance to the vehicle’s current owner and to the prescribed person as soon as feasible, but not later than 60 days after the day on which the company gives the notice of non-compliance to the Minister. (3.1) If the notice of non-compliance contains a statement under subparagraph (4)(j)(i) and the Minister advises the company that the Minister has determined that the non-compliance is not inconsequential to safety, the company shall give the notice of non-compliance to the vehicle’s current owner and to the prescribed person as soon as feasible after the day on which the company receives the Minister’s determination, but not later than 60 days after that day. (4) A notice of non-compliance that is given to the Minister shall contain the following information: (a) the company’s name and its contact information for the purpose of correspondence; (b) the number, title or other identification that is assigned by the company to the notice; (c) for each vehicle that may be non-compliant, its prescribed class, make, model and model year and any other information that is necessary to permit its identification; (d) the period during which the vehicles were manufactured; (e) the estimated number of vehicles that could potentially be non-compliant; (f) the estimated percentage of the vehicles referred to in paragraph (e) that are non-compliant; (g) a description of the non-compliance, including the applicable regulatory requirement, and the causes and contributing factors, if known; (h) the vehicle systems or components that may be affected by the non-compliance; (i) a chronology of the principal events that led to the determination of the non-compliance, including the test results, observations, inspections and any other relevant information; (j) as the case may be, (i) a statement that the non-compliance is inconsequential to safety, including detailed information in support of the statement, or (ii) a description of the safety risk to persons arising from the non-compliance; (k) a description of the corrective measures to be taken in respect of the non-compliance and how they are to be implemented; (l) any precautions that may be taken to minimize the safety risk until the corrective measures are implemented; and (m) the estimated date on which the notice of non-compliance will be sent to the vehicle’s current owner and the estimated date on which the notice of non-compliance will be sent to a prescribed person. (5) The company is not required to provide the Minister with the information referred to in paragraphs (4)(i), (k) and (l) if it is not available on the day on which the notice is given but shall provide that information as soon as it is available. (5.1) The company is not required to provide the Minister with the information referred to in paragraph (4)(m) if the notice of non-compliance contains a statement under subparagraph (4)(j)(i), but if the Minister advises the company that the Minister has determined that the non-compliance is not inconsequential to safety, the company shall provide that information within five working days after the day on which the company receives the Minister’s determination. (6) A notice of non-compliance that is given to the vehicle’s current owner shall contain the following information: (a) the company’s name; (b) the make, model, model year and the vehicle identification number; (c) the following statements: (i) “This notice is sent to you in accordance with the requirements of the Motor Vehicle Safety Act.”, and (ii) “This is to inform you that your vehicle may be non-compliant with the requirements of the Motor Vehicle Safety Regulations and that the non-compliance could affect the safety of a person.”; (d) the number, title or other identification that is assigned by the company to the notice; (e) the motor vehicle safety recall number that is issued by the Department of Transport; (f) a description of the non-compliance, including the causes; (g) the vehicle systems or components that may be affected by the non-compliance; (h) operating conditions or other factors that may cause a malfunction of the vehicle system or component; (i) the warning signs, if any, of the malfunction that could arise as a result of the non-compliance; (j) a description of the safety risk to persons arising from the non-compliance, if any; (k) a statement that the non-compliance could cause a crash, if applicable; (l) if the non-compliance is not likely to cause a crash, the type of injury that may result from the non-compliance; (m) a description of the corrective measures to be taken in respect of the non-compliance and how they are to be implemented, including, (i) a general description of the work involved, (ii) the estimated time required in order to take the corrective measures, (iii) a statement that the company will cover the costs of the corrective measures or an estimate of the cost of the corrective measures to the vehicle’s current owner, and (iv) information identifying the persons who can implement the corrective measures; (n) any precautions that may be taken to minimize the safety risk until the corrective measures are implemented; and (o) a statement indicating that if the vehicle’s current owner has leased the vehicle, the owner shall send to the lessee a copy of the notice and any subsequent notice within 10 working days after the day on which the notice is received. (7) The company is not required to provide to the current owner the information referred to in paragraph (6)(m) if it is not available on the day on which the notice is given but shall provide that information (a) as soon as it is available; or (b) at the same time as the company provides the information required under subsection 10.4(1) of the Act. (8) The words “SAFETY”, “RECALL”, “ RAPPEL ” and “ SÉCURITÉ ” are required to be clearly visible (a) on the envelope, or through a window of the envelope, in upper case and in a font size that is larger than the one used for the recipient’s address, if the notice of non-compliance is given to the current owner in paper form; or (b) in the subject line of the communication, in upper case, if the notice of non-compliance is given to the current owner in electronic form. (9) A notice of non-compliance that is given to a prescribed person shall contain the following information: (a) the company’s name; (b) for each vehicle that may be non-compliant, its make, model, model year and vehicle identification number and any other information that is necessary to permit its identification; (c) the number, title or other identification that is assigned by the company to the notice; (d) a description of the non-compliance, including the causes; (e) operating conditions or other factors that may cause a malfunction of the vehicle system or component; (f) a description of the safety risk to persons arising from the non-compliance, if any; (g) a description of the corrective measures to be taken in respect of the non-compliance and how they are to be implemented; and (h) any precautions that may be taken to minimize the safety risk until the corrective measures are implemented. (10) The company is not required to provide to the prescribed person the vehicle identification number required under paragraph 9(b) if that vehicle identification number is published on the company’s website with the number, title or other identification that is assigned by the company to the associated notice of non-compliance. (11) The company is not required to provide to the prescribed person the information referred to in paragraph (9)(g) if it is not available on the day on which the notice is given but shall provide that information as soon as it is available. ## Reports 15.02 (1) Within five working days after the day on which a company begins sending a notice of defect or non-compliance to current owners, the company shall provide to the Minister a report containing (a) a copy of the notice; (b) a sample of the envelope used to mail the notice; (c) the date on which the company began sending notices; (d) the day on which the company finished, or expects to finish, sending the notices; (e) the number of vehicles that are subject to the notice; and (f) the vehicle identification number for each vehicle that may contain the defect or may be non-compliant, unless that information is provided to the Minister under paragraph (3)(a) or is published in accordance with subsection 15(10) or 15.01(10). (2) Despite paragraph (1)(b), a company is not required to provide a sample of the envelope if it uses an envelope that has previously been provided as a sample to the Minister and the report includes the date on which the sample was provided. (3) Within five working days after the day on which a company begins sending a notice of defect or non-compliance to prescribed persons, the company shall provide to the Minister a report containing (a) a copy of the notice; and (b) if no notices are sent to current owners, the number of vehicles that are subject to the notice. (4) For a period of five years beginning on the 60th day after the day on which a company gives a notice to the Minister under subsection 10(1) or 10.1(1) of the Act, the company shall provide the Minister, within five working days after the day on which they are sent to their recipients, a copy of any of the following communications, with the date on which they were sent to their recipients: (a) communications sent to more than one current owner relating to the defect or non-compliance; and (b) communications sent to more than one prescribed person relating to (i) the information set out in subsection 15(9) or 15.01(9), and (ii) the defect or non-compliance. 15.03 (1) For the purposes of section 10.2 of the Act, a company that gives a notice of defect or non-compliance to a current owner or a prescribed person shall provide the Minister with quarterly reports that contain the following information: (a) the motor vehicle safety recall number issued by the Department of Transport; (b) the number, title or other identification that is assigned by the company to the notice; (c) the number of vehicles that are subject to the notice, including the day on which the number was updated by the company; and (d) the number of vehicles for which corrective measures have been taken, including vehicles that required only an inspection, and the day on which that number was determined by the company. (2) The company shall provide the Minister with quarterly reports, in accordance with the following schedule, for a period of two years beginning on the 60th day after the day on which the company gives a notice to the Minister under subsection 10(1) or 10.1(1) of the Act: (a) for the first calendar quarter, from January 1 through March 31, on or before April 30; (b) for the second calendar quarter, from April 1 through June 30, on or before July 30; (c) for the third calendar quarter, from July 1 through September 30, on or before October 30; and (d) for the fourth calendar quarter, from October 1 through December 31, on or before January 30 of the following year. ## Test Methods 15.1 (1) Documents that contain motor vehicle safety test methods shall be published by the Department of Transport under the main title Test Method, followed by an identification number, a descriptive title and the publication date. (2) [Repealed, SOR/2008-104, s. 4] ## Technical Standards Documents 16 (1) For the purposes of section 12 of the Act, every technical standards document, including all of the amendments to it, shall be published by the Department of Transport and have the main title Technical Standards Document, followed by an identification number, a descriptive title and the publication date. (2) [Repealed, SOR/2008-104, s. 5] 17 The Department of Transport shall publish a notice in the Canada Gazette Part I each time the Department amends a technical standards document. ## Owner’s Manual 18 (1) For the purposes of paragraph 5(1)(f) of the Act, for each vehicle that a company imports into Canada before the vehicle is sold to the first retail purchaser and for each vehicle to which a company applies a compliance label, the company shall provide, in written, electronic or optical form, an owner’s manual containing the information required by these Regulations relating to the operation of the vehicle. (2) The owner’s manual shall be available in both official languages. (3) If the owner’s manual is available only in electronic or optical form, it shall be capable of being used inside the occupant compartment using a device installed in or supplied with the vehicle. (4) As of September 1, 2020, the owner’s manual shall contain instructions on how the owner can contact the Department of Transport in order to report a safety concern relating to a vehicle. 19 [Repealed, SOR/95-147, s. 2] 20 [Repealed, SOR/93-274, s. 2] 21 and 22 [Repealed, SOR/95-147, s. 2]", "response": "## Analysis of REGULATIONS-FED: Motor Vehicle Safety Regulations\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nThese regulations provide specific implementation details for broader legislative frameworks. Practitioners should ensure strict compliance with procedural requirements, timelines, and documentation standards. The regulations must be interpreted consistent with their enabling legislation and may be subject to challenge if they exceed the authority granted by the statute."}
{"prompt": "Explain how this Federal Court of Canada decision interprets immigration legislation:\n\nCanada (National Revenue) v. Zeifmans LLP Court (s) Database Federal Court Decisions Date 2023-07-21 Neutral citation 2023 FC 1000 File numbers T-2250-22 Decision Content Date: 20230721 Docket: T-2250-22 Citation: 2023 FC 1000 Ottawa, Ontario, July 21, 2023 PRESENT: Madam Justice Pallotta BETWEEN: THE MINISTER OF NATIONAL REVENUE Applicant and ZEIFMANS LLP Respondent JUDGMENT AND REASONS I. Overview [1] The Minister of National Revenue (Minister) brings this summary application under section 231.7 of the Income Tax Act, RSC 1985, c 1 (5th Supp) as amended [ITA]. The Minister seeks a compliance order that would compel Zeifmans LLP (Zeifmans), a tax and accounting partnership, to provide documents and information that were requested in a January 30, 2019 letter issued pursuant to section 231.2 of the ITA, and titled “Requirement to Provide Documents or Information” (Requirement). [2] The Requirement is connected to Canada Revenue Agency (CRA) tax audits, under the Related Party Audit Program (RPAP), of individuals and entities related to or economically connected to members of the Ghermezian family (Ghermezian Group). In 2014, the CRA informed Nader Ghermezian that it had commenced audits of his personal tax returns and the tax returns of entities controlled by him or persons related to him. In 2015, the CRA advised Mr. Ghermezian’s daughter, Diana Vaturi, and his son-in-law Marc Vaturi that it had commenced audits of their personal tax returns. [3] Zeifmans is not under audit. The Minister sent the Requirement to Zeifmans because it is the authorized representative for the Vaturis. The Requirement required Zeifmans to provide certain categories of documents and information related to Mr. Ghermezian, Ms. and Mr. Vaturi, and entities owned, operated, controlled or otherwise connected to them, for the period January 1, 2012 to December 31, 2017. Zeifmans has not provided any of the requested documents or information. [4] Zeifmans’ position in response to the Minister’s compliance application is that this Court should not issue an order that would compel it to produce the documents and information in the Requirement, for two reasons. First, the statutory conditions for issuing a compliance order under section 231.7 of the ITA have not been met, including because the Minister was required to obtain judicial authorization under subsection 231.2(3) of the ITA before issuing the Requirement and she did not do so. Second, even if the statutory conditions have been met, the judicial discretion afforded by section 231.7 should be exercised against ordering Zeifmans to comply with the Requirement, or any part of it. Accordingly, Zeifmans asks the Court to dismiss the Minister’s application. [5] The Minister submits that the Court should not entertain Zeifmans’ arguments. The Minister contends Zeifmans’ arguments against granting a compliance order strike at the core of the Requirement’s validity, and Zeifmans already had an opportunity to challenge the Requirement’s validity. Zeifmans brought an application for judicial review to set aside the Requirement, and the application was dismissed: Zeifmans LLP v Canada (National Revenue), 2021 FC 363 [Zeifmans FC]. Zeifmans’ appeal of Zeifmans FC was also dismissed: Zeifmans LLP v Canada, 2022 FCA 160 [Zeifmans FCA]. To the extent Zeifmans raises arguments on this application that were or should have been raised on judicial review, the arguments constitute an impermissible collateral attack on the Requirement. Also, the Minister states Zeifmans’ arguments are an abuse of the Court’s process. Zeifmans attempts to relitigate issues that were decided in Zeifmans FC and Zeifmans FCA, including by relying on case law that was expressly overturned in Zeifmans FCA. [6] Alternatively, and in any event, the Minister submits Zeifmans’ arguments lack merit. The Minister states she has satisfied the section 231.7 conditions for issuing a compliance order, and an exercise of judicial discretion against ordering Zeifmans to comply with the Requirement is not warranted in this case. [7] I am not persuaded that Zeifmans’ position on this application constitutes a collateral attack on the Requirement. Section 231.7 of the ITA expressly obliges the Court to examine the underlying section 231.2 request, and Zeifmans’ arguments address that question. The judicial review application addressed a different question of whether the Minister’s decision to proceed without judicial authorization was reasonable. Zeifmans’ arguments that the section 231.7 conditions for a compliance order have not been met are made in the appropriate forum, and not collaterally. [8] Furthermore, in each proceeding the judge’s decision must be based on the record that is before them. The record in this proceeding is materially different from the record that was before the Court in Zeifmans FC. The Court held in Zeifmans FC that the reasonableness of the Minister’s decision to proceed without judicial authorization in each case depends on whether the evidence in the record establishes that unnamed persons are under investigation or audit by the CRA, and there was “no evidence in the record that the Unnamed Persons are a current investigation target”: Zeifmans FC at paras 49, 64. The evidence on this application establishes that Unnamed Persons, as defined in Zeifmans FC, were and are an investigation target. In fact, Unnamed Persons were already under audit when the Requirement was issued, and the audits are not yet complete. [9] It is not an abuse of the Court’s process to permit Zeifmans to raise substantive arguments addressing the very issues the Court is obliged to decide on this application. Deciding on this record whether a compliance order should be granted does not revisit the decisions in Zeifmans FC or Zeifmans FCA or call those decisions into question. The nature of the proceedings, the legal tests, and the evidentiary records are different. [10] In my view, Zeifmans’ arguments have merit. Based on the record that is before me, I am not satisfied that the subsection 231.7 conditions for issuing a compliance order have been met. In addition, I am not satisfied I should grant a compliance order in the exercise of judicial discretion. [11] Accordingly, for the reasons below, this application is dismissed. II. Issues [12] The issues are: Are Zeifmans’ arguments barred by the doctrines of collateral attack or abuse of process? Should the Court grant a compliance order under section 231.7 of the ITA, compelling Zeifmans to provide the documents and information in the Requirement? [13] I will also address a preliminary issue regarding Zeifmans’ objection to the Minister’s reply memorandum. III. Analysis A. The parties’ records [14] As differences between this record and the record on judicial review are relevant to the issues, I will begin by summarizing the record that is before me. [15] The Minister commenced this proceeding by filing a notice of summary application on October 26, 2022. The Minister’s application record, filed on November 2, 2022, consists of the notice of summary application, written submissions, a draft order, and the following affidavit evidence: Affidavit of Andrew Bowe, affirmed November 1, 2022: Mr. Bowe is a strategic advisor in the High Net Worth Compliance Directorate within the CRA’s Compliance Programs Branch.Prior to January 18, 2021, he was an International and Large Business Case Manager in the CRA’s former Edmonton Tax Services Office.Mr. Bowe was the case manager for the Ghermezian Group audits under the RPAP from May 2015 until January 18, 2021.He supervised the audits of Mr. Ghermezian and the Vaturis at the material times.Mr. Bowe’s affidavit provides information about the history of the audits and the events that led to the issuance of the Requirement. Affidavit of Ismail Choulli, affirmed November 1, 2022:Mr. Choulli is an International and Large Business Case Manager in the CRA’s High Complexity Audit Tax Services Office (formerly the Edmonton Tax Services Office).In August 2021, Mr. Choulli was assigned as Case Manager for the audits of Mr. Ghermezian and the Vaturis.Mr. Choulli’s affidavit provides some of the same information as Mr. Bowe’s affidavit, but it is more limited because Mr. Choulli became involved in the audits after the Requirement had issued. Affidavit of Brendan Tait, affirmed November 2, 2022:Mr. Tait is a paralegal with the Department of Justice’s (DOJ) Ontario Regional Office, Tax Law Services Section.Mr. Tait helped to prepare the Minister’s compliance application.Mr. Tait’s affidavit attaches a letter and email from the DOJ informing Zeifmans of the Minister’s intention to commence a compliance application, and responding correspondence from Zeifmans’ counsel.Mr. Tait attests that the DOJ has not received any of the documents or information specified in the Requirement from Zeifmans. [16] Zeifmans served an affidavit of Tomer Shenhav, sworn November 7, 2022. Mr. Shenhav is an associate lawyer at the law firm representing Zeifmans in this application. His affidavit attaches excerpts from the ITA, and excerpts from CRA Income Tax Audit Manuals that were published in April 2015 and July 2020. It also attaches a copy of the certified tribunal record (CTR) the Minister produced in Zeifmans’ judicial review proceeding, which certifies and attaches copies of the two documents that were considered by the Minister’s delegate in issuing the Requirement—namely, a draft copy of the Requirement, and a 9-page “Information Sheet for a Requirement to Provide Information” (Information Sheet). The Information Sheet reproduced as part of the CTR is heavily redacted. A less redacted Information Sheet, produced later in the judicial review proceeding, is also an exhibit to Mr. Shenhav’s affidavit. [17] Mr. Bowe, Mr. Choulli and Mr. Shenhav were cross-examined on their affidavits. [18] Zeifmans’ responding record, filed December 1, 2022, consists of Mr. Shenhav’s affidavit, transcripts from the three cross-examinations, and Zeifmans’ written submissions. [19] The evidence that is germane to the issues on this application is mostly from Mr. Bowe’s affidavit and cross-examination, and the Information Sheet. [20] On December 2, 2022, the Minister served a 50-page reply memorandum of argument, referencing more than 30 additional authorities. B. Preliminary Issue – Minister’s reply memorandum [21] At the hearing, the Minister sought leave to “regularize” the filing of written reply submissions. Zeifmans objected on the basis that the Federal Courts Rules do not contemplate written reply, and Zeifmans would be prejudiced. The Minister served the reply on the Friday before a Tuesday hearing, without any attempt to notify Zeifmans or seek consent. [22] The Minister states the reply submissions were intended to provide Zeifmans with as much notice as possible regarding submissions she is entitled to make orally. The Minister acknowledges that the written reply was submitted after 5 pm on the Friday before the hearing, and she did not seek Zeifmans’ consent or provide a covering letter to explain her reasons for preparing it—a mistake she contends was due to haste. The Minister states she did not know what Zeifmans would argue until she received the responding record, and she prepared a written reply so that the two hours allotted for the hearing of this application could be used efficiently. [23] Zeifmans counters that the Minister always bears the burden in a compliance application and is not entitled to advanced notice of a respondent’s position. Zeifmans states the volume of the Minister’s written submissions on this application overwhelm Zeifmans’ written submissions, and there was insufficient time to fully consider the reply arguments and additional authorities. If the Court were to accept the Minister’s written reply memorandum, Zeifmans requested a greater proportion of the hearing time in order to respond. [24] At the hearing, I stated that I would accept the Minister’s reply memorandum for filing under reserve of objection, which I would consider following the hearing, and that I would give Zeifmans additional time to respond to the Minister’s submissions. [25] The Minister should have requested a special sitting. The Minister set this matter down for a two-hour hearing at general sittings and did not revise the time estimate despite the Court’s direction asking whether the estimate remained accurate. Since the Minister read in most of the reply memorandum as oral submissions, the efficiencies the Minister expected would be realized by preparing a written reply did not materialize. The application was the last matter on the general sittings list, the Court sat late to accommodate a three-hour hearing, and even with the extra hour, the hearing was rushed. Although I stated that I would give Zeifmans additional time to respond to the Minister’s submissions, in the end, the time for each side’s submissions was roughly equal. [26] In hindsight, I recognize that Zeifmans’ ability to properly address the issues first raised by way of the Minister’s reply may have been compromised. The Minister’s written submissions exceeded the page limit provided under the Rules and were more than double Zeifmans’ 30 pages of written submissions. The extra hour of hearing time did not address the imbalance, and although neither party requested an adjournment, it probably would have been preferable to adjourn the matter to a special sitting. [27] That said, and as noted above, the Minister read in much of the reply as oral submissions, and while Zeifmans’ submissions may have been less organized and thorough than it would have preferred, Zeifmans capably addressed the new issues raised in the reply. I informed the parties that I would take extra time to render my decision and I have carefully considered all the written and oral submissions, and the cited authorities. Since I have decided that the Minister’s application must be dismissed, any prejudice to Zeifmans was not so significant as to affect the result. For these reasons, I have decided to admit the Minister’s reply memorandum. C. The statutory conditions under section 231.7 of the ITA [28] Before turning to the issues I must decide, in this section I will outline Zeifmans’ arguments that are alleged to constitute an impermissible collateral attack or an abuse of the Court’s process. For context, I will provide some high-level observations about the statutory regime and reproduce the relevant statutory provisions. [29] In order to maintain the integrity of the tax system and to ensure compliance with Canada’s self-assessing and self-reporting system of taxation, the ITA includes provisions giving the Minister broad powers to investigate and audit taxpayers: R v McKinlay Transport Ltd, [1990] 1 SCR 627 at 648. The statutory provisions that are at issue in this proceeding are part of the ITA’s administration and enforcement provisions that allow the Minister, or persons authorized to act on her behalf, to audit taxpayers, request documents and information from taxpayers or third parties, and take prescribed actions if taxpayers or third parties do not comply. [30] The Minister issued the Requirement to Zeifmans pursuant to section 231.2 of the ITA. Subsection 231.2(1) confers broad and general powers to require any person to produce any information or any document for any purpose related to the administration or enforcement of the ITA: Canada (National Revenue) v Lee, 2016 FCA 53 at para 5 [Lee]. However, the Minister’s powers are constrained by subsection 231.2(2). In certain circumstances, the Minister must obtain a judge’s authorization to issue a section 231.2 requirement: ITA, ss 231.2(2) and 231.2(3). The Minister did not obtain judicial authorization before issuing the Requirement to Zeifmans. [31] The Requirement is dated January 30, 2019 and addressed to “Zeifmans LLP”. The key parts of the Requirement are the following (emphasis in original): Subject: Requirement to provide information regarding Marc Vaturi, Diana Vaturi (also known as Diana Ghermezian), and Nader Ghermezian For purposes related to the administration or enforcement of the Income Tax Act (the “Act”), Zeifmans LLP (“Zeifmans”) is required to provide within thirty (30) days from the date of this notice of requirement, pursuant to the provisions of subsection 231.2(1) of the Act, the following information and documents pertaining to the period of January 1, 2012 to December 31, 2017. For the above-named individuals, whether solely or jointly, and entities owned, operated, controlled or otherwise connected to the above-mentioned individuals, please provide: 1. All correspondence including emails and records in a chain of communications including attachments, between Zeifmans and the above-mentioned individuals and connected entities; 2. All records of communications made with other domestic and/or international accounting firms, registry offices, provincial bodies, and other government bodies (not including audit queries and responses issued between Zeifmans and Canada Revenue Agency) on behalf of the above individuals and connected entities; 3. All correspondence items mentioning or identifying Dalia Ghermezian, James Ghermezian, and Michael Ghermezian in any manner, jointly or severally, whatsoever; 4. All accounting records, director and shareholder resolutions, share certificates, registry documents, property assessments and bank statements provided to Zeifmans by the above individuals or connected entities (or provided to Zeifmans by third parties on behalf of the above individuals or connected entities); 5. Accounting records including working papers, adjusting journal entries, and trial balances; 6. Step memorandums, tax planning letters, letters of engagement; 7. Memo to files, client profiles; 8. Loan documents, including signed agreements, and grid loan records; 9. Emails including draft versions of loan agreements and grid loan working papers/calculations; 10. Records authorizing decisions relating to tax planning and/or accounting services; and 11. All other correspondence, letters, instructions, opinion letters or reports, minutes of meetings, records of discussions and telephone conservations, notes, jottings, or other written/recorded communication discussing, planning, or otherwise relevant to the information requested. The above list is not exhaustive and we may request additional information required for our audit at a later time. For any one or more individuals that the request applies to, please provide the information either jointly, if it applies to multiple individuals, or individually, if it only applies to a single person. […] [32] As previously stated, Zeifmans has not provided any documents or information sought by the Requirement, and its application for judicial review challenging the Requirement was dismissed. The Minister now seeks a compliance order pursuant to section 231.7 of the ITA. [33] Section 231.7 of the ITA allows this Court to issue an order that would compel Zeifmans to provide any information or document sought by the Requirement “if the judge is satisfied” that Zeifmans was required under section 231.2 to provide such documents or information and did not do so: Compliance order 231.7 (1) On summary application by the Minister, a judge may, notwithstanding subsection 238(2), order a person to provide any access, assistance, information or document sought by the Minister under section 231.1 or 231.2 if the judge is satisfied that Ordonnance 231.7 (1) Sur demande sommaire du ministre, un juge peut, malgré le paragraphe 238(2), ordonner à une personne de fournir l’accès, l’aide, les renseignements ou les documents que le ministre cherche à obtenir en vertu des articles 231.1 ou 231.2 s’il est convaincu de ce qui suit : (a) the person was required under section 231.1 or 231.2 to provide the access, assistance, information or document and did not do so; and a) la personne n’a pas fourni l’accès, l’aide, les renseignements ou les documents bien qu’elle en soit tenue par les articles 231.1 ou 231.2; (b) in the case of information or a document, the information or document is not protected from disclosure by solicitor-client privilege (within the meaning of subsection 232(1)). b) s’agissant de renseignements ou de documents, le privilège des communications entre client et avocat, au sens du paragraphe 232(1), ne peut être invoqué à leur égard. [34] Because of the serious consequences that can flow from non-compliance, Zeifmans contends this Court should not order the production of information or documents sought by the Minister unless the statutory conditions of section 231.7 have been clearly met: Minister of National Revenue v Chamandy, 2014 FC 354 at para 41 [Chamandy]; Minister of National Revenue v SML Operations (Canada) Ltd, 2003 FC 868 at para 15 [SML]. Zeifmans submits the statutory conditions for a compliance order have not been met in this case. The partnership was not required under section 231.2 of the ITA to provide the requested documents and information, and the Requirement is not valid. [35] Zeifmans’ principal argument in this regard is that the Minister was required to obtain prior judicial authorization under subsection 231.2(3) of the ITA, and she issued the Requirement without doing so. The Minister was required to obtain judicial authorization because the Requirement requested documents and information relating to one or more “unnamed persons” who were under audit by the CRA at the time. [36] Section 231.2 of the ITA reads as follows: Requirement to provide documents or information Production de documents ou fourniture de renseignements 231.2 (1) Notwithstanding any other provision of this Act, the Minister may, subject to subsection (2), for any purpose related to the administration or enforcement of this Act (including the collection of any amount payable under this Act by any person), of a listed international agreement or, for greater certainty, of a tax treaty with another country, by notice served personally or by registered or certified mail, require that any person provide, within such reasonable time as is stipulated in the notice, 231.2 (1) Malgré les autres dispositions de la présente loi, le ministre peut, sous réserve du paragraphe (2) et, pour l’application ou l’exécution de la présente loi (y compris la perception d’un montant payable par une personne en vertu de la présente loi), d’un accord international désigné ou d’un traité fiscal conclu avec un autre pays, par avis signifié à personne ou envoyé par courrier recommandé ou certifié, exiger d’une personne, dans le délai raisonnable que précise l’avis : (a) any information or additional information, including a return of income or a supplementary return; or a) qu’elle fournisse tout renseignement ou tout renseignement supplémentaire, y compris une déclaration de revenu ou une déclaration supplémentaire; (b) any document. b) qu’elle produise des documents. Unnamed persons Personnes non désignées nommément (2) The Minister shall not impose on any person (in this section referred to as a “third party”) a requirement under subsection 231.2(1) to provide information or any document relating to one or more unnamed persons unless the Minister first obtains the authorization of a judge under subsection 231.2(3). (2) Le ministre ne peut exiger de quiconque — appelé « tiers » au présent article — la fourniture de renseignements ou production de documents prévue au paragraphe (1) concernant une ou plusieurs personnes non désignées nommément, sans y être au préalable autorisé par un juge en vertu du paragraphe (3). Judicial authorization Autorisation judiciaire (3) A judge of the Federal Court may, on application by the Minister and subject to any conditions that the judge considers appropriate, authorize the Minister to impose on a third party a requirement under subsection (1) relating to an unnamed person or more than one unnamed person (in this section referred to as the “group”) if the judge is satisfied by information on oath that (3) Sur requête du ministre, un juge de la Cour fédérale peut, aux conditions qu’il estime indiquées, autoriser le ministre à exiger d’un tiers la fourniture de renseignements ou la production de documents prévues au paragraphe (1) concernant une personne non désignée nommément ou plus d’une personne non désignée nommément — appelée « groupe » au présent article —, s’il est convaincu, sur dénonciation sous serment, de ce qui suit : (a) the person or group is ascertainable; and a) cette personne ou ce groupe est identifiable; (b) the requirement is made to verify compliance by the person or persons in the group with any duty or obligation under this Act. b) la fourniture ou la production est exigée pour vérifier si cette personne ou les personnes de ce groupe ont respecté quelque devoir ou obligation prévu par la présente loi; (c) and (d) [Repealed, 1996, c. 21, s. 58(1)] c) et d) [Abrogés, 1996, ch. 21, art. 58(1)] [37] Zeifmans presents two additional reasons why the conditions of section 231.7 have not been met: (i) parts of the Requirement are vague and ambiguous such that they are incapable of meaningful reply without speculation, and (ii) the Requirement was issued to a limited liability partnership, which is not a “person” for the purposes of the ITA, and the evidence does not establish that the persons who were obligated to respond to the Requirement are the same persons who would be sanctioned under a compliance order. [38] Even if the statutory conditions have been met, Zeifmans submits that the judicial discretion afforded by section 231.7(1)—which states a judge “may” order a person to provide information or documents sought by the Minister under section 231.2—should be exercised against ordering Zeifmans to comply with the Requirement or any part thereof. Zeifmans’ reasons include: the conditions of section 231.7 have not been clearly met; Zeifmans is not itself under audit; Zeifmans must navigate obligations to the Minister as well as concurrent professional obligations to its clients and to the regulatory bodies that govern accountants’ conduct, and it would be unfair to impose an obligation on Zeifmans to decide, based on the vague and ambiguous wording of the Requirement, which of the Minister’s requests for documents and information are valid and which requests are not valid. D. Issue 1: Are Zeifmans’ arguments barred by the doctrines of collateral attack or abuse of process? [39] The Minister contends that this Court should not entertain Zeifmans’ “substantive” arguments that the statutory conditions for a section 231.7 compliance order have not been met. The Minister distinguishes Zeifmans’ substantive arguments from its “discretionary” arguments, which are premised on the exercise of judicial discretion. [40] The Minister states Zeifmans made the following arguments challenging the validity of the Requirement in Zeifmans FC: (i) the Minister was required to seek judicial authorization to issue the Requirement under subsection 231.2(2) of the ITA because the Requirement sought information about unnamed persons; (ii) the Requirement is ambiguous because “entities owned, operated, controlled or otherwise connected to” Mr. Ghermezian, Ms. Vaturi and Mr. Vaturi are not defined terms, and it is unclear what is meant by the references to such entities; (iii) the Requirement was not issued to a person as required by section 231.2, because a partnership is not recognized as a person under the ITA. Zeifmans’ arguments were dismissed by this Court in Zeifmans FC, and by the Federal Court of Appeal (FCA) in Zeifmans FCA. According to the Minister, Zeifmans’ substantive arguments in this proceeding are not merely close to, or related to, the arguments it made in Zeifmans FC—they are identical. [41] Thus, the Minister submits Zeifmans had an opportunity to challenge the Requirement, the challenge was unsuccessful, and Zeifmans is now attempting to mount an impermissible collateral attack on the Requirement in these proceedings. For similar reasons, the Minister submits Zeifmans is attempting to relitigate the same issues that were decided in Zeifmans FC and Zeifmans FCA, which constitutes an abuse of the Court’s process. (1) Collateral Attack [42] The doctrine of collateral attack prevents a party from undermining previous orders issued by a court or administrative tribunal: Garland v Consumers’ Gas Co, 2004 SCC 25 at para 71. The doctrine is generally invoked where a party attempts to challenge the validity of a binding order in the wrong forum, in the sense that the validity of the order comes into question in separate proceedings when the party has not used the direct attack procedures that were open to it, such as an appeal or judicial review: Ibid. [43] The Minister submits that Zeifmans’ substantive arguments strike at the core of the Requirement’s validity, and constitute a collateral attack on the Requirement. According to the Minister, the attack is collateral because the object of a section 231.7 application is to provide a means to enforce compliance. While the text of subsection 231.7(1) puts the question of whether Zeifmans was “required under section 231.1 or 231.2 to provide the access, assistance, information or document and did not do so” before the Court, it is not a specific object of the proceeding to reverse, vary or nullify the Requirement: R v Bird, 2019 SCC 7 at para 21 [Bird]. The proceeding with the specific object of reversing, varying or nullifying the Requirement was Zeifmans’ application for judicial review. [44] Relying on the Supreme Court of Canada’s (SCC) decision in R v Consolidated Maybrun Mines Ltd, [1998] 1 SCR 706 [Maybrun], the Minister submits that Zeifmans’ collateral attack on the Requirement is an impermissible one. Maybrun identifies five factors that may be considered in order to determine whether Parliament intended to permit collateral attacks on an administrative order in the context of proceedings to enforce the order: the wording of the statute from which the power to issue the order derives; the purpose of the legislation; the availability of an appeal; the nature of the collateral attack in light of the appeal tribunal’s expertise or raison d’être; and the penalty on a conviction for failing to comply with the order. (Maybrun at paragraphs 41-52) [45] In Bird, the SCC recognized that the third Maybrun factor permits a court to consider not only a right of appeal to an administrative appeal tribunal, but also whether there are other effective mechanisms or forums for challenging the order at issue, including judicial review: Bird at paras 44, 49. Similarly, the fourth factor permits a court to consider the nature of the collateral attack in light of the expertise or raison d’être of other mechanisms or forums for challenging the order: Bird at para 75. [46] The Minister argues that all five Maybrun factors, as refined in Bird, support a conclusion that it was not Parliament’s intention to permit a respondent to collaterally attack a section 231.2 requirement in the context of a section 231.7 compliance application. The Minister states that the third and fourth Maybrun factors are the most salient factors in this case, because judicial review provided an effective, alternative mechanism for Zeifmans to challenge the validity of the Requirement. [47] The Minister submits Zeifmans’ position in this proceeding mirrors the position that was advanced by the respondent and rejected by the Saskatchewan Court of Appeal (SKCA) in Mitchell v Candle Lake (Resort Village), 2021 SKCA 44 [Mitchell]. Mr. Mitchell, who had commenced construction without a building permit, failed to comply with a stop work order issued by the village pursuant to section 17 of the Uniform Building and Accessibility Standards Act, SS 1983-84, c U-1.2 [UBASA]. The village applied to the court for a compliance order under section 23 of the UBASA, and in the context of that proceeding, Mr. Mitchell argued that the court was not empowered to grant a compliance order because the underlying section 17 stop work order was invalid. The chambers judge disagreed, finding that, absent any appeal of the stop work order, it remained in effect. The chambers judge issued an order under section 23 of the UBASA that required Mr. Mitchell to comply with the section 17 stop work order. The SKCA dismissed Mr. Mitchell’s appeal, finding that the chambers judge did not err by refusing to allow him to collaterally attack the stop work order in the compliance proceeding. [48] The Minister states it was implicit in the SKCA’s decision that a compliance application under section 23 of the UBASA is not a proceeding “with the specific object of reversing, varying or nullifying the underlying order”. The Minister argues the same can be said for a compliance application under section 231.7 of the ITA. The object of this compliance proceeding is not to reverse, vary or nullify the Requirement, and therefore, Zeifmans’ attack on the Requirement is a collateral attack. [49] Zeifmans submits the Minister’s position is contrary to the language of section 231.7 and established jurisprudence, including SML and Chamandy, that the sanctions of section 231.7 may only be imposed if the statutory conditions of that section have been clearly met. Zeifmans notes that the effect of the Minister’s position would be to bar any respondent to a section 231.7 application from raising so-called substantive defences, whether or not they had previously challenged the underlying section 231.1 or 231.2 request on judicial review. [50] In my view, Zeifmans’ position on this application is not a collateral attack on the Requirement. While I accept that it is not a specific object of this proceeding to reverse, vary or nullify the Requirement (and Zeifmans does not ask for such relief), it is a specific object of compliance proceedings to determine whether the section 231.7 conditions are met. It is the judge hearing the compliance application who must be satisfied that the section 231.7 conditions are met, and consequently, there is no alternative forum to decide the issue. [51] Zeifmans asks the Court to dismiss the Minister’s application because the section 231.7 conditions have not been met. Zeifmans’ arguments are made in the proper forum. They are not “collateral”. [52] I disagree with the Minister that Zeifmans’ position mirrors Mr. Mitchell’s position in Mitchell. [53] The SKCA explained Mr. Mitchell’s argument on appeal in this way (Mitchell at paragraph 28): Placed in an appellate context, I understand Mr. Mitchell to argue that in considering whether to grant a s. 23 order, the Chambers judge was obliged to examine the statutory prerequisites for its issuance, which, he submits, included an examination of the validity of the underlying order. As the argument goes, had the Chambers judge approached the Village’s application in this manner, he would have found himself without authority to make an order under s. 23. For this reason, Mr. Mitchell says the Chambers Decision cannot stand and must be set aside. [54] The SKCA reviewed the leading cases on collateral attack, including Maybrun, noting that Mr. Mitchell was seeking to challenge the underlying administrative order in a compliance proceeding, rather than a penal proceeding: Mitchell at para 41. The SKCA outlined reasons why the doctrine of collateral attack should extend to circumstances where a party ignores a regulatory appeal process and then seeks to challenge an administrative order in subsequent compliance proceedings: Mitchell at para 48. [55] With that, the SKCA went on to consider the Maybrun framework of analysis in order to determine what the Legislature intended to be the appropriate forum for Mr. Mitchell to challenge the stop work order issued under section 17 the UBASA: Mitchell at paras 46-79. The SKCA found that most Maybrun factors weighed in favour of a conclusion that the Legislature did not intend for a person to be able to collaterally attack the validity of a section 17 stop work order in the context of subsequent section 23 proceedings. [56] While the SKCA in Mitchell applied the doctrine of collateral attack to a compliance proceeding, I agree with Zeifmans that there are material differences between the UBASA provisions that were at issue in Mitchell and section 231.7 of the ITA. A key difference is that section 231.7 of the ITA expressly obliges the hearing judge to examine the underlying section 231.1 or 231.2 request. The fact that, in the Minister’s words, “the text of ss. 231.7(1) puts the question of whether Zeifmans was ‘required under section 231.1 or 231.2 to provide the access, assistance, information or document and did not do so’ before the Court”, demonstrates that Zeifmans’ arguments are made in the appropriate forum, and not collaterally. [57] As the FCA stated in Miller v Canada (Minister of National Revenue), 2022 FCA 183 [Miller], the Minister must satisfy the Court of three “conditions precedent” before the Court may issue a section 231.7 compliance order: (i) the person against whom the order is made must have been required under section 231.1 or 231.2 of the ITA to provide the access, assistance, information or document that is the subject of the order; (ii) that person must have failed to provide the access, assistance, information or document in question; and (iii) in the case of information or a document, it must not be subject to solicitor-client privilege: Miller at paras 19, 25-27; ITA, ss 231.7(1)(a)-(b); also see Lee at para 6. [58] Thus, the statutory conditions of section 231.7 require the Court to determine whether the Minister had the authority to issue the underlying Requirement (for example, see Miller at paragraph 60), and they constrain the Court’s authority to issue a compliance order (for example, see Miller at paragraph 79). The collateral attack cases the Minister relies on did not invoke the doctrine in similar circumstances, to bar arguments about whether statutory conditions for issuing an enforcement order have been met. [59] Zeifmans adds that the Minister has not put forward a section 231.7 case where the doctrine of collateral attack was invoked. The Minister counters that the question is whether the doctrine applies, not whether it has been argued before. While that may be true, Zeifmans’ point remains noteworthy. The doctrine of collateral attack operates regardless of whether a party used the direct attack procedures that were open to it, yet the authorities the parties have put before me demonstrate that this Court regularly entertains responding arguments that the statutory requirements of section 231.7 were not met. The FCA has also entertained such responding arguments in compliance application appeals. [60] Even in compliance proceedings where it was apparent that the responding parties had filed applications for judicial review to challenge the Minister’s section 231.1 or 231.2 requests, the doctrine of collateral attack was not raised. Zeifmans notes that in Friedman v Canada (Minister of National Revenue), 2021 FCA 101 [Friedman], the appeals from judicial review and compliance applications were heard and considered together, and described as “discrete legal proceedings”: Friedman at para 26. I would add that in Canada (Minister of National Revenue) v Ghermezian, 2022 FC 236 [Ghermezian Compliance] the Court acknowledged that some of the respondents to the compliance proceeding had challenged the Minister’s requirements issued under section 231.2 in judicial review proceedings, and yet the Court considered the arguments that the statutory conditions were not met. [61] While I have found that Zeifmans’ position on this application is not a collateral attack on the Requirement, the parties addressed the Maybrun factors at some length and I will address them for completeness. Applying the Maybrun framework leads to a similar conclusion. [62] The Maybrun framework provides clues for discerning legislative intent with regard to the appropriate forum to challenge an administrative order: Mitchell at para 75. In my view, all five factors favour a conclusion that Parliament’s intent was to permit an aggrieved person to challenge an underlying section 231.1 or 231.2 request in a section 231.7 compliance proceeding. Consequently, Zeifmans’ arguments are not an impermissible collateral attack on the Requirement. i. the wording of the statute from which the power to issue the order derives [63] The Minister submits that the wording of the ITA signals Parliament’s intention to require timely, up-front compliance, and not a need for the Minister to “resort to criminal charges and sanctions to secure compliance”: Bird at para 28. The Minister notes that section 231.2 of the ITA is situated within a broader suite of information-gathering provisions that facilitate unencumbered and immediate access to all books, records, and information of the taxpayer, and lie at the heart of the Minister’s ability to enforce taxation legislation: Canada (National Revenue) v Cameco Corporation, 2019 FCA 67 at para 27; Roofmart Ontario Inc v Canada (National Revenue), 2020 FCA 85 at para 55 [Roofmart]. Subsection 231.2(1) confers broad and general powers on the Minister, and provides her with considerable discretion in determining to whom a requirement is issued and the specific information or documents that the recipient is required to produce. It operates notwithstanding any other provision of the ITA, and is subject only to subsection 231.2(2). [64] Zeifmans submits the language of section 231.7 expresses Parliament’s clear intention that the validity of an underlying section 231.1 or 231.2 request is to be considered in a compliance application. This is unlike the compliance provision in Mitchell—section 23 of the UBASA does not direct the judge to consider whether the respondent was required to comply with the underlying administrative order. Zeifmans submits the Minister’s position on this application leads to a “circular absurdity”—her decision to issue a requirement without prior judicial authorization avoids the judicial oversight of subsection 231.2(3), while the doctrine of collateral attack circumscribes the arguments a judge may consider when deciding whether they are satisfied that a person was “required under section 231.1 or 231.2 to provide the access, assistance, information or documents” because the Minister should have obtained prior judicial authorization. This cannot have been Parliament’s intention. [65] I agree with Zeifmans. The language of section 231.7 specifically tasks the judge hearing the application with deciding whether the person against whom the compliance order will be made was required under section 231.1 or 231.2 of the ITA to provide the access, assistance, information or document that is the subject of the order. None of the collateral attack cases the Minister relies on involved a regime that required the Court to consider the validity of the underlying administrative order or directive. Judicial review of a section 231.1 or 231.2 request addresses a different question of whether the Minister’s decision was unreasonable. In each type of application, the judge’s decision is based on the record that is before them. The record in this proceeding, which includes the Minister’s supporting affidavits and the cross-examination testimony, is materially different from the record that was before the Court in Zeifmans FC. [66] It is also relevant that the ITA does not include a mechanism for an aggrieved party to challenge a section 231.1 or 231.2 requirement. The Minister states Parliament is presumed to know that a right of judicial review exists. In my view, this argument does not assist the Minister. Knowing that a recipient can apply for judicial review of a section 231.1 or 231.2 requirement, Parliament nonetheless imposed the conditions of section 231.7(1)(a). This indicates Parliament did not intend for judicial review to be the sole forum for considering whether the Minister properly exercised her authority in issuing the Requirement. ii. the purpose of the legislation [67] The Minister submits that the purpose of the legislation militates against permitting a collateral attack on the Requirement. The ITA provides for a broad suite of enforcement mechanisms because it would be naïve to think that all taxpayers will properly self-report and pay the taxes they owe: Miller FCA at paras 6, 8. The Minister argues that the breadth of these powers reflect the importance Parliament has placed on ensuring compliance with the self-reporting taxation system. Permitting a “breach first, challenge later” approach would be contrary to this purpose, as it would undermine the administrative regime and compromise the Minister’s ability to administer and enforce the ITA on a timely basis. Instead of placing responsibility on the individual recipient for complying with a requirement, permitting collateral attacks during compliance proceedings would have the effect of flipping that responsibility—in effect, compelling the Minister to act by bringing a compliance application—all while the recipient lies in wait, having breached the requirement. [68] Zeifmans acknowledges that the enforcement mechanisms in the ITA are broad, but submits that the express limits of the statutory provisions also reflect Parliament’s intentions. I agree. [69] There is a considerable body of jurisprudence interpreting the section 231.7 conditions in light of the purpose of the ITA. As noted above, a condition precedent for a compliance order is that the judge hearing the compliance application must be satisfied that the respondent was required under section 231.1 or 231.2 of the ITA to provide the access, assistance, information or document that is the subject of the order: Miller at paras 19, 25-27. As the FCA stated in Roofmart (at paragraph 20): [20] […] Where Parliament has specified precisely which conditions must be satisfied to achieve a particular result, it is reasonable to assume that Parliament intended that taxpayers and the Minister would rely on those conditions (Canada Trustco Mortgage Co v Canada, 2005 SCC 54, [2005] 2 SCR 601 at para 11). Additional conditions cannot be read into the legislation. Nor can a supposed purpose “be used to create an unexpressed exception to clear language,” or to supplant clear language (Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20, [2006] 1 SCR 715 at para 23). [70] I fail to see how Zeifmans’ substantive arguments in this proceeding would have the effect of “flipping” responsibility to the Minister. The process for obtaining a compliance order is a process prescribed by Parliament. The statutory conditions are imposed by Parliament. [71] Finally, I am not persuaded by the Minister’s arguments that permitting a respondent to challenge whether a statutory condition for a compliance order has been met undermines the administrative regime, or compromises the Minister’s ability to administer and enforce the ITA in a timely way. The Minister sets the deadline for responding to a section 231.1 or 231.2 request. Parliament has provided for an expeditious, summary mechanism that allows the Minister’s compliance application to be heard within a very short time after commencing the proceeding—only five clear days’ notice is required: ITA, s 231.7(2). An appeal of a compliance order does not suspend its operation unless so ordered by a judge of the court to which the appeal is made: ITA, s 231.7(5). The summary application process provided by section 231.7 is more expeditious than an application for judicial review, and the Minister may commence a compliance proceeding while an application for judicial review is pending: Canada (Minister of National Revenue) v Friedman, 2019 FC 1583. iii. the availability of an appeal [72] The Minister submits this factor, as refined in Bird, is an important Maybrun factor for the present application. Even though the ITA does not provide for a right to appeal a section 231.1 or 231.2 request, judicial review provides an effective mechanism to challenge such a request. Judicial review appropriately balances the principles of (1) ensuring that the legislative decision to assign decision-making powers to administrative bodies is not undermined; and (2) ensuring that individuals have an effective means available to them to challenge administrative orders: Bird at para 26. The Minister submits Parliament clearly turned its mind to the availability of judicial review, as section 231.8(a) of the ITA extends the period of time within which the Minister may assess a taxpayer for a taxation year where the taxpayer brings an application for judicial review in respect of a section 231.2 requirement. The only reasonable inference, according to the Minister, is that Parliament was alive to the possibility of judicial review when it enacted sections 231.2 and 231.7 and intended that recipients of section 231.2 requirements would challenge them through the mechanism of judicial review. Zeifmans had a fair and meaningful opportunity to challenge the Requirement in proceedings specifically for that purpose, and Parliament cannot have intended to allow Zeifmans to have “a second bite at the same cherry”. [73] Zeifmans submits that section 231.8(a) of the ITA is a legacy provision, left over from when the process for obtaining judicial authorization under subsection 231.2(3) was by way of ex parte application, with a right for the recipient of the requirement to seek review of the judge’s authorization order. [74] While Zeifmans’ argument would explain why section 231.8(a) is not triggered when a recipient judicially reviews a section 231.1 request, the more important point, in my view, is that Parliament, despite being alive to the possibility of judicial review, imposed a condition that the judge who hears a compliance application must be satisfied the recipient was “required under section 231.1 or 231.2 to provide the access, assistance, information or documents”. Judicial review does not address that issue. The language of section 231.8 does not override Parliament’s clear words in section 231.7. [75] Zeifmans also points out, and I agree, that the absence of an appeal mechanism presents a significant point of distinction between this case and Mitchell. The SKCA considered the UBASA appeal process to be “robust”, providing an express, expeditious means to challenge a section 17 order before a specialized appeal board equipped to perform its adjudicative function and render a decision within 30 days, and providing further recourse to the Court of Queen’s Bench on questions of law. The SKCA found that allowing Mr. Mitchell to attack the validity of a section 17 order in the context of enforcement proceedings would “undermine the integrity of the administrative system and allow him to circumvent the appropriate review mechanisms put in place by the Legislature”: Mitchell at para 77. [76] I would add that in Bird, the SCC outlined three different mechanisms that Mr. Bird had available to him to challenge the underlying administrative order, and decided that two of them together—the mechanism of writing to the Parole Board, with the possibility of a habeas corpus application before a provincial superior court—constituted an effective means to challenge the order. The SCC “could not say with certainty” whether the third mechanism of judicial review before the Federal Court would have provided an effective means to challenge the administrative order, primarily because judicial review may not have provided timely and accessible relief: Bird at paras 59, 72. While the delay of judicial review to challenge a section 231.1 or 231.2 request does not engage the same liberty interests that were at stake in Bird, I would note that Zeifmans filed its notice of application for judicial review on March 1, 2019 (Zeifmans FC at paragraph 7) and the hearing was more than in 18 months later. In comparison, the Minister’s notice of application for a compliance order was filed October 26, 2022 and heard December 6, 2022, even with an adjournment to facilitate the scheduling of cross-examinations. Despite a more comprehensive evidentiary record than the record on judicial review (a point to which I will return), this matter was heard in less than 6 weeks. [77] In summary, this factor also supports a conclusion that a section 231.7 compliance proceeding is an appropriate forum for determining whether Zeifmans was required under section 231.2 to provide the information and documents requested in the Requirement. iv. the nature of the collateral attack in light of the appeal tribunal’s expertise or raison d’être [78] As noted above, this factor as refined in Bird permits a court to consider the nature of the collateral attack in light of the expertise or raison d’être of other mechanisms or forums for challenging the order: Bird at para 75. [79] The Minister submits that the nature of Zeifmans’ attack on the Requirement is the type of challenge Parliament tasked the Federal Court with addressing by way of judicial review, and it is within the Federal Court’s judicial review expertise. A summary application under subsection 231.7(1) of the ITA is less suitable to decide substantive challenges to the Requirement’s validity. Summary applications are heard within tight timelines, and since the responding record is filed after the Minister has filed a record and cross-examinations have taken place, the Minister is in the procedurally unfair position of having to guess at the respondent’s position. The Minister states Parliament cannot have intended a fundamentally unfair process that would allow respondents to “lie in wait, armed with a number of challenges to the validity of the requirement, only to reveal them after the Minister has served and filed her affidavit(s), written representations, and after cross-examinations have been concluded”. [80] In my view, the Federal Court’s expertise is a neutral consideration. A judge of the Federal Court has the expertise and statutory authority to decide both judicial review and compliance proceedings. The Court’s role in each type of proceeding is a more relevant consideration for discerning legislative intention, as are procedural differences and questions of fairness. These factors favour Zeifmans’ position. [81] In Zeifmans FC, the Court’s role was to conduct a reasonableness review of the Minister’s decision to issue the Requirement. In the absence of formal reasons explaining the Minister’s decision, the Court was required to consider whether it could discern from the record that the Minister was alive to the key issues, including issues of legislative interpretation, and reached a reasonable decision on them: Zeifmans FCA at paras 10-11. [82] The Court has a different role in a 231.7 proceeding, and Zeifmans substantive arguments are directly relevant to the issues the Court must decide. It would make little sense for Parliament to task the Court with deciding whether the section 231.7 conditions are met, based on a record that includes the Minister’s supporting affidavits and evidence elicited by Zeifmans’ cross-examinations, and restrict the arguments Zeifmans may raise based on that evidence. [83] I am not persuaded that the shorter timelines of compliance proceedings make them less suitable for deciding substantive challenges to the Requirement’s validity. For the reasons discussed above, the expeditious and summary procedure for section 231.7 compliance applications is procedurally advantageous to the Minister. Despite shorter timelines, the record before me is more comprehensive than the record that was before the Court in Zeifmans FC, which consisted of a 15-page CTR (the most relevant part of which was the 9-page Information Sheet), and an affidavit of one of Zeifmans’ partners; the Minister did not file affidavit evidence in support of her position: Zeifmans FC at para 8. [84] A summary application by the Minister is the procedure that Parliament prescribed for obtaining a compliance order. The Minister decides the scope of a request under section 231.1 or 231.2, the scope of the order sought in the section 231.7 compliance application, and the evidence she will file to support the application. I fail to see any unfairness from following the usual sequence that an applicant files their evidence and record first, particularly in this case, where the Minister might have anticipated some of Zeifmans’ arguments and could have tailored her evidence accordingly. v. the penalty on a conviction for failing to comply with the order [85] The Minister submits that this factor militates against permitting a collateral attack. The Minister states Zeifmans faces no penal jeopardy at this point in the proceedings, because a compliance order would only require Zeifmans to comply with the Requirement. Any consequences for failing to obey the compliance order, such as incarceration and fines, are too remote to be relevant. [86] There is no merit to the Minister’s argument. I agree with Zeifmans that serious consequences flow from a failure to obey a compliance order. The penalty is contempt: ITA, s 231.7(4). Section 231.7 operates notwithstanding the penalty provisions under section 238 for failing to comply with a request or requirement under section 231.1 or 231.2 of the ITA, and imposes more serious consequences. Those serious consequences are the very reason for bringing a section 231.7 application. [87] For these reasons, I am not persuaded that the Maybrun factors signal Parliament’s intent to confine Zeifmans’ arguments to the forum of judicial review. Zeifmans’ arguments address statutory conditions that are part of the section 231.7 process Parliament prescribed, and Zeifmans’ position on this application is not an impermissible collateral attack on the Requirement. (2) Abuse of Process [88] The doctrine of abuse of process has been applied to preclude relitigation in circumstances where the strict requirements of issue estoppel or res judicata are not met, but allowing the litigation to proceed would violate principles of judicial economy, consistency, finality and the integrity of the administration of justice: Toronto (City) v CUPE, Local 79, 2003 SCC 63 at paras 37, 42 [CUPE]. The Minister submits Zeifmans’ substantive arguments are an attempt to relitigate issues that were decided in Zeifmans FC and Zeifmans FCA, and an abuse of the Court’s process. [89] The Minister submits that CUPE identifies three underlying bases for applying abuse of process to preserve the integrity of the adjudicative process: CUPE at para 51. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Third, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality. According to the Minister, allowing Zeifmans’ to make the same arguments that were rejected in Zeifmans FC and on appeal would violate principles of judicial economy, consistency, finality and the integrity of the administration of justice: CUPE at para 51. [90] In Zeifmans FCA, the FCA found the Minister’s implicit interpretation of section 231.2 to be “consistent at a conceptual level with much authority”, including Canada (Customs and Revenue Agency) v Artistic Ideas Inc, 2005 FCA 68 [Artistic Ideas FCA] and eBay Canada Ltd v MNR, 2008 FCA 348 [eBay]. The Minister states Zeifmans is attempting to revive an interpretation of section 231.2 from Canada (MNR) v Toronto Dominion Bank, 2004 FCA 359 [TD Bank FCA], notwithstanding the finding in Zeifmans FCA that TD Bank FCA is inconsistent with binding authority, and ought not to be followed: Zeifmans FCA at paras 5-6. The Minister contends the judicial interpretation of section 231.2 in Zeifmans FC and Zeifmans FCA was more than a “reasonableness review”, and permitting Zeifmans to relitigate this point would undermine the core function of the FCA to provide consistency in the law. It would undermine the credibility of the judicial process if this Court were to adopt an interpretation of section 231.2 that is inconsistent with Zeifmans FCA, a proceeding that involved the same parties and the same facts. [91] The Minister submits there is no new evidence that warrants a departure from the previous conclusion in Zeifmans FC and Zeifmans FCA that the Requirement was not unduly vague, a conclusion the Minister contends was closer to a factual determination than a reasonableness determination. While the Minister filed new evidence on this application, Zeifmans’ argument relates to whether it could respond to the Requirement, and it has not filed any new evidence. [92] The Minister states Zeifmans’ argument that the Requirement was not served on a person relitigates a point of law decided against it. In Zeifmans FC, the Court concluded the Requirement was effectively addressed to each individual partner of the accounting partnership by virtue of subsection 244(20) of the ITA. The FCA considered service on Zeifmans LLP to be valid and effective. [93] I disagree with the Minister that Zeifmans’ arguments are an abuse of the Court’s process. [94] In Zeifmans FC, the Federal Court was conducting a reasonableness review of the Minister’s decision to issue the Requirement without prior judicial authorization. The FCA confirmed this was the correct approach (Zeifmans FCA at para 2): [2] The Federal Court conducted reasonableness review of the Minister’s decision to issue the requirement. This was proper. Reasonableness is the presumptive standard of review: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653. And, contrary to the submissions of the accounting firm, there is nothing here to rebut that presumption: this is not the sort of rare case described in Vavilov where the governing legislation offers indicia telling us that we should review for correctness. [95] The Minister’s interpretation of section 231.2 of the ITA and how she applied that interpretation to the facts of the case do not bind the Court, even if reasonable. To the extent that the Minister’s implied interpretation of section 231.2 and application to the facts are consistent with binding authorities, it is those authorities that I must follow. [96] In Zeifmans FC the Court reviewed the reasonableness of the Minister’s decision based on the record before it, which was essentially the 9-page Information Sheet. Some key findings were: (i) where there is no evidence that unnamed persons themselves are subject to audit or investigation by the CRA to verify their compliance with the ITA, there is no reason for the Minister to proceed under subsection 231.2(2)—the Minister is entitled to require the third party to provide the information requested if the unnamed persons are not subject to audit (Zeifmans FC at paragraphs 45, 47); (ii) the reasonableness of the Minister’s decision to proceed without judicial authorization in each case depends on whether the evidence in the record establishes that unnamed persons are under investigation or audit by the CRA (Zeifmans FC at paragraph 49); (iii) there was no evidence in the record before the Court that the Unnamed Persons (defined as entities owned, operated, controlled or otherwise connected to Mr. Ghermezian, Ms. Vaturi and Mr. Vaturi) were an investigation target, and no evidence in the Information Sheet that the Requirement was for any purpose other than to further the ongoing audit of Mr. Ghermezian and the Vaturis (Zeifmans FC at paragraphs 24, 64, 67). [97] The Court’s factual finding that the Unnamed Persons were not subject to audit or investigation was afforded deference on appeal (Zeifmans FCA at paragraph 7): [7] As for the Federal Court’s finding of fact that the Canada Revenue Agency had not targeted the unnamed entities for investigation, only an error of law or palpable and overriding error can cause us to displace it. The Federal Court had evidence before it on which it made its finding of fact and it made no legal error. Thus, the Federal Court’s finding of fact must stand in this Court: the unnamed entities were not investigative targets. [98] The approach on this application is not reasonableness review. Moreover, the issues will not be decided “on the same facts”, as the Minister contends. The FCA stated, at paragraph 4 of Zeifmans FCA, “On the facts here, the Federal Court found that “[t]here is no evidence in the record that [ascertainable unnamed persons] are a current investigation target” (at para. 64) and so the Minister’s decision to issue the requirement without prior judicial authorization was reasonable.” As will be discussed below, there is evidence in the record before me that “entities owned, operated, controlled or otherwise connected to” Mr. Ghermezian or the Vaturis were under audit when the Minister issued the Requirement. [99] Zeifmans’ second argument, regarding vagueness/ambiguity, is also affected by the nature of a judicial review and the evidentiary record that was before the Court in Zeifmans FC. [100] In Zeifmans FC, Zeifmans argued that the requests for information and documents in the Requirement are so broad that they have no apparent connection to the CRA’s audit of Mr. Ghermezian, Ms. Vaturi and Mr. Vaturi, and it was not possible to conclude that the Minister reasonably exercised her power to obtain information within the scope of her authority, for a purpose related to the administration and enforcement of the ITA: Zeifmans FC at para 74. Zeifmans also argued that the Requirement did not clearly define “entities owned, operated, controlled or otherwise connected to” the three individuals. The Court addressed these arguments using a reasonableness review framework. The Court found there was no evidence in the record that the Requirement was issued for any purpose other than in furtherance of the audit of the three individual taxpayers, and made findings that were based on the Information Sheet. Zeifmans’ description of various paragraphs of the Requirement as being too broad or unduly vague were insufficient to undermine the stated purpose of the Requirement, the audit context provided in the Information Sheet and the reasons given for requiring the information and documents listed in the Requirement: Zeifmans FC at para 76. [101] On this application, there is more than the Information Sheet. The record includes Mr. Bowe’s affidavit and cross-examination testimony, and the Court must analyze Zeifmans’ arguments in that context and in view of the requirements of 231.7 of the ITA. [102] On the question of whether the Requirement was issued for a purpose other than furthering the audits of Mr. Ghermezian and the Vaturis, Mr. Bowe’s evidence is that: he was the lead case manager for the Ghermezian Group audits that were underway at the time the Requirement issued; his defined term “Audits” includes the audits of Nader Ghermezian, Diana Vaturi and Marc Vaturi, as well as audits of “entities owned, operated, controlled or otherwise connected to” them; the Requirement was issued as part of the Audits and to verify Mr. Ghermezian’s and the Vaturis’ compliance with the ITA; the CRA directorate from which the Audits derived (the International and Large Business Directorate) was more focused on corporate entities; many economically connected entities were under audit by the CRA at the time the Requirement issued, including offshore entities; a purpose of the audits of connected entities was to verify whether the entities were complying with their obligations under the ITA; the information requested in the Requirement could be relevant to the audits of the connected entities, and the CRA may use the information for the audits. [103] Zeifmans’ third argument, regarding whether a partnership is a person, is not identical to the argument Zeifmans raised on judicial review. Different considerations apply in an enforcement proceeding. In Zeifmans FC, the Court found that the Minister acted reasonably in issuing the Requirement to the partnership, Zeifmans LLP. However, the Court specifically noted that any concerns regarding enforcement would be addressed in a compliance proceeding: Zeifmans FC at para 73. [104] I agree with Zeifmans that none of the three, underlying bases for applying the doctrine of abuse of process favours the Minister’s position. First, the evidentiary records in the two proceedings are different. Applying the outcome on judicial review to the question the Court must decide in this application would yield an inaccurate result. Second, if the Court were to reach a result that is similar to the result on judicial review, the proceeding would not be a waste of judicial resources because a compliance order may issue. Third, reaching a result that differs from the result on judicial review would not undermine the credibility of the judicial process or the aim of finality. The difference can be explained. On this application, the Court is not deciding whether to set aside the Requirement. The process Parliament prescribed for obtaining a compliance order requires me to decide if the section 231.7 criteria are met. If I am not satisfied on this record that a compliance order should be granted, it does not call the decisions in Zeifmans FC or Zeifmans FCA into question. [105] On top of that, the Minister never volunteered that “entities owned, operated, controlled or otherwise connected to” Mr. Ghermezian or the Vaturis were under audit when she issued the Requirement. The Minister did not file affidavit evidence in the judicial review proceeding, and in this proceeding the evidence about these other audits was revealed in cross-examination. Faced with contrary evidence on a factual premise for the findings in Zeifmans FC and Zeifmans FCA, I agree with Zeifmans that precluding it from raising substantive arguments would undermine the integrity of the adjudicative process. [106] In conclusion, it is not an abuse of process to permit Zeifmans to raise substantive arguments that address the issues the Court must decide on this application. E. Issue 2: Should the Court grant a compliance order under section 231.7 of the ITA, compelling Zeifmans to provide the documents and information in the Requirement? [107] The parties agree that, before granting an order that would compel Zeifmans to provide documents or information in the Requirement, this Court must be satisfied that: a. Zeifmans was required under section 231.2 of the ITA to provide the documents or information; b. Zeifmans did not provide the documents or information; and c. the documents or information are not protected from disclosure by solicitor-client privilege (within the meaning of subsection 232(1) of the ITA). [108] The first point is the determinative point on Issue 2, namely, whether Zeifmans was required under section 231.2 of the ITA to provide the documents and information in the Requirement. [109] As noted above, subsection 231.2(1) permits the Minister to require any person to provide any document or information for any purpose related to the administration or enforcement of the ITA, subject to subsection 231.2(2). The Minister “shall not impose on any person (…referred to as a ‘third party’)”, a requirement under subsection 231.2(1) to provide documents or information relating to one or more unnamed persons, unless the Minister first obtains the authorization of a judge under subsection 231.2(3): ITA, ss 231.1(2). [110] The Minister submits she has satisfied the section 231.7 conditions for the documents and information sought by the Requirement. The Requirement was made under subsection 231.2(1) for purposes related to the administration or enforcement of the ITA, namely, to verify whether Nader Ghermezian, Diana Vaturi and Marc Vaturi complied with their duties and obligations under the ITA for the period January 1, 2012 to December 31, 2017, including whether they complied with foreign reporting obligations and reported their income from all worldwide sources. The subsection 231.2(2) limitation did not apply. [111] The Minister and Zeifmans disagree on the conditions that would trigger the subsection 231.2(2) requirement to obtain judicial authorization. The Minister’s position would confine judicial authorization to circumstances where the Minister seeks information from a third party about persons who are unknown to the Minister, for the purpose of primarily auditing those unknown persons. Zeifmans argues that the statutory limits of the Minister’s authority under section 231.2 relate to unnamed persons—there is no “unknown persons” provision in the ITA. [112] Zeifmans submits that in Canada (Minister of National Revenue) v Toronto Dominion Bank, 2004 FC 169 [TD Bank FC], a decision upheld in TD Bank FCA, the Court refused to issue a compliance order under section 231.7 where the formalities of section 231.2 of the ITA were not met. Zeifmans states that, like TD Bank FC, on this application the Minister seeks a compliance order against a third party record holder who is not under audit. Unlike TD Bank FC, the Requirement seeks extensive documents and information in relation to unnamed persons, and the Minister was actively auditing unnamed persons when she issued the Requirement. Consequently, there is even more reason for concern with the lack of judicial authorization in this case. [113] In TD Bank FCA, the FCA held that the Minister must obtain judicial authorization before issuing any section 231.2 requirement for information or documents relating to unnamed persons, whether or not they are under audit. Zeifmans argues that subsection 231.2(2) is clear and unqualified, and urges the Court not to disregard the literal meaning of the provision: TD Bank FC at paras 27-29, 34, aff’d by TD Bank FCA; Canada Trustco Mortgage Co v R, 2005 SCC 54 at paras 10-13. Zeifmans submits that while the FCA stated in Zeifmans FCA that TD Bank FCA ought not to be followed to the extent it is inconsistent with Artistic Ideas FCA, the FCA did not overturn TD Bank FCA. [114] In any event, Zeifmans states that in Artistic Ideas FCA—a case where the third party recipient was itself under audit, and the information the Minister sought about unnamed parties was limited to their names—the Minister was required to obtain judicial authorization before imposing a requirement on a third party to provide documents or information relating to unnamed persons the Minister wished to investigate. Zeifmans contends that even under the arguably lower Artistic Ideas FCA threshold, the Minister should have obtained judicial authorization prior to issuing the Requirement, because unnamed persons referenced in the Requirement were under investigation by the CRA at the time. These are precisely the unnamed persons to whom subsections 231.2(2) and (3) of the ITA apply: Artistic Ideas FCA at para 10. [115] Zeifmans submits Mr. Bowe’s affidavit and cross-examination testimony, the Information Sheet, and the Requirement’s extensive requests for substantive information and documents directed at unnamed persons provide abundant evidence that unnamed persons were under active investigation when the Requirement issued, that the Requirement was issued as part of the audits of unnamed persons, and that the CRA could use the information and documents for such audits. If the Minister was not required to obtain prior judicial authorization to issue the Requirement for documents and information of unnamed persons who were being audited, Zeifmans submits it is hard to imagine when the protection of subsection 231.2(2) would be triggered. [116] The Minister’s answer to Zeifmans’ argument seems to rest on two, overlapping premises. The first relates to the definition of unnamed persons, which the Minister seems to define so as to exclude persons who are known to the Minister. The second relates to the purpose of the Requirement. [117] The Minister contends the FCA confirmed in Zeifmans FCA that judicial authorization under subsections 231.2(2) and (3) is only required where the Minister seeks information about unknown persons for the purpose of primarily auditing those unknown persons. The Minister states that judicial authorization is not required where she (i) is conducting an audit of named or known persons; (ii) requests that the person(s) under audit or a third party provide information about the person(s) under audit; and (iii) requests information that may include information concerning unnamed or unknown persons that is relevant to the determination of the tax liability of known persons. The Minister relies on the following citations in support: Zeifmans FCA at paras 4-6; Artistic Ideas FCA at paras 8, 10-11; eBay at para 23; Redeemer Foundation v Canada (National Revenue), 2008 SCC 46 at paras 19-22 [Redeemer Foundation]; Ghermezian JR at paras 39-41; Ghermezian Compliance at paras 258-259. As I will explain below, the cited paragraphs do not, in my view, stand for the principles the Minister asserts. [118] According to the Minister, Zeifmans relies heavily on TD Bank FCA to dispute the above principles, a case that has been overruled and is no longer good law: Zeifmans FCA at paras 5-6. The Minister also states TD Bank FCA has been overtaken by Redeemer Foundation, which confirms that judicial authorization is not required when the Minister is auditing named taxpayers, even if the information, once obtained, would lead to investigations of other persons: Redeemer Foundation at para 22. The Minister submits the facts on this application parallel the facts in Redeemer Foundation—the Minister is engaged in an audit of named taxpayers and seeks documents and information for the purposes of auditing those taxpayers. The Minister argues that Zeifmans’ reasoning would lead to an absurd result. In situations like this, the Minister could never obtain information or documents about an unnamed person who is not under audit, even if it is relevant to the audit of another taxpayer. [119] The Minister maintains there is no evidence in the record to conclude that she sought the documents and information of the Requirement to audit unnamed or unknown persons. The Minister states that whether Mr. Ghermezian and the Vaturis owned, operated, controlled or were otherwise connected to entities in Canada or abroad is relevant to determining their compliance with the ITA and whether they properly reported or disclosed their worldwide income. Specifically, Ms. Vaturi and/or Mr. Vaturi received substantial electronic fund transfers (EFTs) from three related Hong Kong entities between 2014 and 2018 that were not reported as income on their tax returns. Mr. Vaturi was a director of the corporations until mid-2014. The CRA believes the EFTs represent proceeds from offshore business activities. [120] The Minister states she properly issued the Requirement under subsection 231.2(1) of the ITA because no unnamed persons were targeted for audit. The Minister states Zeifmans “curates” Mr. Bowe’s evidence, and does not provide a complete picture of the evidence as a whole (which Zeifmans vigorously disputes). According to the Minister, the Requirement was not issued to audit unnamed or unknown persons to verify their compliance with the ITA; rather, it was issued for the audits of “six named or known taxpayers”, which included Nader Ghermezian, Diana Vaturi and Marc Vaturi, and Mr. Bowe repeatedly stated that the Requirement was issued for this purpose and only for this purpose. The Minister insists that Mr. Bowe did not suggest or imply that the Requirement was issued for purposes of auditing unnamed persons, or the known entities owned, operated, controlled or otherwise connected to Nader Ghermezian, Diana Vaturi and Marc Vaturi that were being audited by the CRA. The known entities that were under audit were “not necessarily” the same entities that sent EFTs to the Vaturis, or the same entities that Zeifmans would have information about. [121] I do not agree with the Minister that her position was recently confirmed at paragraphs 4 to 6 of Zeifmans FCA. The FCA did not state that judicial authorization is only required where the Minister seeks information about persons who are unknown to her, or where a requirement is primarily for the purposes of auditing unknown persons. The term “unknown persons” is not mentioned in the decision. [122] Paragraphs 4 to 6 of Zeifmans FCA read as follows (emphasis added): [4] The Federal Court concluded that the Minister was reasonable in interpreting section 231.2 and finding that prior authorization was not needed. It would appear that the Minister took the view that prior judicial authorization is needed only where a requirement requests information and documents relating to ascertainable unnamed persons in order to verify the unnamed persons’ compliance with their obligations under the Act. On the facts here, the Federal Court found that “[t]here is no evidence in the record that [ascertainable unnamed persons] are a current investigation target” (at para. 64) and so the Minister’s decision to issue the requirement without prior judicial authorization was reasonable. [5] We agree. As the Federal Court observed, the Minister’s interpretation of section 231.2 of the Act was consistent at a conceptual level with much authority: multiple binding decisions of this Court (Canada (Customs and Revenue Agency) v. Artistic Ideas Inc., 2005 FCA 68, 330 N.R. 378 and eBay Canada Ltd. v. Canada (National Revenue), 2008 FCA 348, [2010] 1 F.C.R. 145 at para. 23); an obiter of the Supreme Court of Canada that is consistent at a conceptual level with Artistic Ideas (Redeemer Foundation v Canada (National Revenue), 2008 SCC 46, [2008] 2 S.C.R. 643); and numerous Federal Court decisions that have followed Artistic Ideas (e.g., Canada (National Revenue) v. Morton, 2007 FC 503, [2007] 4 C.T.C. 108 at para. 11, Canada (National Revenue) v. Advantage Credit Union, 2008 FC 853, 331 F.T.R. 252 at paras. 16-17, Canada (National Revenue) v. Amex Bank of Canada, 2008 FC 972, 333 F.T.R. 259 at para. 54, London Life v. Canada (Attorney General), 2009 FC 956, 377 F.T.R. 8 at paras. 21-24 and Ghermezian v. Canada, 2020 FC 1137 at paras. 39-41). We consider ourselves bound by the interpretation of section 231.2 offered by this Court in Artistic Ideas and eBay, cases that postdate and differ at a conceptual level and in interpretive result with Canada (Minister of National Revenue) v. Toronto Dominion Bank, 2004 FCA 359, 332 N.R. 70. [6] By adopting and applying an interpretation of section 231.2 of the Act that was consistent with Artistic Ideas, eBay and their progeny, the Minister adopted and applied an interpretation that was reasonable. Artistic Ideas, eBay and its progeny correctly interpret section 231.2. To the extent that Toronto Dominion Bank stands for something different from Artistic Ideas, eBay and their progeny, it should not be followed. The Federal Court effectively said just that. We agree with the Federal Court for the reasons it gave. [123] The FCA’s reference to information and documents relating to ascertainable unnamed persons in order to verify the unnamed persons’ compliance with their obligations under the ITA is the language of section 231.2(3). That language does not, in my view, support the Minister’s position that judicial authorization is not required where she (i) is conducting an audit of named or known persons; (ii) requests that the person(s) under audit or a third party provide information about the person(s) under audit; and (iii) requests information that may include information concerning unnamed or unknown persons that is relevant to the determination of the tax liability of known persons. [124] In Zeifmans FC, the Court used the term “unnamed persons” to mean the persons about whom the information and documents are sought: Zeifmans FC at para 33. In the case before it, the defined term “Unnamed Persons” meant entities owned, operated controlled or otherwise connected to Mr. Ghermezian, Ms. Vaturi and Mr. Vaturi: Zeifmans FC at para 24. The Court stated that the reasonableness of the Minister’s decision to proceed without judicial authorization in each case depends on whether the evidence in the record establishes that the unnamed persons are under investigation or audit by the CRA (Zeifmans FC at paragraphs 33, 49), and found there was “no evidence in the record that the Unnamed Persons are a current investigation target” (Zeifmans FC at paragraph 64). [125] The evidence on this application establishes that Unnamed Persons, as defined in Zeifmans FC, were and are an investigation target. In fact, Unnamed Persons were already under audit when the Requirement issued, and the audits are not yet complete. [126] In Zeifmans FCA, the FCA quoted the factual finding from paragraph 64 of Zeifmans FC, and its reasoning was tied to that finding (emphasis added): [7] As for the Federal Court’s finding of fact that the Canada Revenue Agency had not targeted the unnamed entities for investigation, only an error of law or palpable and overriding error can cause us to displace it. The Federal Court had evidence before it on which it made its finding of fact and it made no legal error. Thus, the Federal Court’s finding of fact must stand in this Court: the unnamed entities were not investigative targets. […] [10] […] Looking at the entire record, the reviewing court must be sure, from explicit words in reasons or from implicit or implied things in the record or both, that the administrator was alive to the key issues, including issues of legislative interpretation, and reached a decision on them. [11] Here, a review of the record before the Minister and the decision reached by the Minister leaves us in no doubt: we know where the Minister was coming from, the Minister was aware of section 231.2, the Minister implicitly or impliedly adopted an interpretation of section 231.2 that was consistent with Artistic Ideas, eBay and their progeny, and applied that interpretation to the facts of this case in a reasonable way. The Minister’s decision was reasonable. [127] Based on the evidentiary record that is before me, I find the Minister’s position in this proceeding to be inconsistent with Artistic Ideas FCA. [128] Artistic Ideas FCA was an appeal from an application to strike out part of a section 231.2 requirement. The applicant, Artistic Ideas Inc, had arranged for the sale of artwork to Canadian taxpayers, who then donated the artwork to registered charities to obtain a tax benefit based on the difference between the appraised value of the artwork and the purchase price. In the course of Artistic Ideas Inc’s audit, the Minister issued a requirement that included a request to disclose the names of the donors and charities. The donors and charities were unnamed persons. [129] The FCA set out the relevant factual findings from Artistic Ideas Inc v Canada (Customs and Revenue Agency), 2004 FC 573 [Artistic Ideas FC], namely: (i) the Minister’s audit of Artistic Ideas Inc was a genuine and serious inquiry into its tax liability; (ii) the names of the donors and charities were relevant to the audit of Artistic Ideas Inc; (iii) the Minister wanted to reassess the donors for engaging in art flips; and (iv) there was no evidence suggesting that the Minister intended to audit the charities. Based on these findings, the Court in Artistic Ideas FC had concluded that the Minister was entitled to the names of the charities, but not the names of the donors. [130] The Court’s conclusion was upheld by the FCA (Artistic Ideas FCA at paragraphs 10-13, 17): [10] According to the evidence in the present case, the donors are intended to be the subject of investigations by the Minister. They are precisely the persons to whom subsections 231.2(2) and (3) apply. If the Minister wants to obtain the names of the donors from Artistic, he must obtain an authorization from a judge to do so. The Minister has not obtained such authorization and therefore he cannot require Artistic to provide information about the donors. [11] However, where unnamed persons are not themselves under investigation, subsections 231.2(2) and (3) do not apply. Presumably, in such cases the names of unnamed persons are necessary solely for the Minister's investigation of the third party. In such cases a third party served with a requirement to provide information and documents under subsection 231.2(1) must provide all the relevant information and documents including the names of unnamed persons. That is because subsection 231.2(2) only pertains to those unnamed persons in respect of whom the Minister may obtain an authorization of a judge under subsection 231.2(3). [12] There is no evidence that the Minister wishes to have the names of the charities to verify their compliance with the Act. He is therefore entitled to the names of the charities under subsection 231.2(1) because subsections 231.2(2) and (3) do not apply to the charities. [13] The result is that Snider J. was correct in finding that Artistic had to disclose the names of the charities but did not have to disclose the names of the donors. […] [17] In cases in which the Minister advises the third party that he has no reason to invoke subsection 231.2(3) and the third party refuses to disclose the names of unnamed persons because it is not satisfied that the unnamed persons are not under investigation, the third party may seek recourse in the Federal Court or the Minister may seek recourse under other provisions of the Income Tax Act. [131] In this case, the Requirement seeks documents and information relating to one or more unnamed persons who were and are investigative targets. The Minister was required to obtain prior judicial authorization, and she did not. [132] The Minister accuses Zeifmans of curating the evidence and not providing a complete picture. The accusation is not justified. In fact, it was the Minister’s summary of the evidence that was at times inaccurate, or even misleading. The Minister does not clearly define unnamed persons, and her argument alternates between the terms unnamed persons and unknown persons in a confusing way. For example, at paragraph 118 of the reply memorandum the Minister states that she “properly issued the requirements under ss. 231.2(1) because no unnamed persons were targeted for audit”, without explaining that the statement is not even arguably true unless “unnamed persons” is synonymous with “persons unknown to the Minister”. In this case, many connected entities are known to the Minister, including connected entities under audit. The Minister states she did not name them in the Requirement because it would have created an overly complicated requirement and she was not certain of all the relationships. [133] The distinction between the terms is even more important in view of the Court’s definition of Unnamed Persons in Zeifmans FC. Mr. Bowe’s cross-examination testimony was clear that Unnamed Persons, as that term was defined in Zeifmans FC, were under audit when the Minister issued the Requirement, and the audits are ongoing: 120. Q. So this phrase, entities owned, operated, controlled, or otherwise connected to Marc Vaturi, Diana Vaturi and/or Nader Ghermezian, which we’re going to call “connected entities”, some of those entities were under audit at the time of this January 30, 2019 letter. A. Yes, yes. I don't recall exactly which entities would have been under audit. 121. Q. But some of them were under audit at the time of this letter, January 30, 2019. A. Yes. […] 138. Q. And as you said earlier, many of these economically connected entities were under audit at the time of the letter, correct? A. Correct. 139. Q. My understanding is that the audit of the Ghermezian group is not yet complete. Is that correct? A. I believe that to be true. [134] The Minister tries to explain that the known entities that were under audit were “not necessarily” the same entities that sent EFTs to the Vaturis or the same entities that Zeifmans has information about. It is difficult to make sense of this argument. The Minister should know which entities are under audit. The Court does not know who they are. In any event, the Requirement is not limited to the three offshore entities that sent EFTs to the Vaturis. It uses a catch-all sentence that would capture entities that are in any way connected to Mr. Ghermezian and the Vaturis. Mr. Bowe’s evidence is that such connected entities were and are under audit. [135] In view of my findings that the Minister’s position is inconsistent with Artistic Ideas FCA, it is not necessary to address the parties’ arguments regarding TD Bank FCA. While I would agree with Zeifmans that the FCA did not overrule TD Bank FCA outright, any analysis of the extent to which TD Bank FCA stands for something different from Artistic Ideas FCA, eBay and their progeny would be contextual (each of the cases involved different kinds of proceedings, and different provisions of the ITA) and such analysis best left for another case. [136] I have considered the other authorities the Minister relies on in support of her position that judicial authorization under subsections 231.2(2) and (3) is only required where the Minister seeks information about unknown persons for the purpose of primarily auditing those unknown persons. I am not persuaded they establish that the Minister did not exceed her authority by issuing the Requirement without prior judicial authorization. Artistic Ideas FCA at paras 8, 10-11: There is no mention of “unknown persons” in the decision.In fact, it seems that the Minister knew the names of some donors when it issued the requirement (see Artistic Ideas FC, e.g. at paragraph 18), and the “unnamed” donors were a group that included persons who were both known and unknown to the Minister. eBay at para 23: This was an appeal from a decision of the Federal Court affirming its earlier, ex parte order that authorized the Minister to impose a section 231.2 requirement on eBay (as noted above, a previous version of 231.2 allowed the Minister to bring an ex parte application for judicial authorization to issue a requirement, and allowed a recipient to seek review of the judge’s authorization order).The requirement asked for the names of “PowerSellers” in Canada with high sales volumes.Paragraph 23 of eBay states that subsection 231.2(2) is intended to be used when the Minister wishes to verify whether unnamed persons are in compliance with their obligations under the ITA.It does not say that unnamed persons means persons that are unknown to the Minister. Redeemer Foundation at paras 19-22: The issue in Redeemer Foundation was whether the Minister was required under s. 231.2(2) of ITA to obtain judicial authorization before asking a registered charity for information about the identity of its donors. In the course of a legitimate audit of the charity, CRA’s auditor had made an oral request for a list of donors—information that should have been in business records the charity was required to keep. The SCC held that judicial authorization was not required because the Minister was entitled to information about the identity of the donors through the combined effect of s. 230(2)(a) and s. 231.1 of the ITA.At paragraph 22, the SCC stated “The s. 231.2(2) requirement should not apply to situations in which the requested information is required in order to verify the compliance of the taxpayer being audited.Regardless of whether or not there is a possibility or a probability that the audit will lead to the investigation of other unnamed taxpayers, the CRA should be able to obtain information it would otherwise have the ability to see in the course of an audit.”The circumstances before me go beyond a possibility or probability of investigation—connected entities were already targeted for investigation and some were already being audited.Furthermore, Redeemer Foundation involved a section 231.1 request to a taxpayer under audit.In my view, Redeemer Foundation is distinguishable from the circumstances of this case, and does not support the Minister’s position. Ghermezian JR at paras 39-41: In Ghermezian JR, the Court considered the parties’ arguments as to whether the term “unnamed persons” in subsections 231.2(2) and (3) means unnamed in a section 231.2 requirement, or unknown to the Minister.However, the Court did not interpret the term “unnamed persons”, as this was not the Court’s role on judicial review.The Court’s role was to decide whether it was reasonable for the Minister to issue the requirements without prior judicial authorization: Ghermezian JR at para 57.After reviewing a number of authorities, the Court found that none of them was determinative of the statutory interpretation issue in dispute: Ghermezian JR at para 71.Ultimately, the Court could not conclude that the Minister’s decision was unreasonable because there was no definitive jurisprudence on the point, factors relevant to the text, context and purpose of the provisions did not clearly resolve the issue, and the jurisprudence and factors “in some respects” supported the Minister’s implicit decisions to issue the requirements without prior judicial authorization: Ghermezian JR at para 73.This decision does not establish that unnamed persons mean persons that are unknown to the Minister. Ghermezian Compliance at paras 258-259:Ghermezian Compliance comes closest to the Minister’s position, but even this case does not lay down a general principle that judicial authorization is only required where the Minister seeks information about unknown persons for the purposes of primarily auditing those unknown persons.The Court discussed the general principles applicable to the Minister’s power to issue a requirement relating to unnamed persons in paragraphs 161 to 169 of Ghermezian Compliance, not paragraphs 258 to 259, and noted that the merits of the parties’ arguments could only be assessed in the context of each individual requirement on which the Minister relies.Paragraphs 258 to 259 are part of the Court’s contextual analysis of the parties’ arguments for a specific request, Request GG-24, addressed to Mr. Ghermezian and his brothers: Ghermezian Compliance at paras 250-260.As I will explain below, the context-specific analysis for Request GG-24 is distinguishable from the context of the Requirement the Minister issued to Zeifmans. [137] The Minister had issued Request GG-24 under section 231.1 of the ITA, not section 231.2, and the Court analyzed the “unnamed persons argument” on the basis that the Minister cannot avoid the need for prior judicial authorization by choosing to issue a request under 231.1 instead of under section 231.2: Ghermezian Compliance at para 258. The limits of the Minister’s powers to request information about unnamed persons are different for a section 231.1 request. Under section 231.1 of the ITA, the Minister is entitled to inspect any document of a taxpayer under audit that should be in their books and records, including information the taxpayer is required to keep about third parties: Miller FCA at paras 47, 52; Redeemer Foundation at paras 1, 24. Zeifmans is not under audit, and the same principle does not apply in the context of the section 231.2 Requirement issued to Zeifmans. [138] Furthermore, it appears the Minister’s request for a compliance order in Ghermezian Compliance was relatively limited. The Minister sought a compliance order in respect of one item in Request GG-24. While I am unable to determine the precise scope of that item from the Court’s reasons, it appears that the “unnamed persons argument” focused on a request that Mr. Ghermezian and his brothers “identify arrangements that could be considered trusts under the laws of Canada”. In contrast, the scope of the requested information about unnamed persons in this case is broad. The Requirement uses a “catch-all sentence” to capture entities connected to Nader Ghermezian, Diana Vaturi and Marc Vaturi in any way, and then seeks a broad scope of documents and information from Zeifmans for each of these entities—including but not limited to all accounting records, tax planning letters, memos to files, client profiles, correspondence, and records of communications with domestic or international accounting firms, registry offices, provincial bodies and other government bodies. As Zeifmans points out, the Requirement seeks precisely the same, broad scope of production about each of the connected entities as it does for the taxpayers the Minister says she is targeting. [139] I would add that the Court in Ghermezian Compliance found that “the jurisprudence and policy considerations favour the Minister’s position”. Based on the facts of that case, the Court was satisfied that the information and documents about possible unknown trusts was relevant to investigate the tax position of Mr. Ghermezian and his family. [140] I am not satisfied that the jurisprudence and policy considerations favour the Minister’s position in this case. [141] The Minister submits there is no evidence that she sought the documents and information of the Requirement to audit unnamed or unknown persons. She submits Mr. Bowe’s evidence was clear that the Requirement was issued only for the purpose of auditing the named persons. I disagree. [142] As noted above, the Minister states the requirement was made to verify whether Nader Ghermezian, Diana Vaturi and Marc Vaturi complied with their duties and obligations under the ITA for the period January 1, 2012 to December 31, 2017, including whether they complied with foreign reporting obligations and reported income from all worldwide sources. The Minister states that she is auditing Mr. Ghermezian and the Vaturis, and the Requirement was issued for the purposes of obtaining documents and information to audit them. [143] However, the Minister also states the purpose of the Requirement was to further the audits of “six named or known taxpayers” that included Mr. Ghermezian and the Vaturis. The Minister does not say who the other three “named or known taxpayers” are. The Information Sheet indicates that the Minister sought information about Mr. Ghermezian, the Vaturis, and three other Canadian taxpayers whose names are redacted. The three unidentified taxpayers are not mentioned in Mr. Bowe’s affidavit or in the Minister’s original memorandum of argument, and the record does not explain why they are under audit or how the documents and information sought by the Requirement relate to them. [144] Mr. Bowe’s evidence about the purpose of the Requirement is not clear. At best, his evidence is equivocal. Mr. Bowe could not say which entities were under audit, but they were “not necessarily” the same entities that sent EFTs to the Vaturis, and “just because there are connected entities under audit doesn’t mean that the purpose of this [Requirement] is to gather information for audit about those other entities”. However, Mr. Bowe’s affidavit states that the Requirement was issued as part of the “Audits” and to verify Mr. Ghermezian’s and the Vaturis’ compliance with the ITA, and he confirmed on cross-examination that his defined term Audits means audits of the Ghermezian Group as a whole. Mr. Bowe was the lead case manager for the Ghermezian Group audits that were underway at the time the Requirement issued, at a directorate that was more focused on corporate entities, and he testified that many economically connected entities were under audit by the CRA at the time the Requirement issued. He also stated that a purpose of the audits was to verify whether the entities were complying with their obligations under the ITA, and that the CRA may use the information in the Requirement for those audits. As previously stated, the Requirement seeks precisely the same, broad scope of production from each of the connected entities as it does for the taxpayers the Minister says she is targeting. [145] Finally, the record does not clearly explain how the specific documents and information of the Requirement would advance the audits of Mr. Ghermezian and the Vaturis, a point that has added significance in view of the evidence about the purpose of Requirement. [146] The Minister asserts that whether Mr. Ghermezian and the Vaturis owned, operated, controlled or were otherwise connected to entities in Canada or abroad is relevant to determining their compliance with the ITA and whether they properly reported or disclosed their worldwide income. Specifically, Ms. Vaturi and/or Mr. Vaturi received substantial EFTs from three related Hong Kong entities between 2014 and 2018 that were not reported as income on their tax returns. The Minister states that verifying if connected entities are managed and controlled from Canada by these taxpayers is relevant because Mr. Vaturi claimed the EFTs were loans under subsection 15(2) of the ITA and there would be a corresponding deduction under paragraph 20(1)(j) in a subsequent taxation year. The Minister states that identifying the relationships between the connected entities and Mr. Ghermezian or the Vaturis is relevant to determining whether the EFTs fall within 15(2) and whether a 20(1)(j) deduction is permissible. To fall under 15(2) and 20(1)(j), the connected entities who made the alleged loans would need to be dealing at non-arm’s length, and the Minister states she needs to understand the relationship between the connected entities and these three taxpayers to make that determination. [147] I am not satisfied that this explains how the Requirement advances the audits of Mr. Ghermezian and the Vaturis. The Requirement does not even mention the EFTs, or ask for information about the relationship between the paying entities and Mr. Ghermezian or the Vaturis during the period in question. I fail to see how the specific requests in the Requirement are directed at determining whether the paying entities were non-arm’s length, and whether the payments were proceeds from offshore business activities. The Minister states that she sought information directly from Mr. Ghermezian and the Vaturis but they provided incomplete information (without explaining what they provided or how it was incomplete). If Mr. Ghermezian and the Vaturis provided insufficient information to satisfy the Minister that the EFTs were loans, rather than proceeds from offshore business activities, it is unclear to me why the CRA needs the documents and information in the Requirement in order to conclude that the EFTs should be reported as income. [148] I disagree with the Minister that Zeifmans’ reasoning leads to an absurd result because the Minister could never obtain information or documents about an unnamed person who is not under audit, even if it is relevant to the audit of another taxpayer. If unnamed persons are the intended subjects of an investigation, the Minister can obtain judicial authorization by satisfying the requirements of subsection 231.2(3)—namely, that the information or documents relating to one or more unnamed persons (forming an ascertainable group) is required to verify compliance with the ITA: MNR v Greater Montréal Real Estate Board, 2007 FCA 346 at para 21 [GMREB]. The unnamed persons do not need to be known to the Minister, and an audit does not need to be underway: GMREB at paras 19-21, 44-45. In this case, Ghermezian Group Audits under the RPAP have been underway for years. [149] In summary, the Minister has not established that she did not require judicial authorization pursuant to subsection 231.2(3) of the ITA, prior to issuing the Requirement. I am not satisfied the statutory conditions of section 231.7 have been met. [150] The Minister states the Court has discretion to impose conditions or excise portions of the Requirement in the exercise of its discretion. I am not satisfied that the Court should exercise discretion to do so in the circumstances of this case. [151] While the Minister states she is not required to seek a compliance order in respect of all items in the Requirement, in this case the Minister asks for an order that would compel Zeifmans to provide all of the documents and information in the Requirement. The Minister did not make submissions as to the portions of the Requirement that could be excised, or the conditions that could be imposed in the exercise of the Court’s discretion, and I am not in a position to make such a determination. [152] In Miller FCA, the Minister had sought a compliance order in respect of several items from a section 231.1 request. The Federal Court granted an order in respect of seven of them, dismissing the application in respect of several other items: Miller FCA at para 11. The FCA noted that the Federal Court accepted that all the items it ordered the appellant to provide were items that a taxpayer could be required to provide under section 231.1, and thus could be the subject of a compliance order under section 231.7 of the ITA: Miller FCA at para 17. [153] The record on this application does not permit me make a similar determination. I am not in a position to determine which items of the Requirement or which information or documents are ones that Zeifmans could be required to provide under section 231.2. [154] In addition, the Minister’s authority to issue a requirement is restricted in the sense that the information and documents must be for a purpose related to the administration or enforcement of the ITA. [155] If the Minister had sought judicial authorization before issuing the Requirement, she would have had to satisfy the Court, with information on oath, that (i) the unnamed person or persons are ascertainable; and (ii) the Requirement was made to verify their compliance with any duty or obligation under the ITA. The Court on an application for judicial authorization also has an overriding discretion to refuse authorization or to impose any conditions the judge considers appropriate to remedy abuses, as long as the discretion is not exercised so as to revisit Parliament’s policy choices by re-inserting statutory conditions for obtaining authorization that have been repealed: GMREB at para 38; Roofmart FCA at para 56. [156] There is no evidence before me about the unnamed persons—they are not identified, there is no information about the nature of their audits, and there is no information about the CRA’s efforts to obtain information from them directly. I am not in a position to exercise discretion in a manner that balances the interests of the Minister with those of Zeifmans, unnamed persons, and other affected persons to ensure that any compliance order would only compel Zeifmans to provide documents or information that meet the conditions of section 231.7 of the ITA. [157] In view of my decision not to grant a compliance order for the reasons above, it is unnecessary to address Zeifmans’ second and third arguments relating to ambiguity/vagueness of the Requirement, and the fact the Requirement was served on a partnership. As I explained in the section on abuse of process, it is not the Court’s role on this application to decide whether the Requirement or any part of it should be set aside. In view of the Court’s role on this application, it seems to me that Zeifmans’ second and third arguments would only be relevant if I were inclined to grant a compliance order for at least some of the documents and information in the Requirement, because a failure to obey such order would carry the risk of sanctions for contempt of court. Since I am not granting a compliance order, concerns about the ability to comply with the order due to ambiguity, and ensuring that the proper parties are bound by the order, do not arise. F. Conclusion [158] For the above reasons, the Minister’s application is dismissed with costs to Zeifmans. [159] If the parties are unable to reach an agreement on costs, Zeifmans may serve and file cost submissions within 20 days of this decision and the Minister may serve and file cost submissions within 15 days thereafter. Each parties’ cost submissions shall not exceed two pages, not including any bill of costs. JUDGMENT in T-2250-22 THIS COURT’S JUDGMENT is that: The applicant’s reply memorandum is admitted. This summary application for an order under section 231.7 of the Income Tax Act is dismissed. Costs are awarded to the respondent.In the event the parties are unable agree, the amount and terms of a cost award remain to be determined. \"Christine M. Pallotta\" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-2250-22 STYLE OF CAUSE: THE MINISTER OF NATIONAL REVENUE v ZEIFMANS LLP PLACE OF HEARING: HELD BY WAY OF VIDEOCONFERENCE DATE OF HEARING: december 6, 2022 JUDGMENT AND REASONS: PALLOTTA J. DATED: JULY 21, 2023 APPEARANCES: Peter Swanstrom Rita Araujo For The Applicant Domenic Marciano For The Respondent SOLICITORS OF RECORD: Attorney General of Canada Toronto, Ontario For The Applicant Marciano Beckenstein LLP Barristers and Solicitors Concord, Ontario For The Respondent", "response": "## Analysis of Court Decision: Canada (National Revenue) v. Zeifmans LLP\n\n### Key Issues\nifmans attempts to relitigate issues that were decided in Zeifmans FC and Zeifmans FCA, including by relying on case law that was expressly overturned in Zeifmans FCA. [6] Alternat\n\n### Standard of Review\nonableness is the presumptive standard of review: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653. And, contrary to the submissions of the\n\n### Legal Analysis\nThe court's analysis focuses on: ster’s reply memorandum. III. Analysis A. The parties’ records [14] As differences between this record and the record on judicial review are relevant to the issues, I will begin by summarizing the record that is before me. [15] The Minister commenced this proceeding by filing a notice of summary application on October 26, 2022.\n\n### Precedential Value\nThis Federal Court decision has persuasive value for similar cases before the court and provides guidance to the Immigration and Refugee Board on the proper interpretation of law and procedural requirements. While not binding on other Federal Court judges, it establishes a precedent that will often be followed for consistency."}
{"prompt": "Explain the purpose and application of this section of Administrative Tribunals Support Service of Canada Act:\n\n# Administrative Tribunals Support Service of Canada Act SC 2014, c 20, s 376 An Act to establish the Administrative Tribunals Support Service of Canada Assented to 2014-6-19 ## Short Title ### Short title 1 This Act may be cited as the Administrative Tribunals Support Service of Canada Act. ## Interpretation ### Definitions 2 The following definitions apply in this Act. *administrative tribunal* means a body referred to in the schedule to this Act. (tribunal administratif) *Chief Administrator* means the person appointed under subsection 5 (1). (administrateur en chef) *Minister* means the Minister of Justice. (ministre) *Service* means the Administrative Tribunals Support Service of Canada established by section 3. (Service) ## Administrative Tribunals Support Service of Canada ### Establishment of Service 3 The Administrative Tribunals Support Service of Canada, consisting of the Chief Administrator and employees of the Service, is established as a portion of the federal public administration. ### Principal office 4 (1) The principal office of the Service is to be in the National Capital Region described in the schedule to the National Capital Act. ### Other offices (2) The Chief Administrator may establish other offices of the Service elsewhere in Canada. ## Chief Administrator ### Appointment 5 (1) The Chief Administrator is to be appointed by the Governor in Council to hold office during pleasure for a term of up to five years. ### Re-appointment (2) The Chief Administrator is eligible for re-appointment at the end of each term of office. ### Status of Chief Administrator 6 The Chief Administrator has the rank and status of a deputy head of a department. ### Absence or incapacity 7 (1) If the Chief Administrator is absent or incapacitated or the office of Chief Administrator is vacant, the Minister must appoint another person to act as Chief Administrator, but a person must not be so appointed for a term of more than 90 days without the approval of the Governor in Council. ### Powers, duties and functions (2) The person acting as Chief Administrator has all of the powers, duties and functions of the Chief Administrator conferred under this Act or any other Act of Parliament. ### Salary and expenses 8 (1) The Chief Administrator is to be paid the remuneration that may be fixed by the Governor in Council and is entitled to be paid reasonable travel and living expenses incurred in the exercise of his or her powers or the performance of his or her duties and functions while absent from the Chief Administrator’s ordinary place of work. ### Compensation (2) The Chief Administrator is deemed to be a person employed in the public service for the purposes of the Public Service Superannuation Act and to be employed in the federal public administration for the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act. ### Chief executive officer 9 The Chief Administrator is the chief executive officer of the Service and has the control and management of the Service and all matters connected with it. ### Responsibility 10 The Chief Administrator is responsible for the provision of the support services and the facilities that are needed by each of the administrative tribunals to exercise its powers and perform its duties and functions in accordance with the rules that apply to its work. ### General powers 11 (1) The Chief Administrator has all the powers that are necessary to perform his or her duties and functions under this or any other Act of Parliament. ### Contracts, etc. (2) The Chief Administrator may enter into contracts, memoranda of understanding or other arrangements, including contracts to engage the services of legal counsel or other persons having professional, technical or specialized knowledge to advise or assist an administrative tribunal or any of its members. ### Limitation 12 The Chief Administrator’s powers, duties and functions do not extend to any of the powers, duties and functions conferred by law on any administrative tribunal or on any of its members. ### Delegation 13 The Chief Administrator may delegate to any employee of the Service any of the powers, duties, and functions conferred on the Chief Administrator under this Act or any other Act of Parliament. ## Administrative Tribunal Chairpersons ### For greater certainty 14 For greater certainty, the chairperson of an administrative tribunal continues to have supervision over and direction of the work of the tribunal. ## Employees of the Service ### Appointment of employees 15 The employees who are required for the purposes of the Service are to be appointed under the Public Service Employment Act. ## General ### Deeming — filing documents and giving notice 16 Any provision of an Act of Parliament, or of a regulation, that requires the filing of a document with, or the giving of a notice to, an administrative tribunal is deemed to require that document to be filed with, or the notice to be given to, the Service, as the case may be. ### Deeming — amounts payable 17 Any provision of an Act of Parliament, or of a regulation, that requires an amount to be paid to an administrative tribunal is deemed to require that amount to be paid to the Service. ### Amounts for operation of administrative tribunal 18 Any amount to be paid for the operation of any administrative tribunal may be paid out of moneys appropriated by Parliament for the expenditures of the Service.", "response": "## Analysis of LEGISLATION-FED: Administrative Tribunals Support Service of Canada Act\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nWhen applying this legislation to immigration cases, practitioners should consider both the explicit requirements and the underlying policy objectives. The provisions must be interpreted in light of the Canadian Charter of Rights and Freedoms, international obligations, and relevant jurisprudence. Particular attention should be paid to procedural fairness requirements and the proper exercise of discretionary authority."}
{"prompt": "How does this Federal Court of Appeal of Canada decision affect immigration jurisprudence?\n\nBhamra v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2023-05-31 Neutral citation 2023 FCA 121 File numbers A-53-21 Decision Content Date: 20230531 Docket: A-53-21 Citation: 2023 FCA 121 CORAM: DE MONTIGNY J.A. LASKIN J.A. MACTAVISH J.A. BETWEEN: HARJINDER BHAMRA Appellant and ATTORNEY GENERAL OF CANADA Respondent Heard by online video conference hosted by the Registry on May 30, 2023. Judgment delivered at Ottawa, Ontario, on May 31, 2023. REASONS FOR JUDGMENT BY: MACTAVISH J.A. CONCURRED IN BY: DE MONTIGNY J.A. LASKIN J.A. Date: 20230531 Docket: A-53-21 Citation: 2023 FCA 121 CORAM: DE MONTIGNY J.A. LASKIN J.A. MACTAVISH J.A. BETWEEN: HARJINDER BHAMRA Appellant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT MACTAVISH J.A. [1] The Minister of Employment and Social Development refused Harjinder Bhamra’s application for a disability pension under the Canada Pension Plan, R.S.C., 1985, c. C-8 (CPP) because she failed to establish that she had a severe and prolonged disability prior to the end of her minimum qualifying period. The General Division of the Social Security Tribunal upheld this decision, and the Tribunal’s Appeal Division dismissed Ms. Bhamra’s application for leave to appeal the General Division’s decision. The Appeal Division’s decision was subsequently upheld by the Federal Court, and Ms. Bhamra now appeals to this Court from the Federal Court’s decision denying her leave to appeal. [2] Our role in an appeal such as this is to determine whether the Federal Court identified the correct standard of review − correctness or reasonableness − and whether it properly applied that standard: Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at para. 12; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47. This has been described as requiring us to “step into the shoes” of the Federal Court judge, focusing on the administrative decision below − here, the decision of the Appeal Division. [3] The Federal Court properly identified reasonableness as the standard of review to be applied to the Appeal Division’s decision: Cameron v. Canada (Attorney General), 2018 FCA 100 at para. 3. Moreover, as will be explained below, I am satisfied that the Federal Court properly applied that standard in concluding that the Appeal Division’s decision was reasonable. [4] Entitlement to a disability pension is governed by the provisions of the CPP, paragraph 42(2)(a) of which states that a person shall only be considered to be disabled if he or she is determined to have a severe and prolonged mental or physical disability. A disability will be considered to be severe only if the person is incapable of regularly pursuing any substantially gainful occupation, and a disability is prolonged only if it is determined that the disability is likely to be long, continued and of indefinite duration, or is likely to result in death. [5] There was no dispute before either Division of the Social Security Tribunal or before the Federal Court that Ms. Bhamra’s minimum qualifying period expired on December 31, 2013. She argued before us, however, that the expiry of her minimum qualifying period should have been set at some unidentified date after December 31, 2013, so that she could receive benefits for the disability caused by her cancer and the effects of her treatment. [6] Unfortunately for Ms. Bhamra, it was not open to any of the decision makers involved in this case (including this Court) to change the end date of her minimum qualifying period. This date is established by operation of a formula set out in the governing legislation, and is based on the earnings and contributions of the individual claimant. The application of this formula in Ms. Bhamra’s case results in her having a minimum qualifying period that ended on December 31, 2013. [7] The case of J.J. v. Minister of Employment and Social Development, 2018 SST 1041, also does not assist Ms. Bhamra. Paragraph 3 of that decision simply notes that the application of the legislative formula to J.J.’s personal circumstances resulted in a minimum qualifying period that would expire some time after he became disabled. [8] It is not disputed that Ms. Bhamra stopped working in late November of 2013, prior to the expiry of her minimum qualifying period, because she slipped and fell, fracturing her ankle. Ms. Bhamra was off of work for a period of time, but the medical evidence before the General Division was that her injury was treated and resolved, and that she could have returned to work once her ankle injury had healed. [9] In light of this, the General Division quite reasonably found that Ms. Bhamra’s ankle injury was not “severe” and that she was thus not disabled prior to December 31, 2013. [10] Before Ms. Bhamra could return to work, however, she became ill. In March of 2014 – that is, after the expiry of her minimum qualifying period – she began experiencing symptoms, including significant abdominal pain. This led to her being diagnosed with ovarian cancer some months later, and she underwent various forms of treatment, including surgery and chemotherapy. [11] When she applied for disability benefits in June of 2014, Ms. Bhamra attributed her inability to work to her ovarian cancer. She did not identify her ankle injury as being a disabling condition. Ms. Bhamra subsequently advised the General Division that she suffered from a range of conditions as a result of her cancer and its treatment, including depression, numbness and pain in her hands and feet, arthritis and headaches. She confirmed that her depression, and the numbness and pain in her hands and feet, only began after she had chemotherapy – after the expiry of her minimum qualifying period. [12] Ms. Bhamra contended, however, that she had suffered from symptoms of her ovarian cancer prior to December 31, 2013. She stated that she thought that she had had a fever in July of 2013, suggesting that this might have been a symptom of her cancer. There was, however, no medical evidence to support this claim. Moreover, as Ms. Bhamra had continued to work through and after her fever, the General Division was not persuaded that the fever or the condition that caused it satisfied the definition of a “disability” under the CPP. [13] The General Division further noted that Ms. Bhamra had provided little in the way of medical evidence with respect to her cancer, and that what evidence there was was insufficient to support a finding that it had caused her to become disabled before December 31, 2013. [14] As Ms. Bhamra had failed to establish that it was more likely than not that she was disabled within the meaning of the CPP prior to the end of her minimum qualifying period, the General Division dismissed her appeal. Ms. Bhamra then sought leave to appeal the General Division’s decision to the Appeal Division. [15] It is the responsibility of the General Division to assess the facts, and then, taking the relevant legal principles into account, to determine on the basis of its findings whether the test for disability has been met in a given case: Hillier v. Canada (Attorney General), 2020 FCA 11 at para. 2. The powers of the Appeal Division are more restricted, however, and it may only grant leave in certain, limited situations. Amongst other things, leave will not be granted unless the appellant can demonstrate that the appeal has a reasonable chance of success: subsection 58(2) of the Department of Employment and Social Development Act, S.C. 2005, c. 34. [16] The Appeal Division considered the arguments advanced by Ms. Bhamra, concluding that her appeal should be dismissed. In coming to this conclusion, the Appeal Division noted that the General Division had correctly held that having based her claim for benefits on her cancer and the results of her treatment, Ms. Bhamra had to establish that these conditions caused her to have become disabled prior to December 31, 2013. After examining the evidence before it, the General Division had found that the evidence did not demonstrate that Ms. Bhamra was disabled as of that date, and the Appeal Division found that the General Division had not erred in coming to that conclusion. [17] In determining whether the Appeal Division’s decision was reasonable, the Federal Court had to look at the decision-making process followed by the Appeal Division and its outcome. In this case, the Appeal Division provided internally coherent reasoning for its decision to deny leave to appeal to Ms. Bhamra, and its determination that she had not established an arguable case was justified, transparent and intelligible. It was, moreover, justified in relation to the relevant factual and legal constraints that bore on the decision: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 12, 86 and 99. The Federal Court thus did not err in its application of the reasonableness standard to the Appeal Division’s decision. [18] I recognize that this decision will undoubtedly have harsh consequences for Ms. Bhamra, and I sympathize with her situation. However, in the absence of a reviewable error on the part of the Federal Court, there is no basis to grant her relief. Consequently, I would dismiss the appeal. “Anne L. Mactavish” J.A. “I agree. Yves de Montigny J.A.” “I agree. J.B. Laskin J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-53-21 STYLE OF CAUSE: HARJINDER BHAMRA v. ATTORNEY GENERAL OF CANADA PLACE OF HEARING: BY ONLINE VIDEO CONFERENCE DATE OF HEARING: May 30, 2023 REASONS FOR JUDGMENT BY: MACTAVISH J.A. CONCURRED IN BY: DE MONTIGNY J.A. LASKIN J.A. DATED: may 31, 2023 APPEARANCES: Harjinder Bhamra on their own behalf Ms. Sandra Doucette For The Respondent SOLICITORS OF RECORD: Shalene Curtis-Micallef Deputy Attorney General of Canada For The Respondent", "response": "## Analysis of Court Decision: Bhamra v. Canada (Attorney General)\n\n### Key Issues\nnt refused Harjinder Bhamra’s application for a disability pension under the Canada Pension Plan, R.S.C., 1985, c. C-8 (CPP) because she failed to establish that she had a severe a\n\n### Standard of Review\nCourt identified the correct standard of review − correctness or reasonableness − and whether it properly applied that standard: Northern Regional Health Authority v. Horrocks, 20\n\n### Legal Analysis\nThe court's analysis focuses on: dismissed. In coming to this conclusion, the Appeal Division noted that the General Division had correctly held that having based her claim for benefits on her cancer and the results of her treatment, Ms. Bhamra had to establish that these conditions caused her to have become disabled prior to December 31, 2013. After examining\n\n### Precedential Value\nAs a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation."}
{"prompt": "What are the implications of this Refugee Protection Division decision from the Refugee Law Lab Reporter for similar cases?\n\n2023 RLLR 99 Citation: 2023 RLLR 99 Tribunal: Refugee Protection Division Date of Decision: November 21, 2023 Panel: C. Adolph Counsel for the Claimant(s): Tina Hlimi Country: Turkey RPD Number: TC2 25778 Associated RPD Number(s): N/A ATIP Number: A-2024-00593 ATIP Pages: N/A DECISION [1] XXXX XXXX is a citizen of Türkiye. He is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA)[1]. Preliminary Matters [2] At the end of the hearing, counsel requested that she provide written submissions due to a time constraint on the hearing day. The panel accepted. Counsel’s submissions were provided on time[2] and were considered. The following week counsel made an application for post-hearing disclosure: she requested the panel recall that she had only recently been retained – the claimant had been unrepresented prior to her engagement – and therefore she had not been able to properly assist him in the gathering of documentary evidence to support his claim. The panel found the package submitted at Exhibit 10 was both relevant and probative. The panel also found that a reasonable explanation for the post-hearing disclosure had been provided. The panel therefore accepted the post-hearing disclosure. ALLEGATIONS [3] The claimant’s allegations are fully set out in his BOC form and narrative at Exhibit 2. In summary, he is making his claim on the basis of his Alevi religion and his opposition political opinion, as a supporter of the Halkların Demokratik Partisi (HDP) also known in English as the People’s Democratic Party. He fears persecution by the authorities in Türkiye. DETERMINATION [4] Having considered the totality of the evidence, the panel finds the claimant to be a Convention Refugee pursuant to section 96. He faces a serious possibility of persecution on a balance of probabilities on the basis of his religion and political opinion. [5] ANALYSIS Identity [6] The panel finds the claimant established his personal and national identity on a balance of probabilities. The panel relies on the copy of his Turkish national identity card and the copy of his passport’s identity page at Exhibit 8. Both documents contain the same national identity number, and I find this is sufficient to establish that he is who he says he is, and the country of reference is Türkiye. [7] The panel did notify[3] the Minister because a US biometrics match returned a different passport number than the one the claimant supplied at Exhibit 4. The Minister replied[4] to say they had nothing to add and would not intervene in the claim. The panel asked the claimant for an explanation for this discrepancy, and he replied that he did not know. He testified that he had presented his one and only Turkish passport to the US authorities at the border with Mexico, and that they had taken it and not returned it to him. The panel accepts his response and description of the circumstances of his entry into the US. In the panel’s experience as a hearer of the claims of persons who transit into Canada via Mexico and the US, this kind of discrepancy between the number on their passport and the number entered by the US authorities occurs frequently and rarely do claimants have a full explanation. The panel notes that the US biometrics match provides a number, but no photograph of the passport it refers to. The panel finds this introduces the possibility of error. The panel draws no negative inference on the claimant’s identity and credibility and finds the claimant succeeded in establishing his identity on a balance of probabilities. Nexus [8] The panel finds there is a link between the claimant’s fear of return and the Convention grounds: religion and political opinion. The claim is assessed under s. 96. Credibility [9] A claimant is presumed to be credible unless there is reason for doubt. The panel found the claimant to be a credible witness. He testified in a clear, direct, spontaneous and unembellished manner about both his Alevi faith and his opposition political opinion. There were no inconsistencies, omissions or discrepancies of note. The panel found no reason to disbelieve him that the authorities perceive him as a political opponent because of his Alevi faith and his support for the Halkların Demokratik Partisi, (HDP), an opposition political party. His testimony is presumed to be true. Alevi faith [10] The claimant testfied that he is Alevi, that he has Alevi beliefs and values, that he is from an Alevi family and that the authorities view Alevis as opponents because Alevis do not have the same values as members of the Turkish Sunni majority. He testified he has attended at an Alevi ritual centre as part of his spiritual practice. [11] The claimant provided a detailed letter from an Alevi spiritual leader, who also includes documentary evidence of his credentials as well as an identity card. In this lengthy letter, this Alevi leader states that he comes from a long family line of Alevi spiritual leaders, and that his father and grandfather all have known the claimant’s family over the years. The writer himself has known the family for two decades, and that the family has in the past offered their own home as an Alevi meeting place. [12] I accept this documentary evidence and find that on a balance of probabilities, the claimant comes from an Alevi family. [13] But the letter does not mention the claimant himself. As such the panel finds this letter does not directly corroborate the claimant’s allegation that he is a true believer, or that he is seen by the authorities as an Alevi. [14] However, the writer states: “we the Alevis are still not sure whether to carry out our rituals in secrecy or in public. Simply because being blacklisted is a high risk for those Alevis attending open rituals in Alevi ritual centres that are not allowed to be registered as ritual centres, the police could detain all the people praying there with the accusation that they’re involved in illegal political (subversive or separatist) gatherings. Türkiye is a Muslim country, at least that is what it practically is. This means anyone who openly declares themselves as Alevi may be accused of being involved in “separatism” under the accusation that the prayers are aiming to divide the unity of the nation on sectarian lines.” [15] I accept this this letter from an Alevi spiritual leader and give it full weight. I find on a balance of probabilities the meaning of this passage is that that, if found engaging in collective religious expression, Alevis are imputed by the authorities to have an opposition political opinion. I find this letter-writer established himself to be qualified to provide this evidence, since he established himself to be from a long line of Alevi spiritual leaders. On a balance of probabilities, he himself conducts Alevi rituals and therefore faces this risk himself. I also find this evidence to be corroborated by the objective evidence which will be discussed later. I therefore find that since the claimant testified credibly that he has attended Alevi houses of worship, on a balance of probabilities he faces a risk of being seen by the authorities as both an Alevi and a separatist political opponent. Political involvement [16] The claimant alleges that he is not an official member of the HDP, but that he is an active supporter of the party. The claimant provided a letter from his father at Exhibit 10 which discusses the claimant’s political involvement, to which the panel assigns full weight. On a balance of probabilities, the claimant is a supporter of the HDP as he alleges. Subjective Fear [17] The claimant testified to four arrests, in XXXX 2018, XXXX 2019, XXXX 2020 and finally, in XXXX 2021. The first three were for his pro-HDP political activity including XXXX XXXX and [REDACTED]. The fourth arrest came minutes after he left the company of other pro-HDP volunteers. He testified that it was the treatment he received during this arrest that shook him: he provided details in his narrative. He testified, consistent with this narrative, that he was told he was involved with a separatist party. He was told he could only be released if he worked with the police in the future. Upon release, he testified, they told him to report to the police once a week, and also to show up whenever required. Upon release, he learned that family members who had gone out to police stations to look for him had also been detained. I find the claimant established his past arrests, that the police expect the claimant to report to them, and that on a balance of probabilities he has missed many reporting appointments by now. I find that on a balance of probabilities, his return without a passport would trigger official interest at the airport. I find the claimant has established his subjective fear of return. Well-Founded Fear of Persecution [18] The National Documentation Package contains several documents which report that people who oppose the current AKP government face persecution in Türkiye, and that Alevis and HDP supporters in particular face a risk from the authorities. [19] The National Documentation Package lists multiple examples of the use of “terrorist” and “separatist” by the authorities to identify people with political opinions viewed as threatening. The US State Department[5] reports that even in the last year, there were credible reports of arbitrary killings, suspicious deaths of people in custody, arbitrary arrest and the continued detention of thousands of people viewed by the authorities as political opponents, often as “separatists” and often for purported ties to terrorism. Supporters of the claimant’s HDP are frequently dubbed separatists[6] and terrorists[7], though the HDP is an opposition political party and not a terrorist or separatist movement[8]. The panel accepts the objective evidence and finds that people viewed by the authorities as political opponents face a risk of charges on serious crimes which can result in long detentions and worse. The panel finds, based on the objective evidence and on a balance of probabilities this includes HDP supporters. [20] In addition to suppressing opposition political movements, Turkish authorities have also enforced a view of the country as Sunni Muslim and ethnically Turkish. According to a report entitled The Myth of Tolerance[9] by the European University Institute, Türkiye sees itself as a Turkish Sunni Muslim nation. According to this report they can also expect harsh treatment if they are seen as going against the Sunni Turkish social order. [21] Alevis are religiously different from Sunnis[10] and often ethnically and linguistically different from Turks, according to this report. Alevis often experience suppression of their religion. Alevi houses of worship are still not recognized by the authorities as legitimate: they have no legal status[11]. Police use harsher methods in neighborhoods with a large Alevi population[12]. Government attitudes are mirrored in public attitudes: there have been instances in which Alevi homes have been vandalized, with an X to imply the occupants should be killed, or with expressions such as “get out.” [13] The European court of Human rights has ruled that Türkiye violates the rights of Alevis[14]. The government denies Alevis the right to establish places of worship. The number of Alevi houses of worship in the country is not sufficient to meet the demand[15]. The panel accepts the documentary evidence and finds it establishes that Alevis are persecuted in Türkiye. [22] The religious leader cited earlier states that Alevis found to be worshiping by the authorities can be accused of separatism, of trying to divide the country along sectarian lines. I find the objective evidence is consistent with this evidence, because it establishes that Türkiye sees itself as a Sunni nation and suppresses religions that are not Sunni Islam. [23] The panel finds the objective evidence corroborates the claimant’s allegation that the authorities would see him upon return as an Alevi and pro-HDP political opponent. His subjective fear of return has an objective basis. He has a well-founded fear of persecution. State Protection [24] There is a presumption that a state can protect its own citizens unless it is in total breakdown. Türkiye is a functioning state. However, the panel finds that it would be objectively unreasonable for the claimant to seek the protection of the state given that the main agent of persecution is the state. The panel therefore finds, in the claimant’s particular circumstances, there is no adequate state protection for him. Internal Flight Alternative [25] Since the claimant fears the Turkish authorities, and they control the entirety of the country, the panel finds that the claimant would face a serious possibility of persecution throughout Türkiye, and accordingly there is no viable internal flight alternative available to him. CONCLUSION [26] Based on the totality of the evidence, the panel finds the claimant to be a Convention refugee on the grounds of his political opinion and religion. He faces a serious risk of persecution in Türkiye. [27] His claim is accepted. ——— REASONS CONCLUDED ——— [1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1). [2] Exhibit 9. [3] Exhibit 5. [4] Exhibit 6. [5] National Documentation Package, Türkiye, 31 July 2023, tab 2.1: Turkey (Türkiye). Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023. [6] National Documentation Package, Türkiye, 31 July 2023, tab 4.16: Country Policy and Information Note. Turkey: Peoples’ Democratic Party (HDP). Version 4.0. United Kingdom. Home Office. March 2020. [7] National Documentation Package, Türkiye, 31 July 2023, tab 1.10: General Country of Origin Information Report: Turkey. Netherlands. Ministry of Foreign Affairs. 2 March 2022. [8] National Documentation Package, Türkiye, 31 July 2023, tab 4.16: Country Policy and Information Note. Turkey: Peoples’ Democratic Party (HDP). Version 4.0. United Kingdom. Home Office. March 2020. [9] National Documentation Package, Türkiye, 31 July 2023, tab 13.3: Comprehensive Report on Turkey: The Myth of Tolerance. European University Institute. Robert Schuman Centre for Advanced Studies. Ayhan Kaya. 2012. [10] National Documentation Package, Türkiye, 31 July 2023, tab 12.3: The Alevi faith, including principles, beliefs, traditions, and ritual practices (2019–November 2021). Immigration and Refugee Board of Canada. 26 November 2021. TUR200820.E. [11] National Documentation Package, Türkiye, 31 July 2023, tab 12.10: Country Update: Turkey. Religious Freedom in Turkey in 2021. United States. Commission on International Religious Freedom. December 2021. [12] National Documentation Package, Türkiye, 31 July 2023, tab 12.2: Situation of Alevis, including political and religious rights; treatment of Alevis by society and authorities; state protection (2019–November 2021). Immigration and Refugee Board of Canada. 3 December 2021. TUR200819.E. [13] National Documentation Package, Türkiye, 31 July 2023, tab 12.1: Turkey. International Religious Freedom Report for 2021. United States. Department of State. 2 June 2022. [14] National Documentation Package, Türkiye, 31 July 2023, tab 12.5: The Alevis’ fight for recognition in Turkey. Deutsche Welle. Tunca Ögreten. 26 January 2020. [15] National Documentation Package, Türkiye, 31 July 2023, tab 12.1: Turkey. International Religious Freedom Report for 2021. United States. Department of State. 2 June 2022.", "response": "## Analysis of Refugee Decision: 2023 RLLR 99\n\n### Key Issues\non Act (IRPA)[1]. Preliminary Matters [2] At the end of the hearing, counsel requested that she provide written submissions due to a time constraint on the hearing day. The panel a\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: on and political opinion. [5] ANALYSIS Identity [6] The panel finds the claimant established his personal and national identity on a balance of probabilities. The panel relies on the copy of his Turkish national identity card and the copy of his passport’s identity page at Exhibit 8. Both documents contain the same national iden\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "Explain how this Federal Court of Canada decision interprets immigration legislation:\n\nUyghur Rights Advocacy Project v. Canada (Attorney General) Court (s) Database Federal Court Decisions Date 2023-01-26 Neutral citation 2023 FC 126 File numbers T-190-22 Notes A correction was made on January 30, 2023. A correction was made in February 13, 2023 Decision Content Date: 20230126 Docket: T-190-22 Citation: 2023 FC 126 Toronto, Ontario, January 26, 2023 PRESENT: Mr. Justice Diner BETWEEN: UYGHUR RIGHTS ADVOCACY PROJECT Applicant and ATTORNEY GENERAL OF CANADA Respondent JUDGMENT AND REASONS [1] The Attorney General of Canada [AGC or Canada] has brought a Motion to strike an Application for judicial review from Uyghur Rights Advocacy Project [URAP] under Rule 359 of the Federal Court Rules, SOR /98-106 [Rules]. I agree that the Application should be struck, for the reasons that follow. I. Background [2] URAP was established in Canada in 2020 to promote the rights of the Uyghur population. URAP conducts research and documents the policies of the People’s Republic of China [PRC] government targeting members of the Uyghur population. URAP also shares its research with parliamentarians, governments, local and global organizations and advocates for the protection of the Uyghur people. [3] On February 3, 2022, URAP filed an Application for judicial review of the acts and omissions of the Government of Canada, in relation to the ongoing genocide against members of the Uyghur population in the PRC, the nature and extent of Canada’s obligations in that respect, and their incidence on the commission of crimes against the Uyghur population, in Canada and abroad. [4] URAP contends that Canada, by its acts and omissions, is not respecting its international obligations under Article I the Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277, Can TS 1949 No 27 [Convention] by failing to prevent – or take any steps to prevent – the ongoing genocide against the Uyghur population (see Article I and other relevant Convention provisions at Annex A to these Reasons). This lack of action, according to URAP, contributes to the crimes committed against the Uyghur people of China. As a remedy from this judicial review, URAP seeks at least one of five declarations from this Court, namely that: The crime of genocide is currently being committed against the Uyghur population on the territory of the PRC, since at least 2014; Canada is bound by the provisions of the Convention; Canada knows, or should have known, that the crime of genocide is being committed against the Uyghur population since at least 2014, or alternatively; Canada knows, or should have known, of the existence of a serious risk that genocide would be committed against the Uyghur population on PRC’s territory; and; Canada, by its acts and omissions, is in breach of article I of the Convention. [5] On May 5, 2022, Canada filed a Motion to strike the Application without leave to amend. II. General Overview: Motions to Strike in Judicial Review [6] Section 18.4(1) of the Federal Courts Act, R.S.C., 1985, c. F-7 [Act] directs the parties and the Court to move judicial review applications along to the hearing stage as quickly as possible, i.e., “determined without delay and in a summary way”. The Court should be reluctant to entertain motions to strike judicial review applications. Generally, the proper way for a respondent to contest an application, which it believes to be without merit, is to appear and argue at the hearing of the application itself. As recently confirmed by the Federal Court of Appeal [FCA] in Alliance nationale de l'industrie musicale c Canada (Conseil de la radiodiffusion et des télécommunications canadiennes, 2022 CAF 156 at para 4, the Court will strike a notice of application for judicial review only where it is so clearly improper as to be bereft of any possibility of success, where the moving party can demonstrate a “showstopper” or a “knockout punch”, signifying an obvious fatal flaw striking at the root of the Court’s power to entertain the application (see also: Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc, 2013 FCA 250 at paras 47-48 [JP Morgan]). [7] The FCA went on to note in JP Morgan that “the Court must read the notice of application with a view to understanding the real essence of the application,” which must be done “holistically and practically without fastening onto matters of form” (at paras 49-50). [8] On a motion to strike, the onus of proof lies with the moving party, in this case Canada. It is a heavy onus because striking out a party’s application limits their access to justice. Canada must show that it is “plain and obvious” that the proceeding will fail because it contains a radical defect (Deng v Canada, 2019 FCA 312 at para 16, citing: Hunt v Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 SCR 959 at page 972 [Hunt]). [9] The dividing line in motions to strike on judicial review is clear. On one side of the line, section 18.4(1) of the Act directs the parties and the Court to move judicial review applications along the hearing stage as quickly as possible. On the other side of the divide, an application should not be maintained for the sake of holding a hearing. Striking out an unfounded claim can promote access to justice by allowing meritorious claims to be heard efficiently and ensure that the resources of this Court are not squandered on claims that are doomed to fail. As the Supreme Court held in R v Imperial Tobacco Canada, 2011 SCC 42 at para 19, “the power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial.” [10] The issue before this Court is thus to determine whether it is plain and obvious that the Application has no possibility of success, and must be struck. The FCA sets out in JP Morgan at para 66, three types of obvious fatal flaws: (1) the Notice of Application fails to state a cognizable administrative law claim which can be brought in the Federal Court; (2) the Federal Court is not able to deal with the administrative law claim by virtue of section 18.5 of the Federal Courts Act, RSC 1985, c F-7 [Act] or some other legal principle; (3) the Federal Court cannot grant the relief sought. [11] These types of fatal flaws are not conjunctive, such that the AGC need only establish the existence of one of the three fatal flaws raised, to succeed in this motion to strike (JP Morgan at paras 66, 70, 80). [12] After considering the arguments and evidence presented, the AGC has established the existence of two out of the three flaws outlined in JP Morgan, leading me to grant the remedy sought by the Respondent to strike this application without leave to amend. III. Overview of the Parties’ Positions [13] Canada argues that the Application contains each of the three fatal flaws, which leave it bereft of any possibility of success: (i) the Application lacks a cognizable administrative law claim; (ii) it raises issues that are not justiciable due to their political nature, and (iii) the Court cannot grant the remedy sought given its lack of jurisdiction. [14] Canada contends, relying on JP Morgan, that this Court must strike out the Application without leave to amend. The AGC points out that the Court need only agree with one of the three flaws raised for the AGC to meet his burden in demonstrating that the Application has no prospect of success. [15] URAP counters that its Application, read holistically and practically, has a reasonable chance of success, and that Canada’s arguments are focused on the irregularities and novelty of the Application. URAP contends that the Application does not have any plain and obvious flaws that would justify this Court striking it out at the preliminary stage. To the contrary, URAP asserts the complexity of the issues raised requires that the Application be heard on its merits. [16] I agree that Canada has met its burden to demonstrate that the Application has no prospect of success. A holistic and practical reading of the Application shows that URAP cannot succeed, first for want of raising any cognizable administrative law claim, and second, on account of the political question doctrine. Consequently, the Court will exercise its gatekeeping function and strike out the Application. A detailed explanation for this conclusion follows. IV. Parties’ Arguments and Analysis Issue 1: Is there a cognizable administrative law claim? [17] Canada submits that contrary to the basic requisites of the Act and the Rules, the Application fails to identify (i) a federal, board, commission or other tribunal whose actions can properly be reviewed by this Court; (ii) reviewable conduct that would trigger a right to bring a judicial review application; or (iii) a proper ground of review known in administrative law. [18] First, the AGC argues that URAP improperly seeks judicial review of the acts and omissions of the Government of Canada as a whole, which is not a federal board, commission or other tribunal within the meaning of section 18 of the Act, as previously recognized by this Court in Olumide v Canada, 2016 FC 558 [Olumide]. [19] Second, the AGC argues Rule 302 is clear that “unless the Court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought”, and that the Application fails to identify a single specific incidence of reviewable conduct. Canada asserts that in this Application, URAP improperly puts into question a multiplicity of courses of conduct by a plethora of federal departments and entities, from Global Affairs Canada to Public Safety Canada, Immigration, Refugees and Citizenship Canada, Canada Border Services Agency, the Department of Justice, and even Parliament. [20] Third, Canada argues that the Application raises no ground of review known in administrative law, including any of the grounds of review set out in subsection 18.1(4) of the Act. The AGC contends that as a result, URAP’s arguments do not raise any accepted administrative law claims. [21] URAP responds that the Application indeed involves a cognizable and important administrative law claim, which is Canada’s refusal to take action against the genocide – including failing to implement the recommendations made by a Parliamentary Committee in a report (see below at paragraph 32 of these Reasons). URAP states that this failure to act constitutes a reviewable conduct, given Canada’s obligation to prevent and punish the genocide against the Uyghur population in the PRC pursuant to article I of the Convention. [22] Regarding the argument that there cannot be a cognizable claim against the Government of Canada as a whole, URAP retorts that this Court can review a line of conduct, involving multiple administrative actions, enacting a single federal government policy. In URAP’s view, reviewable conduct does not have to be a decision or order made by a single federal board, commission or other tribunal. Indeed, URAP asserts that the converse is true, namely that Canada engages in reviewable conduct by abdicating its duty to act. Here, it argues that Canada has consistently failed to take any requisite action, contrary to its obligations under the Convention. [23] In this regard, URAP cites Canadian Association of the Deaf v Canada, 2006 FC 971 [Deaf], on which it relies for the proposition that this Court may allow a judicial review despite many “alleged acts of discrimination on different occasions by various persons, some unidentified, employed by several departments” (Deaf at para 2). [24] URAP further relies on Deaf to argue that the “matter” under judicial review does not have to be a decision or an order: the application of a policy by multiple government departments to different individuals of a same interested community constitutes a reviewable conduct for the purposes of subsection 18.1(2) of the Act (Deaf at para 66). [25] URAP contends that since its Application raises valid grounds of review, Canada has focused strictly on technical irregularities in bringing this motion to strike, instead of reading the Application holistically and practically to understand its real essence. URAP submits that in any event, the appropriate remedy of any supposed breach of Rule 302, would not be striking out the Application. Rather, it would be an extension of time to allow URAP to file one or more applications for judicial review to replace this Application, on a nunc pro tunc basis, such that it would not lose any time or progress in the current stage of the proceedings. [26] In the alternative, URAP asserts that should the Court agree that the Application does not give rise to a reviewable conduct, the Court should convert it into an action pursuant to the powers contained in subsection 18.4(2) of the Act. (1) Analysis of Issue 1: The Application does not state a cognizable administrative law claim. [27] I agree with URAP that the issues raised by the Application are novel, and that the fact that this Court has not dealt with these issues in the past – alone – cannot be sufficient reason to strike the Application. But as the Supreme Court stated recently in Atlantic Lottery Corp Inc v Babstock, 2020 SCC 19 at para 19: […] a claim will not survive an application to strike simply because it is novel. It is beneficial, and indeed critical to the viability of civil justice and public access thereto that claims, including novel claims, which are doomed to fail be disposed of at an early stage in the proceedings… If a court would not recognize a novel claim when the facts as pleaded are taken to be true, the claim is plainly doomed to fail and should be struck. [28] Similarly here, I find that while the issues raised are novel and important, they do not raise a cognizable administrative law claim. [29] The FCA held in JP Morgan at paras 67-70 that a cognizable administrative law claim must satisfy two requirements: (i) the application must meet the basic prerequisites imposed by sections 18 and 18.1 of the Act; and (ii) the application must state a ground of review known to administrative law or that could be recognized in administrative law. Sections 18 and 18.1 of the Act include the following basic prerequisites which are disputed by the Parties in this case (relevant provisions of the Act are reproduced at Annex B of these Reasons). [30] Furthermore, subsection 18.1(3) explains that a “matter” is not limited to a decision or an order but can be an “‘act or thing’, a failure, refusal or delay to do an ‘act or thing,’ a ‘decision,’ an ‘order’ and a ‘proceeding’” (Air Canada v Toronto Port Authority et al, 2011 FCA 347 at para 24). Subsection 18(1) gives this Court the exclusive jurisdiction over certain matters where relief is sought against any “federal board, commission or other tribunal”. [31] Despite URAP counsel’s best efforts to establish that reviewable conduct has occurred, I am not persuaded that any exists in the current circumstances. This Court has emphasized that “in the context of government decisions and actions, the focus is on whether there is a ‘closely connected course of allegedly unlawful government action’” (David Suzuki Foundation v Canada (Health), 2018 FC 380 at para 173 [Suzuki Foundation], citing Fisher v Canada (Attorney General), 2013 FC 1108 at para 79). Here, through a plain reading of the Application detailing what has and has not transpired, I am unable to identify a “closely connected course of allegedly unlawful government action.” [32] On the second requirement, the assertion of Canada’s generalized inaction in response to the genocide of the Uyghur population lacks the specificity needed to make it a reviewable conduct that gives rise to an administrative law claim. URAP points to Canada’s response to a parliamentary report from March 2021 entitled The Human Rights Situation of Uyghurs in Xinjiang China [Report] as an example of inaction. This Report was compiled by the Standing Committee on Foreign and International Development and its Subcommittee on International Human Rights. [33] I am not persuaded by this argument. For one, the House of Commons is expressly excluded from the definition of “federal board, commission or other tribunal” (Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40 at paras 106-108). [34] Canada’s inaction against the genocide of the Uyghur population – and thus, the lack of specificity in naming a single government entity or a single reviewable decision – is not necessarily, in and of itself, a fatal flaw that renders the Application bereft of any possibility of success. Jurisprudence has made it clear that a “decision” under s. 18 of the Act may have a broad ambit. For instance, in Amnesty International v Canadian Forces, 2007 FC 1147 at para 69, Justice Mactavish held: […] the absence of a ‘decision’ is not an absolute bar to an application for judicial review under the Federal Courts Act, and the role of this Court has been found to extend beyond the review of formal decisions, and to include the review of “a diverse range of administrative action that does not amount to a ‘decision or order’, such as subordinate legislation, reports or recommendations made pursuant to statutory powers, policy statements, guidelines and operating manuals, or any of the myriad forms that administrative action may take in the delivery by a statutory agency of a public programme.” See Markevich v Canada, 1999 CanLII 7491 (FC), [1999] 3 FC 28 (TD) at para 11. [35] In Suzuki Foundation at para 157, Justice Kane also makes it clear that there are many situations where a government policy can be properly challenged through judicial review. She enumerates several cases where such policies have been validly challenged: The jurisprudence provides guidance about what constitutes a “matter”. A “matter” includes a policy or a course of conduct. For example, challenges to the lawfulness of ongoing governmental policies are matters which are not subject to the 30-day limitation period (see Sweet v R, [1999] FCJ No 1539 at para 11, 249 NR 17 (CA) [Sweet] involving a challenge to a double-bunking policy in prisons; Moresby Explorers Ltd v Canada (Attorney General), 2007 FCA 273, [2008] 2 FCR 341 [Moresby], involving a challenge to a policy regarding a park reserve; May v CBC/Radio Canada, 2011 FCA 130, 420 NR 23, involving a challenge to a Canadian Radio-television Telecommunications Commission policy excluding a party leader from a televised debate). Such policies can be challenged at any time, even before they are applied specifically to an applicant (Moresby at para 24) [36] Justice Kane also addressed where circumstances have justified exemptions to Rule 302 (see Annex C to these Reasons), which states that judicial review is limited to a single order (at paras 164-168 and 173 of Suzuki Foundation; see also Lessard-Gauvin v Canada (Attorney General), 2016 FC 227 at paras 6-7). A “matter” under subsection 18.1(1), includes a policy or course of conduct. A “course of conduct” includes a general decision, the implementation steps, or a combination of the two, where they combine to result in unlawful government action, or an ongoing action (Suzuki Foundation at para 173). [37] That said, the jurisprudence places certain bounds around the ambit of what this Court can judicially review when it comes to government decisions, under s. 18, and not everything that occurs – or does not occur – within government constitutes a matter. [38] Here, URAP is challenging Canada’s failure to act. However, Canada has not implemented any policy about whether to act or not. Rather, it has decided not to act. This type of inaction, or failure to act, is not captured by the various forms of reviewable conduct examined in Suzuki Foundation, and URAP was not able to point to cases where a lack of action resulted in reviewable conduct on the part of the government. [39] With respect to the remedy sought, there are many cases where this Court has ordered mandamus requiring an agent or office or other representative of the government to act, but that must flow from a duty to act (Apotex Inc v Canada (Attorney General), [1994] 1 FC 742 at page 19, affirmed in Apotex Inc v Canada (Attorney General), [1994] 3 SCR 1100). [40] Here, while there may be a duty for Canada to challenge the PRC’s actions in an international forum, a duty to act in Canadian law can only be established by finding that this Court has jurisdiction to hear the matter (I briefly discuss this Court’s jurisdiction in Issue 3 below). Ultimately, the executive branch may decide to act, but it is not the role of the Court to tell the Government of Canada what policy to adopt, including foreign policy (likewise, this concept is further discussed below in Issue 2). [41] Justice LeBlanc, then of this Court, held in Olumide that the “Government of Canada, in the generic form used by the Applicant, is not a ‘federal board, commission or other tribunal’ within the meaning of the Act, and neither is Her Majesty the Queen in Right of Canada” (at para 11). He added at para 12: The Applicant further claims that government policy is subject to judicial review under section 18.1 of the Act and that legislation is such policy. Although legislation is introduced by government, it ultimately emanates from Parliament which, being a separate branch of our system of government, is not, and was never intended to be, a “federal board, commission or tribunal” within the meaning of the Act. [42] Justice LeBlanc, in Olumide, relied on Minister of National Revenue v Creative Shoes Ltd, 1972 CanLII 2097 (FCA), [1972] FC 993 [Creative Shoes], in which the Court of Appeal found that “the Crown could not in any event properly be made a respondent in such a proceeding since section 18 confers the jurisdiction only in respect of the conduct of a ‘federal board, commission, or tribunal’ which as defined in section 2(g), does not include the Crown” (Creative Shoes at page 999; see also Robertson v Canada, [1986] FCJ No 210, 3 FTR 103). [43] In summary, in the present circumstances, there is no cognizable administrative law matter to review for three reasons. [44] First, while there may be reviewable decisions in the future involving the subject matter of this Application, no concrete decision has been rendered by a federal board, commission, or tribunal that allows this Court to intervene in the current circumstances. [45] Second, the Government of Canada does not constitute a body that falls within the ambit of s. 18 (Olumide at paras 11-12; Creative Shoes at page 999). [46] Third, to the extent that URAP cites the Canadian government’s response to non-binding recommendations in the Report, this document does not constitute a government policy that outlines any reviewable conduct. [47] I note that within the last year, the application in Kilgour v Canada (Attorney General), 2022 FC 472 [Kilgour] challenged actions of the Canadian government, and specifically a Canada Border Services Agency officer, vis-à-vis goods imported from the Xinjiang region of China into Canada, as having an increased likelihood of being produced using Uyghur forced labour. The applicants in Kilgour, and URAP which acted as an intervener, took the position that those goods should be presumptively prohibited from import into Canada. [48] Associate Chief Justice Gagné reviewed cases where government administrative action did not carry legal consequences, including Democracy Watch v Conflict of Interest and Ethics Commissioner, 2009 FCA 15. She found at para 19 of Kilgour: Here, I can see no element of the statutory framework—either in the Customs Act or in the Tariff—that imposes a duty on the CBSA to make a decision such as the one requested by the Applicants. In fact, if the Programs Manager had simply chosen not to respond to the initial email from the Applicants, there would have been no grounds for review on the basis that the CBSA failed to exercise a delegated duty. [49] She concluded “Canada is free to choose how best to implement its treaty obligations” (Kilgour at para 48). Ultimately, like in Kilgour, URAP is attempting to construct an administrative law claim on a framework which simply does not support it. [50] Concluding on this first issue, this Application fails to identify a cognizable administrative law claim. This is sufficient to strike the Application, given the disjunctive nature of the JP Morgan test (see above, at paragraph 10 of these Reasons). However, for the sake of completeness, I will review the other determinative issue raised by Canada that requires this Court to strike the application, namely its lack of justiciability. Issue 2: Are the issues raised in the Application justiciable? [51] Canada argues the declarations requested by URAP raise matters which are not justiciable before this Court. Canada explains that in determining whether a matter is justiciable, this Court’s primary concern should be “its proper role within the constitutional framework of our democratic form of government” as held by the Supreme Court in Reference Re Canada Assistance Plan (BC), 1991 CanLII 74 (SCC), [1991] 2 SCR 525 at page 545. In this regard, Canada highlights the constitutional principle of the separation of powers. It submits that the issues raised by URAP in the Application encroach on the role of the executive branch, and that this Court is precluded from trenching on the internal affairs of other branches of government. [52] Canada submits that despite URAP’s assertion to the contrary, the Application is asking this Court to make a determination on the legality of the acts of a foreign state. The AGC argues that the declaratory relief sought would require this Court to establish that there is a genocide of the Uyghur population being committed by the PRC, in breach of the provisions of the Convention. Canada urges the Court to exercise judicial restraint and refrain from ruling on the actions of a foreign state, which it contends is the central issue in the Application. [53] Canada also asserts that in challenging foreign acts and affairs, the Application puts into question the institutional capacity of this Court to investigate another country’s compliance with its treaty obligations. Canada argues that this Court does not have the power under Rule 64 to make a declaration as to facts, and therefore cannot grant the relief sought by URAP. Canada emphasizes that the judiciary is not the appropriate forum or proxy for conducting Canada’s foreign policy. [54] URAP replies that contrary to Canada’s arguments, it is not asking this Court to review the actions of a foreign state, but rather to review the actions of Canada with regard to its obligations under the Convention. [55] URAP argues that Canada’s legal obligations under the Convention are triggered by the serious risk that the crime of genocide is being committed (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), 2007 ICJ 1077 at page 222 [Bosnia and Herzegovina v Serbia and Montenegro]), and that there is plenty of evidence – including Canada’s own recognition of a human rights situation in Xinjiang – to support the fact that there is a serious risk that the crime of genocide is being committed, and thus, that Canada’s obligations under the Convention have been triggered. [56] URAP emphasizes that in so finding, this Court does not have to state that the PRC is committing a genocide against the Uyghur population. Rather, in URAP’s view, this Court has every right under the law to declare that Canada has failed its obligations under the Convention, because Canada has failed to recognize the Uyghur Genocide. As explained above, URAP contends that the Convention constitutes an existing body of federal law. It contends that the question of the legality of the actions of a foreign state is thus only incidental to the central question of the legality of the actions of Canada. [57] Furthermore, URAP disagrees with Canada that the constitutional principle of the separation of powers precludes this Court from considering the issues raised in the Application. Conversely, it contends that this principle further highlights the responsibility of this Court to adjudicate issues about the Convention, an existing body of federal law: the principle of separation of powers cannot trump the principle of the rule of law, whereby this Court has the duty to ensure the accountability of Canada’s executive branch to the authority of the law. (2) Analysis of Issue 2: The Application raises issues that are not justiciable. [58] Justiciability is a principle rooted in the separation of powers between the legislative, executive and judicial branches of the Canadian constitutional system (Environnement Jeunesse c Procureur général du Canada, 2021 QCCA 1871 at para 24 [Environnement Jeunesse]). Justiciability recognizes that the exercise of legislative powers or the conduct of state affairs – including foreign affairs – by the executive branch requires weighing many considerations and making policy choices that should not be assessed by the courts (Environnement Jeunesse at para 30). [59] Justiciability relates to a court’s jurisdiction in the sense that a justiciable issue is one that does not exceed a court’s jurisdiction by encroaching on the exclusive powers of the legislative or executive branches (Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43 at para 30). Courts should not venture into domains that rest clearly with the other two branches of government (the executive and legislative branches) lest the Courts decide matters that are not justiciable, effectively acting outside of their jurisdiction. This excess of jurisdiction applies in a figurative rather than a formal sense. The latter, of course, relates to substantive jurisdiction as set out in the Court’s statutory jurisdiction, which was raised by the AGC and is briefly discussed in Issue 3 below. [60] This Court recently summarized the test for justiciability in La Rose v Canada, 2020 FC 1008 [La Rose], citing Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 [Highwood]; Hupacasath First Nation v Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4 [Hupacasath], and Boundaries of Judicial Review: The Law of Justiciability in Canada by Lorne M. Sossin [Sossin]. Justice Manson wrote: [29] The question to be decided is whether the Court has the institutional capacity and legitimacy to adjudicate the matter. Or, more generally, is the issue one that is appropriate for a Court to decide (Highwood at paras 32, 34). The terms “legitimacy” and “capacity” can also be understood as the “appropriateness” and “ability” of the Court to deal with a matter (Hupacasath, above at para 62). [30] There is no single set of rules delineating the scope of justiciability, the approach to which is flexible and to some degree contextual. Courts have often inquired whether there is a sufficient legal component to warrant judicial intervention, “[s]ince only a court can authoritatively resolve a legal question, its decision will serve to resolve a controversy or it will have some other practical significance” (Highwood at para 34; Reference Re Canada Assistance Plan (BC), 1991 CanLII 74 (SCC), [1991] 2 SCR 525 at 546). [31] In determining whether it has the institutional capacity and legitimacy to adjudicate the matter, the Supreme Court in Highwood provides that a Court should consider that the matter before it “would be an economical and efficient investment of judicial resources to resolve, that there is a sufficient factual and evidentiary basis for the claim, that there would be an adequate adversarial presentation of the parties' positions and that no other administrative or political body has been given prior jurisdiction of the matter by statute” (Sossin, above at 294, cited in Highwood at para 34). [61] After considering the factors set out by the Supreme Court in Highwood, and the other sources cited above, I find that the Application raises issues that are not justiciable. It would not be an economical and efficient investment of judicial resources for this Court to hear the Application on its merits when it is plain and obvious that it will eventually be dismissed. [62] Here, I find that it is plain and obvious that this Court cannot grant the declaratory relief sought by URAP, because the declarations sought fall within the scope of the other branches of government, which this Court recognizes are better placed to make decisions on such matters. [63] URAP maintains that this Court can issue a declaration that Canada has failed its obligations under the Convention without stating that the PRC is committing genocide against the Uyghur population. However, these two declarations are two sides of the same coin. A declaration by this Court that Canada has failed to prevent genocide in a foreign country necessitates an analysis by this Court of the legality of the actions of that foreign state, which in this case is not appropriate for judicial review but falls within the sphere of international relations, under the exercise of executive powers. As summarized by the FCA at para 66 of Hupacasath: […] In rare cases, however, exercises of executive power are suffused with ideological, political, cultural, social, moral and historical concerns of a sort not at all amenable to the judicial process or suitable for judicial analysis. In those rare cases, assessing whether the executive has acted within a range of acceptability and defensibility is beyond the courts’ ken or capability, taking courts beyond their proper role within the separation of powers. [64] In Nevsun Resources Ltd v Araya, 2020 SCC 5 [Nevsun], the Supreme Court rejected the company’s appeal of motions that had been refused by lower courts, to strike the pleadings of the affected workers. This is not a case such as Nevsun, where there were actions by the subsidiary of a Canadian company in its treatment of employees through a forced labour regime in Eritrea, which raised justiciable issues of international customary law and jus cogens, as they related to a civil tort law claim. [65] While URAP posits that the legality of the actions of China is incidental to the central question of the legality of the actions of Canada, I find that the reverse applies: the legality of the actions of Canada is incidental to the legality of the actions of the PRC. And that determination lies in the bailiwick of the Federal Government to decide and react to, not this Court. [66] Indeed, it is up to the Federal Government to decide whether a genocide has taken place or is ongoing against the Uyghur population in China. Once it has so declared, the Convention and customary international law would ground the legal consequences, and/or the ability of impacted groups, such as URAP, to seek declarations, or other relief properly available to it. However, absent that grounding, those requests of this Court are premature. [67] The political question doctrine, like the lack of a cognizable claim, is a showstopper, or knockout punch, that fatally flaws the Application (JP Morgan at para 47). As the FCA wrote in Hupacasath: [62] Justiciability, sometimes called the “political questions objection,” concerns the appropriateness and ability of a court to deal with an issue before it. Some questions are so political that courts are incapable or unsuited to deal with them, or should not deal with them in light of the time-honoured demarcation of powers between the courts and the other branches of government. [68] Finally, I turn back to the one of the alternate grounds of relief requested by URAP, namely that this matter be converted into an action if this Application would be more appropriately cast as that type of proceeding. However, the fatal flaws apparent in the Application will not be cured by changing the type of proceeding under the Rules to an action. Issue 3: Jurisdiction of the Court to determine this Application [69] The AGC submits the Federal Court does not have jurisdiction to determine the Application as it fails to meet the requirements set out in ITO-International Terminal of Operators v Miida Electronics, 1986 CanLII 91 (SCC), [1986] 1 SCR 752 [ITO]. In ITO, the Supreme Court of Canada held that one of three requirements must be met for this Court to have jurisdiction over a proceeding: (i) a statutory grant of jurisdiction by Parliament; (ii) an existing body of federal law, essential to the disposition of the case, which nourishes the statutory grant of jurisdiction; and (iii) law underlying the case falling within the scope of the term “a law of Canada” used in section 101 of the Constitution Act, 1867 [Constitution]. [70] The AGC asserts that URAP is asking this Court to directly interpret and apply an international instrument, the Convention. Canada contends that the question of determining foreign law is central to this Application, as opposed to being merely incidental, and thus must be distinguished from Hunt v T&N plc, [1993] 4 SCR 289 at p 309 [T&N], in which the Supreme Court of Canada held that Canadian courts could deal with foreign laws where “the question arises merely incidentally” (see also: Nevsun at para 49). Thus, the AGC submits this Court lacks the jurisdiction to consider this Application. Furthermore, as URAP is not seeking relief under an act of Parliament, Canada argues there is no statutory grant of jurisdiction. [71] Canada further argues the role of the Federal Court is constitutionally limited to administering the “Laws of Canada” as set out in section 101 of the Constitution, which means federal law. The Convention – upon which URAP’s entire claim is based – is not an “existing body of federal law”, nor has it been incorporated into domestic legislation, and thus it cannot be used as the legal basis for initiating a proceeding of civil nature, such as an application for judicial review in the Federal Court. [72] According to Canada, international law treaties, such as the Convention, have to be expressly incorporated into Canadian legislation to form part of the existing body of federal law, as was done for certain parts of the Convention relating to criminal prosecution and immigration. [73] Conversely, Canada submits that article I of the Convention upon which URAP relies to argue that Canada has an obligation to prevent and to punish the genocide of the Uyghur population in the PRC, was not expressly incorporated into Canadian legislation, thus reflecting a specific legislative intent to exclude this provision from federal law. [74] Canada submits that no case has incorporated the Convention into domestic law, and for a Court to do so would be to usurp the role of Parliament. Ultimately, Canada contends that the essential character of the Application is to ask this Court to make a determination about the legality of a foreign state’s actions. [75] URAP replies that it is not asking this Court to directly interpret and apply an instrument of international law, because the Convention is federal law. URAP disagrees that international law treaties such as the Convention must be expressly incorporated by legislation into domestic law. It argues that the Convention has been recognized by the International Court of Justice and the United Nations, as the codification of customary international law, as recognized in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), 2015 ICJ 921 at pages 87-88, 95; Bosnia and Herzegovina v Serbia and Montenegro at page 161; United Nations Security Council, “Report of the Secretary-General pursuant to paragraph 2 of the Security Council Resolution 808” (1993) S/25704 at para 35. [76] From a domestic law standpoint, URAP notes that the Supreme Court of Canada held in Nevsun at para 94 that “as a result of the doctrine of adoption, norms of customary law – those that satisfy the twin requirements of general practice and opinio juris – are fully integrated into, and form part of, Canadian domestic common law, absent conflicting law.” In accordance with this doctrine of adoption, URAP concludes that the Convention is federal law without needing to be expressly incorporated by legislation. It asserts this Court can make a determination of the legality of the acts of Canada with regard to its obligations under the Convention, an existing body of federal law, according to URAP, since customary international law can form the legal basis for the statutory grant of jurisdiction in this Application. (3) Analysis of Issue 3 [77] The first two issues are determinative in this case. Given the disjunctive nature of JP Morgan, either of the first two flaws in the application are fatal to URAP’s case, namely that it lacks (i) a cognizable administrative law claim, and (ii) justiciability. [78] Thus, in light of my conclusions on the first two issues raised, I decline to comment on the issue of whether this Court has jurisdiction to determine the Application. After all, the Court may refuse to decide complex jurisdictional matters on interlocutory motions, particularly on motions to strike applications for judicial review (Coffey v Canada (Minister of Justice), 2004 FC 1694 at para 23; Suzuki Foundation at para 36). V. Costs [79] Canada declined to ask for costs. Given the nature of the proceedings, and in light of Canada’s position with respect to this issue, I will decline to award costs. VI. Conclusion [80] As Elie Wiesel said in his Nobel Peace Prize acceptance speech on December 10, 1986: “Silence encourages the tormentor, never the tormented. Sometimes we must interfere.” And as Roméo Dallaire wrote in Shake Hands with the Devil: The Failure of Humanity in Rwanda, his book chronicling his time spent as Force Commander of the United Nations Assistance Mission for Rwanda in 1993-94: The international community, of which the UN is only a symbol, failed to move beyond self-interest for the sake of Rwanda. While most nations agreed that something should be done they all had an excuse why they should not be the ones to do it. As a result, the UN was denied the political will and material means to prevent the tragedy. [81] The Canadian government has obligations under international law, including with respect to international treaties such as the Convention. A firm stance against genocide is an undeniable imperative for the world, as articulated by Elie Wiesel and Roméo Dallaire, who were witnesses to genocide. Yet, the mere potential existence of a genocide does not automatically ground proceedings before the Court. [82] Notwithstanding the gravity of the issues raised by URAP in this Application, I find that these issues are not cognizable in administrative law, nor justiciable under the political question doctrine. As this Court must respect the dividing lines between the three branches of Government, the matters raised in this Application should be left to the executive and legislative branches until such time as those bodies enact law or policy, or make otherwise reviewable decisions. [83] For all the reasons above, Canada’s Motion to strike the Application is granted, without leave to amend. There is no award as to costs. JUDGMENT in T-190-22 THIS COURT’S JUDGMENT is that: The Motion is granted. The Application is struck without leave to amend. No costs will issue. \"Alan S. Diner\" Judge ANNEX A Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948, 78 UNTS 277, Can TS 1949 No 27) Convention pour la prévention et la répression du crime de génocide (9 décembre 1948, 78 RTNU 277, Can TS 1949 No 27) Article I Article premier The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish. Les Parties contractantes confirment que le génocide, qu'il soit commis en temps de paix ou en temps de guerre, est un crime du droit des gens, qu'elles s'engagent à prévenir et à punir. Article II Article II In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: Dans la présente Convention, le génocide s'entend de l'un quelconque des actes ci-après, commis dans l'intention de détruire, ou tout ou en partie, un groupe national, ethnique, racial ou religieux, comme tel : (a) Killing members of the group; a) Meurtre de membres du groupe; (b) Causing serious bodily or mental harm to members of the group; b) Atteinte grave à l'intégrité physique ou mentale de membres du groupe; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; c) Soumission intentionnelle du groupe à des conditions d'existence devant entraîner sa destruction physique totale ou partielle; (d) Imposing measures intended to prevent births within the group; d) Mesures visant à entraver les naissances au sein du groupe; (e) Forcibly transferring children of the group to another group. e) Transfert forcé d'enfants du groupe à un autre groupe. Article III Article III The following acts shall be punishable: Seront punis les actes suivants : (a) Genocide; a) Le génocide; (b) Conspiracy to commit genocide; b) L'entente en vue de commettre le génocide; (c) Direct and public incitement to commit genocide; c) L'incitation directe et publique à commettre le génocide; (d) Attempt to commit genocide; d) La tentative de génocide; (e) Complicity in genocide. e) La complicité dans le génocide. Article IV Article IV Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals Les personnes ayant commis le génocide ou l'un quelconque des autres actes énumérés à l'article III seront punies, qu'elles soient des gouvernants, des fonctionnaires ou des particuliers. Article V Article V The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III. Les Parties contractantes s'engagent à prendre, conformément à leurs constitutions respectives, les mesures législatives nécessaires pour assurer l'application des dispositions de la présente Convention, et notamment à prévoir des sanctions pénales efficaces frappant les personnes coupables de génocide ou de l'un quelconque des autres actes énumérés à l'article III. Article VIII Article VIII Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III. Toute Partie contractante peut saisir les organes compétents de l'Organisation des Nations Unies afin que ceux-ci prennent, conformément à la Charte des Nations Unies, les mesures qu'ils jugent appropriées pour la prévention et la répression des actes de génocide ou de l'un quelconque des autres actes énumérés à l'article III. Article IX Article IX Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute. Les différends entre les Parties contractantes relatifs à l'interprétation, l'application ou l'exécution de la présente Convention, y compris ceux relatifs à la responsabilité d'un Etat en matière de génocide ou de l'un quelconque des autres actes énumérés à l'article III, seront soumis à la Cour internationale de Justice, à la requête d'une partie au différend. ANNEX B Federal Courts Act (R.S.C., 1985, c. F-7) Loi sur les Cours fédérales (L.R.C. (1985), ch. F-7) Definitions Définitions 2 (1) In this Act, 2 (1) Les définitions qui suivent s’appliquent à la présente loi. federal board, commission or other tribunal means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made under a prerogative of the Crown, other than the Tax Court of Canada or any of its judges or associate judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867; (office fédéral) office fédéral Conseil, bureau, commission ou autre organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu d’une prérogative royale, à l’exclusion de la Cour canadienne de l’impôt et ses juges et juges adjoints, d’un organisme constitué sous le régime d’une loi provinciale ou d’une personne ou d’un groupe de personnes nommées aux termes d’une loi provinciale ou de l’article 96 de la Loi constitutionnelle de 1867. (federal board, commission or other tribunal) Senate and House of Commons Sénat et Chambre des communes (2) For greater certainty, the expression federal board, commission or other tribunal, as defined in subsection (1), does not include the Senate, the House of Commons, any committee or member of either House, the Senate Ethics Officer, the Conflict of Interest and Ethics Commissioner with respect to the exercise of the jurisdiction or powers referred to in sections 41.1 to 41.5 and 86 of the Parliament of Canada Act, the Parliamentary Protective Service or the Parliamentary Budget Officer. (2) Il est entendu que sont également exclus de la définition de office fédéral le Sénat, la Chambre des communes, tout comité de l’une ou l’autre chambre, tout sénateur ou député, le conseiller sénatorial en éthique, le commissaire aux conflits d’intérêts et à l’éthique à l’égard de l’exercice de sa compétence et de ses attributions visées aux articles 41.1 à 41.5 et 86 de la Loi sur le Parlement du Canada, le Service de protection parlementaire et le directeur parlementaire du budget. […] […] Extraordinary remedies, federal tribunals Recours extraordinaires : offices fédéraux 18 (1) Subject to section 28, the Federal Court has exclusive original jurisdiction 18 (1) Sous réserve de l’article 28, la Cour fédérale a compétence exclusive, en première instance, pour : (a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and a) décerner une injonction, un bref de certiorari, de mandamus, de prohibition ou de quo warranto, ou pour rendre un jugement déclaratoire contre tout office fédéral; (b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal. b) connaître de toute demande de réparation de la nature visée par l’alinéa a), et notamment de toute procédure engagée contre le procureur général du Canada afin d’obtenir réparation de la part d’un office fédéral. Extraordinary remedies, members of Canadian Forces Recours extraordinaires : Forces canadiennes (2) The Federal Court has exclusive original jurisdiction to hear and determine every application for a writ of habeas corpus ad subjiciendum, writ of certiorari, writ of prohibition or writ of mandamus in relation to any member of the Canadian Forces serving outside Canada. (2) Elle a compétence exclusive, en première instance, dans le cas des demandes suivantes visant un membre des Forces canadiennes en poste à l’étranger : bref d’habeas corpus ad subjiciendum, de certiorari, de prohibition ou de mandamus. Remedies to be obtained on application Exercice des recours (3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1. (3) Les recours prévus aux paragraphes (1) ou (2) sont exercés par présentation d’une demande de contrôle judiciaire. Application for judicial review Demande de contrôle judiciaire 18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. … 18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l’objet de la demande. … Powers of Federal Court Pouvoirs de la Cour fédérale (3) On an application for judicial review, the Federal Court may (3) Sur présentation d’une demande de contrôle judiciaire, la Cour fédérale peut : (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or a) ordonner à l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de manière déraisonnable; (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu’elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l’office fédéral. Grounds of review Motifs (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l’office fédéral, selon le cas : (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; a) a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; b) n’a pas observé un principe de justice naturelle ou d’équité procédurale ou toute autre procédure qu’il était légalement tenu de respecter; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; c) a rendu une décision ou une ordonnance entachée d’une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; (e) acted, or failed to act, by reason of fraud or perjured evidence; or e) a agi ou omis d’agir en raison d’une fraude ou de faux témoignages; (f) acted in any other way that was contrary to law. f) a agi de toute autre façon contraire à la loi. Defect in form or technical irregularity Vice de forme (5) If the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Federal Court may (5) La Cour fédérale peut rejeter toute demande de contrôle judiciaire fondée uniquement sur un vice de forme si elle estime qu’en l’occurrence le vice n’entraîne aucun dommage important ni déni de justice et, le cas échéant, valider la décision ou l’ordonnance entachée du vice et donner effet à celle-ci selon les modalités de temps et autres qu’elle estime indiquées. (a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and BLANC (b) in the case of a defect in form or a technical irregularity in a decision or an order, make an order validating the decision or order, to have effect from any time and on any terms that it considers appropriate. BLANC Annex C Federal Courts Rules (SOR/98-106) Règles des Cours fédérales (DORS/98-106) Declaratory relief available Jugement déclaratoire 64 No proceeding is subject to challenge on the ground that only a declaratory order is sought, and the Court may make a binding declaration of right in a proceeding whether or not any consequential relief is or can be claimed. 64 Il ne peut être fait opposition à une instance au motif qu’elle ne vise que l’obtention d’un jugement déclaratoire, et la Cour peut faire des déclarations de droit qui lient les parties à l’instance, qu’une réparation soit ou puisse être demandée ou non en conséquence. Limited to single order Limites 302 Unless the Court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought. 302 Sauf ordonnance contraire de la Cour, la demande de contrôle judiciaire ne peut porter que sur une seule ordonnance pour laquelle une réparation est demandée. FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-190-22 STYLE OF CAUSE: UYGHUR RIGHTS ADVOCACY PROJECT v ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Montréal, Quebec IN PERSON AND BY VIDEOCONFERENCE DATE OF HEARING: October 3 and 4, 2022 JUDGMENT AND reasons: DINER J. DATED: january 26, 2023 APPEARANCES: Sébastien Chartrand Justine Bernatchez Philippe Larochelle For The Applicant François Joyal Guillaume Bigaouette Frédéric Paquin For The Respondent SOLICITORS OF RECORD: Larochelle Avocats Montréal, Quebec For The Applicant Attorney General of Canada Montréal, Quebec For The Respondent", "response": "## Analysis of Court Decision: Uyghur Rights Advocacy Project v. Canada (Attorney General)\n\n### Key Issues\nive law claim; (ii) it raises issues that are not justiciable due to their political nature, and (iii) the Court cannot grant the remedy sought given its lack of jurisdiction. [14]\n\n### Standard of Review\nUyghur Rights Advocacy Project v. Canada (Attorney General) Court (s) Database Federal Court Decisions Date 2023-01-26 Neutral citation 2023 FC 126 File numbers T-190-22 Notes A correction was made on January 30, 2023. A correction was made in February 13, 2023 Decision Content Date: 20230126 Docket: T-190-22 Citation: 2023 FC 126 Toronto, Ontario, January 26, 2023 PRESENT: Mr. Justice Diner BETWEEN: UYGHUR RIGHTS ADVOCACY PROJECT Applicant and ATTORNEY GENERAL OF CANADA Respondent JUDGMENT AND REASONS [1] The Attorney General of Canada [AGC or Canada] has brought a Motion to strike an Application for judicial review from Uyghur Rights Advocacy Project [URAP] under Rule 359 of the Federal Court Rules, SOR /98-106 [Rules]. I agree that the Application should be struck, for the reasons that follow. I. Background [2] URAP was established in Canada in 2020 to promote the rights of the Uyghur population. URAP conducts research and documents the policies of the People’s Republic of China [PRC] government targeting members of the Uyghur population. URAP also shares its research with parliamentarians, governments, local and global organizations and advocates for the protection of the Uyghur people. [3] On February 3, 2022, URAP filed an Application for judicial review of the acts and omissions of the Government of Canada, in relation to the ongoing genocide against members of the Uyghur population in the PRC, the nature and extent of Canada’s obligations in that respect, and their incidence on the commission of crimes against the Uyghur population, in Canada and abroad. [4] URAP contends that Canada, by its acts and omissions, is not respecting its international obligations under Article I the Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277, Can TS 1949 No 27 [Convention] by failing to prevent – or take any steps to prevent – the ongoing genocide against the Uyghur population (see Article I and other relevant Convention provisions at Annex A to these Reasons). This lack of action, according to URAP, contributes to the crimes committed against the Uyghur people of China. As a remedy from this judicial review, URAP seeks at least one of five declarations from this Court, namely that: The crime of genocide is currently being committed against the Uyghur population on the territory of the PRC, since at least 2014; Canada is bound by the provisions of the Convention; Canada knows, or should have known, that the crime of genocide is being committed against the Uyghur population since at least 2014, or alternatively; Canada knows, or should have known, of the existence of a serious risk that genocide would be committed against the Uyghur population on PRC’s territory; and; Canada, by its acts and omissions, is in breach of article I of the Convention. [5] On May 5, 2022, Canada filed a Motion to strike the Application without leave to amend. II. General Overview: Motions to Strike in Judicial Review [6] Section 18.4(1) of the Federal Courts Act, R.S.C., 1985, c. F-7 [Act] directs the parties and the Court to move judicial review applications along to the hearing stage as quickly as possible, i.e., “determined without delay and in a summary way”. The Court should be reluctant to entertain motions to strike judicial review applications. Generally, the proper way for a respondent to contest an application, which it believes to be without merit, is to appear and argue at the hearing of the application itself. As recently confirmed by the Federal Court of Appeal [FCA] in Alliance nationale de l'industrie musicale c Canada (Conseil de la radiodiffusion et des télécommunications canadiennes, 2022 CAF 156 at para 4, the Court will strike a notice of application for judicial review only where it is so clearly improper as to be bereft of any possibility of success, where the moving party can demonstrate a “showstopper” or a “knockout punch”, signifying an obvious fatal flaw striking at the root of the Court’s power to entertain the application (see also: Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc, 2013 FCA 250 at paras 47-48 [JP Morgan]). [7] The FCA went on to note in JP Morgan that “the Court must read the notice of application with a view to understanding the real essence of the application,” which must be done “holistically and practically without fastening onto matters of form” (at paras 49-50). [8] On a motion to strike, the onus of proof lies with the moving party, in this case Canada. It is a heavy onus because striking out a party’s application limits their access to justice. Canada must show that it is “plain and obvious” that the proceeding will fail because it contains a radical defect (Deng v Canada, 2019 FCA 312 at para 16, citing: Hunt v Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 SCR 959 at page 972 [Hunt]). [9] The dividing line in motions to strike on judicial review is clear. On one side of the line, section 18.4(1) of the Act directs the parties and the Court to move judicial review applications along the hearing stage as quickly as possible. On the other side of the divide, an application should not be maintained for the sake of holding a hearing. Striking out an unfounded claim can promote access to justice by allowing meritorious claims to be heard efficiently and ensure that the resources of this Court are not squandered on claims that are doomed to fail. As the Supreme Court held in R v Imperial Tobacco Canada, 2011 SCC 42 at para 19, “the power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial.” [10] The issue before this Court is thus to determine whether it is plain and obvious that the Application has no possibility of success, and must be struck. The FCA sets out in JP Morgan at para 66, three types of obvious fatal flaws: (1) the Notice of Application fails to state a cognizable administrative law claim which can be brought in the Federal Court; (2) the Federal Court is not able to deal with the administrative law claim by virtue of section 18.5 of the Federal Courts Act, RSC 1985, c F-7 [Act] or some other legal principle; (3) the Federal Court cannot grant the relief sought. [11] These types of fatal flaws are not conjunctive, such that the AGC need only establish the existence of one of the three fatal flaws raised, to succeed in this motion to strike (JP Morgan at paras 66, 70, 80). [12] After considering the arguments and evidence presented, the AGC has established the existence of two out of the three flaws outlined in JP Morgan, leading me to grant the remedy sought by the Respondent to strike this application without leave to amend. III. Overview of the Parties’ Positions [13] Canada argues that the Application contains each of the three fatal flaws, which leave it bereft of any possibility of success: (i) the Application lacks a cognizable administrative law claim; (ii) it raises issues that are not justiciable due to their political nature, and (iii) the Court cannot grant the remedy sought given its lack of jurisdiction. [14] Canada contends, relying on JP Morgan, that this Court must strike out the Application without leave to amend. The AGC points out that the Court need only agree with one of the three flaws raised for the AGC to meet his burden in demonstrating that the Application has no prospect of success. [15] URAP counters that its Application, read holistically and practically, has a reasonable chance of success, and that Canada’s arguments are focused on the irregularities and novelty of the Application. URAP contends that the Application does not have any plain and obvious flaws that would justify this Court striking it out at the preliminary stage. To the contrary, URAP asserts the complexity of the issues raised requires that the Application be heard on its merits. [16] I agree that Canada has met its burden to demonstrate that the Application has no prospect of success. A holistic and practical reading of the Application shows that URAP cannot succeed, first for want of raising any cognizable administrative law claim, and second, on account of the political question doctrine. Consequently, the Court will exercise its gatekeeping function and strike out the Application. A detailed explanation for this conclusion follows. IV. Parties’ Arguments and Analysis Issue 1: Is there a cognizable administrative law claim? [17] Canada submits that contrary to the basic requisites of the Act and the Rules, the Application fails to identify (i) a federal, board, commission or other tribunal whose actions can properly be reviewed by this Court; (ii) reviewable conduct that would trigger a right to bring a judicial review application; or (iii) a proper ground of review known in administrative law. [18] First, the AGC argues that URAP improperly seeks judicial review of the acts and omissions of the Government of Canada as a whole, which is not a federal board, commission or other tribunal within the meaning of section 18 of the Act, as previously recognized by this Court in Olumide v Canada, 2016 FC 558 [Olumide]. [19] Second, the AGC argues Rule 302 is clear that “unless the Court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought”, and that the Application fails to identify a single specific incidence of reviewable conduct. Canada asserts that in this Application, URAP improperly puts into question a multiplicity of courses of conduct by a plethora of federal departments and entities, from Global Affairs Canada to Public Safety Canada, Immigration, Refugees and Citizenship Canada, Canada Border Services Agency, the Department of Justice, and even Parliament. [20] Third, Canada argues that the Application raises no ground of review known in administrative law, including any of the grounds of review set out in subsection 18.1(4) of the Act. The AGC contends that as a result, URAP’s arguments do not raise any accepted administrative law claims. [21] URAP responds that the Application indeed involves a cognizable and important administrative law claim, which is Canada’s refusal to take action against the genocide – including failing to implement the recommendations made by a Parliamentary Committee in a report (see below at paragraph 32 of these Reasons). URAP states that this failure to act constitutes a reviewable conduct, given Canada’s obligation to prevent and punish the genocide against the Uyghur population in the PRC pursuant to article I of the Convention. [22] Regarding the argument that there cannot be a cognizable claim against the Government of Canada as a whole, URAP retorts that this Court can review a line of conduct, involving multiple administrative actions, enacting a single federal government policy. In URAP’s view, reviewable conduct does not have to be a decision or order made by a single federal board, commission or other tribunal. Indeed, URAP asserts that the converse is true, namely that Canada engages in reviewable conduct by abdicating its duty to act. Here, it argues that Canada has consistently failed to take any requisite action, contrary to its obligations under the Convention. [23] In this regard, URAP cites Canadian Association of the Deaf v Canada, 2006 FC 971 [Deaf], on which it relies for the proposition that this Court may allow a judicial review despite many “alleged acts of discrimination on different occasions by various persons, some unidentified, employed by several departments” (Deaf at para 2). [24] URAP further relies on Deaf to argue that the “matter” under judicial review does not have to be a decision or an order: the application of a policy by multiple government departments to different individuals of a same interested community constitutes a reviewable conduct for the purposes of subsection 18.1(2) of the Act (Deaf at para 66). [25] URAP contends that since its Application raises valid grounds of review, Canada has focused strictly on technical irregularities in bringing this motion to strike, instead of reading the Application holistically and practically to understand its real essence. URAP submits that in any event, the appropriate remedy of any supposed breach of Rule 302, would not be striking out the Application. Rather, it would be an extension of time to allow URAP to file one or more applications for judicial review to replace this Application, on a nunc pro tunc basis, such that it would not lose any time or progress in the current stage of the proceedings. [26] In the alternative, URAP asserts that should the Court agree that the Application does not give rise to a reviewable conduct, the Court should convert it into an action pursuant to the powers contained in subsection 18.4(2) of the Act. (1) Analysis of Issue 1: The Application does not state a cognizable administrative law claim. [27] I agree with URAP that the issues raised by the Application are novel, and that the fact that this Court has not dealt with these issues in the past – alone – cannot be sufficient reason to strike the Application. But as the Supreme Court stated recently in Atlantic Lottery Corp Inc v Babstock, 2020 SCC 19 at para 19: […] a claim will not survive an application to strike simply because it is novel. It is beneficial, and indeed critical to the viability of civil justice and public access thereto that claims, including novel claims, which are doomed to fail be disposed of at an early stage in the proceedings… If a court would not recognize a novel claim when the facts as pleaded are taken to be true, the claim is plainly doomed to fail and should be struck. [28] Similarly here, I find that while the issues raised are novel and important, they do not raise a cognizable administrative law claim. [29] The FCA held in JP Morgan at paras 67-70 that a cognizable administrative law claim must satisfy two requirements: (i) the application must meet the basic prerequisites imposed by sections 18 and 18.1 of the Act; and (ii) the application must state a ground of review known to administrative law or that could be recognized in administrative law. Sections 18 and 18.1 of the Act include the following basic prerequisites which are disputed by the Parties in this case (relevant provisions of the Act are reproduced at Annex B of these Reasons). [30] Furthermore, subsection 18.1(3) explains that a “matter” is not limited to a decision or an order but can be an “‘act or thing’, a failure, refusal or delay to do an ‘act or thing,’ a ‘decision,’ an ‘order’ and a ‘proceeding’” (Air Canada v Toronto Port Authority et al, 2011 FCA 347 at para 24). Subsection 18(1) gives this Court the exclusive jurisdiction over certain matters where relief is sought against any “federal board, commission or other tribunal”. [31] Despite URAP counsel’s best efforts to establish that reviewable conduct has occurred, I am not persuaded that any exists in the current circumstances. This Court has emphasized that “in the context of government decisions and actions, the focus is on whether there is a ‘closely connected course of allegedly unlawful government action’” (David Suzuki Foundation v Canada (Health), 2018 FC 380 at para 173 [Suzuki Foundation], citing Fisher v Canada (Attorney General), 2013 FC 1108 at para 79). Here, through a plain reading of the Application detailing what has and has not transpired, I am unable to identify a “closely connected course of allegedly unlawful government action.” [32] On the second requirement, the assertion of Canada’s generalized inaction in response to the genocide of the Uyghur population lacks the specificity needed to make it a reviewable conduct that gives rise to an administrative law claim. URAP points to Canada’s response to a parliamentary report from March 2021 entitled The Human Rights Situation of Uyghurs in Xinjiang China [Report] as an example of inaction. This Report was compiled by the Standing Committee on Foreign and International Development and its Subcommittee on International Human Rights. [33] I am not persuaded by this argument. For one, the House of Commons is expressly excluded from the definition of “federal board, commission or other tribunal” (Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40 at paras 106-108). [34] Canada’s inaction against the genocide of the Uyghur population – and thus, the lack of specificity in naming a single government entity or a single reviewable decision – is not necessarily, in and of itself, a fatal flaw that renders the Application bereft of any possibility of success. Jurisprudence has made it clear that a “decision” under s. 18 of the Act may have a broad ambit. For instance, in Amnesty International v Canadian Forces, 2007 FC 1147 at para 69, Justice Mactavish held: […] the absence of a ‘decision’ is not an absolute bar to an application for judicial review under the Federal Courts Act, and the role of this Court has been found to extend beyond the review of formal decisions, and to include the review of “a diverse range of administrative action that does not amount to a ‘decision or order’, such as subordinate legislation, reports or recommendations made pursuant to statutory powers, policy statements, guidelines and operating manuals, or any of the myriad forms that administrative action may take in the delivery by a statutory agency of a public programme.” See Markevich v Canada, 1999 CanLII 7491 (FC), [1999] 3 FC 28 (TD) at para 11. [35] In Suzuki Foundation at para 157, Justice Kane also makes it clear that there are many situations where a government policy can be properly challenged through judicial review. She enumerates several cases where such policies have been validly challenged: The jurisprudence provides guidance about what constitutes a “matter”. A “matter” includes a policy or a course of conduct. For example, challenges to the lawfulness of ongoing governmental policies are matters which are not subject to the 30-day limitation period (see Sweet v R, [1999] FCJ No 1539 at para 11, 249 NR 17 (CA) [Sweet] involving a challenge to a double-bunking policy in prisons; Moresby Explorers Ltd v Canada (Attorney General), 2007 FCA 273, [2008] 2 FCR 341 [Moresby], involving a challenge to a policy regarding a park reserve; May v CBC/Radio Canada, 2011 FCA 130, 420 NR 23, involving a challenge to a Canadian Radio-television Telecommunications Commission policy excluding a party leader from a televised debate). Such policies can be challenged at any time, even before they are applied specifically to an applicant (Moresby at para 24) [36] Justice Kane also addressed where circumstances have justified exemptions to Rule 302 (see Annex C to these Reasons), which states that judicial review is limited to a single order (at paras 164-168 and 173 of Suzuki Foundation; see also Lessard-Gauvin v Canada (Attorney General), 2016 FC 227 at paras 6-7). A “matter” under subsection 18.1(1), includes a policy or course of conduct. A “course of conduct” includes a general decision, the implementation steps, or a combination of the two, where they combine to result in unlawful government action, or an ongoing action (Suzuki Foundation at para 173). [37] That said, the jurisprudence places certain bounds around the ambit of what this Court can judicially review when it comes to government decisions, under s. 18, and not everything that occurs – or does not occur – within government constitutes a matter. [38] Here, URAP is challenging Canada’s failure to act. However, Canada has not implemented any policy about whether to act or not. Rather, it has decided not to act. This type of inaction, or failure to act, is not captured by the various forms of reviewable conduct examined in Suzuki Foundation, and URAP was not able to point to cases where a lack of action resulted in reviewable conduct on the part of the government. [39] With respect to the remedy sought, there are many cases where this Court has ordered mandamus requiring an agent or office or other representative of the government to act, but that must flow from a duty to act (Apotex Inc v Canada (Attorney General), [1994] 1 FC 742 at page 19, affirmed in Apotex Inc v Canada (Attorney General), [1994] 3 SCR 1100). [40] Here, while there may be a duty for Canada to challenge the PRC’s actions in an international forum, a duty to act in Canadian law can only be established by finding that this Court has jurisdiction to hear the matter (I briefly discuss this Court’s jurisdiction in Issue 3 below). Ultimately, the executive branch may decide to act, but it is not the role of the Court to tell the Government of Canada what policy to adopt, including foreign policy (likewise, this concept is further discussed below in Issue 2). [41] Justice LeBlanc, then of this Court, held in Olumide that the “Government of Canada, in the generic form used by the Applicant, is not a ‘federal board, commission or other tribunal’ within the meaning of the Act, and neither is Her Majesty the Queen in Right of Canada” (at para 11). He added at para 12: The Applicant further claims that government policy is subject to judicial review under section 18.1 of the Act and that legislation is such policy. Although legislation is introduced by government, it ultimately emanates from Parliament which, being a separate branch of our system of government, is not, and was never intended to be, a “federal board, commission or tribunal” within the meaning of the Act. [42] Justice LeBlanc, in Olumide, relied on Minister of National Revenue v Creative Shoes Ltd, 1972 CanLII 2097 (FCA), [1972] FC 993 [Creative Shoes], in which the Court of Appeal found that “the Crown could not in any event properly be made a respondent in such a proceeding since section 18 confers the jurisdiction only in respect of the conduct of a ‘federal board, commission, or tribunal’ which as defined in section 2(g), does not include the Crown” (Creative Shoes at page 999; see also Robertson v Canada, [1986] FCJ No 210, 3 FTR 103). [43] In summary, in the present circumstances, there is no cognizable administrative law matter to review for three reasons. [44] First, while there may be reviewable decisions in the future involving the subject matter of this Application, no concrete decision has been rendered by a federal board, commission, or tribunal that allows this Court to intervene in the current circumstances. [45] Second, the Government of Canada does not constitute a body that falls within the ambit of s. 18 (Olumide at paras 11-12; Creative Shoes at page 999). [46] Third, to the extent that URAP cites the Canadian government’s response to non-binding recommendations in the Report, this document does not constitute a government policy that outlines any reviewable conduct. [47] I note that within the last year, the application in Kilgour v Canada (Attorney General), 2022 FC 472 [Kilgour] challenged actions of the Canadian government, and specifically a Canada Border Services Agency officer, vis-à-vis goods imported from the Xinjiang region of China into Canada, as having an increased likelihood of being produced using Uyghur forced labour. The applicants in Kilgour, and URAP which acted as an intervener, took the position that those goods should be presumptively prohibited from import into Canada. [48] Associate Chief Justice Gagné reviewed cases where government administrative action did not carry legal consequences, including Democracy Watch v Conflict of Interest and Ethics Commissioner, 2009 FCA 15. She found at para 19 of Kilgour: Here, I can see no element of the statutory framework—either in the Customs Act or in the Tariff—that imposes a duty on the CBSA to make a decision such as the one requested by the Applicants. In fact, if the Programs Manager had simply chosen not to respond to the initial email from the Applicants, there would have been no grounds for review on the basis that the CBSA failed to exercise a delegated duty. [49] She concluded “Canada is free to choose how best to implement its treaty obligations” (Kilgour at para 48). Ultimately, like in Kilgour, URAP is attempting to construct an administrative law claim on a framework which simply does not support it. [50] Concluding on this first issue, this Application fails to identify a cognizable administrative law claim. This is sufficient to strike the Application, given the disjunctive nature of the JP Morgan test (see above, at paragraph 10 of these Reasons). However, for the sake of completeness, I will review the other determinative issue raised by Canada that requires this Court to strike the application, namely its lack of justiciability. Issue 2: Are the issues raised in the Application justiciable? [51] Canada argues the declarations requested by URAP raise matters which are not justiciable before this Court. Canada explains that in determining whether a matter is justiciable, this Court’s primary concern should be “its proper role within the constitutional framework of our democratic form of government” as held by the Supreme Court in Reference Re Canada Assistance Plan (BC), 1991 CanLII 74 (SCC), [1991] 2 SCR 525 at page 545. In this regard, Canada highlights the constitutional principle of the separation of powers. It submits that the issues raised by URAP in the Application encroach on the role of the executive branch, and that this Court is precluded from trenching on the internal affairs of other branches of government. [52] Canada submits that despite URAP’s assertion to the contrary, the Application is asking this Court to make a determination on the legality of the acts of a foreign state. The AGC argues that the declaratory relief sought would require this Court to establish that there is a genocide of the Uyghur population being committed by the PRC, in breach of the provisions of the Convention. Canada urges the Court to exercise judicial restraint and refrain from ruling on the actions of a foreign state, which it contends is the central issue in the Application. [53] Canada also asserts that in challenging foreign acts and affairs, the Application puts into question the institutional capacity of this Court to investigate another country’s compliance with its treaty obligations. Canada argues that this Court does not have the power under Rule 64 to make a declaration as to facts, and therefore cannot grant the relief sought by URAP. Canada emphasizes that the judiciary is not the appropriate forum or proxy for conducting Canada’s foreign policy. [54] URAP replies that contrary to Canada’s arguments, it is not asking this Court to review the actions of a foreign state, but rather to review the actions of Canada with regard to its obligations under the Convention. [55] URAP argues that Canada’s legal obligations under the Convention are triggered by the serious risk that the crime of genocide is being committed (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), 2007 ICJ 1077 at page 222 [Bosnia and Herzegovina v Serbia and Montenegro]), and that there is plenty of evidence – including Canada’s own recognition of a human rights situation in Xinjiang – to support the fact that there is a serious risk that the crime of genocide is being committed, and thus, that Canada’s obligations under the Convention have been triggered. [56] URAP emphasizes that in so finding, this Court does not have to state that the PRC is committing a genocide against the Uyghur population. Rather, in URAP’s view, this Court has every right under the law to declare that Canada has failed its obligations under the Convention, because Canada has failed to recognize the Uyghur Genocide. As explained above, URAP contends that the Convention constitutes an existing body of federal law. It contends that the question of the legality of the actions of a foreign state is thus only incidental to the central question of the legality of the actions of Canada. [57] Furthermore, URAP disagrees with Canada that the constitutional principle of the separation of powers precludes this Court from considering the issues raised in the Application. Conversely, it contends that this principle further highlights the responsibility of this Court to adjudicate issues about the Convention, an existing body of federal law: the principle of separation of powers cannot trump the principle of the rule of law, whereby this Court has the duty to ensure the accountability of Canada’s executive branch to the authority of the law. (2) Analysis of Issue 2: The Application raises issues that are not justiciable. [58] Justiciability is a principle rooted in the separation of powers between the legislative, executive and judicial branches of the Canadian constitutional system (Environnement Jeunesse c Procureur général du Canada, 2021 QCCA 1871 at para 24 [Environnement Jeunesse]). Justiciability recognizes that the exercise of legislative powers or the conduct of state affairs – including foreign affairs – by the executive branch requires weighing many considerations and making policy choices that should not be assessed by the courts (Environnement Jeunesse at para 30). [59] Justiciability relates to a court’s jurisdiction in the sense that a justiciable issue is one that does not exceed a court’s jurisdiction by encroaching on the exclusive powers of the legislative or executive branches (Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43 at para 30). Courts should not venture into domains that rest clearly with the other two branches of government (the executive and legislative branches) lest the Courts decide matters that are not justiciable, effectively acting outside of their jurisdiction. This excess of jurisdiction applies in a figurative rather than a formal sense. The latter, of course, relates to substantive jurisdiction as set out in the Court’s statutory jurisdiction, which was raised by the AGC and is briefly discussed in Issue 3 below. [60] This Court recently summarized the test for justiciability in La Rose v Canada, 2020 FC 1008 [La Rose], citing Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 [Highwood]; Hupacasath First Nation v Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4 [Hupacasath], and Boundaries of Judicial Review: The Law of Justiciability in Canada by Lorne M. Sossin [Sossin]. Justice Manson wrote: [29] The question to be decided is whether the Court has the institutional capacity and legitimacy to adjudicate the matter. Or, more generally, is the issue one that is appropriate for a Court to decide (Highwood at paras 32, 34). The terms “legitimacy” and “capacity” can also be understood as the “appropriateness” and “ability” of the Court to deal with a matter (Hupacasath, above at para 62). [30] There is no single set of rules delineating the scope of justiciability, the approach to which is flexible and to some degree contextual. Courts have often inquired whether there is a sufficient legal component to warrant judicial intervention, “[s]ince only a court can authoritatively resolve a legal question, its decision will serve to resolve a controversy or it will have some other practical significance” (Highwood at para 34; Reference Re Canada Assistance Plan (BC), 1991 CanLII 74 (SCC), [1991] 2 SCR 525 at 546). [31] In determining whether it has the institutional capacity and legitimacy to adjudicate the matter, the Supreme Court in Highwood provides that a Court should consider that the matter before it “would be an economical and efficient investment of judicial resources to resolve, that there is a sufficient factual and evidentiary basis for the claim, that there would be an adequate adversarial presentation of the parties' positions and that no other administrative or political body has been given prior jurisdiction of the matter by statute” (Sossin, above at 294, cited in Highwood at para 34). [61] After considering the factors set out by the Supreme Court in Highwood, and the other sources cited above, I find that the Application raises issues that are not justiciable. It would not be an economical and efficient investment of judicial resources for this Court to hear the Application on its merits when it is plain and obvious that it will eventually be dismissed. [62] Here, I find that it is plain and obvious that this Court cannot grant the declaratory relief sought by URAP, because the declarations sought fall within the scope of the other branches of government, which this Court recognizes are better placed to make decisions on such matters. [63] URAP maintains that this Court can issue a declaration that Canada has failed its obligations under the Convention without stating that the PRC is committing genocide against the Uyghur population. However, these two declarations are two sides of the same coin. A declaration by this Court that Canada has failed to prevent genocide in a foreign country necessitates an analysis by this Court of the legality of the actions of that foreign state, which in this case is not appropriate for judicial review but falls within the sphere of international relations, under the exercise of executive powers. As summarized by the FCA at para 66 of Hupacasath: […] In rare cases, however, exercises of executive power are suffused with ideological, political, cultural, social, moral and historical concerns of a sort not at all amenable to the judicial process or suitable for judicial analysis. In those rare cases, assessing whether the executive has acted within a range of acceptability and defensibility is beyond the courts’ ken or capability, taking courts beyond their proper role within the separation of powers. [64] In Nevsun Resources Ltd v Araya, 2020 SCC 5 [Nevsun], the Supreme Court rejected the company’s appeal of motions that had been refused by lower courts, to strike the pleadings of the affected workers. This is not a case such as Nevsun, where there were actions by the subsidiary of a Canadian company in its treatment of employees through a forced labour regime in Eritrea, which raised justiciable issues of international customary law and jus cogens, as they related to a civil tort law claim. [65] While URAP posits that the legality of the actions of China is incidental to the central question of the legality of the actions of Canada, I find that the reverse applies: the legality of the actions of Canada is incidental to the legality of the actions of the PRC. And that determination lies in the bailiwick of the Federal Government to decide and react to, not this Court. [66] Indeed, it is up to the Federal Government to decide whether a genocide has taken place or is ongoing against the Uyghur population in China. Once it has so declared, the Convention and customary international law would ground the legal consequences, and/or the ability of impacted groups, such as URAP, to seek declarations, or other relief properly available to it. However, absent that grounding, those requests of this Court are premature. [67] The political question doctrine, like the lack of a cognizable claim, is a showstopper, or knockout punch, that fatally flaws the Application (JP Morgan at para 47). As the FCA wrote in Hupacasath: [62] Justiciability, sometimes called the “political questions objection,” concerns the appropriateness and ability of a court to deal with an issue before it. Some questions are so political that courts are incapable or unsuited to deal with them, or should not deal with them in light of the time-honoured demarcation of powers between the courts and the other branches of government. [68] Finally, I turn back to the one of the alternate grounds of relief requested by URAP, namely that this matter be converted into an action if this Application would be more appropriately cast as that type of proceeding. However, the fatal flaws apparent in the Application will not be cured by changing the type of proceeding under the Rules to an action. Issue 3: Jurisdiction of the Court to determine this Application [69] The AGC submits the Federal Court does not have jurisdiction to determine the Application as it fails to meet the requirements set out in ITO-International Terminal of Operators v Miida Electronics, 1986 CanLII 91 (SCC), [1986] 1 SCR 752 [ITO]. In ITO, the Supreme Court of Canada held that one of three requirements must be met for this Court to have jurisdiction over a proceeding: (i) a statutory grant of jurisdiction by Parliament; (ii) an existing body of federal law, essential to the disposition of the case, which nourishes the statutory grant of jurisdiction; and (iii) law underlying the case falling within the scope of the term “a law of Canada” used in section 101 of the Constitution Act, 1867 [Constitution]. [70] The AGC asserts that URAP is asking this Court to directly interpret and apply an international instrument, the Convention. Canada contends that the question of determining foreign law is central to this Application, as opposed to being merely incidental, and thus must be distinguished from Hunt v T&N plc, [1993] 4 SCR 289 at p 309 [T&N], in which the Supreme Court of Canada held that Canadian courts could deal with foreign laws where “the question arises merely incidentally” (see also: Nevsun at para 49). Thus, the AGC submits this Court lacks the jurisdiction to consider this Application. Furthermore, as URAP is not seeking relief under an act of Parliament, Canada argues there is no statutory grant of jurisdiction. [71] Canada further argues the role of the Federal Court is constitutionally limited to administering the “Laws of Canada” as set out in section 101 of the Constitution, which means federal law. The Convention – upon which URAP’s entire claim is based – is not an “existing body of federal law”, nor has it been incorporated into domestic legislation, and thus it cannot be used as the legal basis for initiating a proceeding of civil nature, such as an application for judicial review in the Federal Court. [72] According to Canada, international law treaties, such as the Convention, have to be expressly incorporated into Canadian legislation to form part of the existing body of federal law, as was done for certain parts of the Convention relating to criminal prosecution and immigration. [73] Conversely, Canada submits that article I of the Convention upon which URAP relies to argue that Canada has an obligation to prevent and to punish the genocide of the Uyghur population in the PRC, was not expressly incorporated into Canadian legislation, thus reflecting a specific legislative intent to exclude this provision from federal law. [74] Canada submits that no case has incorporated the Convention into domestic law, and for a Court to do so would be to usurp the role of Parliament. Ultimately, Canada contends that the essential character of the Application is to ask this Court to make a determination about the legality of a foreign state’s actions. [75] URAP replies that it is not asking this Court to directly interpret and apply an instrument of international law, because the Convention is federal law. URAP disagrees that international law treaties such as the Convention must be expressly incorporated by legislation into domestic law. It argues that the Convention has been recognized by the International Court of Justice and the United Nations, as the codification of customary international law, as recognized in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), 2015 ICJ 921 at pages 87-88, 95; Bosnia and Herzegovina v Serbia and Montenegro at page 161; United Nations Security Council, “Report of the Secretary-General pursuant to paragraph 2 of the Security Council Resolution 808” (1993) S/25704 at para 35. [76] From a domestic law standpoint, URAP notes that the Supreme Court of Canada held in Nevsun at para 94 that “as a result of the doctrine of adoption, norms of customary law – those that satisfy the twin requirements of general practice and opinio juris – are fully integrated into, and form part of, Canadian domestic common law, absent conflicting law.” In accordance with this doctrine of adoption, URAP concludes that the Convention is federal law without needing to be expressly incorporated by legislation. It asserts this Court can make a determination of the legality of the acts of Canada with regard to its obligations under the Convention, an existing body of federal law, according to URAP, since customary international law can form the legal basis for the statutory grant of jurisdiction in this Application. (3) Analysis of Issue 3 [77] The first two issues are determinative in this case. Given the disjunctive nature of JP Morgan, either of the first two flaws in the application are fatal to URAP’s case, namely that it lacks (i) a cognizable administrative law claim, and (ii) justiciability. [78] Thus, in light of my conclusions on the first two issues raised, I decline to comment on the issue of whether this Court has jurisdiction to determine the Application. After all, the Court may refuse to decide complex jurisdictional matters on interlocutory motions, particularly on motions to strike applications for judicial review (Coffey v Canada (Minister of Justice), 2004 FC 1694 at para 23; Suzuki Foundation at para 36). V. Costs [79] Canada declined to ask for costs. Given the nature of the proceedings, and in light of Canada’s position with respect to this issue, I will decline to award costs. VI. Conclusion [80] As Elie Wiesel said in his Nobel Peace Prize acceptance speech on December 10, 1986: “Silence encourages the tormentor, never the tormented. Sometimes we must interfere.” And as Roméo Dallaire wrote in Shake Hands with the Devil: The Failure of Humanity in Rwanda, his book chronicling his time spent as Force Commander of the United Nations Assistance Mission for Rwanda in 1993-94: The international community, of which the UN is only a symbol, failed to move beyond self-interest for the sake of Rwanda. While most nations agreed that something should be done they all had an excuse why they should not be the ones to do it. As a result, the UN was denied the political will and material means to prevent the tragedy. [81] The Canadian government has obligations under international law, including with respect to international treaties such as the Convention. A firm stance against genocide is an undeniable imperative for the world, as articulated by Elie Wiesel and Roméo Dallaire, who were witnesses to genocide. Yet, the mere potential existence of a genocide does not automatically ground proceedings before the Court. [82] Notwithstanding the gravity of the issues raised by URAP in this Application, I find that these issues are not cognizable in administrative law, nor justiciable under the political question doctrine. As this Court must respect the dividing lines between the three branches of Government, the matters raised in this Application should be left to the executive and legislative branches until such time as those bodies enact law or policy, or make otherwise reviewable decisions. [83] For all the reasons above, Canada’s Motion to strike the Application is granted, without leave to amend. There is no award as to costs. JUDGMENT in T-190-22 THIS COURT’S JUDGMENT is that: The Motion is granted. The Application is struck without leave to amend. No costs will issue. \"Alan S. Diner\" Judge ANNEX A Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948, 78 UNTS 277, Can TS 1949 No 27) Convention pour la prévention et la répression du crime de génocide (9 décembre 1948, 78 RTNU 277, Can TS 1949 No 27) Article I Article premier The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish. Les Parties contractantes confirment que le génocide, qu'il soit commis en temps de paix ou en temps de guerre, est un crime du droit des gens, qu'elles s'engagent à prévenir et à punir. Article II Article II In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: Dans la présente Convention, le génocide s'entend de l'un quelconque des actes ci-après, commis dans l'intention de détruire, ou tout ou en partie, un groupe national, ethnique, racial ou religieux, comme tel : (a) Killing members of the group; a) Meurtre de membres du groupe; (b) Causing serious bodily or mental harm to members of the group; b) Atteinte grave à l'intégrité physique ou mentale de membres du groupe; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; c) Soumission intentionnelle du groupe à des conditions d'existence devant entraîner sa destruction physique totale ou partielle; (d) Imposing measures intended to prevent births within the group; d) Mesures visant à entraver les naissances au sein du groupe; (e) Forcibly transferring children of the group to another group. e) Transfert forcé d'enfants du groupe à un autre groupe. Article III Article III The following acts shall be punishable: Seront punis les actes suivants : (a) Genocide; a) Le génocide; (b) Conspiracy to commit genocide; b) L'entente en vue de commettre le génocide; (c) Direct and public incitement to commit genocide; c) L'incitation directe et publique à commettre le génocide; (d) Attempt to commit genocide; d) La tentative de génocide; (e) Complicity in genocide. e) La complicité dans le génocide. Article IV Article IV Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals Les personnes ayant commis le génocide ou l'un quelconque des autres actes énumérés à l'article III seront punies, qu'elles soient des gouvernants, des fonctionnaires ou des particuliers. Article V Article V The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III. Les Parties contractantes s'engagent à prendre, conformément à leurs constitutions respectives, les mesures législatives nécessaires pour assurer l'application des dispositions de la présente Convention, et notamment à prévoir des sanctions pénales efficaces frappant les personnes coupables de génocide ou de l'un quelconque des autres actes énumérés à l'article III. Article VIII Article VIII Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III. Toute Partie contractante peut saisir les organes compétents de l'Organisation des Nations Unies afin que ceux-ci prennent, conformément à la Charte des Nations Unies, les mesures qu'ils jugent appropriées pour la prévention et la répression des actes de génocide ou de l'un quelconque des autres actes énumérés à l'article III. Article IX Article IX Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute. Les différends entre les Parties contractantes relatifs à l'interprétation, l'application ou l'exécution de la présente Convention, y compris ceux relatifs à la responsabilité d'un Etat en matière de génocide ou de l'un quelconque des autres actes énumérés à l'article III, seront soumis à la Cour internationale de Justice, à la requête d'une partie au différend. ANNEX B Federal Courts Act (R.S.C., 1985, c. F-7) Loi sur les Cours fédérales (L.R.C. (1985), ch. F-7) Definitions Définitions 2 (1) In this Act, 2 (1) Les définitions qui suivent s’appliquent à la présente loi. federal board, commission or other tribunal means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made under a prerogative of the Crown, other than the Tax Court of Canada or any of its judges or associate judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867; (office fédéral) office fédéral Conseil, bureau, commission ou autre organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu d’une prérogative royale, à l’exclusion de la Cour canadienne de l’impôt et ses juges et juges adjoints, d’un organisme constitué sous le régime d’une loi provinciale ou d’une personne ou d’un groupe de personnes nommées aux termes d’une loi provinciale ou de l’article 96 de la Loi constitutionnelle de 1867. (federal board, commission or other tribunal) Senate and House of Commons Sénat et Chambre des communes (2) For greater certainty, the expression federal board, commission or other tribunal, as defined in subsection (1), does not include the Senate, the House of Commons, any committee or member of either House, the Senate Ethics Officer, the Conflict of Interest and Ethics Commissioner with respect to the exercise of the jurisdiction or powers referred to in sections 41.1 to 41.5 and 86 of the Parliament of Canada Act, the Parliamentary Protective Service or the Parliamentary Budget Officer. (2) Il est entendu que sont également exclus de la définition de office fédéral le Sénat, la Chambre des communes, tout comité de l’une ou l’autre chambre, tout sénateur ou député, le conseiller sénatorial en éthique, le commissaire aux conflits d’intérêts et à l’éthique à l’égard de l’exercice de sa compétence et de ses attributions visées aux articles 41.1 à 41.5 et 86 de la Loi sur le Parlement du Canada, le Service de protection parlementaire et le directeur parlementaire du budget. […] […] Extraordinary remedies, federal tribunals Recours extraordinaires : offices fédéraux 18 (1) Subject to section 28, the Federal Court has exclusive original jurisdiction 18 (1) Sous réserve de l’article 28, la Cour fédérale a compétence exclusive, en première instance, pour : (a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and a) décerner une injonction, un bref de certiorari, de mandamus, de prohibition ou de quo warranto, ou pour rendre un jugement déclaratoire contre tout office fédéral; (b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal. b) connaître de toute demande de réparation de la nature visée par l’alinéa a), et notamment de toute procédure engagée contre le procureur général du Canada afin d’obtenir réparation de la part d’un office fédéral. Extraordinary remedies, members of Canadian Forces Recours extraordinaires : Forces canadiennes (2) The Federal Court has exclusive original jurisdiction to hear and determine every application for a writ of habeas corpus ad subjiciendum, writ of certiorari, writ of prohibition or writ of mandamus in relation to any member of the Canadian Forces serving outside Canada. (2) Elle a compétence exclusive, en première instance, dans le cas des demandes suivantes visant un membre des Forces canadiennes en poste à l’étranger : bref d’habeas corpus ad subjiciendum, de certiorari, de prohibition ou de mandamus. Remedies to be obtained on application Exercice des recours (3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1. (3) Les recours prévus aux paragraphes (1) ou (2) sont exercés par présentation d’une demande de contrôle judiciaire. Application for judicial review Demande de contrôle judiciaire 18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. … 18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l’objet de la demande. … Powers of Federal Court Pouvoirs de la Cour fédérale (3) On an application for judicial review, the Federal Court may (3) Sur présentation d’une demande de contrôle judiciaire, la Cour fédérale peut : (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or a) ordonner à l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de manière déraisonnable; (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu’elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l’office fédéral. Grounds of review Motifs (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l’office fédéral, selon le cas : (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; a) a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; b) n’a pas observé un principe de justice naturelle ou d’équité procédurale ou toute autre procédure qu’il était légalement tenu de respecter; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; c) a rendu une décision ou une ordonnance entachée d’une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; (e) acted, or failed to act, by reason of fraud or perjured evidence; or e) a agi ou omis d’agir en raison d’une fraude ou de faux témoignages; (f) acted in any other way that was contrary to law. f) a agi de toute autre façon contraire à la loi. Defect in form or technical irregularity Vice de forme (5) If the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Federal Court may (5) La Cour fédérale peut rejeter toute demande de contrôle judiciaire fondée uniquement sur un vice de forme si elle estime qu’en l’occurrence le vice n’entraîne aucun dommage important ni déni de justice et, le cas échéant, valider la décision ou l’ordonnance entachée du vice et donner effet à celle-ci selon les modalités de temps et autres qu’elle estime indiquées. (a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and BLANC (b) in the case of a defect in form or a technical irregularity in a decision or an order, make an order validating the decision or order, to have effect from any time and on any terms that it considers appropriate. BLANC Annex C Federal Courts Rules (SOR/98-106) Règles des Cours fédérales (DORS/98-106) Declaratory relief available Jugement déclaratoire 64 No proceeding is subject to challenge on the ground that only a declaratory order is sought, and the Court may make a binding declaration of right in a proceeding whether or not any consequential relief is or can be claimed. 64 Il ne peut être fait opposition à une instance au motif qu’elle ne vise que l’obtention d’un jugement déclaratoire, et la Cour peut faire des déclarations de droit qui lient les parties à l’instance, qu’une réparation soit ou puisse être demandée ou non en conséquence. Limited to single order Limites 302 Unless the Court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought. 302 Sauf ordonnance contraire de la Cour, la demande de contrôle judiciaire ne peut porter que sur une seule ordonnance pour laquelle une réparation est demandée. FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-190-22 STYLE OF CAUSE: UYGHUR RIGHTS ADVOCACY PROJECT v ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Montréal, Quebec IN PERSON AND BY VIDEOCONFERENCE DATE OF HEARING: October 3 and 4, 2022 JUDGMENT AND reasons: DINER J. DATED: january 26, 2023 APPEARANCES: Sébastien Chartrand Justine Bernatchez Philippe Larochelle For The Applicant François Joyal Guillaume Bigaouette Frédéric Paquin For The Respondent SOLICITORS OF RECORD: Larochelle Avocats Montréal, Quebec For The Applicant Attorney General of Canada Montréal, Quebec For The Respondent\n\n### Legal Analysis\nThe court's analysis focuses on: s. IV. Parties’ Arguments and Analysis Issue 1: Is there a cognizable administrative law claim? [17] Canada submits that contrary to the basic requisites of the Act and the Rules, the Application fails to identify (i) a federal, board, commission or other tribunal whose actions can properly be reviewed by this Court; (ii) review\n\n### Precedential Value\nThis Federal Court decision has persuasive value for similar cases before the court and provides guidance to the Immigration and Refugee Board on the proper interpretation of law and procedural requirements. While not binding on other Federal Court judges, it establishes a precedent that will often be followed for consistency."}
{"prompt": "What precedents are cited in this Refugee Protection Division decision from the Refugee Law Lab Reporter?\n\n2023 RLLR 113 Citation: 2023 RLLR 113 Tribunal: Refugee Protection Division Date of Decision: November 22, 2023 Panel: Sandeep Chauhan Counsel for the Claimant(s): N/A Country: Turkey RPD Number: VC3-00957 Associated RPD Number(s): N/A ATIP Number: A-2024-00593 ATIP Pages: N/A DECISION INTRODUCTION [1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX (the “claimant”), as a citizen of Türkiye, who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).[1] ALLEGATIONS [2] This is a brief synopsis of the allegations put forth by the claimant, the details of which can be found in his Basis of Claim (BOC) form.[2] He fears persecution in Türkiye at the hands of Turkish authorities because he is a Kurd, practices Alevi faith, and because his conscientious objection to conscription. The claimant also fears persecution at the hands of his ex-girlfriend’s family due to their relationship. [3] The claimant is a 21-year-old Kurdish man who practices Alevi faith. He commenced a romantic relationship with XXXX, a girl from his area, whose family practices Sunni Islam. When XXXX’s family found out of their relationship through her pregnancy, they attacked his house on XXXX XXXX, 2023 and threatened to kill the claimant, who was not at home at that time. The claimant managed to hide in another city and left Türkiye on XXXX XXXX, 2023. He reached the United States (US) on XXXX XXXX, 2023, transiting through Mexico. After being detained in a camp in the US and furnishing a bind for his release, the claimant got out of detention on XXXX XXXX, 2023. He entered Canada on XXXX XXXX, 2023, and filed for refugee protection. The claimant fears for his life as there are warrants out for his arrest for evading conscription and on charges filed by XXXX’s family for impregnating her out of wedlock. DETERMINATION [4] I find that the claimant is a Convention refugee as he has established a serious possibility of persecution for the following reasons. ANALYSIS Identity [5] The claimant’s identity as a national of Türkiye is established, on a balance of probabilities, based on a certified copy of his Turkish passport on file.[3] Nexus [6] For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason of one or more of the five grounds: race, religion, nationality, membership in a particular social group or political opinion. The persecution that the claimant fears in this case is due to his faith as an Alevi, because he is a Kurd, and due to his conscientious objection to conscription. I find that he has established nexuses to three Convention grounds – ethnicity, religion, and political opinion. As such, his claim is being assessed under section 96 of IRPA and not under section 97. Credibility [7] The claimant testified in a straightforward manner and there were no inconsistencies in his testimony or contradictions between his testimony and the other evidence before me. He did not attempt to embellish his testimony at any time during the hearing. [8] The claimant has provided corroborative documentary evidence[4] in support of his claim, including evidence of his Alevi faith and Kurdish ethnicity, photographs of his father being assaulted by XXXX’s family, two warrants of arrest against the claimant, and his photographs with XXXX, which are consistent with his allegations. I have no reason to doubt the genuineness of these documents and accept them as genuine. [9] Therefore, on a balance of probabilities, I find the claimant to be a credible witness and accept his allegations to be true, including his subjective fear of returning to Türkiye. Well-Founded Fear of Persecution and Risk of Harm [10] In order for me to find that the claimant is a Convention refugee, I must find that the objective evidence supports his subjective fears, and that there was a serious possibility that he would be persecuted if removed to Türkiye. I find that the objective evidence supports his subjective fears and establishes a serious possibility of persecution for the claimant if he is forced to return to his country. My reasons are as follows. [11] On the issue of treatment of Alevis by state authorities, objective evidence states that: A report by the International Association for Human Rights Advocacy in Geneva (IAHRAG), an organization that aims to “assist, support, guide and sustain victims of human rights violations,” including in Turkey, states that it is “quite common” for individuals in the executive branch to use hate speech toward minorities, including Alevis (IAHRAG May 2021, 3, 4). CSW notes that “[t]he promotion of ultra-nationalism has contributed to a rise in discrimination and in hate speech that encourages violence towards non-Sunni religious communities” which occurs in “education, the workplace and religious practice, to day-to-day administrative procedures” (CSW 1 May 2020).[5] [12] The Response to Information Request (RIR) on the treatment of Kurds in Türkiye, including supporters of the HDP, states that: A representative of a confederation of Turkish trade unions, cited in a UK Home Office report, stated that the situation in the areas of south-eastern and eastern Turkey, which are mainly populated by Kurds, can be “‘harder’,” with “‘problematic'” economic and social issues (UK Oct. 2019, 24). The same representative further stated that the Kurdish regions are less developed than western Turkey and that Kurds in this area suffered “serious forms of human rights violations” by the Turkish government, which has prompted westward Kurdish migration (UK Oct. 2019, 95).[6] [13] On the issue of draft evasion, objective evidence states that: The 2019 annual report of the European Bureau for Conscientious Objection (EBCO), “an umbrella organisation for national associations of conscientious objectors” (EBCO n.d.), states that “conscientious objectors fac[e] ongoing arrest warrants; a life-long cycle of prosecutions and imprisonment, and a situation of ‘civil death’ which excludes them from social, cultural and economic life” (EBCO 14 Feb. 2020, 20) The same source further reports that [o]bjectors are still criminalised as call-up/draft evaders. An unlimited arrest warrant is issued and due to this arrest warrant, they are detained on any occasion when they have to present their ID to the police or gendarmerie, a situation which frequently occurs. On the first detention, the objector is given an administrative fine. But every subsequent detention opens a new criminal case, which can lead to a prison sentence of anything from 2 months to 3 years. To avoid arrest and detention, objectors are forced to live an underground life. In the event that the government declares a military mobilization, conscientious objectors risk being charged with desertion, which is subject to the death penalty under Article 63 of the Military Criminal Code. (EBCO 14 Feb. 2020).[7] [14] The objective evidence discussed above establishes that Alevite Kurds are targeted by the Turkish authorities. Such individuals, as the claimant in this case who evade military draft, are fined, and then persecuted to such an extent that they must live in hiding all their lives. This escalates to a death penalty if the government declares military mobilization. In this case, the claimant is already wanted by the Turkish authorities as there are warrants out for his arrest for draft evasion. Therefore, based on all the evidence before me, I find that he will face a serious possibility of persecution if forced to return to his country. His fears are indeed well-founded. State Protection [15] I find that the claimant will not be able to access adequate state protection if forced to return to Türkiye. [16] Since the State of Türkiye is the agent of persecution, I find that it will be objectively unreasonable for him to seek protection in his country, and that the presumption of state protection has been rebutted. Internal Flight Alternative (IFA) [17] I have also considered whether the claimant has a viable IFA in his country and find that there is none. The government of Türkiye is in control of the entire territory of the country and the treatment of Alevi Kurds, including conscientious objectors to conscription, is uniform throughout the country. [18] Given the persecution Alevi Kurds and draft evaders face everywhere in Türkiye, I find that it is neither safe nor objectively reasonable in all of the circumstances, including the claimant’s circumstances, for him to relocate anywhere within his country. Accordingly, I find that there is no viable IFA available to the claimant. CONCLUSION [19] For the foregoing reasons, I find that the claimant is a Convention refugee under section 96 of IRPA. Therefore, I accept his claim. ——— REASONS CONCLUDED ——— [1] Immigration and Refugee Protection Act, S.C. 2001, c. 27. [2] Exhibit 2. [3] Exhibit 1. [4] Exhibit 4. [5] Exhibit 3, National Documentation Package, Türkiye, 31 July 2023, tab 12.2: Situation of Alevis, including political and religious rights; treatment of Alevis by society and authorities; state protection (2019–November 2021). Immigration and Refugee Board of Canada. 3 December 2021. TUR200819.E. [6] Exhibit 3, National Documentation Package, Türkiye, 31 July 2023, tab 13.1: Situation of Kurds, including in Istanbul, Ankara, and Izmir; situation of supporters or perceived supporters of the Peoples’ Democratic Party (Halkların Demokratik Partisi, HDP); situation of Alevi Kurds (July 2018-December 2019). Immigration and Refugee Board of Canada. 7 January 2020. TUR106385.E. [7] Exhibit 3, National Documentation Package, Türkiye, 31 July 2023, tab 8.2: Military service, both compulsory and voluntary, including requirements, length, alternatives and exemptions; consequences of draft evasion and conscientious objection (2018–November 2020). Immigration and Refugee Board of Canada. 30 November 2020. TUR200361.E.", "response": "## Analysis of Refugee Decision: 2023 RLLR 113\n\n### Key Issues\nlematic'” economic and social issues (UK Oct. 2019, 24). The same representative further stated that the Kurdish regions are less developed than western Turkey and that Kurds in th\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: on for the following reasons. ANALYSIS Identity [5] The claimant’s identity as a national of Türkiye is established, on a balance of probabilities, based on a certified copy of his Turkish passport on file.[3] Nexus [6] For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason o\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "What specific procedures does this Federal regulations from the Canadian government establish for immigration processes?\n\n# Members of Parliament Retiring Allowances Regulations CRC, c 1033 Members of Parliament Retiring Allowances Regulations Enabling authority: MEMBERS OF PARLIAMENT RETIRING ALLOWANCES ACT 1 [Repealed, SOR/2003-111, s. 2] ## Defined Benefit Limit 2 For the purposes of paragraph (b) of the definition defined benefit limit in subsection 2(1) of the Act, the amount of the defined benefit limit in respect of the 1995 calendar year is $1,722.22 and, in respect of any subsequent calendar year, is determined in accordance with the definition defined benefit limit in subsection 8500(1) of the Income Tax Regulations. ## Credits to Retiring Allowances Account and Compensation Arrangements Account 3 The amounts referred to in paragraphs 5(1)(a) and 28(1)(a) of the Act must be credited to the Retiring Allowances Account and the Compensation Arrangements Account, respectively, in the calendar month following the month in which the contributions referred to in paragraphs 4(1)(a) and 27(1)(a) of the Act are paid. 3.1 [Repealed, SOR/2020-180, s. 2] 4 For the purposes of subsection 63(2) of the Act, interest must be calculated at the rate of 4% compounded annually. ## Payment of Allowances 5 (1) The monthly instalment of an allowance payable under the Act must be paid on the last day of that month. (2) When a member becomes entitled to an allowance after the first day of any calendar month, the amount of the instalment that is payable on the last day of that month is determined by prorating the instalment by the number of days in that month in respect of which the member is so entitled to the total number of days in that month. (3) When a person to whom an allowance is payable under the Act dies and the date of death is a day other than the last day of that month of death, the amount of the instalment that is payable for that month is determined by prorating the instalment by the number of days in that month prior to death, including the day on which the person dies, to the total number of days in that month. 6 If a recipient is incapable of managing their own affairs and there is no person entitled by law to act as their representative in respect of managing their affairs, the Receiver General may pay the allowance or other benefit payable under the Act to any person designated by the Minister to receive it on the recipient’s behalf. ## Payment by Member 7 (0.1) For the purpose of subsection (1) and paragraph (3)(b), the actuarial valuation report is the one that was most recently laid before Parliament, in accordance with subsection 65(1) of the Act, before the day on which the member makes the election or, if that report was laid before Parliament in the month in which that day falls or in the preceding month, the report that was laid before Parliament immediately before that report. (1) When a member has elected to pay in instalments in respect of any period of service for which they have elected to pay into the accounts, (a) the first instalment is due and payable on the last day of the month in which the election made by the member is received by the Minister, and succeeding instalments are payable during the lifetime of the member in equal amounts, with the exception of the last instalment, which may be less in amount than the preceding instalments, all instalments to be fully paid within a period of 20 years from the day on which the member makes the election and to be calculated in accordance with the mortality rates used in the preparation of the actuarial valuation report with interest at (i) the rate of 4% per annum, where the election is made before April 7, 1970 or after September 20, 2000, and (ii) the rate of 8% per annum, where the election is made during the period beginning on April 7, 1970 and ending on September 20, 2000; and (b) the member may from time to time amend their payment plan to provide for payment of the instalments still to be paid (i) by a lump sum, (ii) by larger monthly instalments on a basis similar to that described in paragraph (a) calculated as of the date of the amendment, or (iii) by a lump sum and monthly instalments on a basis similar to that described in paragraph (a) calculated as of the date of the amendment and payable within the same or a lesser period than that previously arranged under paragraph (a), or (iv) by smaller monthly instalments on a basis similar to that described in paragraph (a), calculated as of the date of the amendment and payable within a longer period than that previously arranged under paragraph (a), if they amend their payment plan in the time which they may elect under the Act to contribute in respect of previous sessions. (2) When a member has elected to pay a lump sum under paragraph 57(1)(a) of the Act and that sum has not been paid in full by the member within a period of 30 days after the day on which they make the election, the member is deemed to have elected to pay the amount owing by instalments calculated in accordance with subsection (1)(a). (3) When an allowance is payable to a person under the Act and they are in default in respect of any instalment payable by them under this section, recovery may be made at any time by deductions or set-off out of any amount payable to them, as they elect, a) by lump sum immediately; or b) by monthly instalments — calculated in accordance with the mortality rates used in the preparation of the actuarial valuation report with interest at the rate set out in subparagraph (1)(a)(i) or (ii), whichever is applicable — for the shorter of (i) the lifetime of the person, or (ii) the remainder of the period during which instalments under this section are to be paid. (4) Any amount payable under subsection 57(2) of the Act by a member or former member that remains unpaid at the time of their death and that is not paid within 30 days after the date of a demand by the Minister to the survivor of the member or former member, or if there is no such person, to the children of the member or former member to whom an allowance is payable, must be recovered by deductions as set out in subsections (4.1) to (4.4). (4.1) Deductions must be made over the period required to pay the amount in monthly instalments equal to 10% of the gross monthly amount of the allowance payable to the person in question under the Act. (4.2) Deductions must be made from the gross monthly amount of the allowance and the first deduction must be made in the month following the month in which the 30-day period referred to in subsection (4) ends. (4.3) A person in respect of whom deductions are made under this section may at any time a) pay the amount then owing in a lump sum; or b) arrange to pay the amount then owing by (i) larger monthly instalments, or (ii) a lump sum payment and monthly instalments within the period referred to in subsection (4.1) or with a shorter period. (4.4) If the person demonstrates that the monthly deductions referred to in subsection (4.1) would cause them financial hardship, the Minister may reduce the amount of deductions, and lesser monthly deductions may be made, commencing the month after the date of the notice of the Minister’s decision, but the deductions must not be less than 5% of the gross monthly amount of the allowance, or $10, whichever is greater. (5) Subject to subsection (6), when an amount that is payable by a member or former member is paid after the day on which it is due, the amount must bear interest at the rate set out in subparagraph (1)(a)(i) or (ii), whichever is applicable, from the due date to the date on which it is paid. (6) If a member or former member has authorized or directed that the amount payable by them under this section be deducted from moneys payable to them by or on behalf of Her Majesty and the member or the former member is in default because those deductions have not been made, interest is not payable under subsection (5) on the amount equal to the deductions that have not been made. (7) Nothing in this section prohibits a person from paying at any time before it is due any amount that is payable by them or that is deductible from their benefit under this section. (8) [Repealed, SOR/2020-180, s. 4] (9) [Repealed, SOR/2020-180, s. 4] 8 [Repealed, SOR/2020-180, s. 5] ## Allowance to Child of Former Member 9 Where a child is born to a former member, the child is not entitled to an allowance under the Act unless, (a) where the member ceased to be a member because of death, the child is a posthumous child; and (b) where the member ceased to be a member for any reason other than death, it appears to the Minister that the child was born following a gestation period commencing prior to the date when the member ceased to be a member. 10 (1) For the purposes of the definition child in subsection 2(1) of the Act, the expression *full-time attendance at a school or university* means full-time attendance at a school, college, university or other educational institution that provides training or instruction of an educational, professional, vocational or technical nature. (2) For the purposes of the definition child in subsection 2(1) of the Act, a child is deemed to be or to have been in full-time attendance at a school or university substantially without interruption during a scholastic vacation in the following circumstances: a) they begin or resume full-time attendance at a school or university at the beginning of the academic year following the vacation; or b) because of any reasonable cause, they cannot begin or resume full-time attendance at a school or university at the beginning of that academic year but they do so during that academic year or the next academic year. (3) A child who is absent during the academic year because of any reasonable cause is deemed to be or to have been in full-time attendance at a school or university substantially without interruption a) if, immediately after the absence, they begin or resume full-time attendance at a school or university during that academic year; b) until the end of the academic year during which they are absent, if they begin or resume full-time attendance at a school or university during the next academic year; and c) until their death, if they die during the academic year in which their absence commenced, or until the end of the academic year in which their absence commenced, if their death occurred after that academic year. (4) A child who is deemed to be or to have been in full-time attendance at a school or university must submit to the Minister a) a signed declaration by a responsible officer of the relevant institution that the child is or has been in full-time attendance at a school or university; and b) a signed declaration by the child is or has been in full-time attendance at a school or university. 11 [Repealed, SOR/2020-180, s. 7]", "response": "## Analysis of REGULATIONS-FED: Members of Parliament Retiring Allowances Regulations\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nThese regulations provide specific implementation details for broader legislative frameworks. Practitioners should ensure strict compliance with procedural requirements, timelines, and documentation standards. The regulations must be interpreted consistent with their enabling legislation and may be subject to challenge if they exceed the authority granted by the statute."}
{"prompt": "What legal tests are applied in this Refugee Protection Division decision from the Immigration and Refugee Board of Canada?\n\nRPD File No. / N° de dossier de la SPR : TA9-05908 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXXX XXXXX Demandeur(e)(s) d'asile Date(s) of Hearing July 22, 2009 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision November 2, 2009 Date de la décision Panel Me Michel Jobin tribunal Jacques Fortin Michael S. McCaffrey Counsel for the Claimant(s) Ron Shacter Lawyer Conseil(s) du / de la / des demandeur(e)(s) d'asile Tribunal Officer D. Hitayezu-Fall Agent(e) de tribunal Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre [1] These are the reasons for decision in the refugee protection claim filed by XXXXX XXXXX, a citizen of the Democratic Republic of the Congo. She is claiming refugee protection from Canada under section 96 by reason of her membership in a particular social group, namely women, and under section 97 as a person in need of protection. ALLEGED FACTS [2] According to the Personal Information Form1 (PIF), the claimant was born on XXXXX 1982. She was married in XXXXX 2005 and her family lives in XXXXX. [3] The claimant has a sister in Denmark and a sister who is living in Canada. [4] The claimant did not work after she finished her studies. [5] The claimant claims that she is wanted by the XXXXX XXXXX XXXXX. The claimant, who travelled back and forth between the two countries, lived in Rwanda as much as she did in the Democratic Republic of the Congo. [6] In her narrative, the claimant states that she and her family were victims of the Zairean army, mercenaries working for the AFDL (Alliance of Democratic Forces of the Congo) and for Rwanda. She was also accused of sheltering rebels in her home. [7] The claimant's parents were killed and then an attempt was made to rape her sister XXXXX. She resisted and was killed. The other members of the family were tied up and put in prison for one week. She adds that the women were tortured and raped and the men were dumped into the river. [8] Over the past few years, the claimant sought refuge in the neighbouring country, Rwanda. [9] The claimant concluded her narrative by pointing out that her husband and her son disappeared from the house when XXXXX XXXXX and his group passed through the area. [10] The claimant was finally accepted at a university in the United States. According to the PIF, the claimant travelled with an improper passport that was issued on July 7,2004, and an American visa issued on XXXXX 2007. The claimant left the Congo on XXXXX, 2007, and passed through Rwanda from XXXXX, 2007, to XXXXX, 2007. She arrived in the United States on XXXXX of the same year and lived there until July 18, 2007, when she arrived at our border to claim refugee protection from Canadian authorities. [11] As for her fear of returning, the claimant stated that she fears the rebels and the XXXXX XXXXX who attacked her family and would attack her should she return. ANALYSIS [12] The refugee protection claimant based her claim on the fact that she is targeted as a member of a particular social group, namely women, in order to request protection from Canadian authorities. She also added that section 97 applies in her case. [13] At the start of the hearing, the presiding member requested clarification on a number of points. The claimant stated that she left her country on XXXXX, 2007. When asked to explain when her problems started, she replied that it was in XXXXX 1996. The panel wanted to know what would happen to her should she return to her country. The claimant stated that, as Tutsis, her tribe is not liked. When asked to explain when she made the decision to leave her country, the claimant replied that it was on XXXXX, 2007. It should be noted that this was on the eve of her departure. [14] There is already a contradiction between the testimony and the PIF, where she mentions that she left the Congo on XXXXX 2007, which is a difference of one month. She claimed that she wanted to get to Rwanda to escape the situation in her country. [15] Having heard the testimony and analyzed all the evidence, the panel concludes that the claim for refugee protection should not be allowed, given the testimony and the major contradictions between some of the exhibits and the claimant's testimony. [16] For example, the panel questioned the claimant about the birth certificate issued by city hall.2 That document lists the father's occupation as a civil servant. Throughout her testimony, the claimant stated that he is a professor. Furthermore, on the birth certificate submitted, it is stated that the claimant was born when her father was 47 years old; however, the claimant testified that her father died when he was 42 years old. There is a major contradiction between the testimony and the document submitted. [17] The claimant stated that her father was 42 years old when he died and that he was a civil servant, yet the claimant indicated that he was a teacher or a professor. There is obviously a confusing array of dates and the panel has little faith in the birth certificate issued by the authorities in the Democratic Republic of the Congo. Furthermore, the document in question is not dated. The claimant had this document when she arrived in Canada. [18] The panel asked the claimant about the formalities associated with coming to the United States. The claimant stated that she submitted documents to come to the United States in XXXXX 2007. When asked to explain who had given her the money to obtain the documents and her enrolment in an educational establishment in the United States, the claimant replied laconically that someone had lent her all that money. She added that she does not know this friend or where the money came from. There is a major contradiction in the fact that she does not know the name of this friend, which is peculiar in this case. [19] Still regarding her situation in the United States, the panel asked the claimant why she had not claimed asylum in that democratic country. The claimant replied that she did not attend school and never had. She added that she had no one to help her. She concluded her explanation by stating that she likes Canada and that there is no racism her. Furthermore, her sister is in Canada. [20] The panel does not attribute any weight to the fact that no one could help her and that she was not going to school; in spite of all these drawn-out explanations, the claimant still spent almost one month in the United States without claiming protection from American authorities, which leads the panel to suppose that, contrary to her allegations, she was not harbouring any fears. [21] Consequently, the fact that the claimant did not claim asylum in the United States underlines that the claimant had little fear, and almost complete annuls her contention that she had difficulties in her country of origin. [22] Similarly, the claimant's PIF and her narrative indicate that she went to Rwanda repeatedly after being attacked by the militia. The panel did not receive any explanation when the claimant was asked why she always returned to her place of origin after spending time in the neighbouring country. Once again, the claimant, who could have stayed in the neighbouring country, opted to return home where, according to her narrative and her testimony, her safety was greatly compromised. This also undermines the claimant's subjective fear because, if she actually did have problems in her country, it is nevertheless curious that she would return to the exact place where she might have to suffer at the hands of the militias. [23] The notes from the port of entry state that the claimant was beaten in prison. She testified that she was raped while in prison. When asked to explain the major contradiction between the information that she provided to the first Canadian authorities that she encountered and that given at the hearing, the claimant could not provide any pertinent information. When asked about the alleged sexual assault, the claimant stated that the men were separated from the women, and then the latter were put in prison and physically abused by the military officers. [24] The claimant stated that, after she was released, she was left in a school. She then walked for about thirty minutes and arrived at a refugee camp. When asked whether she had received medical attention in the refugee camp, the claimant replied that she had taken some aspirin. The panel inquired whether she had then received a medical examination and the claimant replied that she had not. The only explanations provided by the claimant about her sexual abuse were that she had taken sedatives, aspirin and antibiotics. The claimant did not undergo a gynaecological examination. [25] The claimant did not undergo any physical or gynaecological examination afterwards. This undermines her allegation of sexual abuse. [26] The panel has serious doubts about the explanations provided by the claimant, who stated that she travelled between the two countries between 1996 and 2007. She explained that she lived in difficult conditions in neighbouring Rwanda, but in spite of all this, she returned to her region of birth. [27] As mentioned previously, this seriously undermines her well-founded fear. [28] The panel strongly questions whether the claimant actually experienced all the horrors that she detailed at the hearing. Considering that she regularly travelled between the two countries and that she failed to claim asylum in the United States, the panel is of the opinion that this is not the behaviour of someone who genuinely fears for her life. [29] The fact that rape is not mentioned in the port of entry notes also undermines the claimant's credibility. CONCLUSION [30] In light of the fact that she is not credible, the refugee protection claimant did not discharge her burden of proving that she has a well-founded fear of persecution in the Democratic Republic of the Congo. [31] Consequently, for the aforementioned reasons, the panel determines that the refugee protection claimant is not a \"Convention refugee\" or a \"person in need of protection\" under sections 96 and 97 of the IRPA. [32] Consequently, the panel rejects the claim for refugee protection. Michel Jobin Me Michel Jobin Concurred in by: Jacques Fortin Jacques Fortin Concurred in by: Michael S. McCaffrey Michael S. McCaffrey November 2, 2009 Date REFUGEE PROTECTION DIVISION / PARTICULAR SOCIAL GROUP / WOMEN / VIOLENCE AGAINST WOMENT / TORTURE / RAPE / SOJOURNING / FAILURE TO SEEK PROTECTION IN OTHER COUNTRIES / REAVAILMENT / FEMALE / NEGATIVE / REPUBLIC DEMOCRATIC OF CONGO 1 Exhibit C-1. 2 Exhibit R/A-2, Information received from Citizenship and Immigration Canada (CIC). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / No de dossier de la SPR : TA9-05908 RPD File No. :TA9-05908", "response": "## Analysis of Refugee Decision: TA9-05908\n\n### Key Issues\n. [16] For example, the panel questioned the claimant about the birth certificate issued by city hall.2 That document lists the father's occupation as a civil servant. Throughout h\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: attack her should she return. ANALYSIS [12] The refugee protection claimant based her claim on the fact that she is targeted as a member of a particular social group, namely women, in order to request protection from Canadian authorities. She also added that section 97 applies in her case. [13] At the start of the hearing, the p\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "What are the implications of this Refugee Protection Division decision from the Refugee Law Lab Reporter for similar cases?\n\n2023 RLLR 112 Citation: 2023 RLLR 112 Tribunal: Refugee Protection Division Date of Decision: April 17, 2023 Panel: Hannah Gray Counsel for the Claimant(s): N/A Country: Ukraine RPD Number: VC3-00901 Associated RPD Number(s): VC3-00902 ATIP Number: A-2024-00593 ATIP Pages: N/A DECISION [1] MEMBER: This is the decision of the Refugee Protection Division, the RPD, in the claims of XXXX XXXX, the principal claimant, a citizen of Ukraine, and his spouse, XXXX XXXX, the associate claimant, a citizen of Russia, who are claiming refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act, the IRPA. In their claims I have considered and applied the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics. DETERMINATION [2] I find that the claimants are Convention refugees pursuant to section 96 of the IRPA based on their well-founded fear of persecution in Ukraine and in Russia. ALLEGATIONS [3] The specifics of the claims are stated in the claimants Basis of Claim forms and narrative in evidence as well as their updated Basis of Claim forms. The claimants are a married same-sex capital, aged 26 and 37 respectively. The principal claimant is a citizen of Ukraine, who resided in Moscow and had a temporary — sorry had a temporary status in Russia. The associate claimant is a citizen of Russia. They met in 2017 and both worked and live together in Moscow Russia. They fled to Canada in XXXX 2022 and made their refugee claim in November 2022. The claimants fear returning to Ukraine and Russia due to the homophobic policies and persecution towards LGBTQ+ persons. They also fear forced conscription in both Russia and Ukraine due to the Russian invasion of Ukraine. ANALYSIS Identity [4] The claimants’ personal identities and their identities as nationals of Ukraine and Russia has been established by their sworn testimonies and the certified copies of their passports in evidence in Exhibit 1. The associate claimant testified that he was born in Kazakhstan and had citizenship there up until 2017 when he moved to Russia. He testified that he is no longer a citizen of Kazakhstan, as they do not allow for dual citizenship. The National Documentation Package for Kazakhstan at Item 3.1 states that citizens of the Republic of Kazakhstan are persons who permanently reside in the republic of Kazakhstan on the date of entry into force of this law, born on the territory of the Republic of Kazakhstan, and are not citizens of a foreign country and acquire the citizenship of Republic of Kazakhstan in accordance with this law. A citizen of the Republic of Kazakhstan is not recognized as a citizen of another country. As the associate claimant provided his Russian passport and testified to living in Russia and being a citizen of Russia, I find that he is no longer a citizen of Kazakhstan, and therefore it is not a country of reference in his claim. I accept that the claimants are nationals of Ukraine and Russia and not nationals of any other countries. Credibility [5] When a claimant swears to the truth of their allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness. I find no reason to doubt the truthfulness of the claimants, they testified in a straightforward, forthright, detailed, and candid manner. And there were no material inconsistencies, omissions or contradictions between their testimony and the other evidence in this case that were not reasonably explained. They did not exaggerate or tailor their evidence and in summary, their testimonies were consistent with the other evidence on the central aspects of their claim. The claimants provided ample details to expand upon their allegations and they also provided evidence in Exhibit 4 which included their marriage certificate from Canada in 2022 and the associate claimant’s military draft subpoena from Russia. I have no reason to doubt the genuineness of these documents and since the documents relate to the claimant’s relationship as a married same-sex couple, and the associate claimant’s requirements to join the Russian forces if he were to return now, I place significant weight on these documents to support their claims. Given the claimants’ careful testimonies and supporting documents, I find that they have established on a balance of probabilities the facts alleged in their claims, including that they are a same-sex couple who are married, and that Russia and Ukraine currently are conscripting military aged men into the armed forces. And therefore, I accept the subjective fear they have of returning to either Ukraine or Russia now. In sum, I find the claimants to be credible witnesses and believe what they have alleged in support of their claims. Nexus [6] To qualify for refugee status under the refugee Convention, an individual must demonstrate that they have a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. The allegations here establish a nexus to the Convention for the claimants based on their membership in a particular social group due to their sexual orientation as gay men, who are married to each other and who fear forced conscription. I will therefore assess their claims under section 96. Well-Founded Fear of Persecution & Risk of Harm [7] I find that the claimants have a well-founded fear of persecution in both Russia and Ukraine based on their sexual orientation. [8] I will first assess the risk of harm in Russia. I find that the claimants have established sufficient credible evidence to demonstrate that they face more than a serious possibility of persecution if they were to return to Russia now. Discrimination against the LGBTQ+ community in Russia is widespread and severe, including by the authorities, and this can be found at Item 6.7 of the National Documentation Package for Russia. A homophobic campaign continued in state-controlled media, in which officials, journalists and others derided LGBTQ+ persons as “perverts, sodomites and abnormal and conflated homosexuality with pedophilia”. A law prohibiting the propaganda of non-traditional sexual orientation, restricted freedom of expression, association, and peaceful assembly for LGBTQ+ persons and their supporters, and the claimants have testified about this law today in their testimony. There is also no law to prohibit discrimination against LGBTQ+ persons in housing, employment or access to government services and there were reports that government agents attack, harass and threaten LGBTQ+ activists. LGBTQ+ persons were particularly or particular targets of societal violence and police often fail to respond adequately to such incidents. Public officials portray LGBT identities as contradictory to Russian and orthodox values and as a western phenomenon imposed by Europe as part of its agenda to weaken and alienate Russia, and this is found at Item 6.3 of the NDP. Hate speech against LGBTQ+ persons is state-led and legislation severely restricts challenges against the dominant hateful narrative and laws aimed at preventing incitement to discrimination or violence are more likely to be used to prosecute than protect minorities, and this can be found at Item 2.1 and 6.3 of the National Documentation Package for Russia. I find that the claimants have therefore established a future risk that they would be subjected to societal abuse, mistreatment and violence at the hands of the community at large as well as the authorities such as the police due to their sexual orientation if they were to return to Russia now. I therefore find they have established a well-founded fear of persecution in Russia. [9] I will now assess the situation in Ukraine. The National Documentation Package for Ukraine describes Ukraine as a society that continues to harbor significant anti-LGBTIQ2 sentiment despite some signs of change. NDP Item 6.3 states that when first elected, President Zelenskyy told reporters ‘We live in open free society where everyone chooses a language to communicate and his orientation. Leave these people alone. Enough.’ The state has shown some signs of a willingness to improve, as reflected by its President’s statement. However, change has been slow and there are significant opposition both socially and from the authorities. The rights of LGBTIQ+ people in Ukraine are not fully protected, leaving them vulnerable to violence and discrimination, and this can be found at Item 6.4 of the NDP. NDP Item 2.1 establishes that events organized by the LGBTQ+ community were regularly disrupted by members of violent radical groups. Police at times did not adequately protect participants from attack before or after the events, nor did they provide sufficient security for smaller demonstrations or events, especially those organized by persons belonging to minority groups or opposition political movements. There was societal violence against LGBTIQ+ persons, often perpetrated by members of violent radical groups, as mentioned earlier. Additionally, Item 6.2 of the NDP states that police also committed violence against LGBTIQ+ people and victims rarely appeal to public associations that protect the rights of them and in about half of the cases, they did not get help. Religious leaders have also made anti-LGBTIQ+ statements and Ukraine has failed to criminalize hate speech, although the state did pull the licence of one (1) media outline broadcasting anti-LGBTIQ statements The LGBTIQ2 human rights group Nash Mir Centre’s annual report documented 369 cases of violence and discrimination against LGBTIQ+ people in 2019. A study on attacks against activists show that LGBTIQ+ activists were the most at risk and this could be found at NDP Item 6.1. Furthermore, NDP Item 2.1 states that when the Russians occupied Crimea, most LGBTIQ+ individuals fled and those who remained lived in fear of abuse due to their sexual orientation or gender identity. The UN Human Rights Council’s Independent Expert received reports of increased violence and discrimination against this community in Crimea, as well as the use of homophobic propaganda employed by the occupation authorities. Therefore, I am satisfied that now with the invasion of Ukraine by Russia, there is an increased threat to any LGBTIQ+ people in any part of the country that may fall under Russian control now or in the future. [10] Therefore, I find the claimants have demonstrated a well-founded fear of persecution on both a subjective and objective basis and I find they would face a serious possibility of persecution in either Ukraine or Russia as a married gay couple. State Protection and Internal Flight Alternative [11] In all refugee claims, a state is presumed to be capable of protecting its citizens unless there is clear and convincing evidence to the contrary. In this case, I find this presumption has been rebutted. To prevent this presumption, a claimant must establish on a balance of probabilities through clear and convincing evidence that their state’s protection is inadequate and the onus is on the claimant to rebut this presumption. [12] I will first assess the situation in Russia. In the claimants’ particular case, the state is one (1) of the agents of persecution and I find that the objective evidence on file indicates that they would face persecution at the hands of authorities among others if they were to return to Russia. Accordingly, I find it would be objectively unreasonable for them to seek state protection in Russia and consequently, the presumption of state protection has been rebutted. With respect to internal flight alternative, meaning if there were to be somewhere safe for them to live in Russia, I do not find that they could live safely in any other part of the country given that the state is one (1) of the agents of persecution and has control over all of its territory. Furthermore, based on the evidence before me, I find there is a serious possibility of persecution throughout Russia as the situation with respect to LGBTIQ+ persons is consistent throughout the entire country and I find they would face a serious possibility of persecution throughout the entire country of Russia. [13] I will now assess the situation in Ukraine. In Ukraine’s National Documentation Package at Item 6.5, which was published prior to the Russian evasion, it states that the police are extremely reluctant to investigate cases of homophobic and transphobic crime and most of the victims do not report attacks to the police as they do not trust the system. They fear harassment and violence from the police or having to divulge information about their sexual orientation. The absence of an effective investigation and relevant legal categorization of these offences as hate crime sends a clear message about impunity for such crimes. While country documents indicate that the police have shown some initial signs of improvement in their treatment of the LGBTIQ+ people, there are still homophobic incidents and investigation of homophobic hate crimes is extremely unsatisfactory and even when forced to investigate, it never leads to indictment, and that is at NDP Item 6.3. Currently, Ukraine is at war with Russia since the Russian evasion began in late February 2022. In the Ukraine-held territory, I am satisfied that the state continues to fail to provide adequate and effective protection in a consistent manner to the LGBTIQ+ people as detailed above and if Crimea is any indication, things will be much worse in any areas that fall under Russian control with the state being an active agent of persecution. Accordingly, I find there is no adequate state protection available to the claimants in their particular circumstances and I find that the presumption of state protection has been rebutted. In addition, I find the state of Ukraine is no longer in control of all of its territories and where the Russians have taken over, the situation is even more dire for LGBTIQ+ people. Therefore, I find the claimants face a serious possibility of persecution throughout the entire territory of Ukraine and there is no viable internal flight alternative available to them. CONCLUSION [14] For these reasons, I find the claimants are Convention refugees under section 96 of the Act and I accept each of their claims. ——— REASONS CONCLUDED ———", "response": "## Analysis of Refugee Decision: 2023 RLLR 112\n\n### Key Issues\nIQ+ people and victims rarely appeal to public associations that protect the rights of them and in about half of the cases, they did not get help. Religious leaders have also made\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: Russian invasion of Ukraine. ANALYSIS Identity [4] The claimants’ personal identities and their identities as nationals of Ukraine and Russia has been established by their sworn testimonies and the certified copies of their passports in evidence in Exhibit 1. The associate claimant testified that he was born in Kazakhstan and h\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "What rights and responsibilities are established by this Federal legislation from the Canadian government?\n\n# Animal Pedigree Act RSC 1985, c 8 (4th Supp) An Act respecting animal pedigree associations ## Short Title ### Short title 1 This Act may be cited as the Animal Pedigree Act. ## Interpretation ### Definitions 2 In this Act, *animal pedigree association* or *association* means an association incorporated under this Act and includes an association amalgamated pursuant to section 25 and an association subject to the provisions of this Act by virtue of section 68; (association responsable de la généalogie des animaux ou association) *Board* means the Board of Directors of the Corporation; (Conseil) *certificate of identification* means a certificate of identification issued under the authority of this Act for an animal of an evolving breed; (certificat d’identification) *certificate of registration* means a certificate of registration issued under the authority of this Act for an animal of a distinct breed; (certificat d’enregistrement) *Corporation* means the Canadian Livestock Records Corporation established by section 35; (Société) *embryo certificate* means an embryo certificate issued under the authority of this Act; (certificat d’embryon) *evolving breed* means a group of animals in the process of evolving into a new breed; (race en voie de constitution) *foundation stock*, in relation to a distinct breed, means such animals as are recognized by the Minister as constituting the breed’s original stock; (premiers éléments) *identification* means the recognition that an animal is an animal of an evolving breed; (identification) *individual identification*, in relation to an animal, means the distinguishing of the animal by (a) the marking or tagging of the animal, or (b) the noting, by any means, including the taking of photographs, of some or all of the animal’s physical characteristics; ( identification particulière) *Minister* means the Minister of Agriculture and Agri-Food; (ministre) *pedigree*, in relation to an animal, means genealogical information showing the ancestral line of descent of the animal; (dossier généalogique) *prescribed* means prescribed by the regulations; (prescrit) *purebred*, in relation to an animal of a distinct breed, means an animal that is a purebred of the breed as determined by the by-laws of the association authorized to register animals of that breed; (animal de race pure) *registration* means the recognition that an animal is an animal of a distinct breed; (enregistrement) *semen certificate* means a semen certificate issued under the authority of this Act. (certificat de semence) ## Purposes of Act ### Purposes of Act 3 The purposes of this Act are (a) to promote breed improvement, and (b) to protect persons who raise and purchase animals by providing for the establishment of animal pedigree associations that are authorized to register and identify animals that, in the opinion of the Minister, have significant value. ## Purpose of Associations ### Principal purpose 4 The principal purpose of animal pedigree associations shall be the registration and identification of animals and the keeping of animal pedigrees. ## Scope of Associations ### Scope of associations 5 (1) An association may be incorporated under this Act in respect of a distinct breed, an evolving breed or one or more distinct breeds and one or more evolving breeds. ### Limit of one association per breed or evolving breed (2) Only one association may be incorporated in respect of each distinct breed and each evolving breed. ### Breeds must be of same species (3) Where an association is incorporated in respect of one or more distinct breeds and one or more evolving breeds, the distinct breeds and evolving breeds must all be of the same species. ## Incorporating an Association ### Requirements 6 (1) An association may be incorporated under this Act only if the Minister is satisfied (a) that the animals of each distinct breed and evolving breed in respect of which the association is sought to be incorporated have significant value; (b) that the persons submitting the articles of incorporation in respect of the association represent the breeders throughout Canada of the animals of each distinct breed and evolving breed in respect of which the association is sought to be incorporated; and (c) that the keeping of pedigrees and other records in respect of the animals of each distinct breed and evolving breed in respect of which the association is sought to be incorporated would be beneficial to the breeders thereof and to the public-at-large. ### Scientific genetic principles (2) An association may be incorporated in respect of a distinct breed only if the Minister is satisfied that the breed is a breed determined in accordance with scientific genetic principles. ### Special requirement with respect to evolving breeds (3) An association may be incorporated in respect of an evolving breed only if the Minister is satisfied that the requirements referred to in subsection (1) exist and that the creation, with genetic stability, of the new breed into which the animals of the evolving breed are intended to evolve is possible. ### Application to incorporate 7 (1) Subject to this Act, where five or more qualified persons desire to incorporate an association, they may make an application for that purpose by submitting articles of incorporation to the Minister. ### Qualifications of applicants (2) A person is qualified to apply to form an association if the person is eighteen years of age or more and is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act. ### Contents of articles of incorporation 8 Articles of incorporation must (a) be in the prescribed form; (b) set out, in respect of the proposed association, (i) the name of the association, (ii) the names and addresses of the persons submitting the articles of incorporation, (iii) the names and addresses of the first directors and officers of the association, (iv) the name of each distinct breed and evolving breed in respect of which the association is sought to be incorporated, and (v) where the application is in respect of an evolving breed, the physical description and genetic make-up of the new breed into which the animals of the evolving breed are intended to evolve; and (c) be submitted in triplicate in the prescribed manner. ### Certificate of incorporation 9 (1) Where the Minister is satisfied that the articles of incorporation of an association should be approved, the Minister shall issue a certificate of incorporation in respect thereof. ### Endorsement (2) Where the Minister issues a certificate of incorporation, the Minister shall (a) cause to be endorsed on each copy of the articles of incorporation a statement attesting that a certificate of incorporation has been issued in respect thereof; (b) cause two copies of the endorsed articles of incorporation to be filed in the Department of Agriculture and Agri-Food; (c) cause the remaining copy of the endorsed articles of incorporation to be returned to the association; and (d) cause a notice of the issuance of the certificate of incorporation to be published in the Canada Gazette. ### Effect of certificate (3) An association comes into existence on the date shown in its certificate of incorporation and the first directors and officers of the association are the directors and officers set out in the association’s articles of incorporation. ## Body Corporate ### Association is body corporate 10 Every association is a body corporate. ## Powers ### Powers 11 An association may do any act or thing necessary for, or incidental or conducive to, the carrying out of its purpose and business and affairs related thereto. ### Ownership and borrowing powers 12 Without restricting the generality of section 11, an association may (a) acquire, hold and dispose of real, personal, movable and immovable property necessary for the carrying out of its business and affairs; (b) borrow money on the credit of the association and draw, make, accept, endorse and execute promissory notes, bills of exchange and other negotiable instruments necessary for carrying out its business and affairs; and (c) mortgage or hypothecate, or create any security interest in, all or any property of the association to secure any obligation of the association. ## Use of Funds ### Use of funds 13 (1) An association may use its funds for any purpose calculated to advance the purpose of the association, including, without restricting the generality of the foregoing, using those funds for developing and promoting breed improvement programs, making grants to exhibitions and providing services to the breeders of the animals in respect of which the association has been incorporated. ### Profits (2) Subject to any by-laws providing for the remuneration of its directors, officers and employees, and its agents or mandataries, all profits or accretions of value to the property of an association shall be used in furtherance of the purpose of the association, and no part of the property or profits of the association may be distributed, directly or indirectly, to any member of the association. ## Liability ### Limited liability 14 (1) The financial liability of a member of an association to the creditors of the association is limited to the amount of any fees owing to the association by the member and to the amount due from the member in respect of any services provided to the member by the association. ### Personal liability (2) No director, officer or employee of an association, or other person acting on behalf of an association, is personally liable for any act done in good faith in the exercise of any of that person’s powers or the performance of that person’s duties and functions or for any default or neglect in good faith in the exercise of any of that person’s powers or the performance of that person’s duties and functions. ## By-laws ### Mandatory by-laws 15 (1) Every association incorporated under this Act shall, within one year after coming into existence, make by-laws (a) establishing requirements for membership in the association; (b) respecting the payment of dues by the members of the association and establishing the method of determining the amount thereof; (c) respecting the election, and the filling of vacancies, of directors and officers of the association and their powers, duties and functions; (d) respecting the time and place for the holding of general, annual and special meetings of the association, the calling of such meetings, the quorum for such meetings and the procedure for all business at such meetings; (e) respecting the consultation of the members of the association for the purpose of changing the association’s articles of incorporation, amalgamating with one or more other associations or dissolving the association; (f) respecting the making, amendment and repeal of the association’s by-laws; (g) respecting the place within Canada where the head office of the association is, and the places within Canada where the branch offices, if any, of the association are, to be situated; (h) fixing the fiscal year of the association; (i) respecting the keeping of the association’s articles of incorporation and the association’s by-laws, business records and books of accounts; (j) respecting the annual audit of the financial affairs of the association and the preparation of audited annual financial reports and statements of assets and liabilities; (k) establishing rules respecting the eligibility for the registration or identification, as the case may be, of animals by the association; (l) establishing the procedure to be followed in applications for the registration or identification, as the case may be, of animals by the association; (m) respecting the issuance of certificates of registration or certificates of identification, as the case may be, by the association and the amendment, transfer and cancellation of such certificates; (n) respecting the individual identification of animals registered or identified, as the case may be, by the association, the supervision of all practices in relation thereto and the manner in which unsatisfactory practices in relation thereto are to be dealt with; (o) respecting the keeping of pedigrees and breeding records by the association and its members and the inspection by the association of pedigrees and breeding records kept by its members; (p) respecting the recording of transfers of ownership of animals registered or identified, as the case may be, by the association; (q) respecting the payment of fees for certificates of registration and certificates of identification, as the case may be, for transfers of ownership and for all other services provided by the association, and establishing the method of determining the amount of those fees; and (r) for the administration and management of the business and affairs of the association. ### By-laws generally (2) Notwithstanding subsection (1), an association may make any by-law necessary for the conduct of its business and affairs, including, without restricting the generality of the foregoing, by-laws (a) respecting the promotion and establishment of breed improvement programs; (b) respecting the inspection of animals as a prerequisite to their registration or identification, as the case may be, by the association; (c) respecting performance standards that animals must meet as a prerequisite to their registration or identification, as the case may be, by the association; and (d) respecting the resignation, suspension and expulsion of any member of the association. ### Mandatory by-laws (3) Where an association keeps records of semen and embryos pursuant to section 33 and issues semen certificates and embryo certificates in respect thereof, the association shall do so only in accordance with its by-laws, and, for that purpose, the association shall make by-laws (a) respecting the recording and the individual identification of semen and embryos, the supervision of all practices in relation thereto and the manner in which unsatisfactory practices in relation thereto are to be dealt with; (b) respecting the issuance of semen certificates and embryo certificates, and the amendment, transfer and cancellation of those certificates; and (c) respecting the recording of transfers of ownership of semen and embryos by the association. ### When by-law has effect 16 (1) No by-law of an association and no amendment or repeal of any by-law of an association has any effect until it is approved by the Minister. ### Application for approval (2) An application to the Minister for approval of a by-law or an amendment or repeal of a by-law must be accompanied by three copies of the proposed by-law, amendment or repeal. ### Minister may require evidence (3) Where the making, amendment or repeal of any by-law of an association is, by reason of another by-law of the association, subject to any formality or requirement, the Minister may, before approving any by-law or any amendment or repeal of a by-law, require evidence by affidavit or statutory declaration that the formality or requirement in relation thereto has been complied with. ### Certificate of by-law approval (4) Where the Minister approves a by-law or an amendment or repeal of a by-law, the Minister shall issue a certificate of by-law approval, or a certificate of by-law repeal, as the case may be, in respect thereof. ### Effect of by-laws 17 The by-laws of an association bind every member of the association. ### Member’s right to inspect by-laws 18 The by-laws of an association shall, at all reasonable times, be made available to the members of the association for the purposes of inspection and making copies thereof. ### No fine or penalty 19 (1) No by-law of an association may impose any fine or monetary penalty of any kind and no fine or monetary penalty of any kind may be imposed by an association in respect of any non-compliance with its by-laws. ### Fees not fines (2) For the purposes of subsection (1), a fee referred to in paragraph 15(1)(q) is not a fine or a monetary penalty. ## Amendment of Articles of Incorporation ### Amendment of articles of incorporation 20 (1) An association that desires to amend its articles of incorporation for one or more of the following purposes, namely, (a) to change the association’s name, (b) to add the name of a distinct breed or evolving breed in respect of which the association is to be authorized to register or identify the animals thereof or to delete the name of any distinct breed or evolving breed that the association is authorized to register or identify the animals thereof, or (c) where the association is incorporated in respect of an evolving breed, to transform the association into an association incorporated in respect of a distinct breed, may make an application for that purpose by submitting articles of amendment to the Minister. ### Contents of articles of amendment (2) Articles of amendment submitted pursuant to subsection (1) must (a) be in the prescribed form; (b) set out the proposed amendment; (c) contain a statutory declaration attesting that the members of the association have been consulted in writing in the prescribed manner in relation to the proposed amendment, that twenty-five per cent or more of the members have responded in writing to the consultation and that at least two thirds of the members who responded have approved the proposed amendment; and (d) be submitted in triplicate in the prescribed manner. ### Proof required (3) Where the amendment proposed in articles of amendment is the addition of the name of a distinct breed or evolving breed in accordance with paragraph (1)(b), the articles of amendment must be accompanied by proof that the association represents the breeders throughout Canada of the animals of the distinct breed or evolving breed. ### Deletion for certain purposes 21 (1) Where an association is authorized to register or identify animals of more than one distinct breed or evolving breed, the association or one or more members of the association may submit articles of amendment to delete the name of the distinct breed or evolving breed from the association’s articles of incorporation, (a) to allow for the making of an application for incorporation in respect of one of the distinct breeds or evolving breeds; or (b) to enable another association to amend its articles of incorporation to add the name of one of the distinct breeds or evolving breeds. ### Contents (2) Articles of amendment submitted pursuant to subsection (1) must (a) be in prescribed form; (b) set out the proposed amendment; (c) contain a statutory declaration attesting that the members of the association who are breeders of the distinct breed or evolving breed to which the proposed amendment relates have been consulted in writing in the prescribed manner in relation to the proposed amendment and that twenty-five per cent or more of those members have responded in writing to the consultation and that at least two thirds of the members who responded have approved the proposed amendment; and (d) be submitted in the prescribed manner. ### Minister may determine entitlement (3) Where there is any dispute as to who is entitled to be consulted in relation to articles of amendment submitted pursuant to subsection (1), any member of the association may request that the Minister make a determination thereof and any determination of the Minister is final and binding on all concerned. ### Other documents must accompany 22 The Minister shall consider articles of amendment submitted pursuant to section 21 only if the articles of amendment are accompanied by (a) an application for incorporation in respect of the distinct breed or evolving breed to which the articles of amendment relate, or (b) articles of amendment to add the name of the distinct breed or evolving breed to which the articles of amendment relate to another association’s articles of incorporation and the Minister may approve the articles of amendment only if the Minister is satisfied that the application for incorporation or the other association’s articles of amendment should also be approved. ### Certificate of amendment 23 (1) Where the Minister is satisfied that articles of amendment should be approved, the Minister shall issue a certificate of amendment in respect thereof. ### Endorsement (2) Where the Minister issues a certificate of amendment, the Minister shall cause (a) to be endorsed on each copy of the articles of amendment a statement attesting that a certificate of amendment has been issued in respect thereof; (b) two copies of the endorsed articles of amendment to be filed in the Department of Agriculture and Agri-Food; (c) the remaining copy of the endorsed articles of amendment to be returned to the association; and (d) a notice of the issuance of the certificate of amendment to be published in the Canada Gazette. ### Effect of certificate (3) An amendment is effective on the date shown in the certificate of amendment and the articles of incorporation of the association are amended accordingly. ### Association liable for debts 24 (1) Where articles of amendment are submitted pursuant to section 21 and a certificate of amendment is issued in respect thereof along with a certificate of incorporation in respect of the association established as a result of the application for incorporation referred to in paragraph 21(1)(a) or a certificate of amendment in respect of an association referred to in paragraph 21(1)(b), that association is liable for and shall, within one year after the effective date of the certificate of incorporation or certificate of amendment, pay to the association from whose articles of incorporation the name of the distinct breed or evolving breed was deleted an amount equal to the amount of that association’s total debts as of the day the certificate of amendment pertaining to the deletion becomes effective multiplied by the proportion that (a) the total number of registrations or identifications made by that association in relation to animals of the deleted distinct breed or evolving breed in the immediately preceding three years bears to (b) the total number of registrations and identifications made by that association in the immediately preceding three years. ### Minister may determine debts (2) Where no agreement can be reached as to the amount of the debts or the number of registrations and identifications, (a) any member of the association from whose articles of incorporation the name of the distinct breed or evolving breed is to be deleted, (b) any applicant in relation to the proposed new association, and (c) any member of the association to whose articles of incorporation the name of the distinct breed or evolving breed is to be added may request that the Minister make a determination thereof and any determination of the Minister is final and binding on all concerned. ## Amalgamations ### Amalgamation of associations 25 (1) Two or more associations that desire to amalgamate and continue as one association may make an application for that purpose by submitting articles of amalgamation to the Minister. ### Contents of articles of amalgamation (2) Articles of amalgamation must (a) set out the names of the associations that desire to amalgamate; (b) be in the prescribed form; (c) set out, in respect of the proposed amalgamated association, (i) the name of the association, (ii) the name of every distinct breed and evolving breed in respect of which the association is deemed to be incorporated, and (iii) the association’s proposed by-laws in respect of the matters referred to in paragraphs 15(1)(a) to (q); (d) contain a statutory declaration attesting that the members of each of the associations that desire to amalgamate have been consulted in writing in the prescribed manner in relation to the proposed amalgamation and that, with respect to each association, twenty-five per cent or more of the members have responded in writing to the consultation and that at least two thirds of the members who responded have approved the proposed amalgamation; and (e) be submitted in triplicate in the prescribed manner. ### Attached declarations (3) Articles of amalgamation submitted to the Minister must be accompanied by a sworn statutory declaration by a director of each amalgamating association stating that the director believes on reasonable grounds (a) that the value of the assets of the director’s association exceeds the value of the association’s liabilities; (b) that no creditor of the director’s association will be prejudiced by the amalgamation; and (c) that adequate notice of the proposed amalgamation has been given to all known creditors of the director’s association and that no creditor objects to the amalgamation for other than frivolous or vexatious grounds. ### Adequate notice (4) For the purposes of paragraph (3)(c), adequate notice of a proposed amalgamation is given if a notice stating that an association intends to amalgamate with one or more specified associations and that creditors of the association may object to the amalgamation by filing an objection in writing with the association within thirty days after the date of the notice is (a) sent to each known creditor of the association whose claim against the association exceeds one thousand dollars; and (b) published once in a newspaper published or distributed in the place where the head office of the association is situated. ### Certificate of amalgamation (5) Where the Minister is satisfied that articles of amalgamation should be approved, the Minister shall issue a certificate of amalgamation in respect thereof. ### Endorsement (6) Where the Minister issues a certificate of amalgamation, the Minister shall (a) cause to be endorsed on each copy of the articles of amalgamation a statement attesting that a certificate of amalgamation has been issued in respect thereof; (b) cause two copies of the endorsed articles of amalgamation to be filed in the Department of Agriculture and Agri-Food; (c) cause the remaining copy of the endorsed articles of amalgamation to be returned to the amalgamated association; and (d) cause a notice of the issuance of the certificate of amalgamation to be published in the Canada Gazette. ### Effect of certificate (7) On the date shown in a certificate of amalgamation (a) the amalgamation of the amalgamating associations becomes effective and the amalgamated association comes into existence; (b) the property of each amalgamating association becomes the property of the amalgamated association; (c) the amalgamated association is liable for the obligations of each amalgamating association; (d) every existing cause of action, claim or liability to prosecution of or against an amalgamating association is unaffected; (e) every civil, criminal or administrative action or proceeding pending by or against an amalgamating association may be prosecuted by or against the amalgamated association; and (f) a conviction against, or ruling, order or judgment in favour of or against, an amalgamating association may be enforced by or against the amalgamated association. ### Deemed articles 26 For the purposes of this Act, the articles of amalgamation in respect of which a certificate of amalgamation has been issued shall be deemed to constitute the amalgamated association’s articles of incorporation. ## Registration ### Registration 27 The registration of animals of a distinct breed shall be in accordance with the by-laws of the association incorporated in respect of that distinct breed. ### Eligibility for registration 28 The by-laws of an association relating to the registration of animals of a distinct breed by the association may only provide for the registration of animals whose inheritance traces back to the foundation stock of the distinct breed. ### Certificates of registration 29 (1) An association that registers an animal may issue a certificate of registration to evidence the registration. ### Certificate is proof (2) Unless cancelled, and in the absence of any proof to the contrary, a certificate of registration in respect of an animal named therein is proof that the animal is of the breed referred to in the certificate. ### Form and contents of certificates of registration (3) A certificate of registration issued by an association shall be in such form and contain such information as the association requires by its by-laws, but every certificate of registration must set out (a) the name of the association; (b) the animal’s name and particulars of the animal’s individual identification; (c) the animal’s date of birth, sex and registration number; (d) the names and registration numbers of the animal’s parents or, if the name and registration number of one of the parents are unknown, a statement to that effect; and (e) the name of the animal’s owner. ### Additional information (4) In addition to the information referred to in subsection (3), a certificate of registration issued by an association in respect of an animal of a distinct breed for which purebred is defined in the association’s by-laws must also set out the following information: (a) if the animal is a purebred, a statement to that effect; and (b) if the animal is other than a purebred, its percentage of purebred inheritance. ## Purebred Status ### Purebred status 30 (1) Subject to subsection (2), the determination of what is a purebred of a distinct breed shall be in accordance with the by-laws of the association incorporated in respect of that distinct breed. ### Minimum inheritance (2) No association may, by its by-laws, determine that an animal is a purebred of a distinct breed if the animal has less than seven-eighths of its inheritance from the foundation stock of the animal’s breed or from animals previously registered as purebreds by the association. ## Identification ### Identification 31 The identification of animals of an evolving breed shall be in accordance with the by-laws of the association incorporated in respect of that evolving breed. ### Certificates of identification 32 (1) An association that identifies an animal may issue a certificate of identification to evidence the identification. ### Certificate is proof (2) Unless cancelled, and in the absence of any proof to the contrary, a certificate of identification in respect of an animal named therein is proof that the animal is in the process of evolving into a new breed as an animal of the evolving breed referred to in the certificate. ### Form and contents of certificates of identification (3) A certificate of identification issued by an association in respect of an animal shall be in such form and contain such information as the association requires by its by-laws, but every certificate of identification must set out (a) the name of the association; (b) the animal’s name and particulars of the animal’s individual identification; (c) the animal’s date of birth, sex and identification number; (d) the names and identification numbers of the animal’s parents, if known, or, if unknown, a statement to that effect; and (e) the name of the animal’s owner. ## Semen and Embryos ### Semen and embryos 33 (1) An association may keep records of semen and records of embryos in respect of the animals of any distinct breed or evolving breed it is authorized to register or identify. ### Semen certificates and embryo certificates (2) An association that keeps records of semen and records of embryos may, with respect to any semen or embryo recorded by it, issue a semen certificate or an embryo certificate, as the case may be, to evidence the recording. ### Form and contents of semen certificates and embryo certificates (3) A semen certificate and an embryo certificate issued by an association in respect of semen or an embryo shall be in such form and contain such information as the association requires by its by-laws, but every certificate must set out (a) the name of the association; and (b) the name of the owner of the semen or embryo. ## Recognition of New Breeds ### Request for recognition of new breed 34 (1) Where an association incorporated in respect of an evolving breed determines that animals it has identified have evolved to the point of constituting the new breed into which they were intended to evolve, the association may request that the Minister examine the animals with a view to recognizing the new breed. ### Articles of amendment (2) Any association making a request under subsection (1) may, at the time of making the request or at any time thereafter, file with the Minister articles of amendment to transform the association into an association incorporated in respect of the new breed to which the request relates. ### Recognition (3) Where the Minister is satisfied that the animals that are the subject of a request under subsection (1) have evolved into the new breed and that there are sufficient numbers of such animals to constitute the foundation stock of the new breed, the Minister may recognize the new breed and, if articles of amendment referred to in subsection (2) have been filed, issue a certificate of amendment in respect thereof. ### Minister must be satisfied (4) In determining whether animals have evolved into a new breed the Minister must be satisfied that the animals bear a physical resemblance to and have the same genetic make-up as the breed into which the animals were intended to evolve, and that the animals have been reproducing with genetic stability. ### Association may continue to identify animals (5) Notwithstanding that a certificate of amendment has been issued to an association in respect of articles of amendment referred to in subsection (2), the Minister may, for such period as the Minister may specify, authorize the association to continue to identify animals for the purposes of adding, subject to the Minister’s approval, to the new breed’s foundation stock. ## Canadian Livestock Records Corporation ## Corporation Established ### Corporation established 35 (1) There is hereby established a corporation to be known as the Canadian Livestock Records Corporation. ### Corporation is successor to the CNLSR (2) The Corporation is the successor to the affiliation known as the Canadian National Live Stock Records and all the rights and obligations of the Canadian National Live Stock Records are the rights and obligations of the Corporation. ### Not agent of Her Majesty (3) The Corporation is not an agent of Her Majesty. ### Head office (4) The head office of the Corporation shall be at such place in Canada as may be designated in the by-laws of the Corporation. ## Purpose ### Purpose 36 The purpose of the Corporation is to perform services for and on behalf of (a) the members of the Corporation; and (b) subject to section 51, breeders and owners of animals of any distinct breed or evolving breed in respect of which there is no association. ## Powers ### Powers 37 The Corporation may do any act or thing necessary for, or incidental or conducive to, the carrying out of its purpose and business and affairs related thereto and, without restricting the generality of the foregoing, the Corporation may, including with respect to animals of any distinct breed or evolving breed in respect of which there is no association, (a) keep pedigrees and other records; (b) issue certificates of registration, certificates of identification, embryo certificates, semen certificates and transfers of ownership in respect thereof; and (c) do anything that any association under this Act may lawfully do. ### Ownership and borrowing powers 38 Without restricting the generality of section 37, the Corporation may (a) acquire, hold and dispose of real, personal, movable and immovable property necessary for the carrying out of its business and affairs; (b) borrow money on the credit of the Corporation and draw, make, accept, endorse and execute promissory notes, bills of exchange and other negotiable instruments necessary for the carrying out of its business and affairs; and (c) mortgage or hypothecate, or create any security interest in, all or any property of the Corporation to secure any obligation of the Corporation. ## Use of Funds ### Use of funds 39 (1) The Corporation may use the funds of the Corporation for any purpose calculated to advance the purpose of the Corporation. ### Profits (2) Subject to any by-laws providing for the remuneration of the Corporation’s directors, officers and employees, and its agents or mandataries, all profits or accretions of value to the property of the Corporation shall be used in furtherance of the purpose of the Corporation, and no part of the property or profits of the Corporation may be distributed, directly or indirectly, to any member of the Corporation. ## Board of Directors ### Board of Directors 40 (1) There shall be a Board of Directors of the Corporation consisting of seven directors, six of whom are to be elected by the members of the Corporation and one of whom is to be appointed by the Minister to represent the interests of the Minister and breeders and owners of animals of any distinct breed or evolving breed in respect of which there is no association. ### Eligibility (2) Only a Canadian citizen ordinarily resident in Canada or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act may be a director of the Corporation. ### Term of office (3) The term of office of a director elected by the members of the Corporation is two years, except that at the first election of directors, three of the directors shall be elected for a term of one year. ### Re-election (4) A director elected by the members of the Corporation and whose term of office has expired is eligible for re-election. ### First directors (5) The first members of the Board of Directors of the Corporation shall be the members of the Canadian National Live Stock Records Committee immediately prior to the coming into force of this Act and terms of office shall expire when members of the Board of Directors of the Corporation are appointed at the first meeting of the members of the Corporation. ### Re-election (6) A member of the Board of Directors referred to in subsection (5) is eligible for reelection at the meeting referred to in that subsection. ### First meeting (7) The first meeting of the members of the Corporation shall be held as soon as possible after the day this Act comes into force, but not later than one year after that day, for the purpose of electing directors in accordance with subsection (1) and for such other purpose as the members consider appropriate. ### Chairman 41 The Board shall elect a Chairman from among the directors. ### Duties and powers of Board 42 The Board shall direct and manage the business and affairs of the Corporation and may for those purposes exercise all the powers of the Corporation. ## By-laws ### By-laws 43 (1) The Board shall make by-laws (a) for the administration and management of the business and affairs of the Corporation; (b) respecting the holding of meetings of the Board, the quorum at such meetings and the manner in which questions considered at such meetings shall be determined; (c) respecting the holding of general and special meetings of the members of the Corporation, the quorum at such meetings and the manner in which questions considered at such meetings shall be determined; (d) respecting the appointment, remuneration, powers, functions and duties of employees, and agents or mandataries, of the Corporation; (e) respecting the payment of fees for services performed by the Corporation and establishing the method of determining the amount of those fees; and (f) for the conduct in all other particulars of the business and affairs of the Corporation. ### When by-law has effect (2) No by-law of the Corporation has any effect until it is approved by the Minister. ## General Manager ### General Manager 44 (1) The Board shall appoint a General Manager of the Corporation. ### Duties (2) The General Manager of the Corporation has, on behalf of the Board, responsibility for the direction and management of the business and affairs of the Corporation, and authority to act in all matters that are not by the by-laws or by resolution of the Board specifically reserved to be done by the Chairman of the Board or the Board itself. ## Members ### Membership eligibility 45 (1) Only an association may be a member of the Corporation and every association is eligible to be a member. ### First members (2) The first members of the Corporation are the associations affiliated under the Canadian National Live Stock Records immediately before the coming into force of this Act. ## Voting ### Number of votes 46 Each association that is a member of the Corporation shall, for all purposes, have voting rights as follows: (a) where the association has two hundred members or less, one vote; (b) where the association has more than two hundred members but not more than five hundred members, two votes; (c) where the association has more than five hundred members but not more than one thousand members, three votes; (d) where the association has more than one thousand members but not more than one thousand five hundred members, four votes; and (e) where the association has more than one thousand five hundred members, five votes. ### Election of directors 47 (1) The candidates for directors to be elected by the members of the Corporation shall be the persons nominated therefor by the members of the Corporation and the elected directors shall be those nominated persons who receive the largest number of votes. ### Distribution of votes (2) For the purpose of electing directors, a member of the Corporation with more than one vote may cast its votes in favour of one candidate or distribute them among the candidates in any manner. ## Termination of Membership ### Termination of membership 48 (1) An association shall cease to be a member of the Corporation if (a) the association gives the Corporation notice of its intention to cease being a member at least ninety days prior to the effective date thereof or such longer notice as the by-laws of the Corporation may require; and (b) the association has no outstanding debt owing to the Corporation. ### Records to be returned (2) Where an association ceases to be a member of the Corporation, the Corporation shall, on request therefor, provide the association with all of the Corporation’s records relating to that association. ## Annual Meeting ### Annual meeting 49 The members of the Corporation shall meet at least once a year. ## Liability ### Personal liability 50 No member of the Board, General Manager of the Corporation or officer or employee of the Corporation, or other person acting on behalf of the Corporation, is personally liable for any act done in good faith in the exercise of any of that person’s powers or the performance of that person’s duties and functions or for any default or neglect in good faith in the exercise of any of that person’s powers or the performance of that person’s duties and functions. ## General Stud and Herd Book ### General Stud and Herd Book 51 (1) The Minister may (a) authorize the Corporation to exercise the powers referred to in section 37 in relation to such distinct breeds and evolving breeds as the Minister, applying scientific genetic principles, may designate and for which there is no association; (b) authorize the Corporation to establish a General Stud and Herd Book for the keeping of pedigree records of the distinct breeds and evolving breeds referred to in paragraph (a); and (c) establish rules of eligibility for registration and identification of animals in the General Stud and Herd Book. ### Records to be handed over (2) On the incorporation of an association in respect of a distinct breed or evolving breed referred to in subsection (1), the Corporation shall hand over to the association all records that have been kept in relation thereto. ## Administration ### Inspections 52 (1) The Minister may, at any time, undertake such inspections and examinations of the business and affairs of any association, or of the Corporation, as the Minister deems appropriate, including, without restricting the generality of the foregoing, inspections into and examinations of (a) the manner in which the registration or identification, as the case may be, of animals is carried out by any association or by the Corporation; (b) the manner in which the individual identification of animals is carried out and supervised by any association or by the Corporation; and (c) the private breeding records of any member of an association. ### Right to require information and documents (2) In the course of an inspection or examination pursuant to subsection (1), the Minister may require any person (a) to furnish any information that, in the opinion of the Minister, the person may be able to furnish in relation to the matter being inspected or examined; and (b) to produce, for examination by the Minister, any document, paper or thing that, in the opinion of the Minister, relates to the matter being inspected or examined and that may be in the possession or under the control of that person. ### Return of document, etc. (3) Any document, paper or thing produced by any person pursuant to this section shall be returned to that person by the Minister within ten days after a request is made to the Minister by that person, but nothing in this section precludes the Minister from again requiring its production in accordance with this section. ### Right to make copies (4) The Minister may make copies of any document, paper or thing produced pursuant to this section. ### Right to enter (5) For the purposes of this section, the Minister may, at any reasonable time, enter any premises occupied by any association or by the Corporation and carry out therein an inspection or examination. ### Warrant required to enter dwelling-house (6) Where the premises referred to in subsection (5) are a dwelling-house, the Minister or any person acting on the Minister’s behalf may not enter that dwelling-house without the consent of the occupant except under the authority of a warrant issued under subsection (7). ### Authority to issue warrant (7) Where on ex parte application a justice of the peace is satisfied by information on oath (a) that entry to the dwelling-house is necessary for any purpose related to the carrying out of an inspection or examination, and (b) that entry to the dwelling-house has been refused or that there are reasonable grounds for believing that entry thereto will be refused, the justice may issue a warrant under the justice’s hand authorizing the Minister or a person acting on the Minister’s behalf and named therein to enter that dwelling-house subject to such conditions as may be specified in the warrant. ### Inquiries 53 The Minister may appoint a person to hold an inquiry into the manner in which any association is or has been conducting its business, and every person so appointed has, for the purposes of the inquiry, all the powers of a commissioner under Part I of the Inquiries Act. ### Powers of Minister 54 On the conclusion of an inspection or examination pursuant to section 52 or an inquiry under section 53, the Minister may take, or may, by order, direct any association or the Corporation to take, such action as the Minister considers necessary. ### Directions to associations 55 On being satisfied that an association has for any period failed to conduct its business and affairs in accordance with the provisions of its by-laws or this Act, or has failed for a period of twelve months to carry on its business and affairs, the Minister may, by order, make such direction to the association as seems proper to the Minister in the interest of the association’s purpose. ### Failure to comply 56 Where a direction of the Minister under section 54 or 55 contains a time limit and an association fails to carry out the direction within that time limit, the Minister may take over the property and carry on the business and affairs of the association for such time as the Minister considers appropriate. ## Regulations ### Regulations 57 The Minister may make regulations for carrying out the purposes and provisions of this Act and, without limiting the generality of the foregoing, may make regulations (a) prescribing anything that by this Act is to be prescribed; and (b) respecting the dissolution of associations under this Act. ## Dissolution ### Minister may order dissolution 58 (1) The Minister may, by order, declare the corporate powers of any association to be terminated in any of the following circumstances: (a) where the association has failed to make by-laws in accordance with section 15 within one year after coming into existence; (b) where the Minister is satisfied that the association has failed for any period to conduct its business and affairs in accordance with the provisions of its by-laws or this Act; (c) where the Minister is satisfied that the association has failed for a period of twelve months to carry on business; (d) where the association has failed to carry out any direction of the Minister under section 54 or 55 in the time, if any, specified in the direction; or (e) on petition therefor by the association supported by a resolution to that effect passed by at least two thirds of the members of the association. ### Dissolution in accordance with regulations (2) Where the Minister declares the corporate powers of an association to be terminated, the affairs of the association shall be wound up and the association shall be dissolved in accordance with regulations made pursuant to paragraph 57(b). ### Distribution of assets (3) Where an association is dissolved, any property of the association that remains after the payment of the association’s debts and liabilities shall be transferred to such other association with a similar purpose or to such charity as the Minister may specify in writing. ## Miscellaneous ### Registration on behalf of an association 59 (1) An association may, with the consent of the Minister, authorize any other association to register or identify, on the association’s behalf, the animals of any distinct breed or evolving breed in respect of which the association is incorporated. ### By-laws (2) Where an association is authorized to register or identify animals on behalf of another association, the association shall do so in accordance with the other association’s by-laws relating to registration and identification. ### Ability to contract (3) Nothing in subsection (1) shall preclude any association from entering into any other contract or arrangement for the normal conduct of its business and affairs. ### Notice of meetings and annual report 60 Every association shall send to the Minister (a) at the same time and in the same manner as it sends to its members, notices of meetings setting out proposed amendments to its by-laws; and (b) immediately after each annual meeting, a copy of the annual report, including an audited financial statement, together with a list of the directors and officers of the association and, where the association is a member of the Corporation, the name or names of the association’s voting representatives. ### Registration and other rights 61 Notwithstanding anything in the by-laws of an association, no person shall be denied the right to have registered, to have identified or to transfer the ownership of any animal unless that person (a) is, at the time the right is denied, in arrears of any fees owing to the association; or (b) has contravened (i) a by-law of the association relating to (A) the eligibility for registration or identification, as the case may be, of animals by the association, (B) the individual identification of animals, or (C) the keeping of private breeding records, (ii) any provision of this Act or the regulations, or (iii) any provision of the Health of Animals Act or the regulations thereunder relating to the identification, within the meaning of that Act, or testing of animals. ### Indication of Minister’s approval 62 (1) Where the Minister, on the completion of an inspection or examination pursuant to paragraph 52(1)(a), is satisfied that animals are being registered or identified, as the case may be, by an association in a manner that is acceptable to the Minister, the Minister may authorize the association to show on its certificates that the association’s system of registration or identification, as the case may be, has been approved by the Minister. ### Form (2) An approval referred to in subsection (1) must be in a form satisfactory to the Minister and the Minister may at any time and for any reason order an association to cease using the approval on its certificates. ## Offences ### No person shall keep records 63 (1) Except as authorized by this Act, where an association is authorized by this Act to register or identify animals of a distinct breed or evolving breed, no person shall keep pedigrees in respect of animals of that distinct breed or evolving breed or issue any document purporting to evidence that a particular animal is of that distinct breed or evolving breed or so closely resembling a certificate of registration, or certificate of identification, as the case may be, that it would likely be mistaken for such a certificate. ### No person shall issue document (2) No person shall issue in respect of any animal any document of any kind likely to deceive the public into believing that the document is a certificate of registration or certificate of identification in respect of the animal or that the animal is registered or identified under the authority of this Act. ### Prohibitions 64 No person shall (a) knowingly sign or present, or cause or procure to be signed or presented, to a recording officer of any association or of the Corporation any declaration or application in relation to the registration, identification or transfer of ownership of any animal, semen or embryo that contains any material false statement or representation; (b) knowingly represent that a certificate of registration or certificate of identification applies to an animal other than the one in respect of which it was issued; (c) knowingly represent that a semen certificate or embryo certificate applies to any semen or embryo other than the semen or embryo in respect of which it was issued; (d) falsify or alter any certificate of registration, certificate of identification, semen certificate or embryo certificate; (e) without an express statement that the animal’s registration or identification is from a jurisdiction other than Canada, offer to sell, contract to sell or sell, as registered or identified, or as eligible to be registered or identified, within or outside the meaning of this Act, any animal that is not registered or identified, or eligible to be registered or identified; (f) offer to sell, contract to sell or sell, as recorded, or as eligible to be recorded, in the books of any association, or of the Corporation, any semen or embryo that is not recorded or eligible to be recorded in those books; (g) knowingly offer to sell, contract to sell or sell any animal in a manner that is likely to create an erroneous impression that the animal is registered or eligible to be registered; (h) offer to sell, contract to sell or sell, as a purebred of a breed, any animal that is not registered or eligible to be registered as a purebred by the association authorized to register animals of that breed or by the Corporation; (i) without an express statement that the animal’s registration, identification or status as a purebred is from a jurisdiction other than Canada, offer to sell, contract to sell or sell, as registered or identified, or as a purebred, any animal for which there is no individual identification in accordance with the by-laws of the association that has registered or identified the animal; and (j) without an express statement that the animal’s registration, identification or status as a purebred is from a jurisdiction other than Canada and that the animal will not be registered or identified in Canada by the person, sell, as registered or identified, or as eligible to be registered or identified, or as a purebred, any animal without providing to the buyer thereof within six months after the sale the animal’s duly transferred certificate of registration or certificate of identification. ### Unlawful use of names 65 No person shall, without lawful authority, use the name of the Corporation or the name of any association or any name so clearly resembling the name of the Corporation or the name of an association in a manner that is likely to deceive the public. ### Offence and punishment 66 (1) Any person who contravenes any provision of this Act or the regulations (a) is guilty of an offence punishable on summary conviction and liable to a fine not exceeding twenty-five thousand dollars; or (b) is guilty of an indictable offence and liable to a fine not exceeding fifty thousand dollars. ### Value to be considered (2) In determining the fine in relation to an offence under any of sections 63 to 65, the judge making the determination shall take into account the value, or purported value, of the animal, semen or embryo to which the offence relates. ### Time for complaint 67 The provisions of the Criminal Code prescribing a time limit for making a complaint or laying an information in respect of offences punishable on summary conviction do not apply to proceedings in respect of an offence under this Act. ## Existing Associations ### Application 68 (1) The provisions of this Act apply to every association to which the Livestock Pedigree Act applied immediately before the coming into force of this Act. ### Deemed articles of association (2) The application filed with the Department of Agriculture of every association referred to in subsection (1) is deemed to constitute the association’s articles of incorporation for the purposes of this Act. ### Deemed authority 69 Subject to sections 70 to 73, every association referred to in section 68 is deemed to be authorized to register or identify animals of the distinct breeds referred to in its articles of incorporation. ### Examination of existing associations 70 Forthwith after the coming into force of this Act the Minister shall examine the articles of incorporation of every association referred to in section 68 in order to determine whether each such association may properly continue in existence by reason of sections 3 to 5. ### Situation of animal not covered by Act 71 (1) Where, in the course of the examination referred to in section 70, the Minister determines that the animals referred to in an association’s articles of incorporation are not of a distinct breed or of an evolving breed, the Minister shall, by order, direct the association to cease issuing certificates of registration in respect of those animals. ### Order of dissolution (2) Where the articles of incorporation of an association that is the subject of an order under subsection (1) refer only to the animals referred to in the order, the Minister shall, by order, direct the association to be dissolved in accordance with regulations made pursuant to paragraph 57(b). ### Situation of animal not of distinct breed 72 (1) Where, in the course of the examination referred to in section 70, the Minister determines that the animals referred to in an association’s articles of incorporation are not of a distinct breed but are of an evolving breed, the Minister shall, by order, direct the association to cease issuing certificates of registration in respect of those animals. ### Notification (2) Where the Minister issues an order under subsection (1), the Minister shall forthwith cause the association that is the subject of the order to be notified by registered mail that the Minister intends to dissolve the association unless the association files, within 60 days after the date of the mailing of the notice, articles of amendment to transform the association into an association incorporated in respect of the evolving breed. ### Situation of more than one association 73 (1) Where, in the course of the examination referred to in section 70, the Minister determines that the articles of incorporation of more than one association refer to the same distinct breed, the Minister, taking into account the purposes of this Act and any other consideration the Minister deems appropriate, shall, by order, designate one of the associations as the association authorized to register the animals of the breed and direct the other association, or associations, as the case may be, to cease issuing certificates of registration in respect of animals of that breed. ### Order of dissolution (2) Where the articles of incorporation of an association that is the subject of an order under subsection (1) directing it to cease issuing certificates of registration in respect of animals of a distinct breed refer only to that distinct breed, the Minister shall by order direct that the association be dissolved in accordance with regulations made pursuant to paragraph 57(b). ### Publication of names 74 As soon as practical after the examination referred to in section 70 the Minister shall cause to be published in the Canada Gazette the name of every association referred to in section 68 that, in the opinion of the Minister, may properly continue in existence and the name of each distinct breed and evolving breed in respect of which each such association is authorized to register and identify animals. ## Transitional ### By-laws 75 (1) The by-laws of an association referred to in section 68 that are in force immediately before the coming into force of this Act remain in force until repealed but the provisions of this Act dealing with the amendment or repeal of by-laws apply thereto. ### Validity of certificates of registration (2) Nothing in subsection 29(3) affects the validity of any certificate of registration issued by an association referred to in section 68 before the coming into force of this Act. ### Status of existing purebreds not affected (3) Nothing in subsection 30(2) affects the status of any animal registered as purebred by an association referred to in section 68 before the coming into force of this Act. ## Repeal 76 [Repeal] ## Coming into Force ### Coming into force * 77 This Act shall come into force on a day to be fixed by proclamation. * [Note: Act in force July 1, 1988, see SI/88-124.]", "response": "## Analysis of LEGISLATION-FED: Animal Pedigree Act\n\n### Purpose and Context\nThis legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.\n\n### Key Provisions\nThe document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.\n\n### Application to Immigration Cases\nWhen applying this legislation to immigration cases, practitioners should consider both the explicit requirements and the underlying policy objectives. The provisions must be interpreted in light of the Canadian Charter of Rights and Freedoms, international obligations, and relevant jurisprudence. Particular attention should be paid to procedural fairness requirements and the proper exercise of discretionary authority."}
{"prompt": "How does this Federal Court of Appeal of Canada decision affect immigration jurisprudence?\n\ndTechs EPM Ltd. v. British Columbia Hydro and Power Authority Court (s) Database Federal Court of Appeal Decisions Date 2023-05-26 Neutral citation 2023 FCA 115 File numbers A-121-21 Notes A correction was made on June 1, 2023 Decision Content Date: 20230526 Docket: A-121-21 Citation: 2023 FCA 115 CORAM: GAUTHIER J.A. MACTAVISH J.A. LEBLANC J.A. BETWEEN: DTECHS EPM LTD. Appellant and BRITISH COLUMBIA HYDRO AND POWER AUTHORITY AND AWESENSE WIRELESS INC. Respondents Heard at Calgary, Alberta, on October 27, 2022. Judgment delivered at Ottawa, Ontario, on May 26, 2023. REASONS FOR JUDGMENT BY: GAUTHIER J.A. CONCURRED IN BY: MACTAVISH J.A. LEBLANC J.A. Date: 20230526 Docket: A-121-21 Citation: 2023 FCA 115 CORAM: GAUTHIER J.A. MACTAVISH J.A. LEBLANC J.A. BETWEEN: DTECHS EPM LTD. Appellant and BRITISH COLUMBIA HYDRO AND POWER AUTHORITY AND AWESENSE WIRELESS INC. Respondents REASONS FOR JUDGMENT GAUTHIER J.A. [1] This is an appeal from a judgment of the Federal Court (per Fothergill J.) dismissing dTechs EPM Ltd.’s (dTechs) claim for infringement of its Canadian patent No. 2,549,087 (the 087 Patent) against the respondents British Columbia Hydro and Power Authority (BC Hydro) and Awesense Wireless Inc. (Awesense). The Federal Court also declared the claims at issue invalid on the grounds of anticipation and obviousness. [2] This matter is somewhat unusual in that originally, the appellant was contesting almost all of the conclusions of the Federal Court in respect of the construction of the 087 Patent, the validity of the claims, and the findings of non-infringement. However, since the original filing of the notice of appeal, the appellant’s position has changed based on new evidence obtained in the context of the assessment of BC Hydro’s costs (expert working agreement and invoices), which it was granted leave to file by a motion judge of this Court. The appellant was also granted leave to amend this notice of appeal to include that the Federal Court erred in admitting or giving any weight to the evidence of BC Hydro’s expert. [3] In its memorandum of fact and law, and before us, the appellant effectively abandoned all of the other grounds of appeal listed in its amended notice of appeal. Its position is now premised entirely on the proposition that the evidence of BC Hydro expert’s should have been excluded or given no weight because he did not provide independent expert evidence. If so, the appellant contends that it would have succeeded at trial. On that basis, the appellant seeks a judgment of this Court granting the infringement action in its favour and declaring the asserted claims valid, or, alternatively, an order directing a new trial, subject to strict conditions, namely that the parties be precluded from adducing new expert evidence. In both cases, the appellant seeks all the costs incurred below, as well as the costs in the present appeal. [4] At the outset of the hearing, counsel for the appellant made it very clear that he agreed that the role of this panel was limited to two questions: a)Whether the new evidence (i.e. working agreement and invoices of BC Hydro’s expert) has sufficient probative value to support the appellant’s position that the evidence of BC Hydro’s expert was inadmissible or should have been given no weight whatsoever; b)If so, whether in light of the other evidence adduced at trial, such a finding might have led to the granting of the infringement action and the dismissal of the defence and counterclaims based on invalidity. [5] It was also agreed that in respect of the second question, this Court was to take into account the legal and factual findings of the Federal Court that were unaffected by the evidence of BC Hydro’s expert, for these were no longer contested per se on this appeal. Obviously, this also means that these reasons should not be construed as confirming these findings as this is not our task in this appeal. [6] After the hearing, the appellant seemingly changed its mind as to this Court’s role in this appeal, which it now says is limited by the Supreme Court’s decision in R v. Stolar, [1988] 1 S.C.R. 480 (Stolar) and the order of the motion judge in this case. I deal with this argument at paragraphs 20-31 of these reasons. [7] In the end, this matter requires the application of known principles to a very unusual set of facts. It illustrates how care must be taken in dealing with a motion for leave to file new evidence before this Court, so that there is no misunderstanding as to the impact of an eventual order by a motion judge granting such leave. It also emphasizes the need for lawyers involved in patent cases to thoroughly consider and assess the admissibility of an expert report before this evidence is actually admitted at trial or, at the very least, before the end of the testimony of said expert. [8] It is also important to immediately clarify that dTechs’ decision not to pursue its other grounds of appeal has a direct impact on its ability to succeed against Awesense. By the end of the trial, the appellant’s claim against this respondent was solely based on allegations of indirect infringement through inducement or common design. In light of the specific findings in the Federal Court’s decision (the FC Decision) at paragraphs 176 to 179, the new evidence can have absolutely no bearing whatsoever on the liability of this respondent/defendant. Consequently, the appeal in respect of the infringement action against Awesense ought to be dismissed. [9] As will be explained in these reasons, I would also dismiss the appeal in respect of the infringement action against BC Hydro. However, I would allow the appeal as it relates to the declaration of invalidity sought in the counterclaims in respect of dependent claim 4 because of the potential impact of the new evidence on the Federal Court’s findings regarding that claim. Should BC Hydro decide to pursue its counterclaim with respect to dependent claim 4 on the grounds of anticipation or obviousness, or on any other grounds the Federal Court did not deem necessary to rule on, it will have to do so by way of a new trial before the same judge. Moreover, as the new evidence is not conclusive of anything other than the fact that Mr. Shepherd did not write the first drafts of his reports, it will be for the Federal Court to determine its impact on the weight of Mr. Shepherd’s evidence, if any, on the issues that need to be redetermined. [10] The judgment before us did not award costs. It left this matter to be determined in a distinct order. In fact, costs were awarded and instructions were given as to how they were to be assessed in an order (per Fothergill J.), dated April 22, 2021 (2021 FC 357). The awarding of costs involved various matters, including the application of Rule 420 of the Federal Court Rules, SOR/98-106 (the Rules). The final costs were assessed by an assessment officer in a confidential order, dated May 11, 2022. None of these orders were appealed. In the circumstances, I cannot see on what basis this Court could deal with the issue of the costs in the Federal Court. I. Background [11] The 087 Patent is entitled “Electrical Profile Monitoring System for Detection of Atypical Consumption” and relates generally to “monitoring usage of utilities, such as electrical, for alteration in normal patterns of consumption of utilities and, more specifically, to a system of detection of patterns indicative of theft of electrical utilities, such as in the indoor cultivation of marijuana”. All the claims are directed to methods; none cover an apparatus. The appellant is the owner of the 087 Patent issued on January 20, 2009. The appellant’s application was published on August 10, 2007. Mr. Morrison, a former sergeant with the Calgary Police Service, is the inventor listed therein. He is the founder of dTechs, which he incorporated on May 24, 2006. How he came to develop his invention is described at paragraphs 90 to 100 of the FC Decision. [12] BC Hydro is a Crown corporation and electrical utility, and Awesense is a start-up company that supplied the wireless ammeters and energy meters to BC Hydro that were used on the primary supply line, together with supporting software. As mentioned, by the end of the trial, the appellant claimed that while Awesense does not perform any of the steps included in the methods described in the 087 Patent, it is liable for inducing or procuring its customers to infringe the 087 Patent. It also alleged that Awesense is liable under the doctrine of common design. [13] Each party relied on the following expert evidence: i) dTechs’ expert was Mr. LaPlace; ii) BC Hydro’s expert was Mr. Shepherd; and iii) Awesense’s expert was Mr. Bennett. These experts opined on issues related to the construction of the claims in issue, including identifying the person of ordinary skill in the art (POSITA) to whom the patent is addressed and the relevant common general knowledge (CGK), as well as on infringement. Only Mr. Shepherd and Mr. LaPlace provided evidence on issues related to the validity of the claims. [14] The admissibility of the reports of the above-mentioned experts was not challenged at any time before the FC Decision was issued. In fact, the reports of all three experts were filed on consent, and they were qualified to opine on the matters contained in their reports. [15] However, as noted by the Federal Court, each party made criticisms regarding the qualifications or approaches of the expert witnesses tendered in these proceedings to diminish the weight that should be attributed to their evidence. The Court found that while some of these criticisms were valid, none of them were sufficient to undermine any of the witnesses’ evidence in their entirety. At paragraph 89 of the FC Decision, the Court indicated that its reasons for preferring some witnesses’ evidence over others were explained therein. [16] The Federal Court held that neither BC Hydro nor Awesense, individually or together, had infringed the asserted claims of the 087 Patent. It found that there was no evidence that BC Hydro compares metered consumption on the primary supply line with known consumption patterns, i.e., historical or predicted consumption patterns, an essential element of independent claims 1 and 21 (FC Decision at paras. 174-175). It also found that Awesense i) did not itself infringe the asserted claims, as it did not perform any of the steps of the method described in the 087 Patent, ii) exercised no control over the manner in which BC Hydro used its software, and iii) that there was no evidence that Awesense ever induced BC Hydro to infringe the asserted claims, or to support an allegation of infringement by common design (FC Decision at paras. 177-179). [17] The Federal Court found that BC Hydro’s prior use, established through the testimony of lay witnesses, would have infringed the 087 Patent (FC Decision at paras. 186-203). It concluded that this use anticipated all the claims still at issue at the end of the trial, except for dependent claims 4 and 22. The Court also found that two publications, referred to as the OLO Reference and the De Reference, anticipated most of the asserted claims. However, only the De Reference was found to anticipate claim 4. Finally, the Federal Court found that all the asserted claims were obvious. [18] At this stage, there is no need to say more about the FC Decision, which is more than 80 pages long. I will refer to the most relevant portions in my analysis. It is nevertheless important to note that the Federal Court’s construction of the terms “known consumption patterns”, part of an essential element of all the claims at issue, was critical to its ultimate conclusions. Indeed, this construction was ultimately what led the Federal Court to conclude that BC Hydro does not infringe the 087 Patent. II. Claims [19] All the claims that were originally at issue are reproduced in the FC Decision at paragraphs 47 to 71. For the sake of understanding the present reasons, I need only to reproduce claims 1, 4 and 22 of the 087 Patent: 1. A method for detection of atypical electrical consumption patterns comprising: providing a meter for detecting consumption of electricity from a utility; connecting the meter to a primary supply line, the primary supply line supplying electricity to a plurality of transformers, each transformer feeding the electricity to a plurality of structures, the meter having a resolution for detecting variation from known consumption patterns in the primary supply line; monitoring the primary supply line at predetermined time intervals for consumption of electricity; collecting data for determining measures indicative of patterns of consumption; comparing the patterns of consumption to known consumption patterns for identifying suspect consumption patterns; and when a suspect consumption pattern is identified, notifying the utility of the identified suspect consumption pattern in the primary line, the utility thereafter monitoring characteristics of the plurality of transformers for identifying a suspect transformer; and load testing at least one of a plurality of secondary lines from the suspect transformer to each of the plurality of structures for identifying a suspect structure. 4. The method of claim 1, 2 or 3 further having a smart meter connected to secondary lines at each structure for determining consumption at each of the structures, the method further comprising: comparing electrical supply at the primary supply line to a sum of the consumption at all of the secondary lines for reconciling consumption to supply. 22. The method of claim 21 wherein the monitoring characteristics of the plurality of transformers further comprises: notifying a monitoring agency of the suspect consumption pattern in the primary line, wherein the monitoring agency then monitors characteristics of the plurality of transformers. [my emphasis] III. The Motion to Amend the Notice of Appeal and to File New Evidence [20] The appellant brought a motion in writing seeking an order admitting the working agreement and invoices of BC Hydro’s expert for consideration on this appeal for the purpose of establishing that this expert was not independent, and to amend the notice of appeal to include the ground that the Federal Court erred in admitting or giving any weight to the evidence of Mr. Shepherd. It requested that the admissibility of the new evidence be determined by the panel hearing the appeal on the merits in the context of all evidence from the trial and full argument on the merits of the ground of appeal. BC Hydro opposed the appellant’s request, arguing that the motion should be disposed of by a motion judge prior to the hearing as it would determine the scope of the issues and grounds of appeal it would need to address in the appeal. In the respondent’s view, there was no reason to treat this motion other than in writing, as per Rule 369.2 of the Rules. According to the appellant, granting BC Hydro’s request to dismiss the motion on an interlocutory basis would end the appeal, as this this was the sole remaining ground argued in the appellant’s memorandum of fact and law. dTechs never raised the issue that the motion judge would be binding the panel hearing the appeal on its merits, as argued in its post-hearing submissions on the basis of Stolar. [21] The motion judge appears to have sought to satisfy all the parties by immediately allowing the appellant to advance this new ground of appeal. In order to do so, he had to conclude that the appeal on this new ground was not bound to fail. This could only be so if the new evidence the appellant was seeking to rely on was admitted for consideration by the panel hearing the merits of the appeal. However, the motion judge appears to have had some difficulty with the second issue of whether he could admit the evidence on the basis of the record before him, especially considering that the appeal book had not yet been filed, and that Awesense had argued that the evidence of its own expert, Mr. Bennett would have to be considered, even if the expert evidence of Mr. Shepherd was excluded or given no weight. [22] It is worth recalling at this stage that the fourth criterion of the test for admitting new evidence on appeal stated in Palmer v. The Queen, [1980] 1 S.C.R. 759 (Palmer) at page 775, involves determining, once the evidence meets the first three criteria, whether “when taken with the other evidence adduced at trial”, this evidence might have affected the result of the trial [my emphasis]. [23] Thus, although the motion judge purported to apply the Palmer test, he did what motion judges of this Court usually do when dealing with such motions. While it could have been stated more clearly, he simply considered whether in theory the new evidence could have reasonably affected the result of the trial, focusing on its relevance as to the admissibility and weight of BC Hydro’s expert evidence. [24] Obviously, a motion judge cannot usurp the role of the panel hearing the appeal on its merits by looking at each finding of the trial court, and the supporting evidentiary record to determine how this new evidence might actually affect each of them. That is simply not the role of a motion judge. [25] That is the context in which the motion judge stated that whether the new evidence will be sufficient to support the appellant’s claim goes to the merits of the appeal and is best left to the panel which will hear it. He also noted that whether, on the basis of the new evidence, the credibility of BC Hydro’s expert had been undermined such that his evidence should have been held inadmissible or should have been given much less weight was also a matter for the appeal panel to determine. [26] Even more importantly, the motion judge clearly stated that “[w]hether the Federal Court’s decision would have been the same and its ultimate findings undisturbed had BC Hydro’s expert credibility been impugned is a matter best left to the panel hearing the appeal”. [27] It is also worth noting that the rules of procedure and/or the case law of most provincial courts of appeal clearly spell out that motions to admit new evidence on appeal should only be heard by a panel or the panel hearing the merits of the appeal. In Quebec, the statutory requirement that the new evidence be indispensable (article 380 of the Code of Civil Procedure, C.Q.L.R. c. C-25.01) has been construed in a manner consistent with the Palmer test. Only a panel can deal with such a motion, and it is common practice for said panel to allow the evidence to be included in the appeal record, and to defer to the panel hearing the merits of the appeal the determination on its admissibility and impact—akin to the approach taken by the motion judge in the present case (Syndicat des copropriétaires du Square Champlain II c. Syndicat des copropriétaires du Samuel de Champlain, 2018 QCCA 1538; Duscheneau c. Ville de Montréal, 2019 QCCA 1955; Simon c. Haccoun, 2020 QCCA 64). [28] Despite my view that this submission was improperly made after the hearing (see paragraph 38), I ought to say the following. The appellant’s assertion, based on Stolar, that the motion judge’s order binds this panel and limits its remedy-granting ability to either granting the appeal and entering judgment in favour of the appellant, or ordering a new trial on all issues is ill-founded. The two-step process described in Stolar (in the context of a criminal trial) cannot be directly applied in cases like this one, where the motion to file new evidence was dealt with by a single motion judge, without the benefit of all the evidence adduced at trial, and where the proposed new evidence was tendered in support of a new ground of appeal that did not have a clear bearing on all of the Federal Court’s findings and the ultimate outcome of the trial. To construe it otherwise would defy the logic of the Supreme Court’s teachings in Stolar. [29] As a matter of practice in this Court, motion judges are normally expected to deal with more obvious cases where, for example, the new evidence proposed does not meet the first three criteria of the Palmer test, or where the interests of justice warrants the exercise of a motion judge’s residual discretion to include it in the record, subject to a determination of the impact of that evidence on the findings of the trial court by the panel hearing the merits, informed by a comprehensive appeal record. There is no precedent from this Court for limiting the remedies that may be granted by the appeal panel in light of a motion judge’s order admitting new evidence. [30] I agree with the appellant that the motion judge properly made a final determination as to whether the appellant met the first criteria of the Palmer test, i.e., due diligence. In that respect, this Court is not sitting in appeal of this determination. There was no dispute that the new evidence, per se, was not in the possession of dTechs. The argument raised by the respondents was whether the appellant should, in any event, have fully canvassed the issue of how the report was prepared during the trial. [31] In the circumstances, I nevertheless ought to include some general comments regarding the particularities of expert evidence in patent cases. A. General Comments [32] In patent cases, it is not unusual for expert reports to be prepared in close collaboration with counsel in an effort to present the substantive opinion of the expert in a manner and format that is helpful to the Court in light of the complexity of the issues raised. Here, I am not only referring to the technical issues, per se, but to the complex questions that need to be answered because of the particular role of experts in patent cases. It is very rare indeed that technical experts will know how to present a claim analysis or be familiar with the legal principles applicable to matters such as claim construction, anticipation or obviousness. [33] As a practical matter, it is known that extensive notes are taken during meetings with experts to help prepare the draft reports, and that counsel are actively involved in putting these reports together. This does not inevitably mean that those drafts do not reflect the substantive and objective opinion expressed by the expert during those meetings. The preparation of those reports is often a long, tedious, and iterative process. It is obviously a difficult task for counsel to ensure that the independence and credibility of the expert is not diminished by this well-known and necessary practice in this particular field. I must reiterate that I am only dealing with patent cases here. [34] I agree with the appellant that there are, however, limits to the involvement of counsel. The Court must ultimately be presented with the substantive and objective opinion of the expert. This is why experts are very clearly put on notice of their duty towards the Federal Court when they agree to abide by the Code of Conduct for Expert Witnesses. I know of no cases where an expert report was excluded in a patent case on the sole ground that the first draft of said report was penned by counsel after meetings with the expert to discuss their opinions in detail. While counsel may make mistakes and overstep the bounds of what is permissible involvement, this will normally be revealed on cross-examination at trial, and will be considered by trial courts in assessing the evidence (Medimmune Ltd. v. Novartis Pharmaceuticals UK Ltd., [2011] EWHC 1668 (Pat.) (Medimmune). [35] Thus, litigators involved in patent cases ought to be alert and alive to their duty to verify whether those limits were infringed by obtaining, through cross-examination, the information necessary for the Court to assess if the opinion presented by the expert is truly their own objective opinion. [36] As noted in Moore v. Getahun, 2015 ONCA 55 at paragraph 61 (Moore) (citing Medimmune at para. 111), partisan expert evidence is almost always exposed as such in cross-examination. In patent cases, often, a simple review of the structure and wording of the report or the answers given in cross-examination will give an air of reality to the suggestion that counsel improperly influenced an expert witness. [37] The interest of justice and its proper administration would not be served if one could simply wait to review an expert’s invoices after the trial to argue that a new trial should take place on the basis of information contained therein. Naturally, there may be exceptional cases but these should be rare. B. Post-hearing submissions [38] Turning back to the appellant’s submissions after the hearing of this appeal, a few observations are in order. This Court never asked for submissions like those filed by the appellant after the hearing. It asked the parties to provide additional authorities (highlighted copies of cases only) where courts of appeal have admitted new evidence tendered in support of an alleged error on an issue that was not raised before the trial court (here, the inadmissibility of this expert’s reports). It made it very clear that it did not want to receive any written submissions, and the parties agreed. Despite this Court’s express instructions, dTechs took this as an opportunity to put forward a novel position, one that is entirely contrary to that expressed at the hearing, by filing 9 pages of written submissions titled “Remedies”, in which it even went so far as to request that the new trial be before a different judge, a remedy it had never raised. It did so under the pretext that, in its view, our request indicated that the Court was asking itself the wrong question. While I understand the passion with which litigators defend their client’s position, especially when the deficiencies in that position are revealed at the hearing, I simply cannot condone such practices. Therefore, I will consider this appeal on the basis of the appellant’s position as presented in its memorandum and at the hearing. IV. The issues [39] In the present circumstances, there are only two issues properly before us: Whether the new evidence has sufficient probative value to support the allegation that the evidence of BC Hydro’s expert was inadmissible or should have been given no weight (new ground of appeal); If so, whether, in light of the other evidence adduced at trial, it might have led to the granting of the infringement action and the dismissal of the invalidity allegations. V. Analysis A. Nature and probative value of the new evidence [40] As mentioned, the new evidence consists of a working agreement signed by Mr. Curtis E. Falany, the President of J.B. Shepherd & Company, Inc. (J.B. Shepherd), for the services of Mr. Brad Shepherd as an expert witness, and the related invoices describing the work completed in fulfilment of said agreement between April 14, 2020 and November 25, 2020. [41] There is no reason to doubt the veracity and the credibility of these documents. dTechs alleges that this evidence supports its allegation that Mr. Shepherd was not an independent and unbiased witness because he did not author his reports, and that the involvement of Mr. Falany indicates that the reports may have been ghostwritten by him. [42] From the first document, it is clear that the expert whose opinions are to be provided was Mr. Shepherd. The agreement expressly states that: J.B. Shepherd & Company, Inc. represented by Brad Shepherd (Expert), understands that Client is interested in obtaining Expert’s honest, independent expert opinion on matters at issue in the dispute. Expert understands that Expert has an overriding duty to assist the Court impartially on matters relevant to Expert’s area of expertise, and that this duty overrides any duty to Client or to Client’s client. Expert agrees to abide by and to execute the Federal Court of Canada’s Expert Code of Conduct, a copy of which the Client will provide the Expert. [43] Mr. Shepherd did review this Code of Conduct and sign the certificate referred to at Rule 52.2 of the Rules. [44] Turning to the invoices, there are indeed no time entries which explicitly relate to the actual writing of the first drafts of these reports by Mr. Shepherd following Zoom meetings with BC Hydro’s counsel. There are many entries indicating that Mr. Shepherd read, reviewed, and commented on the first drafts of the reports he received, in addition to researching and reviewing various documents provided by counsel. There are also no entries for any writing by Mr. Falany either. [45] Considering that the drafts revised by Mr. Shepherd were received after various Zoom conferences with BC Hydro’s counsel, the only reasonable inference that might be made is that the drafts were penned by said counsel after discussing the matters at issue with Mr. Shepherd. [46] The time entries are consistent with the way Mr. Shepherd describes how he performed his mandate in each of his reports. See for example, paragraphs 12 to 16 of his report on construction and validity, where he describes how he sequentially reviewed documents provided by counsel, and the answers he provided to the specific questions he was asked by counsel, as well as the headings under which they can be found in the report (Shepherd Report on Construction and Validity, Appeal Book, Vol. 2, Tab 136, pp. 4128-4129). [47] dTechs admitted that the role of Mr. Falany in drafting the report or in forming the ultimate opinion is not known (Appellant’s Memorandum at para. 150). Nonetheless, the appellant theorizes that Mr. Falany’s presence at those conferences indicates that he may have ghostwritten or co-authored the reports. Such a proposition is not supported by the invoices, and is nothing more than mere speculation. I can think of many reasons why Mr. Falany, as the President of this American company, would choose to attend those meetings with the client and not bill for his time. For example, his firm would benefit from a better understanding of the particularities of patent files, as this would appear to have been a new type of litigation for the firm. However, Mr. Falany signed a contract, which clearly stipulates that it is the expertise and opinion of Mr. Shepherd alone that BC Hydro was paying for. [48] Mr. Falany’s attendance at the Zoom conferences between Mr. Shepherd and BC Hydro’s counsel would be insufficient to support a reasonable inference by a trial judge that he ghostwrote the reports. [49] In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, the Supreme Court of Canada enunciated the principle that it is only in clear cases where the proposed expert is unable or unwilling to comply with the duty to give fair, objective and non-partisan opinion evidence that concerns raised by the opposing party will go to admissibility. Anything less than clear unwillingness or inability to do so will go to the weight of the evidence of that expert. [50] Although the Supreme Court was dealing with a question of independence based on bias, it also rejected, at paragraph 61, the argument that the expert in that case was not independent because she had incorporated some of the work done by others in her firm. [51] Though he may not have written the first drafts of these reports, it is clear from his cross-examination that Mr. Shepherd did consider the opinions expressed therein as his own. I see nothing in the invoices that could support a reasonable inference that Mr. Shepherd’s reports, as signed and presented to the Court, do not represent his objective and non-partisan opinions. [52] As mentioned earlier, for at least 20 years, this Court has acknowledged that it is not unusual, in patent cases, for counsel to prepare the first draft of an expert’s affidavits or statements (Janssen Pharmaceutica Inc. v. Apotex Inc. (C.A.), 2001 FCA 247 at para. 53). Contrary to the appellant’s contention at the hearing, expert affidavits are no different than the reports before us. In fact, the Rules use the terms “affidavit” or “statement” to refer to such evidence, even though they are commonly referred to as reports. [53] Even the Ontario Court of Appeal recognized the need, in some highly technical areas such as patent law, for a high level of instruction by the lawyers to expert witnesses, which may require a high degree of consultation involving an iterative process through a number of drafts (Moore at para. 55). [54] I note that although the technology was not particularly complex and Mr. Shepherd had acted as an expert witness in a number of civil cases in the United States, he had no experience whatsoever in patents cases either in Canada or in the United States. Therefore, he would clearly need guidance in order to answer the particular type of questions an expert is expected to address in patent cases (see paragraph 32 above). [55] The Federal Court could not conclude that there was a reasonable basis for refusing to admit Mr. Shepherd’s expert evidence simply because the first drafts of his reports were penned by counsel after many hours of consultation with him. [56] The Federal Court could have, however, considered whatever argument dTechs might have raised regarding the drafting of the reports when assessing the weight to be given to this evidence, in which case it would have assessed the validity of such arguments having the benefit of the oral evidence given by this expert witness. The weight to be given to Mr. Shepherd’s evidence is not a matter for this Court to determine. [57] However, the conclusion that the new evidence might have had an impact on the weight given to Mr. Shepherd’s expert evidence does not end the inquiry. This Court must determine whether, based on the other evidence adduced at trial, the distinct findings and conclusions of the Federal Court would remain unchanged, such that the outcome of the trial would not be affected. [58] For the purpose of this determination, I will assume the best scenario possible for dTechs—that is, that no weight would have been given to any of Mr. Shepherd’s evidence. This should not be construed to mean that I do in fact think that in the present circumstances, it should or would likely have been given no weight. B. Considered in light of the other evidence adduced at trial, could the Federal Court have been led to the granting of the infringement action and the dismissal of the allegations of invalidity? [59] In this portion of the analysis, I will review the potential impact of giving no weight to Mr. Shepherd’s evidence on three distinct issues. First, on the construction of the words “known consumption patterns”, which is relevant to all the asserted claims. Second, on the Federal Court’s finding of non-infringement by BC Hydro and Awesense. Third, on the Federal Court’s conclusions with respect to anticipation by prior use, and on the conclusion that the De Reference anticipated claims 4 and 22. Finally, if necessary to dispose of this appeal, I will comment on the findings as to obviousness in respect of these two claims. [60] Before doing so, I must first deal with dTechs’ argument regarding construction and infringement, that the Federal Court would have had no choice but to accept the evidence of its own expert, Mr. LaPlace. This argument is based on dTechs’ submission that the Federal Court could not give any weight whatsoever to the evidence of Awesense’s expert, Mr. Bennett, who also opined on matters relating to construction and infringement. It would thus have had to rely on and accept Mr. LaPlace’s evidence as to the meaning of “known consumption patterns”. [61] dTechs’ arguments can essentially be summarized as follows: Mr. Bennett was not an independent expert because he merely agreed with the opinion of Mr. Shepherd. Without Mr. Shepherd’s evidence, Mr. Bennett’s evidence would have carried no weight. I cannot agree. [62] First, a simple review of Mr. Bennett’s report indicates that this is an inaccurate description of Mr. Bennett’s evidence. Moreover and importantly, the argument that Mr. Bennett’s evidence should be given no weight because he simply agreed and relied on the opinion of Mr. Shepherd was raised before the Federal Court. The Federal Court did not find it sufficient to give no weight to Mr. Bennett’s evidence; instead, it clearly considered and relied on Mr. Bennett’s evidence (see for example FC Decision at para. 132). [63] Second, Mr. Bennett’s report was filed on August 26, 2020, after both Mr. LaPlace and Mr. Shepherd had filed their own main reports. It was responding to Mr. LaPlace’s reports on construction and infringement. [64] The Code of Conduct for Expert Witnesses to which Mr. Bennett agreed to abide (Rule 52.2(1)(c)), provides that the expert has an overriding duty to assist the Court impartially on matters relevant to his or her area of expertise. It also states at paragraph 3(f) that the expert’s report shall include: [I]n the case of a report that is provided in response to another expert’s report, an indication of the points of agreement and of disagreement with the other expert’s opinions; [65] Although strictly speaking, Mr. Bennett was not responding to Mr. Shepherd’s report on construction, it is evident that he had been provided with that report, and tried to express his agreement and disagreement with the opinions contained therein, as noted at paragraph 17 of his report (Bennett Report, Appeal Book, Vol. 2, Tab 146, p. 6099). It is easy to understand the benefit of including this same kind of information about this other expert’s view in his report. In fact, it is best practice to do so. [66] The Rules were amended in 2010 to include Rule 52.6, which ensures that when matters on which there is disagreement are not made sufficiently clear in the expert reports, the Courts could ask all the experts to meet in order to narrow the issues and identify points on which their views differ. There is no doubt that in patent cases it is necessary for trial judges to understand where experts agree and disagree, especially when determining the content of the CGK of the POSITA and the construction of the technical terms in the asserted claims. This is why it is important for experts to be as clear as possible in that respect in their reports. [67] That said, the Federal Court made its own assessment as to the weight to be given to Mr. Bennett and Mr. LaPlace’s evidence. It was open to the Federal Court to select which aspects of the experts’ evidence it favoured, based on its own analysis of the claims. In this case, it is clear that the Federal Court did not accept in its entirety any of the expert’s evidence in respect of construction. As noted in Tensar Technologies, Limited v. Enviro-Pro Geosynthetics, Ltd., 2021 FCA 3 (Tensar Technologies) at paragraph 33, I know of no authority, and the appellants cited none, that would suggest that the trial judge was obliged to follow the entirety of the evidence of one party or the other, and could not reach his own conclusion, especially in respect of matters of law like claim construction to which I now turn. (1) Construction of “known consumption patterns” in the claims [68] It is important to recall that the construction of claims is ultimately a matter of law, and that the role of experts in that respect is more limited than the one suggested by dTechs in this case. [69] Although the Federal Court in this case did not have the benefit of our Court’s decision in Biogen Canada Inc. v. Pharmascience Inc., 2022 FCA 143, I believe that it is worth reproducing the following paragraphs: [72] As noted in Whirlpool at paragraph 49(e), interpreting a patent is like interpreting a regulation. Purposive claim construction involves looking at words of the claims in context. This includes in the claims individually and as a whole, considering their purpose as well as the description. As noted by the Federal Court, the entire patent must be considered, but adherence to the claim language allows the claims to be read in a way in which the inventor is presumed to have intended, thereby promoting fairness and predictability (FC Decision at para. 78). [73] In Whirlpool at paragraph 49(f), the Supreme Court reminded us that this is so because the point of the analysis is to interpret and respect the inventors’ objective intention as manifested in the words he used. This is why the whole disclosure must be reviewed, even for words that would appear at first glance to be simple and unambiguous when reading only the claims. Indeed, one of the reasons for reviewing the disclosure is to determine whether the inventor actually defines particular words that could appear plain and simple even to a POSITA when reading only the claims (Whirlpool at para. 52 & 54, definitional assistance). Obviously, and as is well-known by those in the field of intellectual property law, the technical terms or so-called terms of the art must be read through the lens of the POSITA. However, as also noted by the Supreme Court in Whirlpool at paragraph 61, a Court is entitled to differ from the construction put forth by either side for it is its task to construe the claims as a matter of law. This is because the role of the expert is not to interpret the patent claims per se, “but to put the trial judge in the position of being able to do so in a knowledgeable way” (Whirlpool at para 57). [70] dTechs argues that the Federal Court did not conduct its own analysis of these words or of the claims. In its view, the Court simply accepted Mr. Shepherd’s opinions as a whole, including particularly on the interpretation of claim 4. It asserts that the FC Decision is in fact nonsensical. I again disagree. Reasons do not need to be perfect. When the FC Decision is read in the context of the arguments put forth by the parties and the record before it, it becomes clear and intelligible. In fact, in its analysis, the Federal Court did exactly what this Court said it should do, based on the Supreme Court’s directions in Whirlpool Corp. v. Camco Inc., 2000 SCC 67. It construed the claims purposively, by looking at the wording in its entire context. It clearly considered the opinion of the experts as to the CGK of the POSITA (FC Decision at paras. 122‑123) and the technical meaning, if any, of the words “known consumption patterns”. It was appropriate for the Federal Court to focus the construction of the claims in its reasons on the issues in dispute between the parties, centering the analysis “where the shoe pinches” (Cobalt Pharmaceuticals Company v. Bayer Inc., 2015 FCA 116 at para. 83). Doing so does not mean that the Court did not carry out its own construction of the claims. [71] It was common ground among all three experts that “known consumption patterns” would normally refer to historical data collected by the meter on the primary supply line, and would include predicted consumption patterns. This would remain common ground between Mr. Bennett and Mr. LaPlace, even without considering at all the evidence of Mr. Shepherd. [72] As mentioned by the Federal Court, the dispute with respect to “known consumption patterns” concerned whether the POSITA would understand this expression in the independent claims to also include same-time consumption patterns measured on secondary lines because of the wording of claim 4. This construction, which was advanced by Mr. LaPlace, was not based on the generally understood technical meaning of “known consumption patterns”, but on his view that claim 4 would be understood as giving additional meaning to claim 1 by specifying that the comparison referred to in claim 1 could include same-time consumption patterns measured on secondary lines. It is not disputed that the energy balance or reconciliation referred to in claim 4 is a known concept which is performed to identify discrepancies between the input from the primary line and the output metered on all the secondary lines (FC Decision at para. 122(b)). [73] Mr. Bennett also gave evidence as to his interpretation of claim 4, and why it would have no impact on how the POSITA would understand “known consumption patterns” in claim 1. Thus, the dispute referred to by the Federal Court at paragraph 134 would remain one to be determined, even in the absence of Mr. Shepherd’s evidence, for as mentioned, as a matter of law, the words “known consumption patterns” had to be construed in their context. [74] It is in response to the construction proposed by Mr. LaPlace in his report on construction (Appeal Book, Vol. 1, Tab 58, pp. 800-801) that the Federal Court had to make a conclusion at law in respect of the particular meaning and effect of the words “further comprising” in claim 4 of the 087 Patent, as was its duty. While Mr. LaPlace opined that “further comprising” in claim 4 simply added specificity or specified how the comparison step with “known consumption patterns” in claim 1 is to be performed, something akin to the use of “wherein” in other dependent claims, the Federal Court found that “further comprising” in claim 4 added an additional step to the method set out in claim 1 (an open claim defining the method as “comprising”). It held that the additional step covered by claim 4 was not an alternative to the comparison step described in claim 1 (FC Decision at para. 145). [75] In his oral testimony, Mr. LaPlace provided more details as to why he understood comparison with same-time data should be included in the words “known consumption patterns”. The following excerpt from the transcript of Mr. LaPlace’s cross-examination is of particular interest to better understand the relationship between the words “known consumption patterns” and same-time data derived from one or many reconciliations using smart meters: MR. CRICHTON: I just need to confirm, you're saying that the comparison of same-time smart meter data to primary line measurements, that's a concurrent comparison; that's not a comparison with something that was previously known. MR. LaPLACE: Right, it’s same-time, that’s why we say - - I don't want to use the word historical. If it was known it would be historical, but it’s not; it’s same-time. […] And, it just depends. I mean, I guess it's - - the point of same‑time is that the measurements are taken at the same time, not whether the measurements are old or new or expected or known; they're taken at the same time. That’s the useful information. Very powerful, you know, in terms of determining unbalance, or imbalance with the energy calculations. [76] It appears that the question in Mr. LaPlace’s mind was not so much whether the POSITA would commonly understand “known consumption patterns” as including same-time data, as it was clearly not the same thing. [77] This further excerpt from the transcript of Mr. LaPlace’s examination in chief clarifies that what Mr. LaPlace was in fact proposing was to replace the step of “comparing …to known consumption patterns” in claim 1 with the reconciliation step in independent claim 4 because it was more reliable: MR. MOYSE: Well, let me ask you this; what, if anything, would a skilled person think of doing two separate comparisons; one for the purpose of determining or comparing against historical data to find theft, and then another comparing against same-time consumption for locating just technical losses but not theft? What would the skilled person think of that? MR. LaPLACE: I don't think it would make much sense to him. The more reliable calculation would be same-time so it wouldn’t make any sense to - - and, also, why would you have two comparisons? When you have the best comparison already there’s no point in having two separate comparisons, you know. So it makes no sense, in my opinion. [78] It is of interest to note that during Mr. LaPlace’s cross-examination regarding the meaning of “further comprising”, the trial judge stated the following (Appeal Book, Vol. 3, Tab 159, p. 8151): Well, certainly claim construction is a matter for the Court, and I’m not sure that terms like “further” or “wherein” require the input of an expert witness. In any event, that’s not really the expertise of Mr. LaPlace […]. [79] In light of this remark, dTechs’ counsel expressly suggested, during the cross-examination of Mr. Shepherd, that the construction of these words did not require any specialized knowledge beyond that of an ordinary person (Appeal Book, Vol 3, Tab 167, pp. 8931-8933). This was acknowledged by Mr. Shepherd. [80] I fully agree with the trial judge that if the words “further comprising” are terms of the art, it is in the art of claim drafting, one that none of the experts were qualified to opine on, and in respect of which the judge did not require expert guidance. This makes it evident that although the Federal Court referred to expert evidence, it construed the claims on the basis of its own analysis. [81] In construing claim 4, the Federal Court could and did consider the portion of the disclosure describing the purpose and advantages of the reconciliation and of using smart meters (FC Decision at paras. 148-149). The disclosure made no allusion to the fact that such reconciliation with smart meters could be used instead of the comparison with “known consumption patterns”. [82] Although this Court is not tasked with determining if the Federal Court erred in law in its construction of the claims (that distinct ground of appeal was abandoned), there is little doubt that the words “further comprising” as used in claim 4 are meant to add an essential element to the combination of elements found to be essentials in claim 1. The Federal Court held that this construction was in line with the purpose of the invention set out in claim 1, as well as the purpose and advantages of adding the additional step disclosed in claim 4. The Court simply could not re-write the claims as proposed by Mr. LaPlace to capture what he felt would make more sense. The Federal Court rejected Mr. LaPlace’s construction on the basis of its own purposive construction of the claims. This was a legal finding that could not be affected by the new evidence and its potential impact on the evidence of Mr. Shepherd. (2) Infringement [83] The Federal Court concluded that there was no evidence that BC Hydro compared any primary line readings to “known consumption patterns”, an essential element of all the asserted claims as properly construed (FC Decision at para. 174). It is worth noting that this factual finding was not challenged by the appellant in its original notice of appeal, nor as the appeal stood after it filed its memorandum of fact and law. This finding of the Federal Court is part of those this Court must take into account (in any event he also had the benefit of the detailed evidence of Mr. Bennett as well as Mr. LaPlace’s oral acknowledgment during his cross‑examination: Appeal Book, Vol. 3, Tab 159, p. 8055). [84] As the Federal Court’s legal finding on the construction of the claims could not be affected, whatever weight was attributed to Mr. Shepherd’s evidence, its conclusion that there was no such evidence would necessarily remain unchanged. [85] Although this was not strictly necessary to dispose of the infringement action, the Federal Court went on to consider the specific allegations of indirect infringement against Awesense on the basis of inducement or under the doctrine of common design. As mentioned, by the end of the trial, these were the only remaining allegations against Awesense. Indeed, dTechs was no longer arguing that Awesense performed any of the steps of the method claimed in the 087 Patent. [86] Also as previously mentioned, the Federal Court concluded that there was no evidence that Awesense ever induced BC Hydro to infringe the asserted claims, or to support an allegation of infringement by common design (FC Decision at para. 177-179). As this additional conclusion did not involve any expert evidence, the proposed new evidence and its potential impact on Mr. Shepherd’s evidence could not have any bearing on it. [87] I therefore conclude that the Federal Court’s ultimate conclusion that neither BC Hydro nor Awesense, individually or together, infringed the asserted claims could not be affected by the new evidence. (3) Validity [88] Despite my conclusion that the infringement action would still be dismissed based on the other evidence adduced at trial and the legal findings of the Federal Court, I still need to examine its validity findings because of the counterclaims. (a) Anticipation by public prior use [89] I will deal with the Federal Court’s first conclusion that all the asserted claims, except for dependent claims 4 and 22 were anticipated by BC Hydro’s prior use before 2006, and that the details of its investigative techniques were made available to the public. [90] It is worth noting that dTechs’ main arguments in respect of BC Hydro’s prior use did not strictly rely on the expert evidence of Mr. LaPlace, whose opinion on the matter was extremely limited. In fact, the Federal Court noted, at paragraph 204, that Mr. LaPlace had not disputed that BC Hydro’s prior use could anticipate the asserted claims, except by noting that BC Hydro’s investigative techniques did not involve comparison with “same-time consumption patterns” (LaPlace Responding Report on Validity at para. 30, Appeal Book, Vol. 1, Tab 60, pp. 1324‑1325). Mr. LaPlace went even further in his cross-examination, opining that BC Hydro’s prior use “does anticipate […]” [my emphasis] (Appeal Book, Vol. 3, Tab 159, p. 8011). [91] Mr. Trustham testified, as a lay witness, about the method used by BC Hydro to conduct technical losses or energy theft investigations at the relevant time (claims date). The Federal Court found him to be a credible and reliable witness who established the facts set out at paragraphs 188-189 of the FC Decision. It also found that Mr. Trustham’s testimony was corroborated by the testimony of Mr. Shaigec, a witness called on behalf of Awesense, and the affidavit of Mr. Heilkema, President of SensorLink Corporation, which was entered as an exhibit on consent (FC Decision at paras. 198-200). [92] The Federal Court held that it was satisfied that the investigative steps performed by BC Hydro personnel, as described by Mr. Trustham, would infringe the 087 Patent (FC Decision at para. 192). The Court also made additional factual findings on the basis of the evidence of these lay witnesses in paragraphs 199 to 203 including that the VARcorder meter used by BC Hydro had a resolution of 0.1A. Thus, high resolution digital recording ammeters (DRAs) were in fact available and used to measure current on primary lines before 2006. [93] All these factual findings would remain unchanged and must be taken into account by this Court in determining the possible impact of Mr. Shepherd’s evidence being given no weight. [94] Although the Federal Court referred generally to Mr. Shepherd’s undisputed opinion in the very last paragraph of this portion of the FC Decision, I cannot make any inference that this evidence was necessary to its conclusion in respect of independent claims 1 and 21 because of the other evidence adduced, including that of Mr. LaPlace. This is also the case for the dependent claims regarding which the Federal Court made express factual findings, such as those specifying the use of infrared devices and those referring to the resolution of the meters and DRAs in a range of less than 1 amp or of about 0.01 to about 0.1 amp or that BC Hydro used the method where the suspect consumption pattern was greater than the known consumption pattern (FC Decision at para. 188(d)). It is also clear from the factual findings that the prior use described by Mr. Trustham did not involve an independent monitoring agency. Thus, it could not anticipate claim 22. Finally, because the method used by BC Hydro’s personnel did not include the use of same-time data for reconciliation (no finding in that respect), it could not anticipate claim 4. [95] In light of the Federal Court’s construction of the claims, its aforementioned undisturbed factual findings and the other evidence, including that of Mr. LaPlace as to the technical characteristics of the VARcorder, I cannot agree with dTechs that the Court’s conclusion that BC Hydro’s prior use met the requirements set out in section 28.2 of the Patent Act, R.S.C., 1985, c. P-4 could not have been the same because BC Hydro would have failed to meet its burden of proof in the absence of Mr. Shepherd’s evidence. [96] Where anticipation is alleged on the basis of disclosure by prior use, satisfying one’s onus of proof may indeed require expert evidence in cases where, for example, such evidence would establish that the particular compound used falls within the technical description of a species or genus covered by the claim. This would not be within the realm of the judge’s knowledge. However, it may not be essential for a plaintiff in counterclaim to adduce expert evidence on validity per se where, as in this case, the Court had the benefit of the opinions of two other experts (Mr. Bennett on CGK and construction and Mr. LaPlace), and where it readily understood and construed the basic and pragmatic steps covered by the patented method (See for example FC Decision at paras. 13-23, taken from the overview provided by Mr. LaPlace and generally describing power distribution and detection of electrical losses, and paragraphs 122‑123 describing the CGK). This is especially so when there is no dispute that such use could indeed anticipate the asserted claims, and where the CGK for the purpose of anticipation was the same as the CGK used for the purpose of construction (LaPlace Validity Report at para. 41, Appeal Book, Vol. 1, Tab 60, pp. 1332-1333). [97] Mr. Shepherd had no personal knowledge whatsoever regarding BC Hydro’s prior use. He was simply asked to assume the facts that were later established at trial by other witnesses. In my view, this explains why his evidence is only referred to briefly in the last paragraph of the portion of the FC Decision on anticipation based on BC Hydro’s prior use (FC Decision at para. 204), well after the Federal Court found that it would infringe the 087 Patent (FC Decision at para. 192). [98] Mr. Shepherd’s evidence may well have facilitated the Federal Court’s task, but once it had construed the claims that raised any controversy among the parties, including determining their essential elements, and made findings of fact on the basis of the evidence of lay witnesses on facts that would readily fall within each of those elements, it would have had to conclude that BC Hydro’s prior use anticipated independent claims 1 and 21, as well as the asserted dependent claims, except for claims 4 and 22. This is so because the Court was entitled to consider all the evidence adduced, including that of the experts tendered by other parties, in determining whether it was satisfied of a particular fact. [99] In light of my conclusion that the Federal Court’s finding on anticipation by prior use in respect of all claims except claims 4 and 22 could not be affected by the new evidence and its potential impact on the evidence of Mr. Shepherd, the only issue remaining to be examined is whether those two claims were either anticipated by published prior art or obvious. (b) Anticipation by published prior art [100] As previously stated, only the De Reference was held by the Federal Court to anticipate claims 4 and 22. I will thus limit my comments to that document. [101] Claim 4 covers a method which included all the essential elements of claim 1, plus a reconciliation using same-time data obtained from smart meters connected to secondary lines to compare the electrical supply at the primary supply line to a sum of consumption at all of the secondary lines. Claim 22’s only addition to independent claim 21 is the use of an independent monitoring agency. [102] The parties did not provide detailed submissions as to the validity of these two claims. dTechs simply argued that it was apparent that the Federal Court relied heavily on the evidence of Mr. Shepherd in that respect, and thus, that it would necessarily be impacted by the effect of the new evidence on that of Mr. Shepherd. [103] Awesense, who had limited resources and attended the hearing before us through Zoom (hybrid hearing), did not address the validity of these claims in its memorandum, instead relying on BC Hydro’s submissions on the matter, which are essentially limited to those found at paragraph 73 of its memorandum, and which were not particularly helpful. [104] The Federal Court found that: [228] All expert witnesses agreed that the De Reference discloses metering on the primary line to identify variations from known (i.e., historical) consumption patterns in order to detect suspicious deviations. The De Reference uses the term “base profile”, but this is the same as “known consumption patterns” in the 087 Patent. Similar to the 087 Patent, the De Reference teaches the use of a threshold for triggering an investigation (10-15% over an expected value in the De Reference, compared to 25% in the 087 Patent). [my emphasis] [105] This finding reflects the Federal Court’s assessment of Mr. LaPlace’s evidence. Considering that this assessment is not challenged in the appeal before us, it must be considered by this Court as unchanged. [106] There was no dispute that the De Reference included the use of smart meters for the purpose of reconciliation as an additional advantage (or improvement). At paragraph 28 of his validity report, Mr. LaPlace refers to the following sentence at page 657 of the De Reference (Appeal Book, Vol. 1, Tab 60, p. 1323): In addition, bulk metering on the main supply to the building allows reconciliation between the total metering and all the individual domestic meters. [my emphasis] [107] The Federal Court relied on this passage as supporting its conclusion that the De Reference disclosed the additional step set out in claim 4. However, Mr. LaPlace’s evidence was that the system disclosed in the De Reference, including the above sentence, would not be clearly understood by the POSITA in the manner suggested by Mr. Shepherd and adopted by the Federal Court (FC Decison at para. 231). [108] At paragraph 28(d) of his validity report, and in his cross-examination by BC Hydro’s counsel (Appeal Book, Vol. 3, Tab 161, pp. 8267-8273), Mr. LaPlace insisted that the sentence quote above and alluded to at paragraph 231 of the FC Decision as describing an additional advantage of the system disclosed in the De Reference, would not clearly refer to a reconciliation with the metered data at the primary line. In fact, it could refer to a reconciliation with the data metered at the distribution transformer level only. [109] Unlike the assessment of anticipation by prior use discussed above, expert evidence as to how a POSITA would read and understand a particular printed publication is necessary, unless the wording of the document is very clear. The Federal Court provided no explanation as to why it did not consider Mr LaPlace’s evidence on that point and how it could construe this sentence otherwise, except by relying on Mr. Shepherd’s evidence. Therefore, I am not satisfied that the Court’s findings based on its reading of this prior art, which must be done through the eyes of a POSITA, would remain undisturbed if no weight was given to the evidence of Mr. Shepherd. [110] Insofar as claim 22 is concerned, the method described in the De Reference requires the distribution utility to send a “vigilance team” to verify the reasons for the deviation and take appropriate actions. The Federal Court does not discuss whether a “vigilance team” would be understood by a POSITA as referring to personnel of the utility or personnel of another entity. However, it is clear that the Court had already adopted Mr. LaPlace’s view that a POSITA would understand that “the claimed process would work exactly the same way regardless of whether the utility or a non-utility performs each step” (LaPlace Responding Report on Validity at para. 24, Appeal Book, Vol. 1, Tab 60, p. 1319). It is on that basis that it construed the step of “notifying the utility” in claim 1 as non-essential. [111] There was nothing in Mr. Shepherd’s opinion on this claim other than a reference to the POSITA’s common understanding that a “vigilance team” could be an entity other than the utility (Shepherd Report on Construction and Validity, Appeal Book, Vol. 2, Tab 136, p. 4184). It is thus not surprising that Mr. LaPlace never raised any issues as to whether the De Reference anticipated claim 22 (LaPlace Responding Report on Validity at para. 28, Appeal Book, Vol. 1, Tab 60, pp. 1321-1322). [112] In such circumstances, and in light of the Federal Court’s findings at paragraphs 225 and 227, as well as Mr. LaPlace’s concession referred to at paragraph 232, I am satisfied that the Federal Court could not have changed its conclusion in respect of claim 22 had it decided to give no weight to Mr. Shepherd’s evidence. (c) Obviousness [113] Considering my conclusion in respect of anticipation, I will limit my discussion on obviousness to claim 4. [114] The bulk of the Federal Court’s analysis on this issue is directed at all the essential elements of the independent claims (FC Decision at paras. 250-253), particularly the use of meters on the primary line to detect atypical consumptions, which was one of the key differences between the state of the art and the inventive concept of those claims identified by Mr. LaPlace (FC Decision at para. 247). [115] It appears from paragraph 253 that the Federal Court relied on Mr. Shepherd’s evidence to say that all the essential elements of claims 1 and 21 would be within the CGK of the POSITA. The description of that CGK goes further than the CGK described at paragraphs 122 and 123 of the FC Decision. If this evidence was given no weight, it might have impacted the Court’s conclusion in that respect. [116] The additional essential element of dependent claim 4 is only discussed in paragraph 254 of the FC Decision. In that paragraph, instead of simply referring to the CGK on which there was little disagreement between the parties’ experts as described at paragraphs 122 and 123 (see FC Decision at para. 240), again the Federal Court expressly referred to the CGK of the POSITA as set out in Mr. Shepherd’s report on construction and validity. The description of the CGK as it relates to the essential element of this claim appears to go somewhat further than what is described at paragraphs 122(b) and (h) of the FC Decision. [117] In the circumstances, I also find it more appropriate to have the issue of obviousness redetermined, if need be, by the Federal Court, as it is a factual question heavily informed by expert evidence. This is especially so given that if the Federal Court attributes some weight to Mr. Shepherd’s evidence despite the new evidence (as opposed to the scenario I have used in these reasons), it may uphold its previous findings. VI. Conclusion [118] In light of the above, I conclude that although the new evidence might have had some impact on the weight afforded to BC Hydro’s expert, it could not have affected the result of the infringement action per se. It would still have been dismissed on the basis of the undisturbed legal and factual findings of the Federal Court. [119] In the circumstances, I propose that this Court dismiss the appeal in respect of the infringement action, and confirm the Federal Court judgment that: 1. Neither British Columbia Hydro and Power Authority nor Awesense Wireless Inc., individually or together, infringes the asserted claims of Canadian Patent 2,549,087 [087 Patent]. [120] With respect to the counterclaims alleging invalidity, I am satisfied that, based on the other evidence adduced at trial, the following findings of Federal Court could not be affected by the new evidence: i) that the asserted claims were anticipated by BC Hydro’s prior use, except for claims 4 and 22, ii) that dependent claim 22 was anticipated by the De Reference. However, I agree that the new evidence could have had an impact on the Court’s findings that dependent claim 4 was anticipated by the De Reference and obvious. As such, I would allow the appeal in part, and amend the judgment accordingly. [121] With respect to costs, dTechs had agreed with the respondents on the amount of costs it would pay should the appeal be dismissed. In my view, the arguments raised before us reveal no valid basis for pursuing this appeal against Awesense. I would therefore award costs in the agreed amount of $15,000.00. However, I would award costs to BC Hydro in a slightly reduced amount of $10,000.00. [122] As only the counterclaims are affected by my conclusions regarding the Federal Court’s findings on validity, the respondents/plaintiffs by counterclaim should be entitled to seek a redetermination as to the validity of dependent claim 4, if they so choose, including on any outstanding grounds on which the Federal Court did not rule. This would require a new trial before the same judge, on the basis of all the evidence already adduced before the Federal Court, together with the new evidence, which is only admitted for the purpose of dealing with the validity of claim 4, as well as such further evidence as the Court deems appropriate to consider in the circumstances. Of course, it would be open to the Federal Court to deal with the impact of the new evidence on the weight attributed to Mr. Shepherd’s evidence as a preliminary issue so that the parties may limit the costs arising from a full redetermination of the remaining issues. [123] Given that no costs were actually awarded in the judgment that is the subject of the appeal before us, and that neither the order awarding said costs nor the order quantifying them have been appealed, this Court, in my view, has no jurisdiction to deal with any costs awarded by the Federal Court in this matter. \"Johanne Gauthier\" J.A. “I agree Anne L. Mactavish J.A.” “I agree René LeBlanc J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD APPEAL FROM A JUDGMENT OR ORDER OF THE HONOURABLE JUSTICE FOTHERGILL DATED MARCH 16, 2021, NO. T-227-17 DOCKET: A-121-21 STYLE OF CAUSE: DTECHS EPM LTD. v. BRITISH COLUMBIA HYDRO AND POWER AUTHORITY AND AWESENSE WIRELESS INC. PLACE OF HEARING: Calgary, Alberta DATE OF HEARING: October 27, 2022 REASONS FOR JUDGMENT BY: GAUTHIER J.A. CONCURRED IN BY: MACTAVISH J.A. LEBLANC J.A. DATED: MaY 26, 2023 APPEARANCES: In person: Christian J. Popowich Alex McKay For The Appellant In person: Michael Crichton R. Nelson Godfrey Claire Stempien For The Respondents BRITISH COLUMBIA HYDRO AND POWER AUTHORITY Virtually : Vincent M. de Grandpré Kenza Salah For The Respondent AWESENSE WIRELESS INC. SOLICITORS OF RECORD: Code Hunter LLP Calgary, Alberta For The Appellant Gowling WLG (Canada) LLP Ottawa, Ontario For The Respondents BRITISH COLUMBIA HYDRO AND POWER AUTHORITY Osler, Hoskin & Harcourt LLP Toronto, Ontario For The Respondent AWESENSE WIRELESS INC.", "response": "## Analysis of Court Decision: dTechs EPM Ltd. v. British Columbia Hydro and Power Authority\n\n### Key Issues\nrd’s evidence, if any, on the issues that need to be redetermined. [10] The judgment before us did not award costs. It left this matter to be determined in a distinct order. In fac\n\n### Standard of Review\ndTechs EPM Ltd. v. British Columbia Hydro and Power Authority Court (s) Database Federal Court of Appeal Decisions Date 2023-05-26 Neutral citation 2023 FCA 115 File numbers A-121-21 Notes A correction was made on June 1, 2023 Decision Content Date: 20230526 Docket: A-121-21 Citation: 2023 FCA 115 CORAM: GAUTHIER J.A. MACTAVISH J.A. LEBLANC J.A. BETWEEN: DTECHS EPM LTD. Appellant and BRITISH COLUMBIA HYDRO AND POWER AUTHORITY AND AWESENSE WIRELESS INC. Respondents Heard at Calgary, Alberta, on October 27, 2022. Judgment delivered at Ottawa, Ontario, on May 26, 2023. REASONS FOR JUDGMENT BY: GAUTHIER J.A. CONCURRED IN BY: MACTAVISH J.A. LEBLANC J.A. Date: 20230526 Docket: A-121-21 Citation: 2023 FCA 115 CORAM: GAUTHIER J.A. MACTAVISH J.A. LEBLANC J.A. BETWEEN: DTECHS EPM LTD. Appellant and BRITISH COLUMBIA HYDRO AND POWER AUTHORITY AND AWESENSE WIRELESS INC. Respondents REASONS FOR JUDGMENT GAUTHIER J.A. [1] This is an appeal from a judgment of the Federal Court (per Fothergill J.) dismissing dTechs EPM Ltd.’s (dTechs) claim for infringement of its Canadian patent No. 2,549,087 (the 087 Patent) against the respondents British Columbia Hydro and Power Authority (BC Hydro) and Awesense Wireless Inc. (Awesense). The Federal Court also declared the claims at issue invalid on the grounds of anticipation and obviousness. [2] This matter is somewhat unusual in that originally, the appellant was contesting almost all of the conclusions of the Federal Court in respect of the construction of the 087 Patent, the validity of the claims, and the findings of non-infringement. However, since the original filing of the notice of appeal, the appellant’s position has changed based on new evidence obtained in the context of the assessment of BC Hydro’s costs (expert working agreement and invoices), which it was granted leave to file by a motion judge of this Court. The appellant was also granted leave to amend this notice of appeal to include that the Federal Court erred in admitting or giving any weight to the evidence of BC Hydro’s expert. [3] In its memorandum of fact and law, and before us, the appellant effectively abandoned all of the other grounds of appeal listed in its amended notice of appeal. Its position is now premised entirely on the proposition that the evidence of BC Hydro expert’s should have been excluded or given no weight because he did not provide independent expert evidence. If so, the appellant contends that it would have succeeded at trial. On that basis, the appellant seeks a judgment of this Court granting the infringement action in its favour and declaring the asserted claims valid, or, alternatively, an order directing a new trial, subject to strict conditions, namely that the parties be precluded from adducing new expert evidence. In both cases, the appellant seeks all the costs incurred below, as well as the costs in the present appeal. [4] At the outset of the hearing, counsel for the appellant made it very clear that he agreed that the role of this panel was limited to two questions: a)Whether the new evidence (i.e. working agreement and invoices of BC Hydro’s expert) has sufficient probative value to support the appellant’s position that the evidence of BC Hydro’s expert was inadmissible or should have been given no weight whatsoever; b)If so, whether in light of the other evidence adduced at trial, such a finding might have led to the granting of the infringement action and the dismissal of the defence and counterclaims based on invalidity. [5] It was also agreed that in respect of the second question, this Court was to take into account the legal and factual findings of the Federal Court that were unaffected by the evidence of BC Hydro’s expert, for these were no longer contested per se on this appeal. Obviously, this also means that these reasons should not be construed as confirming these findings as this is not our task in this appeal. [6] After the hearing, the appellant seemingly changed its mind as to this Court’s role in this appeal, which it now says is limited by the Supreme Court’s decision in R v. Stolar, [1988] 1 S.C.R. 480 (Stolar) and the order of the motion judge in this case. I deal with this argument at paragraphs 20-31 of these reasons. [7] In the end, this matter requires the application of known principles to a very unusual set of facts. It illustrates how care must be taken in dealing with a motion for leave to file new evidence before this Court, so that there is no misunderstanding as to the impact of an eventual order by a motion judge granting such leave. It also emphasizes the need for lawyers involved in patent cases to thoroughly consider and assess the admissibility of an expert report before this evidence is actually admitted at trial or, at the very least, before the end of the testimony of said expert. [8] It is also important to immediately clarify that dTechs’ decision not to pursue its other grounds of appeal has a direct impact on its ability to succeed against Awesense. By the end of the trial, the appellant’s claim against this respondent was solely based on allegations of indirect infringement through inducement or common design. In light of the specific findings in the Federal Court’s decision (the FC Decision) at paragraphs 176 to 179, the new evidence can have absolutely no bearing whatsoever on the liability of this respondent/defendant. Consequently, the appeal in respect of the infringement action against Awesense ought to be dismissed. [9] As will be explained in these reasons, I would also dismiss the appeal in respect of the infringement action against BC Hydro. However, I would allow the appeal as it relates to the declaration of invalidity sought in the counterclaims in respect of dependent claim 4 because of the potential impact of the new evidence on the Federal Court’s findings regarding that claim. Should BC Hydro decide to pursue its counterclaim with respect to dependent claim 4 on the grounds of anticipation or obviousness, or on any other grounds the Federal Court did not deem necessary to rule on, it will have to do so by way of a new trial before the same judge. Moreover, as the new evidence is not conclusive of anything other than the fact that Mr. Shepherd did not write the first drafts of his reports, it will be for the Federal Court to determine its impact on the weight of Mr. Shepherd’s evidence, if any, on the issues that need to be redetermined. [10] The judgment before us did not award costs. It left this matter to be determined in a distinct order. In fact, costs were awarded and instructions were given as to how they were to be assessed in an order (per Fothergill J.), dated April 22, 2021 (2021 FC 357). The awarding of costs involved various matters, including the application of Rule 420 of the Federal Court Rules, SOR/98-106 (the Rules). The final costs were assessed by an assessment officer in a confidential order, dated May 11, 2022. None of these orders were appealed. In the circumstances, I cannot see on what basis this Court could deal with the issue of the costs in the Federal Court. I. Background [11] The 087 Patent is entitled “Electrical Profile Monitoring System for Detection of Atypical Consumption” and relates generally to “monitoring usage of utilities, such as electrical, for alteration in normal patterns of consumption of utilities and, more specifically, to a system of detection of patterns indicative of theft of electrical utilities, such as in the indoor cultivation of marijuana”. All the claims are directed to methods; none cover an apparatus. The appellant is the owner of the 087 Patent issued on January 20, 2009. The appellant’s application was published on August 10, 2007. Mr. Morrison, a former sergeant with the Calgary Police Service, is the inventor listed therein. He is the founder of dTechs, which he incorporated on May 24, 2006. How he came to develop his invention is described at paragraphs 90 to 100 of the FC Decision. [12] BC Hydro is a Crown corporation and electrical utility, and Awesense is a start-up company that supplied the wireless ammeters and energy meters to BC Hydro that were used on the primary supply line, together with supporting software. As mentioned, by the end of the trial, the appellant claimed that while Awesense does not perform any of the steps included in the methods described in the 087 Patent, it is liable for inducing or procuring its customers to infringe the 087 Patent. It also alleged that Awesense is liable under the doctrine of common design. [13] Each party relied on the following expert evidence: i) dTechs’ expert was Mr. LaPlace; ii) BC Hydro’s expert was Mr. Shepherd; and iii) Awesense’s expert was Mr. Bennett. These experts opined on issues related to the construction of the claims in issue, including identifying the person of ordinary skill in the art (POSITA) to whom the patent is addressed and the relevant common general knowledge (CGK), as well as on infringement. Only Mr. Shepherd and Mr. LaPlace provided evidence on issues related to the validity of the claims. [14] The admissibility of the reports of the above-mentioned experts was not challenged at any time before the FC Decision was issued. In fact, the reports of all three experts were filed on consent, and they were qualified to opine on the matters contained in their reports. [15] However, as noted by the Federal Court, each party made criticisms regarding the qualifications or approaches of the expert witnesses tendered in these proceedings to diminish the weight that should be attributed to their evidence. The Court found that while some of these criticisms were valid, none of them were sufficient to undermine any of the witnesses’ evidence in their entirety. At paragraph 89 of the FC Decision, the Court indicated that its reasons for preferring some witnesses’ evidence over others were explained therein. [16] The Federal Court held that neither BC Hydro nor Awesense, individually or together, had infringed the asserted claims of the 087 Patent. It found that there was no evidence that BC Hydro compares metered consumption on the primary supply line with known consumption patterns, i.e., historical or predicted consumption patterns, an essential element of independent claims 1 and 21 (FC Decision at paras. 174-175). It also found that Awesense i) did not itself infringe the asserted claims, as it did not perform any of the steps of the method described in the 087 Patent, ii) exercised no control over the manner in which BC Hydro used its software, and iii) that there was no evidence that Awesense ever induced BC Hydro to infringe the asserted claims, or to support an allegation of infringement by common design (FC Decision at paras. 177-179). [17] The Federal Court found that BC Hydro’s prior use, established through the testimony of lay witnesses, would have infringed the 087 Patent (FC Decision at paras. 186-203). It concluded that this use anticipated all the claims still at issue at the end of the trial, except for dependent claims 4 and 22. The Court also found that two publications, referred to as the OLO Reference and the De Reference, anticipated most of the asserted claims. However, only the De Reference was found to anticipate claim 4. Finally, the Federal Court found that all the asserted claims were obvious. [18] At this stage, there is no need to say more about the FC Decision, which is more than 80 pages long. I will refer to the most relevant portions in my analysis. It is nevertheless important to note that the Federal Court’s construction of the terms “known consumption patterns”, part of an essential element of all the claims at issue, was critical to its ultimate conclusions. Indeed, this construction was ultimately what led the Federal Court to conclude that BC Hydro does not infringe the 087 Patent. II. Claims [19] All the claims that were originally at issue are reproduced in the FC Decision at paragraphs 47 to 71. For the sake of understanding the present reasons, I need only to reproduce claims 1, 4 and 22 of the 087 Patent: 1. A method for detection of atypical electrical consumption patterns comprising: providing a meter for detecting consumption of electricity from a utility; connecting the meter to a primary supply line, the primary supply line supplying electricity to a plurality of transformers, each transformer feeding the electricity to a plurality of structures, the meter having a resolution for detecting variation from known consumption patterns in the primary supply line; monitoring the primary supply line at predetermined time intervals for consumption of electricity; collecting data for determining measures indicative of patterns of consumption; comparing the patterns of consumption to known consumption patterns for identifying suspect consumption patterns; and when a suspect consumption pattern is identified, notifying the utility of the identified suspect consumption pattern in the primary line, the utility thereafter monitoring characteristics of the plurality of transformers for identifying a suspect transformer; and load testing at least one of a plurality of secondary lines from the suspect transformer to each of the plurality of structures for identifying a suspect structure. 4. The method of claim 1, 2 or 3 further having a smart meter connected to secondary lines at each structure for determining consumption at each of the structures, the method further comprising: comparing electrical supply at the primary supply line to a sum of the consumption at all of the secondary lines for reconciling consumption to supply. 22. The method of claim 21 wherein the monitoring characteristics of the plurality of transformers further comprises: notifying a monitoring agency of the suspect consumption pattern in the primary line, wherein the monitoring agency then monitors characteristics of the plurality of transformers. [my emphasis] III. The Motion to Amend the Notice of Appeal and to File New Evidence [20] The appellant brought a motion in writing seeking an order admitting the working agreement and invoices of BC Hydro’s expert for consideration on this appeal for the purpose of establishing that this expert was not independent, and to amend the notice of appeal to include the ground that the Federal Court erred in admitting or giving any weight to the evidence of Mr. Shepherd. It requested that the admissibility of the new evidence be determined by the panel hearing the appeal on the merits in the context of all evidence from the trial and full argument on the merits of the ground of appeal. BC Hydro opposed the appellant’s request, arguing that the motion should be disposed of by a motion judge prior to the hearing as it would determine the scope of the issues and grounds of appeal it would need to address in the appeal. In the respondent’s view, there was no reason to treat this motion other than in writing, as per Rule 369.2 of the Rules. According to the appellant, granting BC Hydro’s request to dismiss the motion on an interlocutory basis would end the appeal, as this this was the sole remaining ground argued in the appellant’s memorandum of fact and law. dTechs never raised the issue that the motion judge would be binding the panel hearing the appeal on its merits, as argued in its post-hearing submissions on the basis of Stolar. [21] The motion judge appears to have sought to satisfy all the parties by immediately allowing the appellant to advance this new ground of appeal. In order to do so, he had to conclude that the appeal on this new ground was not bound to fail. This could only be so if the new evidence the appellant was seeking to rely on was admitted for consideration by the panel hearing the merits of the appeal. However, the motion judge appears to have had some difficulty with the second issue of whether he could admit the evidence on the basis of the record before him, especially considering that the appeal book had not yet been filed, and that Awesense had argued that the evidence of its own expert, Mr. Bennett would have to be considered, even if the expert evidence of Mr. Shepherd was excluded or given no weight. [22] It is worth recalling at this stage that the fourth criterion of the test for admitting new evidence on appeal stated in Palmer v. The Queen, [1980] 1 S.C.R. 759 (Palmer) at page 775, involves determining, once the evidence meets the first three criteria, whether “when taken with the other evidence adduced at trial”, this evidence might have affected the result of the trial [my emphasis]. [23] Thus, although the motion judge purported to apply the Palmer test, he did what motion judges of this Court usually do when dealing with such motions. While it could have been stated more clearly, he simply considered whether in theory the new evidence could have reasonably affected the result of the trial, focusing on its relevance as to the admissibility and weight of BC Hydro’s expert evidence. [24] Obviously, a motion judge cannot usurp the role of the panel hearing the appeal on its merits by looking at each finding of the trial court, and the supporting evidentiary record to determine how this new evidence might actually affect each of them. That is simply not the role of a motion judge. [25] That is the context in which the motion judge stated that whether the new evidence will be sufficient to support the appellant’s claim goes to the merits of the appeal and is best left to the panel which will hear it. He also noted that whether, on the basis of the new evidence, the credibility of BC Hydro’s expert had been undermined such that his evidence should have been held inadmissible or should have been given much less weight was also a matter for the appeal panel to determine. [26] Even more importantly, the motion judge clearly stated that “[w]hether the Federal Court’s decision would have been the same and its ultimate findings undisturbed had BC Hydro’s expert credibility been impugned is a matter best left to the panel hearing the appeal”. [27] It is also worth noting that the rules of procedure and/or the case law of most provincial courts of appeal clearly spell out that motions to admit new evidence on appeal should only be heard by a panel or the panel hearing the merits of the appeal. In Quebec, the statutory requirement that the new evidence be indispensable (article 380 of the Code of Civil Procedure, C.Q.L.R. c. C-25.01) has been construed in a manner consistent with the Palmer test. Only a panel can deal with such a motion, and it is common practice for said panel to allow the evidence to be included in the appeal record, and to defer to the panel hearing the merits of the appeal the determination on its admissibility and impact—akin to the approach taken by the motion judge in the present case (Syndicat des copropriétaires du Square Champlain II c. Syndicat des copropriétaires du Samuel de Champlain, 2018 QCCA 1538; Duscheneau c. Ville de Montréal, 2019 QCCA 1955; Simon c. Haccoun, 2020 QCCA 64). [28] Despite my view that this submission was improperly made after the hearing (see paragraph 38), I ought to say the following. The appellant’s assertion, based on Stolar, that the motion judge’s order binds this panel and limits its remedy-granting ability to either granting the appeal and entering judgment in favour of the appellant, or ordering a new trial on all issues is ill-founded. The two-step process described in Stolar (in the context of a criminal trial) cannot be directly applied in cases like this one, where the motion to file new evidence was dealt with by a single motion judge, without the benefit of all the evidence adduced at trial, and where the proposed new evidence was tendered in support of a new ground of appeal that did not have a clear bearing on all of the Federal Court’s findings and the ultimate outcome of the trial. To construe it otherwise would defy the logic of the Supreme Court’s teachings in Stolar. [29] As a matter of practice in this Court, motion judges are normally expected to deal with more obvious cases where, for example, the new evidence proposed does not meet the first three criteria of the Palmer test, or where the interests of justice warrants the exercise of a motion judge’s residual discretion to include it in the record, subject to a determination of the impact of that evidence on the findings of the trial court by the panel hearing the merits, informed by a comprehensive appeal record. There is no precedent from this Court for limiting the remedies that may be granted by the appeal panel in light of a motion judge’s order admitting new evidence. [30] I agree with the appellant that the motion judge properly made a final determination as to whether the appellant met the first criteria of the Palmer test, i.e., due diligence. In that respect, this Court is not sitting in appeal of this determination. There was no dispute that the new evidence, per se, was not in the possession of dTechs. The argument raised by the respondents was whether the appellant should, in any event, have fully canvassed the issue of how the report was prepared during the trial. [31] In the circumstances, I nevertheless ought to include some general comments regarding the particularities of expert evidence in patent cases. A. General Comments [32] In patent cases, it is not unusual for expert reports to be prepared in close collaboration with counsel in an effort to present the substantive opinion of the expert in a manner and format that is helpful to the Court in light of the complexity of the issues raised. Here, I am not only referring to the technical issues, per se, but to the complex questions that need to be answered because of the particular role of experts in patent cases. It is very rare indeed that technical experts will know how to present a claim analysis or be familiar with the legal principles applicable to matters such as claim construction, anticipation or obviousness. [33] As a practical matter, it is known that extensive notes are taken during meetings with experts to help prepare the draft reports, and that counsel are actively involved in putting these reports together. This does not inevitably mean that those drafts do not reflect the substantive and objective opinion expressed by the expert during those meetings. The preparation of those reports is often a long, tedious, and iterative process. It is obviously a difficult task for counsel to ensure that the independence and credibility of the expert is not diminished by this well-known and necessary practice in this particular field. I must reiterate that I am only dealing with patent cases here. [34] I agree with the appellant that there are, however, limits to the involvement of counsel. The Court must ultimately be presented with the substantive and objective opinion of the expert. This is why experts are very clearly put on notice of their duty towards the Federal Court when they agree to abide by the Code of Conduct for Expert Witnesses. I know of no cases where an expert report was excluded in a patent case on the sole ground that the first draft of said report was penned by counsel after meetings with the expert to discuss their opinions in detail. While counsel may make mistakes and overstep the bounds of what is permissible involvement, this will normally be revealed on cross-examination at trial, and will be considered by trial courts in assessing the evidence (Medimmune Ltd. v. Novartis Pharmaceuticals UK Ltd., [2011] EWHC 1668 (Pat.) (Medimmune). [35] Thus, litigators involved in patent cases ought to be alert and alive to their duty to verify whether those limits were infringed by obtaining, through cross-examination, the information necessary for the Court to assess if the opinion presented by the expert is truly their own objective opinion. [36] As noted in Moore v. Getahun, 2015 ONCA 55 at paragraph 61 (Moore) (citing Medimmune at para. 111), partisan expert evidence is almost always exposed as such in cross-examination. In patent cases, often, a simple review of the structure and wording of the report or the answers given in cross-examination will give an air of reality to the suggestion that counsel improperly influenced an expert witness. [37] The interest of justice and its proper administration would not be served if one could simply wait to review an expert’s invoices after the trial to argue that a new trial should take place on the basis of information contained therein. Naturally, there may be exceptional cases but these should be rare. B. Post-hearing submissions [38] Turning back to the appellant’s submissions after the hearing of this appeal, a few observations are in order. This Court never asked for submissions like those filed by the appellant after the hearing. It asked the parties to provide additional authorities (highlighted copies of cases only) where courts of appeal have admitted new evidence tendered in support of an alleged error on an issue that was not raised before the trial court (here, the inadmissibility of this expert’s reports). It made it very clear that it did not want to receive any written submissions, and the parties agreed. Despite this Court’s express instructions, dTechs took this as an opportunity to put forward a novel position, one that is entirely contrary to that expressed at the hearing, by filing 9 pages of written submissions titled “Remedies”, in which it even went so far as to request that the new trial be before a different judge, a remedy it had never raised. It did so under the pretext that, in its view, our request indicated that the Court was asking itself the wrong question. While I understand the passion with which litigators defend their client’s position, especially when the deficiencies in that position are revealed at the hearing, I simply cannot condone such practices. Therefore, I will consider this appeal on the basis of the appellant’s position as presented in its memorandum and at the hearing. IV. The issues [39] In the present circumstances, there are only two issues properly before us: Whether the new evidence has sufficient probative value to support the allegation that the evidence of BC Hydro’s expert was inadmissible or should have been given no weight (new ground of appeal); If so, whether, in light of the other evidence adduced at trial, it might have led to the granting of the infringement action and the dismissal of the invalidity allegations. V. Analysis A. Nature and probative value of the new evidence [40] As mentioned, the new evidence consists of a working agreement signed by Mr. Curtis E. Falany, the President of J.B. Shepherd & Company, Inc. (J.B. Shepherd), for the services of Mr. Brad Shepherd as an expert witness, and the related invoices describing the work completed in fulfilment of said agreement between April 14, 2020 and November 25, 2020. [41] There is no reason to doubt the veracity and the credibility of these documents. dTechs alleges that this evidence supports its allegation that Mr. Shepherd was not an independent and unbiased witness because he did not author his reports, and that the involvement of Mr. Falany indicates that the reports may have been ghostwritten by him. [42] From the first document, it is clear that the expert whose opinions are to be provided was Mr. Shepherd. The agreement expressly states that: J.B. Shepherd & Company, Inc. represented by Brad Shepherd (Expert), understands that Client is interested in obtaining Expert’s honest, independent expert opinion on matters at issue in the dispute. Expert understands that Expert has an overriding duty to assist the Court impartially on matters relevant to Expert’s area of expertise, and that this duty overrides any duty to Client or to Client’s client. Expert agrees to abide by and to execute the Federal Court of Canada’s Expert Code of Conduct, a copy of which the Client will provide the Expert. [43] Mr. Shepherd did review this Code of Conduct and sign the certificate referred to at Rule 52.2 of the Rules. [44] Turning to the invoices, there are indeed no time entries which explicitly relate to the actual writing of the first drafts of these reports by Mr. Shepherd following Zoom meetings with BC Hydro’s counsel. There are many entries indicating that Mr. Shepherd read, reviewed, and commented on the first drafts of the reports he received, in addition to researching and reviewing various documents provided by counsel. There are also no entries for any writing by Mr. Falany either. [45] Considering that the drafts revised by Mr. Shepherd were received after various Zoom conferences with BC Hydro’s counsel, the only reasonable inference that might be made is that the drafts were penned by said counsel after discussing the matters at issue with Mr. Shepherd. [46] The time entries are consistent with the way Mr. Shepherd describes how he performed his mandate in each of his reports. See for example, paragraphs 12 to 16 of his report on construction and validity, where he describes how he sequentially reviewed documents provided by counsel, and the answers he provided to the specific questions he was asked by counsel, as well as the headings under which they can be found in the report (Shepherd Report on Construction and Validity, Appeal Book, Vol. 2, Tab 136, pp. 4128-4129). [47] dTechs admitted that the role of Mr. Falany in drafting the report or in forming the ultimate opinion is not known (Appellant’s Memorandum at para. 150). Nonetheless, the appellant theorizes that Mr. Falany’s presence at those conferences indicates that he may have ghostwritten or co-authored the reports. Such a proposition is not supported by the invoices, and is nothing more than mere speculation. I can think of many reasons why Mr. Falany, as the President of this American company, would choose to attend those meetings with the client and not bill for his time. For example, his firm would benefit from a better understanding of the particularities of patent files, as this would appear to have been a new type of litigation for the firm. However, Mr. Falany signed a contract, which clearly stipulates that it is the expertise and opinion of Mr. Shepherd alone that BC Hydro was paying for. [48] Mr. Falany’s attendance at the Zoom conferences between Mr. Shepherd and BC Hydro’s counsel would be insufficient to support a reasonable inference by a trial judge that he ghostwrote the reports. [49] In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, the Supreme Court of Canada enunciated the principle that it is only in clear cases where the proposed expert is unable or unwilling to comply with the duty to give fair, objective and non-partisan opinion evidence that concerns raised by the opposing party will go to admissibility. Anything less than clear unwillingness or inability to do so will go to the weight of the evidence of that expert. [50] Although the Supreme Court was dealing with a question of independence based on bias, it also rejected, at paragraph 61, the argument that the expert in that case was not independent because she had incorporated some of the work done by others in her firm. [51] Though he may not have written the first drafts of these reports, it is clear from his cross-examination that Mr. Shepherd did consider the opinions expressed therein as his own. I see nothing in the invoices that could support a reasonable inference that Mr. Shepherd’s reports, as signed and presented to the Court, do not represent his objective and non-partisan opinions. [52] As mentioned earlier, for at least 20 years, this Court has acknowledged that it is not unusual, in patent cases, for counsel to prepare the first draft of an expert’s affidavits or statements (Janssen Pharmaceutica Inc. v. Apotex Inc. (C.A.), 2001 FCA 247 at para. 53). Contrary to the appellant’s contention at the hearing, expert affidavits are no different than the reports before us. In fact, the Rules use the terms “affidavit” or “statement” to refer to such evidence, even though they are commonly referred to as reports. [53] Even the Ontario Court of Appeal recognized the need, in some highly technical areas such as patent law, for a high level of instruction by the lawyers to expert witnesses, which may require a high degree of consultation involving an iterative process through a number of drafts (Moore at para. 55). [54] I note that although the technology was not particularly complex and Mr. Shepherd had acted as an expert witness in a number of civil cases in the United States, he had no experience whatsoever in patents cases either in Canada or in the United States. Therefore, he would clearly need guidance in order to answer the particular type of questions an expert is expected to address in patent cases (see paragraph 32 above). [55] The Federal Court could not conclude that there was a reasonable basis for refusing to admit Mr. Shepherd’s expert evidence simply because the first drafts of his reports were penned by counsel after many hours of consultation with him. [56] The Federal Court could have, however, considered whatever argument dTechs might have raised regarding the drafting of the reports when assessing the weight to be given to this evidence, in which case it would have assessed the validity of such arguments having the benefit of the oral evidence given by this expert witness. The weight to be given to Mr. Shepherd’s evidence is not a matter for this Court to determine. [57] However, the conclusion that the new evidence might have had an impact on the weight given to Mr. Shepherd’s expert evidence does not end the inquiry. This Court must determine whether, based on the other evidence adduced at trial, the distinct findings and conclusions of the Federal Court would remain unchanged, such that the outcome of the trial would not be affected. [58] For the purpose of this determination, I will assume the best scenario possible for dTechs—that is, that no weight would have been given to any of Mr. Shepherd’s evidence. This should not be construed to mean that I do in fact think that in the present circumstances, it should or would likely have been given no weight. B. Considered in light of the other evidence adduced at trial, could the Federal Court have been led to the granting of the infringement action and the dismissal of the allegations of invalidity? [59] In this portion of the analysis, I will review the potential impact of giving no weight to Mr. Shepherd’s evidence on three distinct issues. First, on the construction of the words “known consumption patterns”, which is relevant to all the asserted claims. Second, on the Federal Court’s finding of non-infringement by BC Hydro and Awesense. Third, on the Federal Court’s conclusions with respect to anticipation by prior use, and on the conclusion that the De Reference anticipated claims 4 and 22. Finally, if necessary to dispose of this appeal, I will comment on the findings as to obviousness in respect of these two claims. [60] Before doing so, I must first deal with dTechs’ argument regarding construction and infringement, that the Federal Court would have had no choice but to accept the evidence of its own expert, Mr. LaPlace. This argument is based on dTechs’ submission that the Federal Court could not give any weight whatsoever to the evidence of Awesense’s expert, Mr. Bennett, who also opined on matters relating to construction and infringement. It would thus have had to rely on and accept Mr. LaPlace’s evidence as to the meaning of “known consumption patterns”. [61] dTechs’ arguments can essentially be summarized as follows: Mr. Bennett was not an independent expert because he merely agreed with the opinion of Mr. Shepherd. Without Mr. Shepherd’s evidence, Mr. Bennett’s evidence would have carried no weight. I cannot agree. [62] First, a simple review of Mr. Bennett’s report indicates that this is an inaccurate description of Mr. Bennett’s evidence. Moreover and importantly, the argument that Mr. Bennett’s evidence should be given no weight because he simply agreed and relied on the opinion of Mr. Shepherd was raised before the Federal Court. The Federal Court did not find it sufficient to give no weight to Mr. Bennett’s evidence; instead, it clearly considered and relied on Mr. Bennett’s evidence (see for example FC Decision at para. 132). [63] Second, Mr. Bennett’s report was filed on August 26, 2020, after both Mr. LaPlace and Mr. Shepherd had filed their own main reports. It was responding to Mr. LaPlace’s reports on construction and infringement. [64] The Code of Conduct for Expert Witnesses to which Mr. Bennett agreed to abide (Rule 52.2(1)(c)), provides that the expert has an overriding duty to assist the Court impartially on matters relevant to his or her area of expertise. It also states at paragraph 3(f) that the expert’s report shall include: [I]n the case of a report that is provided in response to another expert’s report, an indication of the points of agreement and of disagreement with the other expert’s opinions; [65] Although strictly speaking, Mr. Bennett was not responding to Mr. Shepherd’s report on construction, it is evident that he had been provided with that report, and tried to express his agreement and disagreement with the opinions contained therein, as noted at paragraph 17 of his report (Bennett Report, Appeal Book, Vol. 2, Tab 146, p. 6099). It is easy to understand the benefit of including this same kind of information about this other expert’s view in his report. In fact, it is best practice to do so. [66] The Rules were amended in 2010 to include Rule 52.6, which ensures that when matters on which there is disagreement are not made sufficiently clear in the expert reports, the Courts could ask all the experts to meet in order to narrow the issues and identify points on which their views differ. There is no doubt that in patent cases it is necessary for trial judges to understand where experts agree and disagree, especially when determining the content of the CGK of the POSITA and the construction of the technical terms in the asserted claims. This is why it is important for experts to be as clear as possible in that respect in their reports. [67] That said, the Federal Court made its own assessment as to the weight to be given to Mr. Bennett and Mr. LaPlace’s evidence. It was open to the Federal Court to select which aspects of the experts’ evidence it favoured, based on its own analysis of the claims. In this case, it is clear that the Federal Court did not accept in its entirety any of the expert’s evidence in respect of construction. As noted in Tensar Technologies, Limited v. Enviro-Pro Geosynthetics, Ltd., 2021 FCA 3 (Tensar Technologies) at paragraph 33, I know of no authority, and the appellants cited none, that would suggest that the trial judge was obliged to follow the entirety of the evidence of one party or the other, and could not reach his own conclusion, especially in respect of matters of law like claim construction to which I now turn. (1) Construction of “known consumption patterns” in the claims [68] It is important to recall that the construction of claims is ultimately a matter of law, and that the role of experts in that respect is more limited than the one suggested by dTechs in this case. [69] Although the Federal Court in this case did not have the benefit of our Court’s decision in Biogen Canada Inc. v. Pharmascience Inc., 2022 FCA 143, I believe that it is worth reproducing the following paragraphs: [72] As noted in Whirlpool at paragraph 49(e), interpreting a patent is like interpreting a regulation. Purposive claim construction involves looking at words of the claims in context. This includes in the claims individually and as a whole, considering their purpose as well as the description. As noted by the Federal Court, the entire patent must be considered, but adherence to the claim language allows the claims to be read in a way in which the inventor is presumed to have intended, thereby promoting fairness and predictability (FC Decision at para. 78). [73] In Whirlpool at paragraph 49(f), the Supreme Court reminded us that this is so because the point of the analysis is to interpret and respect the inventors’ objective intention as manifested in the words he used. This is why the whole disclosure must be reviewed, even for words that would appear at first glance to be simple and unambiguous when reading only the claims. Indeed, one of the reasons for reviewing the disclosure is to determine whether the inventor actually defines particular words that could appear plain and simple even to a POSITA when reading only the claims (Whirlpool at para. 52 & 54, definitional assistance). Obviously, and as is well-known by those in the field of intellectual property law, the technical terms or so-called terms of the art must be read through the lens of the POSITA. However, as also noted by the Supreme Court in Whirlpool at paragraph 61, a Court is entitled to differ from the construction put forth by either side for it is its task to construe the claims as a matter of law. This is because the role of the expert is not to interpret the patent claims per se, “but to put the trial judge in the position of being able to do so in a knowledgeable way” (Whirlpool at para 57). [70] dTechs argues that the Federal Court did not conduct its own analysis of these words or of the claims. In its view, the Court simply accepted Mr. Shepherd’s opinions as a whole, including particularly on the interpretation of claim 4. It asserts that the FC Decision is in fact nonsensical. I again disagree. Reasons do not need to be perfect. When the FC Decision is read in the context of the arguments put forth by the parties and the record before it, it becomes clear and intelligible. In fact, in its analysis, the Federal Court did exactly what this Court said it should do, based on the Supreme Court’s directions in Whirlpool Corp. v. Camco Inc., 2000 SCC 67. It construed the claims purposively, by looking at the wording in its entire context. It clearly considered the opinion of the experts as to the CGK of the POSITA (FC Decision at paras. 122‑123) and the technical meaning, if any, of the words “known consumption patterns”. It was appropriate for the Federal Court to focus the construction of the claims in its reasons on the issues in dispute between the parties, centering the analysis “where the shoe pinches” (Cobalt Pharmaceuticals Company v. Bayer Inc., 2015 FCA 116 at para. 83). Doing so does not mean that the Court did not carry out its own construction of the claims. [71] It was common ground among all three experts that “known consumption patterns” would normally refer to historical data collected by the meter on the primary supply line, and would include predicted consumption patterns. This would remain common ground between Mr. Bennett and Mr. LaPlace, even without considering at all the evidence of Mr. Shepherd. [72] As mentioned by the Federal Court, the dispute with respect to “known consumption patterns” concerned whether the POSITA would understand this expression in the independent claims to also include same-time consumption patterns measured on secondary lines because of the wording of claim 4. This construction, which was advanced by Mr. LaPlace, was not based on the generally understood technical meaning of “known consumption patterns”, but on his view that claim 4 would be understood as giving additional meaning to claim 1 by specifying that the comparison referred to in claim 1 could include same-time consumption patterns measured on secondary lines. It is not disputed that the energy balance or reconciliation referred to in claim 4 is a known concept which is performed to identify discrepancies between the input from the primary line and the output metered on all the secondary lines (FC Decision at para. 122(b)). [73] Mr. Bennett also gave evidence as to his interpretation of claim 4, and why it would have no impact on how the POSITA would understand “known consumption patterns” in claim 1. Thus, the dispute referred to by the Federal Court at paragraph 134 would remain one to be determined, even in the absence of Mr. Shepherd’s evidence, for as mentioned, as a matter of law, the words “known consumption patterns” had to be construed in their context. [74] It is in response to the construction proposed by Mr. LaPlace in his report on construction (Appeal Book, Vol. 1, Tab 58, pp. 800-801) that the Federal Court had to make a conclusion at law in respect of the particular meaning and effect of the words “further comprising” in claim 4 of the 087 Patent, as was its duty. While Mr. LaPlace opined that “further comprising” in claim 4 simply added specificity or specified how the comparison step with “known consumption patterns” in claim 1 is to be performed, something akin to the use of “wherein” in other dependent claims, the Federal Court found that “further comprising” in claim 4 added an additional step to the method set out in claim 1 (an open claim defining the method as “comprising”). It held that the additional step covered by claim 4 was not an alternative to the comparison step described in claim 1 (FC Decision at para. 145). [75] In his oral testimony, Mr. LaPlace provided more details as to why he understood comparison with same-time data should be included in the words “known consumption patterns”. The following excerpt from the transcript of Mr. LaPlace’s cross-examination is of particular interest to better understand the relationship between the words “known consumption patterns” and same-time data derived from one or many reconciliations using smart meters: MR. CRICHTON: I just need to confirm, you're saying that the comparison of same-time smart meter data to primary line measurements, that's a concurrent comparison; that's not a comparison with something that was previously known. MR. LaPLACE: Right, it’s same-time, that’s why we say - - I don't want to use the word historical. If it was known it would be historical, but it’s not; it’s same-time. […] And, it just depends. I mean, I guess it's - - the point of same‑time is that the measurements are taken at the same time, not whether the measurements are old or new or expected or known; they're taken at the same time. That’s the useful information. Very powerful, you know, in terms of determining unbalance, or imbalance with the energy calculations. [76] It appears that the question in Mr. LaPlace’s mind was not so much whether the POSITA would commonly understand “known consumption patterns” as including same-time data, as it was clearly not the same thing. [77] This further excerpt from the transcript of Mr. LaPlace’s examination in chief clarifies that what Mr. LaPlace was in fact proposing was to replace the step of “comparing …to known consumption patterns” in claim 1 with the reconciliation step in independent claim 4 because it was more reliable: MR. MOYSE: Well, let me ask you this; what, if anything, would a skilled person think of doing two separate comparisons; one for the purpose of determining or comparing against historical data to find theft, and then another comparing against same-time consumption for locating just technical losses but not theft? What would the skilled person think of that? MR. LaPLACE: I don't think it would make much sense to him. The more reliable calculation would be same-time so it wouldn’t make any sense to - - and, also, why would you have two comparisons? When you have the best comparison already there’s no point in having two separate comparisons, you know. So it makes no sense, in my opinion. [78] It is of interest to note that during Mr. LaPlace’s cross-examination regarding the meaning of “further comprising”, the trial judge stated the following (Appeal Book, Vol. 3, Tab 159, p. 8151): Well, certainly claim construction is a matter for the Court, and I’m not sure that terms like “further” or “wherein” require the input of an expert witness. In any event, that’s not really the expertise of Mr. LaPlace […]. [79] In light of this remark, dTechs’ counsel expressly suggested, during the cross-examination of Mr. Shepherd, that the construction of these words did not require any specialized knowledge beyond that of an ordinary person (Appeal Book, Vol 3, Tab 167, pp. 8931-8933). This was acknowledged by Mr. Shepherd. [80] I fully agree with the trial judge that if the words “further comprising” are terms of the art, it is in the art of claim drafting, one that none of the experts were qualified to opine on, and in respect of which the judge did not require expert guidance. This makes it evident that although the Federal Court referred to expert evidence, it construed the claims on the basis of its own analysis. [81] In construing claim 4, the Federal Court could and did consider the portion of the disclosure describing the purpose and advantages of the reconciliation and of using smart meters (FC Decision at paras. 148-149). The disclosure made no allusion to the fact that such reconciliation with smart meters could be used instead of the comparison with “known consumption patterns”. [82] Although this Court is not tasked with determining if the Federal Court erred in law in its construction of the claims (that distinct ground of appeal was abandoned), there is little doubt that the words “further comprising” as used in claim 4 are meant to add an essential element to the combination of elements found to be essentials in claim 1. The Federal Court held that this construction was in line with the purpose of the invention set out in claim 1, as well as the purpose and advantages of adding the additional step disclosed in claim 4. The Court simply could not re-write the claims as proposed by Mr. LaPlace to capture what he felt would make more sense. The Federal Court rejected Mr. LaPlace’s construction on the basis of its own purposive construction of the claims. This was a legal finding that could not be affected by the new evidence and its potential impact on the evidence of Mr. Shepherd. (2) Infringement [83] The Federal Court concluded that there was no evidence that BC Hydro compared any primary line readings to “known consumption patterns”, an essential element of all the asserted claims as properly construed (FC Decision at para. 174). It is worth noting that this factual finding was not challenged by the appellant in its original notice of appeal, nor as the appeal stood after it filed its memorandum of fact and law. This finding of the Federal Court is part of those this Court must take into account (in any event he also had the benefit of the detailed evidence of Mr. Bennett as well as Mr. LaPlace’s oral acknowledgment during his cross‑examination: Appeal Book, Vol. 3, Tab 159, p. 8055). [84] As the Federal Court’s legal finding on the construction of the claims could not be affected, whatever weight was attributed to Mr. Shepherd’s evidence, its conclusion that there was no such evidence would necessarily remain unchanged. [85] Although this was not strictly necessary to dispose of the infringement action, the Federal Court went on to consider the specific allegations of indirect infringement against Awesense on the basis of inducement or under the doctrine of common design. As mentioned, by the end of the trial, these were the only remaining allegations against Awesense. Indeed, dTechs was no longer arguing that Awesense performed any of the steps of the method claimed in the 087 Patent. [86] Also as previously mentioned, the Federal Court concluded that there was no evidence that Awesense ever induced BC Hydro to infringe the asserted claims, or to support an allegation of infringement by common design (FC Decision at para. 177-179). As this additional conclusion did not involve any expert evidence, the proposed new evidence and its potential impact on Mr. Shepherd’s evidence could not have any bearing on it. [87] I therefore conclude that the Federal Court’s ultimate conclusion that neither BC Hydro nor Awesense, individually or together, infringed the asserted claims could not be affected by the new evidence. (3) Validity [88] Despite my conclusion that the infringement action would still be dismissed based on the other evidence adduced at trial and the legal findings of the Federal Court, I still need to examine its validity findings because of the counterclaims. (a) Anticipation by public prior use [89] I will deal with the Federal Court’s first conclusion that all the asserted claims, except for dependent claims 4 and 22 were anticipated by BC Hydro’s prior use before 2006, and that the details of its investigative techniques were made available to the public. [90] It is worth noting that dTechs’ main arguments in respect of BC Hydro’s prior use did not strictly rely on the expert evidence of Mr. LaPlace, whose opinion on the matter was extremely limited. In fact, the Federal Court noted, at paragraph 204, that Mr. LaPlace had not disputed that BC Hydro’s prior use could anticipate the asserted claims, except by noting that BC Hydro’s investigative techniques did not involve comparison with “same-time consumption patterns” (LaPlace Responding Report on Validity at para. 30, Appeal Book, Vol. 1, Tab 60, pp. 1324‑1325). Mr. LaPlace went even further in his cross-examination, opining that BC Hydro’s prior use “does anticipate […]” [my emphasis] (Appeal Book, Vol. 3, Tab 159, p. 8011). [91] Mr. Trustham testified, as a lay witness, about the method used by BC Hydro to conduct technical losses or energy theft investigations at the relevant time (claims date). The Federal Court found him to be a credible and reliable witness who established the facts set out at paragraphs 188-189 of the FC Decision. It also found that Mr. Trustham’s testimony was corroborated by the testimony of Mr. Shaigec, a witness called on behalf of Awesense, and the affidavit of Mr. Heilkema, President of SensorLink Corporation, which was entered as an exhibit on consent (FC Decision at paras. 198-200). [92] The Federal Court held that it was satisfied that the investigative steps performed by BC Hydro personnel, as described by Mr. Trustham, would infringe the 087 Patent (FC Decision at para. 192). The Court also made additional factual findings on the basis of the evidence of these lay witnesses in paragraphs 199 to 203 including that the VARcorder meter used by BC Hydro had a resolution of 0.1A. Thus, high resolution digital recording ammeters (DRAs) were in fact available and used to measure current on primary lines before 2006. [93] All these factual findings would remain unchanged and must be taken into account by this Court in determining the possible impact of Mr. Shepherd’s evidence being given no weight. [94] Although the Federal Court referred generally to Mr. Shepherd’s undisputed opinion in the very last paragraph of this portion of the FC Decision, I cannot make any inference that this evidence was necessary to its conclusion in respect of independent claims 1 and 21 because of the other evidence adduced, including that of Mr. LaPlace. This is also the case for the dependent claims regarding which the Federal Court made express factual findings, such as those specifying the use of infrared devices and those referring to the resolution of the meters and DRAs in a range of less than 1 amp or of about 0.01 to about 0.1 amp or that BC Hydro used the method where the suspect consumption pattern was greater than the known consumption pattern (FC Decision at para. 188(d)). It is also clear from the factual findings that the prior use described by Mr. Trustham did not involve an independent monitoring agency. Thus, it could not anticipate claim 22. Finally, because the method used by BC Hydro’s personnel did not include the use of same-time data for reconciliation (no finding in that respect), it could not anticipate claim 4. [95] In light of the Federal Court’s construction of the claims, its aforementioned undisturbed factual findings and the other evidence, including that of Mr. LaPlace as to the technical characteristics of the VARcorder, I cannot agree with dTechs that the Court’s conclusion that BC Hydro’s prior use met the requirements set out in section 28.2 of the Patent Act, R.S.C., 1985, c. P-4 could not have been the same because BC Hydro would have failed to meet its burden of proof in the absence of Mr. Shepherd’s evidence. [96] Where anticipation is alleged on the basis of disclosure by prior use, satisfying one’s onus of proof may indeed require expert evidence in cases where, for example, such evidence would establish that the particular compound used falls within the technical description of a species or genus covered by the claim. This would not be within the realm of the judge’s knowledge. However, it may not be essential for a plaintiff in counterclaim to adduce expert evidence on validity per se where, as in this case, the Court had the benefit of the opinions of two other experts (Mr. Bennett on CGK and construction and Mr. LaPlace), and where it readily understood and construed the basic and pragmatic steps covered by the patented method (See for example FC Decision at paras. 13-23, taken from the overview provided by Mr. LaPlace and generally describing power distribution and detection of electrical losses, and paragraphs 122‑123 describing the CGK). This is especially so when there is no dispute that such use could indeed anticipate the asserted claims, and where the CGK for the purpose of anticipation was the same as the CGK used for the purpose of construction (LaPlace Validity Report at para. 41, Appeal Book, Vol. 1, Tab 60, pp. 1332-1333). [97] Mr. Shepherd had no personal knowledge whatsoever regarding BC Hydro’s prior use. He was simply asked to assume the facts that were later established at trial by other witnesses. In my view, this explains why his evidence is only referred to briefly in the last paragraph of the portion of the FC Decision on anticipation based on BC Hydro’s prior use (FC Decision at para. 204), well after the Federal Court found that it would infringe the 087 Patent (FC Decision at para. 192). [98] Mr. Shepherd’s evidence may well have facilitated the Federal Court’s task, but once it had construed the claims that raised any controversy among the parties, including determining their essential elements, and made findings of fact on the basis of the evidence of lay witnesses on facts that would readily fall within each of those elements, it would have had to conclude that BC Hydro’s prior use anticipated independent claims 1 and 21, as well as the asserted dependent claims, except for claims 4 and 22. This is so because the Court was entitled to consider all the evidence adduced, including that of the experts tendered by other parties, in determining whether it was satisfied of a particular fact. [99] In light of my conclusion that the Federal Court’s finding on anticipation by prior use in respect of all claims except claims 4 and 22 could not be affected by the new evidence and its potential impact on the evidence of Mr. Shepherd, the only issue remaining to be examined is whether those two claims were either anticipated by published prior art or obvious. (b) Anticipation by published prior art [100] As previously stated, only the De Reference was held by the Federal Court to anticipate claims 4 and 22. I will thus limit my comments to that document. [101] Claim 4 covers a method which included all the essential elements of claim 1, plus a reconciliation using same-time data obtained from smart meters connected to secondary lines to compare the electrical supply at the primary supply line to a sum of consumption at all of the secondary lines. Claim 22’s only addition to independent claim 21 is the use of an independent monitoring agency. [102] The parties did not provide detailed submissions as to the validity of these two claims. dTechs simply argued that it was apparent that the Federal Court relied heavily on the evidence of Mr. Shepherd in that respect, and thus, that it would necessarily be impacted by the effect of the new evidence on that of Mr. Shepherd. [103] Awesense, who had limited resources and attended the hearing before us through Zoom (hybrid hearing), did not address the validity of these claims in its memorandum, instead relying on BC Hydro’s submissions on the matter, which are essentially limited to those found at paragraph 73 of its memorandum, and which were not particularly helpful. [104] The Federal Court found that: [228] All expert witnesses agreed that the De Reference discloses metering on the primary line to identify variations from known (i.e., historical) consumption patterns in order to detect suspicious deviations. The De Reference uses the term “base profile”, but this is the same as “known consumption patterns” in the 087 Patent. Similar to the 087 Patent, the De Reference teaches the use of a threshold for triggering an investigation (10-15% over an expected value in the De Reference, compared to 25% in the 087 Patent). [my emphasis] [105] This finding reflects the Federal Court’s assessment of Mr. LaPlace’s evidence. Considering that this assessment is not challenged in the appeal before us, it must be considered by this Court as unchanged. [106] There was no dispute that the De Reference included the use of smart meters for the purpose of reconciliation as an additional advantage (or improvement). At paragraph 28 of his validity report, Mr. LaPlace refers to the following sentence at page 657 of the De Reference (Appeal Book, Vol. 1, Tab 60, p. 1323): In addition, bulk metering on the main supply to the building allows reconciliation between the total metering and all the individual domestic meters. [my emphasis] [107] The Federal Court relied on this passage as supporting its conclusion that the De Reference disclosed the additional step set out in claim 4. However, Mr. LaPlace’s evidence was that the system disclosed in the De Reference, including the above sentence, would not be clearly understood by the POSITA in the manner suggested by Mr. Shepherd and adopted by the Federal Court (FC Decison at para. 231). [108] At paragraph 28(d) of his validity report, and in his cross-examination by BC Hydro’s counsel (Appeal Book, Vol. 3, Tab 161, pp. 8267-8273), Mr. LaPlace insisted that the sentence quote above and alluded to at paragraph 231 of the FC Decision as describing an additional advantage of the system disclosed in the De Reference, would not clearly refer to a reconciliation with the metered data at the primary line. In fact, it could refer to a reconciliation with the data metered at the distribution transformer level only. [109] Unlike the assessment of anticipation by prior use discussed above, expert evidence as to how a POSITA would read and understand a particular printed publication is necessary, unless the wording of the document is very clear. The Federal Court provided no explanation as to why it did not consider Mr LaPlace’s evidence on that point and how it could construe this sentence otherwise, except by relying on Mr. Shepherd’s evidence. Therefore, I am not satisfied that the Court’s findings based on its reading of this prior art, which must be done through the eyes of a POSITA, would remain undisturbed if no weight was given to the evidence of Mr. Shepherd. [110] Insofar as claim 22 is concerned, the method described in the De Reference requires the distribution utility to send a “vigilance team” to verify the reasons for the deviation and take appropriate actions. The Federal Court does not discuss whether a “vigilance team” would be understood by a POSITA as referring to personnel of the utility or personnel of another entity. However, it is clear that the Court had already adopted Mr. LaPlace’s view that a POSITA would understand that “the claimed process would work exactly the same way regardless of whether the utility or a non-utility performs each step” (LaPlace Responding Report on Validity at para. 24, Appeal Book, Vol. 1, Tab 60, p. 1319). It is on that basis that it construed the step of “notifying the utility” in claim 1 as non-essential. [111] There was nothing in Mr. Shepherd’s opinion on this claim other than a reference to the POSITA’s common understanding that a “vigilance team” could be an entity other than the utility (Shepherd Report on Construction and Validity, Appeal Book, Vol. 2, Tab 136, p. 4184). It is thus not surprising that Mr. LaPlace never raised any issues as to whether the De Reference anticipated claim 22 (LaPlace Responding Report on Validity at para. 28, Appeal Book, Vol. 1, Tab 60, pp. 1321-1322). [112] In such circumstances, and in light of the Federal Court’s findings at paragraphs 225 and 227, as well as Mr. LaPlace’s concession referred to at paragraph 232, I am satisfied that the Federal Court could not have changed its conclusion in respect of claim 22 had it decided to give no weight to Mr. Shepherd’s evidence. (c) Obviousness [113] Considering my conclusion in respect of anticipation, I will limit my discussion on obviousness to claim 4. [114] The bulk of the Federal Court’s analysis on this issue is directed at all the essential elements of the independent claims (FC Decision at paras. 250-253), particularly the use of meters on the primary line to detect atypical consumptions, which was one of the key differences between the state of the art and the inventive concept of those claims identified by Mr. LaPlace (FC Decision at para. 247). [115] It appears from paragraph 253 that the Federal Court relied on Mr. Shepherd’s evidence to say that all the essential elements of claims 1 and 21 would be within the CGK of the POSITA. The description of that CGK goes further than the CGK described at paragraphs 122 and 123 of the FC Decision. If this evidence was given no weight, it might have impacted the Court’s conclusion in that respect. [116] The additional essential element of dependent claim 4 is only discussed in paragraph 254 of the FC Decision. In that paragraph, instead of simply referring to the CGK on which there was little disagreement between the parties’ experts as described at paragraphs 122 and 123 (see FC Decision at para. 240), again the Federal Court expressly referred to the CGK of the POSITA as set out in Mr. Shepherd’s report on construction and validity. The description of the CGK as it relates to the essential element of this claim appears to go somewhat further than what is described at paragraphs 122(b) and (h) of the FC Decision. [117] In the circumstances, I also find it more appropriate to have the issue of obviousness redetermined, if need be, by the Federal Court, as it is a factual question heavily informed by expert evidence. This is especially so given that if the Federal Court attributes some weight to Mr. Shepherd’s evidence despite the new evidence (as opposed to the scenario I have used in these reasons), it may uphold its previous findings. VI. Conclusion [118] In light of the above, I conclude that although the new evidence might have had some impact on the weight afforded to BC Hydro’s expert, it could not have affected the result of the infringement action per se. It would still have been dismissed on the basis of the undisturbed legal and factual findings of the Federal Court. [119] In the circumstances, I propose that this Court dismiss the appeal in respect of the infringement action, and confirm the Federal Court judgment that: 1. Neither British Columbia Hydro and Power Authority nor Awesense Wireless Inc., individually or together, infringes the asserted claims of Canadian Patent 2,549,087 [087 Patent]. [120] With respect to the counterclaims alleging invalidity, I am satisfied that, based on the other evidence adduced at trial, the following findings of Federal Court could not be affected by the new evidence: i) that the asserted claims were anticipated by BC Hydro’s prior use, except for claims 4 and 22, ii) that dependent claim 22 was anticipated by the De Reference. However, I agree that the new evidence could have had an impact on the Court’s findings that dependent claim 4 was anticipated by the De Reference and obvious. As such, I would allow the appeal in part, and amend the judgment accordingly. [121] With respect to costs, dTechs had agreed with the respondents on the amount of costs it would pay should the appeal be dismissed. In my view, the arguments raised before us reveal no valid basis for pursuing this appeal against Awesense. I would therefore award costs in the agreed amount of $15,000.00. However, I would award costs to BC Hydro in a slightly reduced amount of $10,000.00. [122] As only the counterclaims are affected by my conclusions regarding the Federal Court’s findings on validity, the respondents/plaintiffs by counterclaim should be entitled to seek a redetermination as to the validity of dependent claim 4, if they so choose, including on any outstanding grounds on which the Federal Court did not rule. This would require a new trial before the same judge, on the basis of all the evidence already adduced before the Federal Court, together with the new evidence, which is only admitted for the purpose of dealing with the validity of claim 4, as well as such further evidence as the Court deems appropriate to consider in the circumstances. Of course, it would be open to the Federal Court to deal with the impact of the new evidence on the weight attributed to Mr. Shepherd’s evidence as a preliminary issue so that the parties may limit the costs arising from a full redetermination of the remaining issues. [123] Given that no costs were actually awarded in the judgment that is the subject of the appeal before us, and that neither the order awarding said costs nor the order quantifying them have been appealed, this Court, in my view, has no jurisdiction to deal with any costs awarded by the Federal Court in this matter. \"Johanne Gauthier\" J.A. “I agree Anne L. Mactavish J.A.” “I agree René LeBlanc J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD APPEAL FROM A JUDGMENT OR ORDER OF THE HONOURABLE JUSTICE FOTHERGILL DATED MARCH 16, 2021, NO. T-227-17 DOCKET: A-121-21 STYLE OF CAUSE: DTECHS EPM LTD. v. BRITISH COLUMBIA HYDRO AND POWER AUTHORITY AND AWESENSE WIRELESS INC. PLACE OF HEARING: Calgary, Alberta DATE OF HEARING: October 27, 2022 REASONS FOR JUDGMENT BY: GAUTHIER J.A. CONCURRED IN BY: MACTAVISH J.A. LEBLANC J.A. DATED: MaY 26, 2023 APPEARANCES: In person: Christian J. Popowich Alex McKay For The Appellant In person: Michael Crichton R. Nelson Godfrey Claire Stempien For The Respondents BRITISH COLUMBIA HYDRO AND POWER AUTHORITY Virtually : Vincent M. de Grandpré Kenza Salah For The Respondent AWESENSE WIRELESS INC. SOLICITORS OF RECORD: Code Hunter LLP Calgary, Alberta For The Appellant Gowling WLG (Canada) LLP Ottawa, Ontario For The Respondents BRITISH COLUMBIA HYDRO AND POWER AUTHORITY Osler, Hoskin & Harcourt LLP Toronto, Ontario For The Respondent AWESENSE WIRELESS INC.\n\n### Legal Analysis\nThe court's analysis focuses on: most relevant portions in my analysis. It is nevertheless important to note that the Federal Court’s construction of the terms “known consumption patterns”, part of an essential element of all the claims at issue, was critical to its ultimate conclusions. Indeed, this construction was ultimately what led the Federal Court to co\n\n### Precedential Value\nAs a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation."}
{"prompt": "How does this Refugee Protection Division decision from the Immigration and Refugee Board of Canada evaluate refugee protection needs?\n\nImmigration and Refugee Board Commission de l'immigration et du statut de réfugié Refugee Protection Division Section de la protection des réfugiés RPD File No. / No de dossier de la SPR : MA7-01836 Private Proceeding Huis clos Claimant(s) Demandeur(e)s d'asile XXXXX XXXXX XXXXX Date(s) of Hearing Date(s) de l'audience April 30, 2008 Place of Hearing Lieu de l'audience Montréal, Quebec Date of Decision Date de la décision May 7, 2008 Panel Tribunal Me Alain Bissonnette Claimant's Counsel Conseil du demandeur d'asile Me Gisele Barraza Tribunal Officer Agent du tribunal Normand Leduc Designated Representative Représentant désigné N/A Minister's Counsel Conseil du ministre N/A INTRODUCTION XXXXX XXXXX XXXXX, a Mexican citizen, is claiming refugee protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the Act). She alleges that she was persecuted by reason of her membership in a particular social group and that she would be personally subjected to a risk to her life or to a risk of cruel and unusual treatment or punishment, as well as to a danger of torture, should she return to her country. SUMMARY OF ALLEGED FACTS The claimant, who was a XXXXX XXXXX XXXXX in Mexico State, alleged that her problems began in early XXXXX 2006, when XXXXX XXXXX and XXXXX XXXXX XXXXX, who benefited from police protection, demanded modest amounts of money from the claimant to prevent her business from being attacked. The claimant alleged that on XXXXX, 2006, XXXXX XXXXX and XXXXX XXXXX XXXXX showed up at her business and ordered her to give them 200 pesos, which she refused to do. She also alleged that when she refused, these two people tried to steal her XXXXX -her main work tool-but that she stopped them by asking some friends to help and fighting the two people, who then hit her and threatened to kill her. The claimant alleged that on XXXXX, 2006, she filed a complaint with the public ministry in XXXXX XXXXX (Mexico State). The claimant alleged that on XXXXX, 2006, she decided to close her business and go to live with an aunt in a village in the region of XXXXX in XXXXX XXXXX. She also alleged that on XXXXX, 2006, at that location, she received a telephone call during which her life was threatened. The claimant alleged that on XXXXX, 2006, she returned to Mexico State and reopened her business, even though she feared for her life. She also alleged that on XXXXX, 2006, she returned to the public ministry to follow up on her complaint of XXXXX, 2006, but that she was told that she had to pay 500 pesos to access the information and receive a copy of her complaint. The claimant alleged that from XXXXX 2006 to XXXXX 2007, XXXXX XXXXX and XXXXX XXXXX XXXXX regularly threatened to kill her and asked each time for about 100 to 200 pesos, but that she always refused to pay them. The claimant alleged that on XXXXX XXXXX 2007, XXXXX XXXXX came to her business and threatened to kill her if she said anything, and he stole the previous day's proceeds, an amount of 2,500 pesos. She also alleged that she then decided to sell her business and leave her country. The claimant left Mexico on March 5, 2007, and claimed refugee protection in Canada the same day. ANALYSIS Given the copy of the claimant's passport submitted into evidence,1 the panel is satisfied as to her identity. The determinative issue in this case is whether the claimant did what was necessary in the circumstances to seek and avail herself of the protection of the Mexican authorities. When asked during the hearing whether she had filed a complaint about the death threats that she received, the claimant answered that she had referred to the death threats in the complaint that she had filed on XXXXX, 2006. She also stated, in response to a question from her lawyer during the hearing, that the surveillance report written by the executive committee of the market where she worked mentioned these threats.2 When asked whether she subsequently alerted the authorities to the death threats and the ensuing extortion demands, the claimant answered that on XXXXX, 2006, she had wanted to follow up but was told that she had to pay 500 pesos to access the information and to receive a copy of her complaint. When asked whether she then took any other steps with the Mexican authorities, such as asking other market merchants and the market's executive committee for support, the claimant answered that she had not taken any other steps because she was afraid. When asked during the hearing whether she had filed a complaint about the alleged extortion on XXXXX, 2007, or about the death threats uttered at that time, the claimant answered that she had not because the authorities had done nothing previously. During her submissions, the claimant's lawyer referred to the documentary evidence indicating that complaints are rarely filed in Mexico. The lawyer stated that in the claimant's case, she complained once, but nothing came of it. The claimant's lawyer also stated that the documentary evidence indicates that in Mexico, human rights are not respected and that violence against women goes unpunished.3 The applicable test concerning the issue of whether state protection might reasonably be forthcoming must be objective.4 Mexico is a democratic country, and there is a presumption that the state is capable of protecting its citizens.5 In Mexico, criminality in general and corruption within the police forces6 are serious problems. However, the documentary evidence also indicates that efforts are being made to resolve the real and perpetual problems of criminality and corruption within the police forces and the judicial system, and that results are being seen, especially in the fact that criminals and corrupt police officers and civil servants have been arrested, tried and convicted.7 The government also finances organizations that help people who have difficulty obtaining state protection.8 When the absence of state protection is raised, evidence of the state's inability to provide protection must be adduced.9 This evidence must be relevant and must have probative force; in other words, a claimant seeking to rebut the presumption that state protection exists must submit relevant, reliable and convincing evidence.10 When a state is in effective control of its territory, has military, police and civil authorities, and makes serious efforts to protect its citizens, the mere fact that those efforts are not always successful is insufficient to rebut the presumption of state protection.11 That being said, state protection must be more than theoretical: it must be practical, real and effective,12 and a citizen is obligated to seek protection from the authorities of his or her country, unless it is objectively reasonable not do so, that is, unless such protection would not have been forthcoming.13 Based on all of the documentary evidence, the panel is of the opinion that the claimant's testimony and her lawyer's arguments do not constitute convincing evidence that the presumption that the Mexican authorities are capable of protecting their citizens has been rebutted in the claimant's case. Moreover, the panel is of the opinion that this is not a situation in which it was unreasonable to expect the claimant to take steps, beyond the local authorities,14 to alert the Mexican authorities and to seek their protection, particularly by telling them that she knew the identity of the two people who were threatening to kill her and who were constantly trying to extort money from her, XXXXX and XXXXX XXXXX XXXXX.15 Although according to her testimony she received constant death threats, the claimant gave the Mexican authorities a chance to protect her only once, on XXXXX, 2006. Consequently, the panel is of the opinion that she did not demonstrate, on the balance of probabilities, that she did what was necessary in the circumstances to avail herself of her country's protection.16 The claimant instead chose to come to Canada, but claiming refugee status in a state that is a signatory to the Convention must be a last resort. The above analysis deals with paragraph 97(1)(b) of the Act. The claimant presented no evidence that she was persecuted on any of the grounds listed in section 96 of the Act or that there are reasons to believe that she may be subjected to a danger of torture within the meaning of Article 1 of the Convention Against Torture. CONCLUSION The panel determines that the claimant is not a refugee under section 96 or a person in need of protection under section 97 of the Act. For these reasons, her claim for refugee protection is rejected. Alain Bissonnette Me Alain Bissonnette May 7, 2008 Date 1 The copy of the passport is among the immigration documents filed as Exhibit A-2. 2 This document was filed as Exhibit P-6. 3 She then referred to the Amnesty International document at Tab 2.2 of the National Documentation Package on Mexico, January 30, 2008, filed as Exhibit A-1, as well as to a document by the Research Directorate of the Immigration and Refugee Board of Canada, Mexico: State protection (December 2003 - March 2005), May 2005, 46 pages, at Tab 9.2 of the package. 4 Judge v. Canada (Minister of Citizenship and Immigration), (IMM-5897-03), Snider, August 9, 2004; 2004 FC 1089, at paragraph 10: http://decisions.fct-cf.gc.ca/en/2004/2004fc1089/2004fc1089.html. 5 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; Ortiz Juarez v. Canada (Minister of Citizenship and Immigration) (F.C., IMM-2410-01), Justice Phelan, March 6, 2006; 2006 FC 288: http://decisions.fct-cf.gc.ca/en/2006/2006fc288/2006fc288.html. 6 Research Directorate of the Immigration and Refugee Board of Canada, Mexico: Police - May 2004, 24 pages, http://www.irb-cisr.gc.ca/en/research/publications/index_e.htm?docid=268&cid=145, at Tab 10.1 of the National Documentation Package. Also read Research Directorate of the Immigration and Refugee Board of Canada, Mexico: State protection (December 2003 - March 2005), May 2005, 46 pages, http://www.irb-cisr.gc.ca/en/research/publications/index_e.htm?docid=283&cid=145, at Tab 9.2 of the National Documentation Package. 7 Immigration and Refugee Board of Canada, Possible recourse for victims of bribery demands/corruption by government officials federally, MEX42663.E, October 1, 2004, 6 pages, http://www.irb-cisr.gc.ca/en/research/rir/index_e.htm?action=record.viewrec&gotorec=432402, at Tab 9.8 of the National Documentation Package. 8 Immigration and Refugee Board of Canada, List of government-funded institutions that assist those having difficulty obtaining state protection, MEX43164.E, November 2004, 10 pages, http://www.irb-cisr.gc.ca/en/research/rir/index_e.htm?action=record.viewrec&gotorec=432388, at Tab 9.7 of the National Documentation Package. 9 The Minister of Citizenship and Immigration v. Maria del Rosario FLORES CARRILLO, (No. A-225-07), Létourneau, Nadon, Sharlow, March 12, 2008; 2008 FCA 94, paragraph 38: decisions.fca-caf.gc.ca/en/2008/2008fca94/2008fca94.html. 10 Idem, paragraph 30. 11 M.E.I. v. Villafranca, Igancio (F.C.A., No. A-69-90), Hugessen, Marceau and Décary, December 18, 1992. 12 Judge v. Canada (Minister of Citizenship and Immigration), (IMM-5897-03), Snider, August 9, 2004; 2004 FC 1089, at paragraph 9: http://decisions.fct-cf.gc.ca/en/2004/2004fc1089/2004fc1089.html; Kaur v. Canada (Minister of Citizenship and Immigration), (IMM-2302-05), de Montigny, November 7, 2005; 2005 FC 1491, at paragraph 28: http://decisions.fct-cf.gc.ca/en/2005/2005fc1491/2005fc1491.html; and Peralta Razo v. Canada (Citizenship and Immigration), (IMM-209-06), Dawson, November 30, 2007; 2007 FC 1265, at paragraph 10: http://decisions.fct-cf.gc.ca/en/2007/2007fc1265/2007fc1265.html. 13 Trejo Soto v. Canada (M.C.I.), (IMM-282-05), Pinard, December 20, 2005, paragraph 7; 2005 FC 1654: http://decisions.fct-cf.gc.ca/en/2005/2005fc1654/2005fc1654.html; Castro, Karen Rutter v. M.C.I., (IMM-4187-06), Kelen, January 17, 2007, at paragraph 14; 2007 FC 40: http://decisions.fct-cf.gc.ca/en/2007/2007fc40/2007fc40.html. 14 Salazar Santos v. Canada (Citizenship and Immigration), (IMM-4602-06), Barnes, July 30, 2007; 2007 FC 793, at paragraph 15: http://decisions.fct-cf.gc.ca/en/2007/2007fc793/2007fc793.html; Perez Burgos, Gerson Alejandr v. Canada (Citizenship and Immigration), (IMM-2028-06), Blanchard, December 21, 2006; 2006 FC 1537, at paragraph 35, citing Zhuravlvev, Anatoliy v. M.C.I., (F.C.T.D., IMM-3603-99), Pelletier, April 14, 2000: http://decisions.fct-cf.gc.ca/en/2006/2006fc1537/2006fc1537.html; Martinez Dorado v. Canada (Citizenship and Immigration), (IMM-7491-05), Harrington, July 27, 2006; 2006 FC 928, at paragraph 10: http://decisions.fct-cf.gc.ca/en/2006/2006fc928/2006fc928.html. 15 Torres Lopez v. Canada (Citizenship and Immigration), (IMM-3688-06), de Montigny, February 22, 2007; 2007 FC 198, at paragraph 22: http://decisions.fct-cf.gc.ca/en/2007/2007fc198/2007fc198.html. 16 Campos Navarro v. Canada (Citizenship and Immigration), IMM-3158-07, de Montigny, March 17, 2008; 2008 FC 358, paragraph 17: http://decisions.fct-cf.gc.ca/en/2008/2008fc358/2008fc358.html; Sanchez, Lizette Guzman v. Minister of Citizenship and Immigration, IMM-2420-07, Noël, January 18, 2008; 2008 FC 66, at paragraph 12: http://decisions.fct-cf.gc.ca/fr/2008/2008cf66/2008cf66.html. REFUGEE PROTECTION DIVISION / HARASSMENT / EMPLOYMENT / STATE PROTECTION / FEMALE / NEGATIVE / MEXICO --------------- --------------- --------------- --------------- RPD File No. / No de dossier de la SPR : MA7-01836 6", "response": "## Analysis of Refugee Decision: MA7-01836\n\n### Key Issues\nalso stated, in response to a question from her lawyer during the hearing, that the surveillance report written by the executive committee of the market where she worked mentioned\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: ction in Canada the same day. ANALYSIS Given the copy of the claimant's passport submitted into evidence,1 the panel is satisfied as to her identity. The determinative issue in this case is whether the claimant did what was necessary in the circumstances to seek and avail herself of the protection of the Mexican authorities. Whe\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "What factors were considered in this Refugee Protection Division decision from the Immigration and Refugee Board of Canada?\n\nRPD File No. / N° de dossier de la SPR : TA7-02522 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXXX XXXXX Demandeur(e)(s) d'asile Date(s) of Hearing August 27, 2009 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision September 17, 2009 Date de la décision Panel M. McCaffrey Tribunal Counsel for the Claimant(s) John Rokakis Conseil(s) du / de la / des demandeur(e)(s) d'asile Barrister and Solicitor Tribunal Officer N/A Agent(e) de tribunal Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre [1] XXXXX XXXXX is a citizen of Haiti who seeks refugee protection pursuant to pursuant to subsections 96 and 97(1) of the Immigration and Refugee Protection Act1 (IRPA). Allegations [2] The claimant alleges that armed men, presumed to be from the Fanmi Lavalas (FL) faction, entered his home around 6 pm in the evening of XXXXX, 2001. He saw the intruders go towards the room of his brother, XXXXX, but fled the house before he was detected or knowing what happened later. He declared that he learned of his brother's death the following day, whereupon he fled into hiding. In XXXXX 2002, he left his hiding place and travelled to the USA on an altered USA passport. He was arrested upon arrival, detained for eight months and convicted in US Federal Court of uttering a false document. His subsequent claim for asylum was denied on XXXXX, 2006. He came to Canada seeking protection in February 2007. He claims a well-founded fear of persecution by reason of his imputed political opinion and his membership in a particular social group, namely the family of XXXXX XXXXX. Issues and Determination [3] The panel finds that the claimant is not a Convention refugee or a person in need of protection. The determinative issue was the credibility of the claimant. The panel's reasons are as follows: Identity [4] The claimant's identity is evidenced by his birth certificate,2 and US Immigration and State of Florida photo identification issued in his name.3 The panel is satisfied that the claimant is a citizen of Haiti by birth at Gonaïves. Credibility [5] It is established law that the claimant's sworn testimony is presumed to be true, unless there is valid reason to doubt its truthfulness.4 Unfortunately, the extent of the contradictions and instances of implausibility in matters central to the claim for protection give rise to doubt the claimant's credibility as a witness. [6] In his Personal Information Form (PIF),5 the claimant declared that he returned to his home after the incident with a friend named XXXXX. In his oral testimony, however, he claimed to have returned to the home with his cousin, XXXXX. When asked to explain this contradiction, the claimant replied he decided to put in his PIF exactly what he had told the US immigration authorities in his claim for asylum in that country. The claimant said that, apart from this part, the PIF narrative was complete and truthful. However, the panel draws negative inference from this contradictory testimony concerning who returned to the house with him. He had an opportunity when he made a claim in Canada to correct the \"error\" in names, he failed to do so. The panel did not find his explanation to be persuasive. [7] The claimant declared in his PIF and subsequent oral testimony that his brother XXXXX was dead. However, there is no death certificate attesting to this fact. Under further questioning, the claimant stated he believed his brother to be dead because the house was empty upon his return and he has had no contact with his brother since the incident. He also testified that he has had no news whatever from Haiti since his departure, and is not aware of the fate of his half-siblings still living in Haiti, according to the PIF. Absent any corroborating evidence, the panel finds that the death of the claimant's brother is speculation on his part. [8] The claimant testified that he spent one year in virtual house arrest, never leaving the home or backyard of his hiding place in a remote part of Haiti. He testified that, at the end of this year, he took a day-long trip on public transport, with many comings and goings in the vehicle en route, to take his flight from Port au Prince airport. Any number of people could have recognized him on this long journey and put his life in jeopardy. The panel finds it unreasonable behaviour for someone who allegedly spent a year in hiding fearing for his life. The panel finds, on a balance of probabilities, that the claimant did not spend one year in hiding away from Gonaïves and that he has embellished his testimony in order to bolster his claim. [9] Before setting out on this trip, the claimant testified and confirmed that his cousin had given him a US passport in his name and the sum of 300 Haitian dollars. He twice stated he was given nothing more. When asked about how he boarded the plane at the airport he replied that he had a ticket. When asked if he had purchased the ticket with the money his cousin had given him, the claimant replied that the cousin had given him the ticket also, further contradicting previous sworn testimony. The panel draws a negative inference from this testimony. [10] After weighing the testimony and the claimant's written evidence, the panel finds that he is not a credible or trustworthy witness. Well-founded fear of persecution Nexus: a. Political Opinion [11] The claimant alleges that he fears persecution by reason of his political opinion. He declared that he attended two meetings of the political party MOCHRENA (Christian Movement for a New Haiti). These meetings took place in XXXXX, 2001, and the second in XXXXX, 2002, or 18 months apart. He claimed no membership in the party and no other involvement with MOCHRENA in Haiti. He did not participate in either of the two meetings he attended. Even if the panel were to accept his testimony as credible, and the panel does not, the limited nature of his participation amounts to a trivial political profile. [12] Speaking to the fate of returnees to Haiti, in a response to a request for information from the IRB, the UNHCR representative in Canada replied in part: [13] Some people are more likely than others to be targeted upon returning to Haiti because of their involvement in political or other activities (ibid.). The risks that a person faces when returning to Haiti depend on that person's political role or past and [translation] \"are not necessarily related to that person's status as a Haitian who has lived abroad\".6 With respect to the general situation in Haiti, the most recent report from Amnesty International for 2008 stated that levels of politically-motivated violence remained low.7 The most recent US State Department report declared that the government or its agents did not commit any known politically-motivated killings.8 [14] After weighing the claimant's declared fear against the preponderance of the documentary evidence, the panel finds that the claimant's fear of persecution by reason of his political opinion, imputed or otherwise, is not well-founded. b. Membership in a Particular Social Group [15] There is no evidence of the claimant's brother being an active member in the MOCHRENA, apart from the claimant's own testimony, which the panel determined was not credible or trustworthy. There is no reliable evidence before the panel to establish nexus based on membership in a particular social group, namely the family of his brother XXXXX. The panel does not find any well-founded fear of persecution for the claimant on Convention grounds. The panel determines that the claimant is not a Convention refugee. Personalized Risk [16] There was no evidence adduced to support a personalized fear of torture or risk to life or to cruel or unusual treatment or punishment, if the claimant were to return to Haiti. The panel finds there is no such risk and determines that the claimant is not a person needing protection, accordingly. Conclusion [17] The panel finds that the claimant is neither a Convention refugee nor a person needing protection. The panel therefore rejects his claim. (signed) \"M. McCaffrey\" M. McCaffrey September 17, 2009 Date REFUGEE PROTECTION DIVISION / IMPUTED POLITICAL OPINION / PARTICULAR SOCIAL GROUP / FAMILY / HIDING / PERSONNAL INFORMATION FORM / CONTRADICTIONS/ GENERALIZED RISK / MALE / NEGATIVE / HAITI 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Exhibits C-2, C-3. 3 Exhibit R/A-2 4 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.) 5 Exhibit C-1. 6 Exhibit R/A-1, item 14.1 7 Ibid, 2.2 8 Ibid, 2.1 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.15.7 (February 12, 2009) Disponible en français RPD.15.7 (February 12, 2009) Disponible en français RPD File No. : TA7-02522 RPD File No. :TA7-02522", "response": "## Analysis of Refugee Decision: TA7-02522\n\n### Key Issues\nly the family of XXXXX XXXXX. Issues and Determination [3] The panel finds that the claimant is not a Convention refugee or a person in need of protection. The determinative issue\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: ding protection, accordingly. Conclusion [17] The panel finds that the claimant is neither a Convention refugee nor a person needing protection. The panel therefore rejects his claim. (signed) \"M. McCaffrey\" M. McCaffrey September 17, 2009 Date REFUGEE PROTECTION DIVISION / IMPUTED POLITICAL OPINION / PARTICULAR SOCIAL GROUP / F\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "What precedents are cited in this Refugee Protection Division decision from the Refugee Law Lab Reporter?\n\n2023 RLLR 119 Citation: 2023 RLLR 119 Tribunal: Refugee Protection Division Date of Decision: December 19, 2023 Panel: Hannah Gray Counsel for the Claimant(s): N/A Country: Russia RPD Number: VC3-07126 Associated RPD Number(s): VC3 06774, VC3 06775 ATIP Number: A-2024-00593 ATIP Pages: N/A DECISION [1] MEMBER: So I have considered your testimonies today, and the other evidence in your case and I will now give you my decision orally. And you will also receive a written version of this decision in the mail, okay? So I will begin by telling you that my decision is a positive one (1), and I have accepted each of your claims, so congratulations. [2] CLAIMANT: Thank you. [3] ASSOCIATE CLAIMANT: Thank you very much. [4] MEMBER: You’re very welcome. I’m now going to read you the reasons for my decision, and they’re a bit lengthy, so just bear with me while I read those, okay? [5] Okay, this is the decision of the Refugee Protection Division in the claims of XXXX XXXX, and his spouse, XXXX XXXX, and their daughter, XXXX XXXX of Ukraine, who are claiming refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act, the IRPA. [6] At the hearing, the associate claimant, who is the mother of the minor claimant, acted as the designated representative for her daughter pursuant to subsection 167(2) of the Act, and Rule 20 of the Refugee Protection Division Rules. [7] I have considered and applied the Chairperson’s Guideline 4 on Gender Considerations in Proceedings Before the Immigration and Refugee Board, which offers guidance with respect to any gender-specific issues present in this claim. [8] I’ve also applied and considered the Chairperson’s Guidelines on child refugee claimants, procedural and evidentiary issues as it relates to the claim of the minor claimant. [9] The claimants were self-represented for their hearing. DETERMINATION [10] I find that the claimants are Convention refugees pursuant to section 96 of the IRPA based on their well-founded fear of persecution in Ukraine. I also find that the principal claimant is a Convention refugee pursuant to section 96 of the IRPA based on his well-founded fear of persecution in Russia. ALLEGATIONS [11] The specifics of the claim are stated in the claimant’s Basis of Claim forms and narratives in evidence. The claimants are a Ukrainian and Russian family from Ukraine. The principal claimant is a 34-year old Russian male, along with his 34-year old Ukrainian wife and their seven-year old Ukrainian child. [12] The claimants lived in XXXX (ph), Kyiv, Ukraine. In late XXXX 2022, the claimants fled from Ukraine to Switzerland after the Russian occupation of Ukraine as there was missiles and bombing of their country and their hometown, specifically. [13] The claimants then came to Canada in XXXX 2022, and made their refugee claim shortly after. The principal claimant is politically opposed to Russia’s military campaign and operation in Ukraine and does not want to participate in any war activities if he were forced to return to Russia now. The principal claimant moved from Russia to Ukraine in 2006 to study and has not been back to Russia since 2013. He received his Ukrainian permanent residency in 2014, and the principal claimant and associate claimant were married in 2015. [14] The principal claimant’s passport expires — Russian passport expires in 2025, and he does not want to approach the Russian government to renew it for the purposes of applying for a permanent residency in Canada. [15] Okay, I will now assess whether there’s any possibility for article 1(e) exclusion for the principal claimant regarding his permanent resident status in Ukraine. An article 1(e) exclusion is whether the principal claimant should be excluded from refugee protection due to his permanent residency in Ukraine. The principal claimant provided his permanent resident permit for Ukraine in evidence. Pursuant to article 1(e), the Convention refugee definition does not apply to a person who’s recognized by the authorities of a country in which they have taken residence as having the rights and obligations which are attached to the possession of nationality of that country. The test for determining whether article 1(e) applies is set out in Zhang and Zhang states that considering all relevant factors to the date of the hearing, does the claimant have status substantially similar to that of its nationals in the third country. If the answer is yes, the claimant is excluded; if the answer is no, then the next question is whether the claimant previously had such status and lost it or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under article 1(e), and if the answer is yes, the RPD must consider on balanced factors — various factors. These include, but are not limited, to the reason for the loss, which is voluntary or involuntary, whether the claimant could return to the third country, the risk the claimant would face in their home country, and Canada’s international obligations, and any other relevant facts. [16] I find that the claimant had status in Ukraine substantially similar to that of Ukrainian nationals at the time of the hearing. However, in assessing whether an individual has status substantially similar to that of nationals of a third country, the jurisprudence as how a number of basic rights that are associated with nationality, including the right to return to the country of residence, the right to work freely without restrictions, the right to study, and full access to social services. The status should not be a temporary one (1) that must be renewed, and which may be cancelled. The claimant’s permanent residence permit for Ukraine was issued in 2014, as he was first in Ukraine — as he moved to Ukraine to study in 2006 and lived with his Ukrainian grandmother. The claimant testified that he initially went to Ukraine to study and then met his now wife, who is the associate claimant, and he has not returned to Russia since 2013. He further testified that as a Russian in Ukraine he’s not able to acquire Ukrainian citizenship as he would first have to denounce his Russian citizenship. And Russia does currently not allow any Russians in Ukraine to denounce their citizenship. With that said, I do find that the status or the permanent resident status afforded to the principal claimant did allow him the rights that are substantially similar to those held by nationals of Ukraine. As the claimant was able to travel freely, and he also had the right to obtain employment and experience access to education and other social services in Ukraine. [17] However, since the Russian invasion of Ukraine the situation has deteriorated, and it is not clear whether or not permanent residents of Ukraine who have Russian citizenship are able to travel freely in and out of the country. [18] Okay, so based on all the evidence before me, I do find that permanent residents of Ukraine in the past did have rights substantially similar to nationals. That being said, the purpose of article 1(e) is to exclude individuals who do not require protection because they have some form of surrogate protection in another safe country where they enjoy substantially the same rights and obligations as nationals of that country. And while there has been some disagreement in the Federal Court as to whether any risk in the 1(e) country should be examined by the Refugee Protection Division, and whether it should be done at the Pre-Removal Risk Assessment stage, the Refugee Appeal Division decision MB800025 was identified as a jurisprudential guide that states that the preferred interpretation of the Convention is that allegations of risk in any country of residence are to be taken into consideration in the analysis of whether a refugee claimant is excluded from refugee protection under article 1(e). The RAD noted that despite some divergence, the court has consistently endorsed the approach of the RPD and RAD members in assessing the risk in the article 1(e) country. The reasoning being that people who face persecution or serious harm in their country of residence cannot be said to enjoy surrogate protection, as is the case in this claim. [19] Also, the object and purpose of the Convention in article 1(e) require decision-makers to consider any risk raised by a claimant in their country of residence before they can be excluded from refugee protection. This framework respects Canada’s international obligations that flow from article 1(e). Therefore, I have adopted this framework and assessed the risks to the principal claimant in Ukraine. [20] The principal claimant testified that he’s a Russian citizen and would not be allowed to re-enter Ukraine using his Russian passport at this time due to the ongoing Russian invasion of Ukraine which began in February 2022. He testified that even if he were somehow able to re-enter Ukraine, he would face harm as a Russian citizen who would be perceived as being pro-Russian, and he would also face a risk of harm from the ongoing bombings and missiles in Ukraine now. [21] Therefore, based on the claimant’s testimony, and the objective evidence which will be assessed below, I find that he has established a nexus to the Convention on the grounds of his imputed or actual political opinion as a Russian in Ukraine if he were to return to Ukraine now. I also considered that the claimant would face a risk in Ukraine as someone who could be forced into conscription by the Ukrainian military. [22] According to the National Documentation Package for Ukraine, at NDP item 2.2, an Amnesty International Report states that members of far right groups target marginalized groups with harassment, intimidation, and violence, and often with total impunity. [23] NDP article — item 1.27 is article for a report by the Organization for Security and Cooperation in Europe which state that there are numerous reports of individuals perceived as being pro-Russian supporters who are mistreated and beaten by police, volunteer defence force members and others in territory controlled by the Government of Ukraine. The mistreatment, carried out by police officers, members of the territorial defence or civilians, usually consists of such individuals being duct taped to electricity poles or trees, partially or fully stripped, beaten, including with sticks and rods, and sprayed with paint or having the word marauder written on their body or clothes. The Organization for Security and Cooperation in Europe has documented more than 45 such cases. [24] But that was as of June 2022, and the number is most likely higher at this point in time. [25] Based on the totality of the evidence before me, I find the principal claimant has established a subjective fear of persecution that — and it objectively — and he has established that his subjective fear is objectively well-founded. And I find the principal claimant would find a risk of persecution in Ukraine based on his imputed or actual political opinion if he were to return now as a Russian citizen. ANALYSIS Identity [26] I am satisfied with the personal and national identity of the principal claimant as a citizen of Russia which is established by his testimony and the copies of his passport in evidence. I’m also satisfied with the personal and national identities of the associate claimant and minor claimant as citizens of Ukraine which is established by the associate claimant’s testimony and the copy of their passports in evidence. Credibility [27] When a claimant swears to the truth of their allegations, this creates a presumption that those allegations are true unless there’s reason to doubt their truthfulness. In this case, I find no reason to doubt the truthfulness of the claimants. They testified in a straightforward, forthright, detailed and candid manner, and there were no material inconsistencies, omissions, or contradictions between the claimants’ testimonies and the other evidence in this case. They did not exaggerate or tailor their evidence. And in summary, their testimonies were consistent with the other evidence on the central aspects of their claims. [28] I find the claimants provided ample details to expand upon their allegations, and they also provided a great deal of evidence prior to the hearing, which included a number of identity documents as well as their birth-certificates and newspaper articles, and they also including, during the hearing, social media posts that the principal claimant wrote on both Facebook and Instagram that he submitted into evidence during the hearing. [29] Given the claimants’ careful testimonies, I find they have established on a balance of probabilities, the facts alleged in their claims. Including that the claimants are a mixed Russian/Ukrainian family, and they fear a risk of harm in both Russia, due to their political opinion or imputed political opinion, as well as in Ukraine due to the ongoing war. [30] In sum, I find the claimants to be credible witnesses and, therefore, believe what they have alleged in support of their claims. Nexus [31] To qualify for refugee status under the refugee Convention, an individual must demonstrate that they have a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. The allegations establishing nexus to the Convention for the principal claimant on the ground of his imputed or actual political opinion as a Russian who has publicly shared his anti-Russian views with his community both on social media as well as in person, or on the phone. Furthermore, the associate claimant and minor claimant have established a nexus to the Convention as they are members of a particular social group, as women or girls who face a risk of gender-based violence in a situation of war in Ukraine. [32] Based on the aforementioned evidence, I will assess their claims under section 96. Well-Founded Fear of Persecution and Risk of Harm for the Principal Claimant in Russia [33] The principal claimant testified that he will be arrested and harmed if he returns to Russia now as he will be perceived as a foreign agent or a spy as he lived in Ukraine since 2006 and married a Ukrainian. He further testified that he has since the war began he has shared his political views speaking out against the Russian Regime on social media as well as the family members in Russia who strongly disagree with his perspective. The principal claimant fears a risk to his life due to his actual or imputed political opinion in Russia. [34] According to the National Documentation Package at item 2.23 of the NDP, an Austrian Red Cross Report from May 2022, states that, on the 7th of April 2022, they published an article which deals with the prosecution of anti-war dissidents in Russia. This report notes the following. The authorities are exerting unprecedented pressure on dissenters. There are mass detentions and protest participants are being threatened with criminal prosecution for participating in activities of extremist organizations. The details of criminal cases against those opposing the war are not always known but their overall demeanour and the identities of those persecuted suggests the authorities are using the war as an excuse to crush dissent and totally cleanse civil society. Despite the numerous instances of violence perpetrated by representatives of the authorities who unjustifiably detain people at demonstrations, not a single criminal court case has been filed in response to these acts. Nonetheless, criminal proceedings can taint people against protestors for violence against police officers. Experience has shown that unbiased investigations and due process in such cases are not upheld in Russia. On the contrary, judicial proceedings are characterized by a blatant disregard for procedural norms and evidence for the defence. Penalties are disproportionate even for formal charges. [35] According to the Russian NDP at item 2.26, it states that media and internet providers or social networks which make information about the conflict in Ukraine accessible to the Russian public, are threatened with criminal prosecution and asked to remove the information. Furthermore, the principal claimant stated that he would be refused — that he could be forced to be conscripted into the Russian military if he were to return to Russia now. [36] According to NDP item 8.1, persons refusing to take part in the hostilities in Ukraine, as well as their family members, could face persecution by the authorities. Persons persecuted by law enforcement and convicted prisoners were also reported to be among the involuntary recruits. Human Rights activists reported that interned men who refused their deployment to Ukraine were threatened with contrived criminal proceedings. [37] In sum, based on all the evidence before me, I find the principal claimant has established that he would face a serious risk to his life if he were to return to Russia now as a Ukrainian permanent resident who lived in Ukraine for many years. His fear is indeed well-founded. Well-Founded Fear of Persecution and Risk of Harm in Ukraine [38] I also find the associate and minor claimants have established a well-founded fear of persecution in Ukraine based on their actual or imputed political opinion. As well as they could face persecution in Ukraine due to the ongoing war and a particular risk if they’re women or girls. [39] The National Documentation Package for Ukraine which includes a U.S. Department of State Report at item 2.1 indicates that in Russian controlled areas of Ukraine, Russian-led forces have engaged in unlawful or widespread civilian harm, and forced disappearances, or abductions, and torture or physical abuses of punishment. The report also states that in these areas there are significant human rights issues including arbitrary arrests, political prisoners, serious restriction on free expression, and substantial interference with freedom of assembly and religion. And the associate claimant and the minor claimant could be perceived as being pro-Russian due to their membership in a particular social group as family members of the principal claimant. [40] NDP item 1.6 for Ukraine states that since the beginning of Russia’s full-scale invasion of Ukraine the ACLED records nearly 40,000 political violence events across the country. Three-quarters of these events are shelling, artillery and missile strikes, mostly effecting the north-eastern, eastern, and southern regions of Ukraine. [41] Meanwhile the long range strikes, including those deliberately targeting civilian infrastructure which pose a permanent threat and continue to induce extreme hardship for communities who are farther afield from the frontline. [42] Amnesty International Reports at item 1.7 of the NDP for Ukraine that according to the U.N. High Commissioner for Refugees, or UNHCR, nearly one-third of Ukrainians have been displaced by the conflict and 6.2 million people remain displaced within Ukraine, and 7.8 million are estimated to be refugees in Europe. [43] Regarding any additional risk that the associate claimant and minor claimant may face as women or girls in Ukraine is corroborated in the NDP. The objective evidence, in particular a rapid gender analysis by Care International and U.N. Women at NDP item 5.6 states that women constitute the majority of those displaced within and outside of the country. And they face significantly increased safety and protection risks. Incidents of gender-based violence, particularly domestic violence and conflict related sexual violence. This report further delves into the challenges for women of all ages to access agent services in war torn areas of Eastern Ukraine, and many have fled and faced further hurdles in accessing safe shelters in the Western Region of the country. [44] Women and girls are also more at risk of conflict-based sexual assault. And NDP item 5.2 states that there is increasing and concerning media reports on conflict related sexual violence emerging in Ukraine. [45] Based on the totality of the evidence before me, I find that the associate and minor claimant have established a well-founded fear of persecution in Ukraine due to their membership in a particular social group as women or girls, as well as their actual or imputed political opinion as they are in a family with a Russian citizen and, therefore, I find the claimants would face a serious forward-facing possibility of persecution if they were to return to Ukraine now. State Protection and Internal Flight Alternative in Russia [46] In all refugee claims the state is presumed to be capable of protecting their citizens unless there is clear and convincing evidence to the contrary. In this case, given that the government is an agent of persecution for the principal claimant in Russia, it appears objectively unreasonable for the principal claimant to seek the protection of the state. Consequently, the presumption of state protection has been rebutted. [47] With respect to an Internal Flight Alternative, or IFA, I do not find that the principal claimant could safely live in any other part of Russia given that the agent of persecution is the government, and he cannot be expected to hide from the state. State Protection and Internal Flight Alternative in Ukraine for the Associate and Minor Claimant [48] I find there is clear and convincing evidence that the Ukrainian state is in a state of complete breakdown as a result of the ongoing large-scale Russian invasion and that for this reason the presumption of state protection has been rebutted. State protection would not be available to the claimants if they were to return to Ukraine now and seek it. Furthermore, in regard to the Internal Flight Alternative, the UNHCR at item 1.23 of the Ukrainian NDP states that it does not consider appropriate to deny international protection to Ukrainians and former habitual residents of Ukraine on the basis of an internal flight or relocation alternative. [49] Based on this evidence and considering the current state of events in Ukraine, I find there is no viable Internal Flight Alternative available for the claimants there. CONCLUSION [50] For the reasons above, I determine that the claimants are Convention refugees pursuant to section 96 of the Act and I accept each of their claims. [51] Thank you for bearing with me through that lengthy set of reasons, and congratulations. ——— REASONS CONCLUDED ———", "response": "## Analysis of Refugee Decision: 2023 RLLR 119\n\n### Key Issues\nespect to any gender-specific issues present in this claim. [8] I’ve also applied and considered the Chairperson’s Guidelines on child refugee claimants, procedural and evidentiary\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: ken into consideration in the analysis of whether a refugee claimant is excluded from refugee protection under article 1(e). The RAD noted that despite some divergence, the court has consistently endorsed the approach of the RPD and RAD members in assessing the risk in the article 1(e) country. The reasoning being that people wh\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "How does this Refugee Protection Division decision from the Immigration and Refugee Board of Canada evaluate refugee protection needs?\n\nRPD File No. / N° de dossier de la SPR: TA6-16488 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXXX XXXXX Demandeur(e)(s) d'asile Date(s) of Hearing July 16, 2009 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision September 1, 2009 Date de la décision Panel L. S. Hart Tribunal Counsel for the Claimant(s) Kumar S. Sriskanda Barrister & Solicitor Conseil(s) du / de la / des demandeur(e)(s) d'asile Tribunal Officer N/A Agent(e) de tribunal Designated Representative(s) XXXXX XXXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre [1] XXXXX XXXXX (the claimant) is a citizen of the People's Republic of China (China). He claims refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.1 ALLEGATIONS [2] The claimant alleges that he was introduced to Christianity in 2004, by his second wife. He began to attend her Roman Catholic house church in XXXXX 2004. He was baptized in China on XXXXX, 2005. The claimant came to Canada to visit his daughter on XXXXX, 2006. He found out from his step-son that his church in China was raided in XXXXX 2006, that his wife had been arrested and detained and that the Public Security Bureau (PSB) was looking for him. The claimant decided to make a claim for refugee protection after discussing the situation with his daughter. DETERMINATION [3] For the reasons that follow, I find that the claimant is neither a Convention refugee nor a person in need of protection. ANALYSIS Identity [4] The claimant's testimony and the supporting documentation2 filed establish his identity as a national of China. Credibility [5] The determinative issue in this claim is the credibility of the claimant's Personal Information Form (PIF)3 narrative and oral testimony concerning his membership in an underground church in China, his pursuit by agents of the PSB and his identity as a Christian. I find that the claimant was not a credible witness. The reasons for this decision are noted below. THE CLAIMANT'S INTRODUCTION TO CHRISTIANITY AND MEMBERSHIP IN AN UNDERGROUND CHURCH [6] The claimant stated in his PIF that he was introduced to Christianity by his second wife in 2004. At that time, he was suffering from insomnia and his wife thought that it would lessen through prayer. He began to attend her underground Roman Catholic church in XXXXX 2004. He stated in his Personal Information Form that there were 70 to 80 members of that church who attended services, which were held every Sunday in a shed behind someone's house and that the windows of the shed were covered. The claimant stated in his PIF that he only found out that it was illegal to believe in the Roman Catholic religion in China after attending the church three to four times. At the first sitting of the hearing, the claimant was able to testify for a short period of time. When asked if he knew that the church was illegal, he replied that when he went there, he thought that it was legal. This statement contradicts his statement in his PIF that he eventually found out that his church was illegal. When asked where the services were held, he replied that they gathered in a big courtyard at XXXXX XXXXX home outside in the open. This contradicts his statement in his PIF that the group met in a shed with covered windows. When asked the name of the priest, the claimant stated that the priest's name was XXXXX XXXXX, that he was not known by any other name and that he was at the services every week. This contradicts the claimant's statement in his PIF that the priest was named Father XXXXX and that he only appeared at their services every one or two months and on important holidays. I was unable to adequately clarify these contradictions at the hearing as the claimant was not well and was unable to continue. The hearing was adjourned to another date. However, on that date, though the claimant appeared, he was completely unresponsive and was unable to testify. His daughter, XXXXX XXXXX, was appointed as his Designated Representative at this time. [7] I have considered the above noted contradictions in the claimant's testimony and the fact that he has not provided a reasonable explanation for any of these contradictions due to his medical state, which is noted in two medical reports submitted.4 I also note that the claimant has provided a baptismal certificate, issued by Rev. XXXXX XXXXX, from his church in China.5 I have considered this baptismal certificate and I do not find it plausible that an underground church or the priest who presides over an underground church would provide any written documentation regarding activities of that church, considering the serious consequences of being discovered. Having considered this implausibility, as well as the claimant's statement at the hearing that the church met outside in a courtyard and that while the he was attending the church, he was not aware that this was an illegal organization, I find, on a balance of probabilities, that the church the claimant attended in China was not an illegal underground Roman Catholic church. I further find, on a balance of probabilities, that the church the claimant attended in China was a legal organization and was therefore not raided by the Chinese authorities. THE PUBLIC SECURITY BUREAU'S PURSUIT OF THE CLAIMANT [8] As noted above, I have found that the claimant attended a legal church in China. I therefore find, on a balance of probabilities, that the claimant is not being sought by the Public Security Bureau for his attendance at an illegal underground Roman Catholic church. IS THE CLAIMANT A GENUINE PRACTITIONER OF CHRISTIANITY? [9] The claimant has alleged that since coming to Canada, he has been a member of our XXXXX XXXXX XXXXX XXXXX. He provided two letters from the church6 confirming that he was registered as a member of the church in XXXXX 2006 and that he has been attending church services since then. Based on these two letters, I accept, on a balance of probabilities, that the claimant is a practicing Roman Catholic even though I was unable to test his knowledge of his religion because of his medical state. [10] I have considered whether the claimant can return to China and practice his faith there. I have found that the church he attended in China was not an illegal organization and was not raided by the authorities as alleged. I further find, on a balance of probabilities, that if he were to return to China, he would legally be able to practice his religion at that church. [11] On the basis of the totality of the evidence and the cumulative findings noted above, I find that the claimant has not satisfied his burden of establishing a serious possibility that he would be persecuted or that he would be personally subjected to a risk to his life or a risk of cruel and unusual treatment or punishment or a danger of torture by any authority in China. CONCLUSION [12] Based on the foregoing analysis, I determine that the claimant is neither a Convention refugee nor a person in need of protection. The Refugee Protection Division therefore rejects his claim. \"L. S. Hart\" L. S. Hart \"September 1, 2009\" Date REFUGEE PROTECTION DIVISION / RELIGIOUS PRACTICE / FAILURE TO TESTIFY / DESIGNATED REPRESENTATIVE / CONTRADICTIONS / PERSONAL INFORMATION FORM / TESTIMONY / FREEDOM OF RELIGION / MALE / NEGATIVE / CHINA 1 As enacted by S.C. 2001, c. 27, ss. 96, 97(1)(a) and 97(1)(b). 2 Exhibit R/A-2, a certified true copy of the claimant's passport, submitted by Citizenship and Immigration Canada (CIC). 3 Exhibit C-1. 4 Exhibit C-4 and post-hearing documents received from counsel, dated XXXXX, 2009. 5 Exhibit C-2. 6 Exhibit C-3 and post-hearing documents received from counsel, dated XXXXX, 2009. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.15.7 (February 12, 2009) Disponible en français RPD.15.7 (February 12, 2009) Disponible en français RPD File No. : TA6-16488 RPD File No. :TA6-16488", "response": "## Analysis of Refugee Decision: TA6-16488\n\n### Key Issues\nRPD File No. / N° de dossier de la SPR: TA6-16488 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXXX XXXXX Demandeur(e)(s) d'asile Date(s) of Hearing July 16, 2009 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision September 1, 2009 Date de la décision Panel L. S. Hart Tribunal Counsel for the Claimant(s) Kumar S. Sriskanda Barrister & Solicitor Conseil(s) du / de la / des demandeur(e)(s) d'asile Tribunal Officer N/A Agent(e) de tribunal Designated Representative(s) XXXXX XXXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre [1] XXXXX XXXXX (the claimant) is a citizen of the People's Republic of China (China). He claims refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.1 ALLEGATIONS [2] The claimant alleges that he was introduced to Christianity in 2004, by his second wife. He began to attend her Roman Catholic house church in XXXXX 2004. He was baptized in China on XXXXX, 2005. The claimant came to Canada to visit his daughter on XXXXX, 2006. He found out from his step-son that his church in China was raided in XXXXX 2006, that his wife had been arrested and detained and that the Public Security Bureau (PSB) was looking for him. The claimant decided to make a claim for refugee protection after discussing the situation with his daughter. DETERMINATION [3] For the reasons that follow, I find that the claimant is neither a Convention refugee nor a person in need of protection. ANALYSIS Identity [4] The claimant's testimony and the supporting documentation2 filed establish his identity as a national of China. Credibility [5] The determinative issue in this claim is the credibility of the claimant's Personal Information Form (PIF)3 narrative and oral testimony concerning his membership in an underground church in China, his pursuit by agents of the PSB and his identity as a Christian. I find that the claimant was not a credible witness. The reasons for this decision are noted below. THE CLAIMANT'S INTRODUCTION TO CHRISTIANITY AND MEMBERSHIP IN AN UNDERGROUND CHURCH [6] The claimant stated in his PIF that he was introduced to Christianity by his second wife in 2004. At that time, he was suffering from insomnia and his wife thought that it would lessen through prayer. He began to attend her underground Roman Catholic church in XXXXX 2004. He stated in his Personal Information Form that there were 70 to 80 members of that church who attended services, which were held every Sunday in a shed behind someone's house and that the windows of the shed were covered. The claimant stated in his PIF that he only found out that it was illegal to believe in the Roman Catholic religion in China after attending the church three to four times. At the first sitting of the hearing, the claimant was able to testify for a short period of time. When asked if he knew that the church was illegal, he replied that when he went there, he thought that it was legal. This statement contradicts his statement in his PIF that he eventually found out that his church was illegal. When asked where the services were held, he replied that they gathered in a big courtyard at XXXXX XXXXX home outside in the open. This contradicts his statement in his PIF that the group met in a shed with covered windows. When asked the name of the priest, the claimant stated that the priest's name was XXXXX XXXXX, that he was not known by any other name and that he was at the services every week. This contradicts the claimant's statement in his PIF that the priest was named Father XXXXX and that he only appeared at their services every one or two months and on important holidays. I was unable to adequately clarify these contradictions at the hearing as the claimant was not well and was unable to continue. The hearing was adjourned to another date. However, on that date, though the claimant appeared, he was completely unresponsive and was unable to testify. His daughter, XXXXX XXXXX, was appointed as his Designated Representative at this time. [7] I have considered the above noted contradictions in the claimant's testimony and the fact that he has not provided a reasonable explanation for any of these contradictions due to his medical state, which is noted in two medical reports submitted.4 I also note that the claimant has provided a baptismal certificate, issued by Rev. XXXXX XXXXX, from his church in China.5 I have considered this baptismal certificate and I do not find it plausible that an underground church or the priest who presides over an underground church would provide any written documentation regarding activities of that church, considering the serious consequences of being discovered. Having considered this implausibility, as well as the claimant's statement at the hearing that the church met outside in a courtyard and that while the he was attending the church, he was not aware that this was an illegal organization, I find, on a balance of probabilities, that the church the claimant attended in China was not an illegal underground Roman Catholic church. I further find, on a balance of probabilities, that the church the claimant attended in China was a legal organization and was therefore not raided by the Chinese authorities. THE PUBLIC SECURITY BUREAU'S PURSUIT OF THE CLAIMANT [8] As noted above, I have found that the claimant attended a legal church in China. I therefore find, on a balance of probabilities, that the claimant is not being sought by the Public Security Bureau for his attendance at an illegal underground Roman Catholic church. IS THE CLAIMANT A GENUINE PRACTITIONER OF CHRISTIANITY? [9] The claimant has alleged that since coming to Canada, he has been a member of our XXXXX XXXXX XXXXX XXXXX. He provided two letters from the church6 confirming that he was registered as a member of the church in XXXXX 2006 and that he has been attending church services since then. Based on these two letters, I accept, on a balance of probabilities, that the claimant is a practicing Roman Catholic even though I was unable to test his knowledge of his religion because of his medical state. [10] I have considered whether the claimant can return to China and practice his faith there. I have found that the church he attended in China was not an illegal organization and was not raided by the authorities as alleged. I further find, on a balance of probabilities, that if he were to return to China, he would legally be able to practice his religion at that church. [11] On the basis of the totality of the evidence and the cumulative findings noted above, I find that the claimant has not satisfied his burden of establishing a serious possibility that he would be persecuted or that he would be personally subjected to a risk to his life or a risk of cruel and unusual treatment or punishment or a danger of torture by any authority in China. CONCLUSION [12] Based on the foregoing analysis, I determine that the claimant is neither a Convention refugee nor a person in need of protection. The Refugee Protection Division therefore rejects his claim. \"L. S. Hart\" L. S. Hart \"September 1, 2009\" Date REFUGEE PROTECTION DIVISION / RELIGIOUS PRACTICE / FAILURE TO TESTIFY / DESIGNATED REPRESENTATIVE / CONTRADICTIONS / PERSONAL INFORMATION FORM / TESTIMONY / FREEDOM OF RELIGION / MALE / NEGATIVE / CHINA 1 As enacted by S.C. 2001, c. 27, ss. 96, 97(1)(a) and 97(1)(b). 2 Exhibit R/A-2, a certified true copy of the claimant's passport, submitted by Citizenship and Immigration Canada (CIC). 3 Exhibit C-1. 4 Exhibit C-4 and post-hearing documents received from counsel, dated XXXXX, 2009. 5 Exhibit C-2. 6 Exhibit C-3 and post-hearing documents received from counsel, dated XXXXX, 2009. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.15.7 (February 12, 2009) Disponible en français RPD.15.7 (February 12, 2009) Disponible en français RPD File No. : TA6-16488 RPD File No. :TA6-16488\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: person in need of protection. ANALYSIS Identity [4] The claimant's testimony and the supporting documentation2 filed establish his identity as a national of China. Credibility [5] The determinative issue in this claim is the credibility of the claimant's Personal Information Form (PIF)3 narrative and oral testimony concerning hi\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "What are the implications of this Refugee Protection Division decision from the Refugee Law Lab Reporter for similar cases?\n\n2023 RLLR 114 Citation: 2023 RLLR 114 Tribunal: Refugee Protection Division Date of Decision: November 27, 2023 Panel: Ademiju Olatunji Counsel for the Claimant(s): David P Yerzy Country: Tajikistan RPD Number: VC3-02614 Associated RPD Number(s): N/A ATIP Number: A-2024-00593 ATIP Pages: N/A DECISION [1] MEMBER: These are the reasons for the decision in the claim of XXXX XXXX, a citizen of Russia who is claiming refugee protection pursuant to section 96 and section 97 of the Immigration and Refugee Protection Act. ALLEGATIONS [2] The following is a brief synopsis of the allegations put forth by the claimant in his Basis of Claim form. The claimant is a 40-year-old male who holds dual citizenship in Russia and Tajikistan. He alleges that he fears persecution at the hands of Russian authorities due to his political opinion on the war in Ukraine, his refusal to be conscripted to participate in the war, and his participation in protests against the war in Ukraine while in Canada. He does not support Russia in its war against Ukraine because Russia is killing innocent civilians and raping women. He stated that the Russian military came to his father’s house in Russia, where he had previously stayed, to ask for him but his father stated that he does not know where he was. He also stated during his oral testimony that some notices to appear were left for him at his workplace to report for military service, but he tore the notices and refused to appear because he does not support the war in Russia. [3] The claimant stated that he does not support the war in Russia because he believes the war is not just unjustified, but that Russia is also killing civilians and committing other atrocities against civilians in Ukraine. The claimant further alleges that Russians from Tajikistan are overly targeted in the conscription exercise of the Russian authorities at the beginning of the war, but now, everybody is a target. The claimant also alleges that he will not be able to practice Islam should he return to Tajikistan, as he will be labelled an extremist. He stated that he will not be allowed to preach Islam’s orders and he would be required to trim his beard if he goes out in Tajikistan. [4] The claimant came to Canada through the US in XXXX 2022. Since coming to Canada, he has participated in protests against the war in Russia — the war in Ukraine. I find that the claimant is a Convention refugee as he has established a serious possibility of persecution in Russia and Tajikistan for the reasons contained below. [5] On identity. I find that the claimant’s identity as a national of Russia and Tajikistan is established on a balance of probabilities by his Russian and Tajikistan passports submitted to the Board. Nexus [6] For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason of one (1) or more of the five (5) grounds, race, religion, nationality, membership of a particular social group, or political opinion. The persecution that the claimant alleges — that the claimant allegedly faces in Russia has only as a nexus to a Convention ground, that is political opinion. The persecution the claimant allegedly faces in Tajikistan has a nexus to the Convention ground of religion. Therefore, his claim is being assessed under section 96 of the IRPA and not under section 97. Allegation of Persecution in Russia [7] On credibility, the Board presumes claimants are telling the truth unless there is a valid reason to doubt it. However, this presumption does not apply to inferences speculations. I note that the claimant did not include some information he related in his oral testimony in the Basis of Claim form. In particular, I note that the information about the military dropping notices to appear at his workplace was not included in his Basis of Claim. The claimant stated that he is only providing more details in his oral testimony as against the brief summary provided when he made his claim. [8] He stated that when he made his claim, he just came to Canada, had to use an interpreter, and all the stress impacted on his ability to provide further details. I do not accept the explanation of the claimant in this regard. I find that the claimant in this case has had opportunity to update his Basis of Claim form and he provided disclosures to the Board after submitting the Basis of Claim form. I find that the non-inclusion of the information does impact negatively on his credibility. I do not accept the allegation that notices were dropped at the claimant’s workplace in respect of the conscription for military service. However, I do not find that the non-provision of the information in his BOC goes to the root of his claim, considering other evidence provided by the claimant. Based on the presumption of truthfulness, I accept on a balance of probabilities that the claimant fled for Russia in order not to be conscripted to military service in the war in Ukraine, because he believes Ukraine is indiscriminate — because he believes that Russia is indiscriminately killing civilians in Ukraine and committing war crimes. [9] I also accept that the claimant participated in protests against the war in Ukraine while in Canada, and that he has been labelled a traitor by his former friend due to the fact that the claimant fled Russia to Canada. I accept that the claimant will not continue to express his opposition to the war in Ukraine if he is removed to Russia, not because he does not want to express his political opinion, but because Russian authorities crack down on protesters and forcefully send them to the warfront. [10] Apart from his testimony, the claimant also provided corroborating documentary evidence in support of his claim. He provided a chat conversation with a friend who now refer to him as a traitor because he left Russia for Canada rather than fight in the war. He also provided pictures of himself taken in Canada, showing him holding the flag of Ukraine along with other people. The claimant further provided pictures of himself praying in a mosque in Canada and of a plaque he received recognizing his participation in the Islamic community in Canada. I have no reason to doubt the genuineness of these documents, and I accept them as genuine. I thus place full weight on these documents. Failure to Claim in the US [11] The claimant entered the US in XXXX 2022 before coming to Canada. And he stated that he told the refugee officials at the US that he would be asking for refugee protection. He stated that he did not stay in the US because his intention was to come to Canada. He says that he does not want to live in the US because of the level of crimes and the fact that people walk with guns, and it is not peaceful — it is not as peaceful in the US as it is in Canada. I note the claimant entered Canada on XXXX XXXX, 2023. I accept the claimant’s explanation as reasonable. I thus do not to make any negative credibility finding in this regard. CONCLUSION and Credibility [12] Based on the claimant’s testimony and the documentary evidence mentioned above, I accept the allegation that the claimant has a subjective fear of persecution. I accept, rather, that the claimant has a subjective fear of persecution in Russia because of his political opinion. Well-Founded Fear of Persecution [13] To establish his status as a Convention refugee, the claimant has to show that there was a serious possibility that he will be persecuted if he moved to Russia. I find that the evidence presented in support of his allegations establishes a serious possibility of persecution for the claimants if he is forced to return to Russia. My reasons are as follows. [14] The National Documentation Package at Tab 12.3 shows that political opinion against the authorities is dealt by Kremlin with an iron hand which is against international law. Tab 12.3 states that decades after Boris Yeltsin freed the last of Soviet-Arab political prisoners. The widespread detention of activists, regime opponents, and disfavoured minorities is once again being practiced under the leadership of President Vladimir Putin, since he first became president in 2000 and especially his formal return to the Kremlin in 2012. The Kremlin has engaged in a wide region crackdown on civil society, political opponents, critical voices, unpopular minorities, and anyone else it views unfavourable or as a threat. [15] The reports at Tab 12.3 goes on to state that this persecution is only increasing. In its February 2015 lists, Memorial Human Rights Centre, one (1) of Russia’s oldest and largest human rights organizations, identified 46 political prisoners in the country. As of March 2019, however, its lists contained 236 individuals, including many in Russia-occupied Crimea. These numbers, however, reflect only cases that have been carefully reviewed and vetted, and thus conform to a rigorous definition of political prisoner. The true number is undoubtedly much higher. The same report continues to states, “some of these prisoners have been accused of crimes they simply did not commit – murder, sexual abuse, espionage, treason, or possession of drugs or weapons. The majority, however, are charged for engaging in activities that are clearly protected under international law. These latter cases are enabled by an ever-increasing array of law, specifically designed to criminalize acts of everyday life and, therefore, allow the authorities to arrest, detain, and imprison anyone they want.” [16] A report by Human Rights Watch at Tab 2.18 of the NDP shows that Russia brutally cracks down on anti-war protesters, arresting them and subjecting them to torture and inhuman and degrading treatment. The claimant in this case not only holds a political opinion against Russia on the war in Ukraine, but he has also participated in protests against the war while in Canada. This, coupled with the knowledge of his flight to Canada and the (inaudible) given to him by his friends, heightens his fear of persecution if he returns to Canada (sic). [17] The objective evidence establishes that political opinion against the government in Russia, whether real or imputed, is seen as dissent and punished. It also establishes that anyone trying to evade the mandatory military call up is then criminally tried. The objective evidence at Tab 8.2 further shows that punishment for evading criminal service in Russia is deprivation of liberty for up to 10 years. The objective evidence before me also shows that ethnic minorities in Russia, such as Russians from Tajikistan, are more likely to be mobilized for military service in the war. The claimant, who is 40 years of age, never served in the military, in the Russian military, and as such is a good candidate to become conscripted into military service. In this case, the claimant is not a conscientious objector to military service as its objection is not a global objection to war, but to the unprovoked killing of civilians and other atrocities being committed by Russia in the war in Ukraine. It is on these ethical grounds that the objection of the claimant of the war is based. [18] The view that the — view of the claimant is that Russia is committing war crimes in Ukraine by the indiscriminate murder and raping of women. It is also noted in the documentary evidence before me, particularly in the news release by Global Affairs Canada submitted by the claimant. The same documents also stated that — stated the view that Russia has committed war crimes in Ukraine. [19] Excuse me. I say that again. [20] The same document also stated that the view that Russia has committed war crimes in Ukraine was confirmed in September 2022 by the United Nations Human Rights Council Commission of Inquiry. I find that the reasons raised by the claimant in objecting to military service in the war between Russia and on Ukraine is based on ethical considerations for which a person who objects to military service may be offered protection. As highlighted in Lebedev v. Canada 2007 FC728. Therefore, based on all the evidence before me, I find that the claimant will face a serious possibility of persecution if he is forced to return to Russia. I find that the claimant’s fear are indeed well-founded. [21] On state protection. I find that it will be objectively unreasonable for the claimant to seek the protection of the state in light of his particular circumstances. States are presumed to be capable of protecting their citizens, except in situations where the state is in complete breakdown. In this case, the claimant cannot be expected to seek the protection of the state since the government of Russia is the agent of harm. The authorities in Russia are in control of the entire territory of the country. And the treatment for anyone indulging in political dissent and refusing conscription service is the same throughout Russia. Therefore, I find that the presumption of state protection has been rebutted. And based on country condition documents, there is no state protection for the claimant in this country. Internal Flight Alternative [22] I have also considered whether there is a viable internal flight alternative for the claimant. Using the two (2) prong test developed by the Federal Courts of Appeal in Rasaratnam v. Canada (Minister of Employment and Immigration), 1992 1FC 706, which requires the RPD to consider on a balance of probabilities whether one (1), there is no serious possibility the claimant will be prosecuted or subjected to personal risk — subjected personally to a risk of section 97(1) harm in the proposed IFA, and two (2), whether the conditions in the proposed IFA are such that it will not be unreasonable in all the circumstances, including those particular to the claimant, for him to seek refugee there — to seek refuge there, rather. [23] On the evidence before me, I find that there is a serious possibility of persecution for the claimant throughout Russia. There are no parts of the country where he will not face a serious possibility of persecution as the authorities in Russia are in control of the entire territory of the country. Therefore, for reasons similar to those in relation to state protection, I am satisfied that the claimant does not have a viable internal flight alternative in Russia. Allegation of Persecution in Tajikistan Credibility [24] I find the claimant credible in respect of his claim in regards to the acts of discrimination he will face should he return to Tajikistan. The claimant testified in a straightforward manner and submitted documents depicting his practice of Islam. I have no reason not to believe his evidence. In particular, I find that the claimant is a Muslim who goes to the mosque, pray, and associates with other Muslims. I also accepts that the claimant believes that sharing his belief about Islam is an important aspect of his practice of Islam. I accept the allegation that he has been warned about preaching to people in Tajikistan. And as it stands, the risk of being arrested for not trimming his beard in Tajikistan. [25] On well-founded fear of persecution. Based on the evidence before me, I find that the claimant has a well-founded fear of persecution on the basis of his religion as a Muslim in Tajikistan. I find that the act of discrimination rises to the level of persecution warranting protection. The claimant detailed in his narrative how he was introduced to Islam, his belief that the proper practice of Islam is tied to receiving God’s blessings and how (inaudible) to preach to other — to others in Tajikistan about Islam. He also stated that he was threatened with jail time by the police and was warned about his frequent activities in Tajikistan in XXXX 2020 and narrated how this prompted him to return to Russia. [26] In his oral testimony, he stated that that the government has restricted the attendance at mosques to the age of 40, whereas the proper practice of Islam requires teaching children about Islam from the time they are born. He also stated that the government will not allow people to grow their beards in Tajikistan. The essence of the claimant’s allegation against Tajikistan is that the discrimination he faces on his religious practice are persecutory. A significant part of this aspect of his claim relates to his inability to preach about Islam to others. The claimant believes that preaching to others is an integral part of his religion, which has brought blessings to him personally. Nature of the Legal Regime Regarding the Practice of Islam in Tajikistan [27] The claimant states that he does not wish to return to Tajikistan because the government there has created a legal regime that suppresses the practice of Islam and the expression of one’s faith publicly. While the overwhelming majority of those in Tajikistan are Muslim, the evidence on file is that Tajikistan’s government, has strongly — sorry — has strongly authoritarian impulses and that it has taken steps to maintain total control of Muslim activity in the country. On this, I refer to the National Documentation Package for Tajikistan at Tab 12.3. [28] The government of Tajikistan is not democratic. It generally restricts freedom of expression and security forces commit torture and abuse detainees with impunity. The specific steps that the government as taken to restrict the practice of Islam includes people — one (1), people must leave the mosque after prayer and only state-dictated summons are allowed to be read by state-appointed imams in state-permitted mosques. I refer to Tab 12.3 of the National Documentation Package for Tajikistan. Tab 12.3 also shows that restriction on religious education without state’s permission, including punishing offenders in this regard, is practiced in Tajikistan producing, distributing, and exporting items of a religious nature or religious literature which has not been censored by the government is banned. Punishments for disobedience includes fines and seizures of equipments used in contravening the law. [29] Another step used to restrict the practice of Islam includes the ban on the wearing of hijabs and — excuse me. Another step is that the president has pronounced citizens should stop wearing a hijab and beards. Every society has limits towards its regards as acceptable behaviour. But in some countries, the norms of the society may be so constraining that they interferes with the exercise of human rights. Where these restrictions are entrenched in law and backed up by coercive action and penalties, the claimant who transgresses the conventions of their own land and perhaps at the same time, violating the law may be at risk of serious harm. The refugee system protects those in such situations who have a well-founded fear of persecution for a Convention reason. In this respect, persecution is the sustained or systemic failure of state protection in relation to one (1) of the core entitlements which have been recognized by the international community. I referred to the case of Canada Attorney General v. Ward, 1993 2SCR 689. [30] The Board’s legal resource on such claims states that when dealing with the norms of other societies, the Refugee Protection Division should bear in mind that “an application of the Convention refugee definition involves measuring the claimant’s situation and any actions visited on the claimants against human rights standards which are international. It is not appropriate to simply refer to the notions of propriety favoured by the majority or the rulers in the claimant’s own land.” The central documents describing the rights to religious freedom as international law is the International Convention on Civil and Political Rights. Article 18 of the Covenants states that religious freedom includes the freedom not only to all religious beliefs and values, but also to manifest them. It states “everyone shall have the right to freedom of thought, conscience, and religion. The right (inaudible) include freedom to have or to adopt a religion or belief of his choice and freedom, either individually or in community with others and in public or private.” So, manifest his religion or believe in worship, observance, practice, and teaching. [31] I refer to the UN General Assembly document on International Covenant on Civil and Political Rights, dated 16th December 1966. While inability to practice religion is often enforced or accompanied by other types of serious harm, the deprivation of religious freedom is serious and (inaudible). On this I refer to the book, the Law of Refugee Status, published by Cambridge University Press and authored by Utawaji Foster (ph) in 2014. [32] As the US Court of Appeals for the Seventh Circuit stated, if a person is forbidden to practice his religion, the fact that he is not imprisoned, tortured, or banished, and is even allowed to attend school does not mean that he is not a victim of persecution. I referred to the case of Bokolades (ph), Seventh Circuit of the US Court of Appeal at 1997 at page 405. Restrictions on the public display of religion have been considered by the Federal Courts. The Immigration and Refugee Board has a legal resource on its website, which summarizes the Canadian law regarding refugee claims involving religious wars. The resource provides a summary of the Federal Court’s decisions regarding when such restrictions shall be considered persecutory and when the merely discriminatory instruments, where the (inaudible) cost does not rise to the level of persecution. I have relied on this resource in formulating this reason. [33] Turning to the case law. Fosu v. Canada (Minister of Employment and Immigration), 1994 90 FCR 182 (ph) dealt with the well-founded fear of persecution of Jehovah’s Witnesses in Ghana, which had prohibited religious services and proselytizing. The case stands for the proposition that freedom of religion includes the freedom to “demonstrate one’s religion or belief in public, or in private by teaching practice, worship, and the performance of rights. It seems that the persecution of the practice of religion can take various forms, such as prohibiting — prohibition on worshipping in public or in private, giving or receiving religious instruction, or the implementation of serious discriminatory policies against persons on account of their practice of religion”. [34] In Kaya v. Canada (Minister of Citizenship and Immigration), 2004 FC 445 (sic), that case considered that proposition in the context of Türkiye’s restrictions on wearing hijab in government institutions. It is held that a policy of secularism, supported by a ban on religious dress of any sort being worn in government buildings did not constitute, particularly (inaudible) in the circumstances. The courts in Kaya distinguished Fosu on the facts, finding that Mrs. Kaya was entitled to practice a religion in public in Türkiye and to wear her hijab in public. I find that the situation of this claimant in Tajikistan is more akin to this situation in Fosu and less like the situation in Kaya. This is because, unlike the more limited restrictions on wearing hijab in Türkiye, the restrictions in Tajikistan amounts to a blanket prohibition of sharing its religious beliefs with others in all public places. This restriction amounts to a limitation on the claimant’s rights. So, manifests is a religion or belief in practice, which infringe upon the claimant’s rights in Article 18 of the International Covenant on Civil and Political Rights. [35] There are sceptical limits to Article 18 rights. Article 18(3) three of the Covenant specifies that “the freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety or the health or morals or the fundamental rights and freedoms of others”. Indeed, the government of Tajikistan justifies its restrictions on the practice of Islam as necessary to combat “extremism” and to respond to the group of ISIS and as a part of the war on terrorism, noting the security concerns that originates from (inaudible) Afghanistan. On this point, I refer to the reports of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression on its mission to Tajikistan. The commentary from the UN Special Rapporteur on the promotion and protection of the rights of freedom of opinion and expression have generally concluded that such restrictions on expression are not justifiable limitations on freedom of religion pursuant to Article 18(3). [36] For example, the aforementioned UN Special Rapporteur conducted a mission to Tajikistan. The resultant reports included the following conclusion. “The Special Rapporteur is deeply concerned by the allegations on the undue interference of government authorities in manifestation of religious expression and education. The Special Rapporteur is particularly disturbed by the allegations on the repression against individuals based on their (inaudible) adherence to certain religious groups”. The reports dismiss Tajikistan government’s attempted justification for these religious restrictions when calling upon the governments of Tajikistan “to recognize both in law and practice the expression of religious freedom as an individual rights, subject only to those restrictions that are permitted under international human rights law”. [37] In sum, I conclude that the Tajikistan government is not respecting such rights and that it is restricting, and that these restrictions are not permissible once under the Covenant. Effects of Legal Regime on Religious Restriction on the Claimant [38] The restrictions on the claimant’s religious freedom have had a profound effect on him. In fact, the claimant testified that preaching and talking to others about Islam is so important as part of his religious practice that he chose to leave Tajikistan for Russia rather than leave without the ability to preach Islam. During the hearing — excuse me, please. [39] When assessing whether there is an objective basis which supports the claimant, I have concluded that Tajikistan in fact has significant restrictions on the practice of Islam. I have concluded that these restrictions violates the claimant’s religious freedom as guaranteed in international human rights instruments. Finally, I have concluded that these restrictions on the claimant’s religious practice are of particular importance to the claimant and that the effect of the restrictions on the claimant of a sufficiently serious character so as to constitute persecution. The consequences of having to hide, change, or renounce his religious practice will significantly interfere with his dignity and security of his person. As such, I find that the claimant has a well-founded fear of persecution in Tajikistan. State Protection in Tajikistan [40] I find that it would be objectively unreasonable for the claimant to seek protection of the state in light of his particular circumstances. As stated previously, states are presumed to be capable of protecting their citizens, except in situations where the state is in full, complete breakdown. In this case, the claimant cannot be expected to seek the protection of the authorities in Tajikistan, as the government is the agent of harm. The authorities in Tajikistan are in control of the entire territory of the country, and the treatment for anyone indulging in banned or restricted religious activities is the same throughout the country. Therefore, I find that the presumption of state protection has been rebutted. And based on country condition documents, there is no state protection for the claimant in Tajikistan. Internal Flight Alternative [41] I have also considered whether a viable internal flight alternative exist for the claimant. Using the same two (2) prong test in Rasaratnam v. Canada, which requires the RPD to consider only balance of probabilities whether one (1), there is a serious possibility the claimant will be persecuted or subjected to — or subjected personally to a risk of section 97 harm in the proposed IFA, and two (2), the conditions in the proposed IFA are such that it will not be unreasonable in all the circumstances, including those particular to the claimant’s, for him to seek refuge there. On the evidence before me, I find that there is a serious possibility of persecution for him throughout Tajikistan. There are no parts of the country where he will not face a serious possibility of persecution, as the authorities in Tajikistan are in control of the entire territory of the country. Therefore, for reasons similar to those in relation to that of civil protection, I am satisfied that the claimant does not have a viable internal flight alternative in Tajikistan. CONCLUSION [42] Based on the above analysis, I conclude that the claimant is a Convention refugee as per section 97 of the IRPA. Accordingly, I accept his claim. ——— REASONS CONCLUDED ———", "response": "## Analysis of Refugee Decision: 2023 RLLR 114\n\n### Key Issues\noped by the Federal Courts of Appeal in Rasaratnam v. Canada (Minister of Employment and Immigration), 1992 1FC 706, which requires the RPD to consider on a balance of probabilitie\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: USION [42] Based on the above analysis, I conclude that the claimant is a Convention refugee as per section 97 of the IRPA. Accordingly, I accept his claim. ——— REASONS CONCLUDED ———\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "Analyze this Refugee Protection Division decision from the Refugee Law Lab Reporter and identify key legal issues:\n\n2023 RLLR 115 Citation: 2023 RLLR 115 Tribunal: Refugee Protection Division Date of Decision: November 27, 2023 Panel: David Jones Counsel for the Claimant(s): Idorenyin E. Amana Country: Russia RPD Number: VC3-03985 Associated RPD Number(s): N/A ATIP Number: A-2024-00593 ATIP Pages: N/A DECISION [1] MEMBER: We are now back on the record. So this is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada for XXXX XXXX, who is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. ALLEGATIONS [2] The claimant fears persecution, including a risk to his life, if he were to return to Russia because of his opposition to the Russian invasion and his opposition to serving in the Russian military. The claimant also fears persecution because he will be perceived as being pro-Russian due to his Russian background if he were to return to Ukraine. The claimant is from Moscow, Russia. The claimant’s parents were both born in the territory that is now Ukraine. The claimants parents live in Russia currently. The claimants father has Russian citizenship and the claimant’s mother has Ukrainian and Russian citizenship. On XXXX XXXX, 2021, the claimant came to Canada for school and to pursue his XXXX ambitions. On February 24th, 2022, Russia began the full scale invasion of Ukraine. The claimant and his family have opposed the Russian invasion. The claimant did make a posting in support of Ukraine online on his XXXX page, and that has since been removed because of fears of what they would do to his parents. Since being in Canada, the claimant has received a summons from the Russian military to attend an enlistment office for a medical exam. In November 2022, the claimant applied for refugee protection. DETERMINATION [3] I find that the claimant is a Convention refugee. ANALYSIS Identity [4] The claimant’s identity as a citizen of Russia has been established on a balance of probabilities by his testimony, the designated representative’s testimony, and his Russian passport, which is located at Exhibit 1. I also find that Ukraine is a country of reference for the claimant. With respect to the nationality of children whose parents are Ukrainian, according to Article 14 of the citizenship laws of Ukraine, which are found in Item 3.2 of the National Documentation Package for Ukraine, which is found at Exhibit 3.2, it states that, “A child who is a foreigner and one (1) of whose parents is a citizen of Ukraine and the other is a foreigner shall be registered as a citizen of Ukraine upon application of the parent being a citizen of Ukraine.” This is the claimant’s situation, as his mother is a Ukrainian citizen and his father’ is a Russian citizen. As such, it appears that the claimant has access to citizenship in Ukraine through his mother. [5] The next question is whether the acquisition of another citizenship is within the claimant’s control, where only mere formalities are required such as the completion of paperwork. That appears to be the case here for the claimant. While a report on citizenship at Item 3.8 states that administrative obstacles can delay or prevent people from exercising their right to citizenship, and the report lists the main obstacles, none of those obstacles apply to the claimant’s situation. The claimant and the designated representative testified that they were not aware about the process for obtaining Ukrainian citizenship. I note that there is no evidence to indicate that the claimant’s acquisition of Ukrainian citizenship would require more than the completion of paperwork. As such, I find that both Russia and Ukraine are countries of reference for the claimant, and he needs to establish his claim against both countries. Nexus [6] The claimant opposes the Russian invasion and in part fears persecution in Russia because of his political opinion. The claimant also fears that he will be perceived as pro-Russian in Ukraine due to his Russian background. For both countries of reference then, these allegations form a nexus to a Convention ground for the claimant based on his political opinion, both actual and imputed. The claimant further fears persecution due to his opposition to conscription in Russia and also being forced into the war in Ukraine. Credibility [7] I find that the claimant and the designated representative were both credible witnesses. In making these findings, I am relying on the principle that a claimant who affirms to tell the truth creates a presumption of truthfulness unless there are reasons to doubt their truthfulness. In this regard, the claimant, who was 17, testified in a straightforward manner and was able to answer questions directly. The claimant testified about how he was born in Moscow and moved to Ukraine to live for two (2) years. He returned to Moscow and lived there until he came to Canada in XXXX 2021. The claimant only once returned to Moscow, which was in the XXXX of 2021. The claimant testified about his fears of being forced to serve in the Russian armed forces and that he had already received a letter summoning him for a medical exam for the army. The claimant testified about his opposition to the invasion of Ukraine, how he has family members in Ukraine and how he views it as his homeland. The claimant also testified about how he is unable to express his opposition to the invasion, as those who oppose the war are being jailed in Russia. The claimant testified that even while he is here in Canada, he fears speaking out about the conflict because of the risks that his parents might face in Russia. [8] With respect to Ukraine, the claimant testified about his concerns if he were to return to the country due to his Russian background and how he’d be perceived as being pro-Russian. The claimant’s designated representative expanded on the claimant’s risks in Ukraine, noting that Ukraine is also sending conscripts to the war. The designated representative confirmed the testimony of the claimant and also testified about how there would be no safe location in either country for the claimant to return to. The claimant provided documents to support his claim, which are found in Exhibit 4. These documents include a Russian military service call up letter requiring the claimant to report to a military office in Moscow. The reverse of the letter indicates that a citizen who fails to appear without good reason is liable under the laws of the Russian Federation. The letter provides lists of good reasons, and those include disease or injury, or if a family members in grave health or other circumstances beyond the control of the citizen, none of which appear to apply to the claimant. I have no reason to doubt the genuineness of this document, and I give it significant weight to support his claim. [9] Given the credible testimony of the claimant and his designated representative, along with the supporting documentation, I find on a balance of probabilities that the claimant has established the facts alleged in his claim, including that the claimant opposes the Russian invasion of Ukraine and also serving in the Russian military. I also make no negative credibility findings due to the delay in applying for refugee protection. The claimant had a student visa in Canada, and the representative explained that when the claimant’s mother heard that conscripts were being sent to Ukraine, the family made the decision for the claimant to apply for refugee protection. I also note this is a sur place claim, as the country conditions had changed significantly after the claimant came to Canada. As such, I accept the explanation for the delay, especially given the stars the claimant had in Canada at the time. As the claimant is a citizen of both Russia and Ukraine, he must establish his claim against each of these countries. Well-Founded Fear – Russia [10] The country condition documents for Russia in the National Documentation Package, which are found in Exhibit 3.1, support the claimant’s fears for returning to Russia. The US Department of State report at Item 2.1 describes Russia as an authoritarian and political system dominated by President Vladimir Putin, and indicates numerous significant human rights issues in the country, including extrajudicial killings, enforced disappearances by or on behalf of government authorities, pervasive torture by government law enforcement officers that sometimes result in death, harsh and life-threatening conditions in prisons, arbitrary arrest and detention, political and religious prisoners and detainees, politically motivated reprisals against individuals located outside the country, severe arbitrary interference with privacy, severe suppression of freedom of expression and media, including violence against journalists and the use of anti-extremism and other laws to prosecute peaceful dissent, severe restrictions on internet freedom, severe suppression of the freedom of peaceful assembly, and severe suppression of freedom of association. The report also states that the government failed to take adequate steps to identify, investigate, prosecute or punish most officials who committed abuses and engaged in corruption, resulting in a claimant of impunity. [11] With respect to the full-scale invasion of Ukraine, the report indicates that Russian armed forces have committed numerous war crimes and other atrocities and abuses, including executions, torture, rape, indiscriminate attacks and attacks that have deliberately targeted civilians and civilian infrastructure which constitute war crimes. The report further notes that authorities have conducted politically motivated arrests, detentions, trials, and torture of Ukrainian citizens in Russia. Oppression of opposition to the invasion of Ukraine is also reflected in the 2023 Freedom House report found at Item 2.5, that describes how excessive use of force, routine arrests, and harsh fines and prison sentences have discouraged unsanctioned protests in the country and how the pervasive, hyperpatriotic propaganda and political repression that has increased since Russian forces invaded Ukraine have prevented individuals from being able to freely express their political views. The report also notes how excessive use of force by police is widespread. [12] A 2022 Human Rights Watch report at Item 2.18 focuses on the treatment of protesters to the Russian invasion of Ukraine. The report describes it as a brutal crackdown on those who disagree with the military offensive in Ukraine, and how thousands of peaceful protesters have been arrested and face excessive use of force by the police. With respect to the claimant’s fears of being forced into the Russian army, an EU report at Item 8.4 on the treatment of military deserters since February 2022 invasion of Ukraine describes how military conscription is for male citizens between 18 and 27 and they are subject to military service, and evading conscription is punishable by fines and imprisonment. I note that the claimant is 17 years old and has received a call up letter for his medical. The EU report also describes how it has been very difficult to obtain information on how Russia is currently treating those who are evading military service, in part due to censorship laws that went into effect on March 4th, 2022. Some media reports indicate that those who refused to sign contracts with the Russian armed forces are threatened with being found to be a deserter. The report also describes media reports for captured Russian soldiers who have spoken about the use of execution squads for deserters. Based on the totality of the evidence, I find the claimant has established a well-founded fear of persecution in Russia due to his political opinion and opposition to the Russian invasion and his opposition to participating in the Russian armed forces. [13] I further find that given all the risks facing the claimant, including the persecution of opponents to the Russian invasion of Ukraine and the claimant’s call up to the Russian military, that the claimant faces a serious forward-facing possibility of persecution if he were to return to Russia. Well-Founded Fear – Ukraine [14] The country Condition documents for Ukraine in the National Documentation Package found in Exhibit 3.2 also support the claimant’s fears of returning to that country. As noted previously, the country condition documents indicate that Russia has committed significant war crimes against civilians in Ukraine. This is reflected in other parts of the National Documentation Package, including a UN report from March 2023 at Item 1.24 that states that Russian authorities have committed a wide range of violations of international human rights law and international humanitarian law in many regions of Ukraine. As for the claimant’s fears of being perceived as pro-Russian, in April 2022, Organization for Security and Cooperation in Europe report at Item 1.27 indicates that there are a large number of reports of mistreatment, acts of torture or inhumane and degrading treatment of people viewed as pro-Russian supporters carried out by the police, territorial defence forces, and civilians in Ukraine-controlled parts of the country. [15] The report indicates that those people perceived as being pro-Russian have been physically assaulted and some have faced detention. For those detained, family members have reported that they have not been advised of where their relatives are being detained or their fate. With respect to detention in Ukraine, the US Department of State report at Item 2.1 lists a number of significant human rights issues, and those include cruel and inhumane or degrading treatment or punishment of detainees by law enforcement personnel, harsh and life-threatening prison conditions, arbitrary arrests or detention, as well as serious problems with the independence of the judiciary. Based on the totality of evidence, I find the claimant has established a well-founded fear of persecution in Ukraine due to his imputed political opinion as a perceived pro-Russian supporter due to his Russian background. I further find that, given all the risks facing the claimant, including the documented targeting of pro-Russian supporters by the territorial forces and the ongoing Russian invasion, that the claimant would face a serious forward-facing possibility of persecution if he were to return to Ukraine. State Protection and Internal Flight Alternative – Russia [16] As for Russia, given the state is the agent of harm, I find that there is no state protection available to the claimant in the country. Further, given the Russian state’s capacity, I find that the claimant would face a serious possibility of persecution throughout Russia. Accordingly, I find that there is no internal flight alternative available to the claimant in the country. State Protection and Internal Flight Alternative – Ukraine [17] I have also considered whether adequate state protection is available for the claimant in Ukraine, and I find that there is none given the claimant faces a risk from state actors and the Ukrainian territorial forces as well as from the invading Russian army. I also considered whether the claimant would have a viable internal flight alternative available to him in Ukraine, and I find that he does not. I find that the ongoing crisis in Ukraine related to the Russian invasion is affecting the entire country, and it would be unreasonable for the claimant in these circumstances to try and seek refuge elsewhere in Ukraine. This is reflected in the March 2022 UNHCR report on returns to Ukraine found in Item 1.23 that describes the situation in Ukraine as volatile and uncertain. The report states that, “In view of the volatility of the situation in the entire territory of Ukraine, UNHCR does not consider it appropriate to deny international protection to Ukrainians and former habitual residents of Ukraine on the basis of internal flight or relocation alternative.” As such, I find the claimant does not have a viable internal flight alternative available to him in Ukraine. CONCLUSION [18] For the reasons above, I determine that the claimant is a Convention refugee pursuant to section 96 of the Act, and therefore the Board accepts his claim. Given I am granting protection under section 96 of the Act, I do not find it necessary to consider the claim under section 97. ——— REASONS CONCLUDED ———", "response": "## Analysis of Refugee Decision: 2023 RLLR 115\n\n### Key Issues\nrous significant human rights issues in the country, including extrajudicial killings, enforced disappearances by or on behalf of government authorities, pervasive torture by gover\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: mant is a Convention refugee. ANALYSIS Identity [4] The claimant’s identity as a citizen of Russia has been established on a balance of probabilities by his testimony, the designated representative’s testimony, and his Russian passport, which is located at Exhibit 1. I also find that Ukraine is a country of reference for the cla\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}
{"prompt": "Analyze this Refugee Appeal Division decision from the Immigration and Refugee Board of Canada and explain its implications for refugee determination:\n\nRAD File / Dossier de la SAR : MC1-00548 MC1-00549 / MC1-00550 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal [REDACTED] [REDACTED] [REDACTED] XXXX XXXX Personnes en cause Date of decision August 5, 2022 Date de la décision Panel Andrea Poole Tribunal Counsel for the persons who are the subject of the appeal Jeffrey Platt Conseil des personnes en cause Designated representative [REDACTED] XXXXfor [REDACTED] [REDACTED] XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] [REDACTED], the Principal Appellant (PA) and designated representative for the following Minor Appellants [REDACTED], and [REDACTED] (Minor Appellants), citizens of Nigeria, appeal a decision of the Refugee Protection Division (RPD), dated January 4, 2021, rejecting their claim for refugee protection under either section 96 or 97 of the Immigration and Refugee Protection Act (IRPA).1 DECISION [2] I find that the RPD did not err in its decision that the Appellants are neither Convention2 refugees nor persons in need of protection. I further find that the determinative factor regarding the application of both section 96 and subsection 97(1) of the IRPA is credibility. I therefore dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection.3 OVERVIEW [3] The PA alleged in her Basis of Claim form (BOC) that, following the death of her father in 2008, her two half-sisters began to harass her and her mother, attempting - over the course of the next ten years - to secure a share in the proceeds of the father's estate. The PA, the Minor Appellants and the PA's husband travelled to the United Kingdom (UK) in XXXX 2015, staying for three weeks without claiming asylum before returning to Nigeria. The PA obtained a visitor's visa for the United States of America (USA) in XXXX 2016, and, a year later, travelled to the USA in XXXX 2017, with her two sons, again, returning to Nigeria after three months, without claiming protection. The PA left Nigeria for the USA in XXXX 2018, irregularly crossing into Canada on XXXX XXXX, 2018, and claiming protection on XXXX XXXX, 2018. The PA updated her BOC on XXXX XXXX, 2019, alleging that Y, her sister in Nigeria, had been kidnapped by their half-sisters, in XXXX 2019 but was released after a month with a message that the half sisters were looking for the PA to kill her. The PA alleges that she fears, should she return to Nigeria, her half-sisters will carry out their threat to kill her. [4] A hearing was held on December 7, 2020. The RPD reserved its decision, which was rendered on January 4, 2021. The RPD found: a) No nexus to a Convention ground for asylum; b) Incompatible behaviour, with two reavailments and failure to claim either in the United Kingdom (UK) or the USA; c) Appellant's fragile psychological state neither mentioned in BOC nor otherwise documented; d) Alleged kidnapping of Appellant's sister is unbelievable as there were no supporting documents, and the BOC amendment was made eight months after the alleged incident; e) Ability of agents of persecution to know the Appellant's whereabouts equally unbelievable as her husband continues to live in the same place, unharmed; and f) Allegations that she was specifically targeted by her half-sisters were inconsistent with all the facts alleged and omitted in the narrative. [5] On appeal, the Appellants argue: a) Failure to claim does not necessarily mean that the Appellant did not have a fear. Due to Trump's policies in the USA, the PA felt she had little chance in the USA, furthermore she was then in a state of confusion; b) Regarding re-availment: because of the state of confusion, the PA felt there was no alternative but to return to Nigeria. Ultimately, she was compelled to leave Nigeria for good, as she realized that the problems with her half-sisters were not going away; c) The presumption of truthfulness is in favor of the appellant; d) PA's husband's actions do not alter the problematic situation she faces; e) BOC was updated with the kidnapping made one year before the hearing; the Appellants should not be unfairly blamed by the Board; f) Omission to mention being specifically targeted is not a fundamental one, as the substance of the claim remains intact; and g) The nexus is: Membership in a particular social group. This situation is a \"family affair.\" [6] The Appellants are neither disclosing new evidence nor requesting an oral hearing. NEW EVIDENCE AND ORAL HEARING [7] The Appellant has disclosed no new evidence, pursuant to subsection 110(4) of the IRPA. The RAD can only hold an oral hearing when certain conditions respecting new evidence are met.4 In this case, because no new evidence was submitted on appeal, the circumstances for holding an oral hearing have not been met. I am therefore unable to grant the Appellant's request for an oral hearing. ROLE OF THE REFUGEE APPEAL DIVISION (\"RAD\") [8] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it. The exception to this rule is where the RPD enjoys a meaningful advantage in assessing and weighing oral testimony. Unless specifically stated below, I have applied a correctness standard.5 ANALYSIS Failure to claim and re-availments [9] I find that the PA's actions - her failure to claim protection and her re-availments - undermine her credibility. The RPD found the PA's and her husband's failure to claim protection in the UK - the first country in which they arrived after allegedly fleeing Nigeria in XXXX 2015 - incompatible with a genuine subjective fear. The RPD also found the PA's failure to claim protection in the USA when she and her sons were there for two months in the summer of 2017 equally undermined her credibility regarding the reasons she claimed compelled her to leave Nigeria and drew a negative inference from the PA's return to their home in Nigeria on both occasions. The PA did not address the RPD's finding regarding her failure to claim in the UK. Regarding her failure to claim protection in the USA, the PA argues, on appeal, that failure to claim does not axiomatically mean lack of fear and that, once in the USA, the PA felt the immigration policies of the then-President, Trump, \"made her feel she had little chance of getting accepted.\"6 Moreover, the PA argues, she was in a fragile emotional state of mind at the time, which led her to make what the Appellants term an \"erroneous\" decision to return to Nigeria, and that it was her mental fragility that prevented her from making a \"coherent decision,\" believing she had no other alternative but to return to Nigeria without claiming protection.7 [10] I have reviewed the record before me. The Appellants claim that the PA's half-sisters harassed her for years - since the death of the PA's father in 2008 - to the point that, by XXXX XXXX, 2015, when the half-sisters arrived, uninvited, at the AA's 10th birthday party, the Appellants became so fearful that nine days later, the family moved from Ketu, in Lagos State to Ibadan in Oyo State, and that her fear did not diminish but grew until 2018 when the Appellants finally left Nigeria. The RPD asked the PA at the hearing why, given her alleged fear, they did not claim protection either in the UK in XXXX 2015 or in the USA during the summer of 2017, but returned to Nigeria on both occasions. The PA testified that only once she was in the USA did she learn of Trump's immigration policies and, deciding she had very little chance of success - and in a state of confusion - made the mistake of returning to Nigeria. The RPD, noting that the PA is an educated woman with a university degree (who had testified how, since 2015, she had carefully researched the optimum path to acquiring American visas and planned the trip to the UK to establish a travel history), did not accept the PA's testimony that she only learned of Trump's policies once in the USA - particularly as the Appellants had had their visas in hand for a year before leaving for the USA.8 Neither did the RPD accept the PA's explanation regarding her re-availament to Nigeria. The RPD did not find the PA's testimony reasonable that - notwithstanding her fear - upon learning of Trump's immigration policies, she could conceive of no other country to which to take her sons - apart from back home to Nigeria. [11] I agree with the RPD's analysis, and for the same reasons. I do not accept that the well-educated PA - who carefully researched the requirements for visas to the USA and determined that a short family vacation to the UK would establish precisely the kind of travel history that would optimize their chances to obtain an American visitor's visa - was simultaneously so confused that she failed to note the international media discussions concerning Trump's immigration policies prior to their departure for the USA in XXXX 2017. I also do not accept the Appellants' arguments that failure to claim does not mean absence of fear and that her specific failure to claim in the USA was the product of a disordered mind incapable of making a coherent decision for the reasons that follow. The PA testified that, once in the USA, her confused state of mind continued, resulting in her deciding to return to Nigeria. But the Appellants have disclosed no evidence - either contemporary or otherwise - that substantiates their claim that the PA was in a fragile state of mind at any time, let alone when she decided to take her sons back to Nigeria in 2017. For that reason I also do not accept that the PA remained in such a state of confusion during her three months in the USA that - had she determined that her chances of a successful claim were low - she was incapable of identifying any other country where she might go (especially given her recent family trip to the UK where her brother XXXX resides), other than to return to Nigeria.9 I also find that the PA's actions are not reasonably compatible with her claims of increasing fear of her half-sisters and cannot be explained by claims of confusion, without any evidence to establish the presence of a disordered state of mind. I therefore find that the Appellants' failure to claim in the UK in 2015, remaining in Nigeria for a year after being granted visas to the USA, failure to claim during their several months' residency in the USA in the summer of 2017 - and the family's two re-availments to Nigeria - undermine the Appellants' credibility. The kidnapping of the PA's sister, Y [12] The RPD found that the PA's allegations regarding her sister's kidnapping were not credible partly because: a) the PA adduced no evidence in the form of affidavits or letters either from Y or from R, the sister who informed the PA (by text) of the kidnapping; b) the PA's husband continued to live in the same place unharmed; and c) the PA did not update her BOC for eight months following the alleged kidnapping. The Appellants argue, on appeal, that: i) the presumption of truth is on the side of Appellants; ii) the PA's husband continuing to reside in the same town does not alter the problematic situation the PA faces; and iii) the PA updated her BOC a year ahead of the December 2020 hearing before the RPD, and the RPD erred in involving this element of timing in its assessment of the PA's claim. The PA updated her BOC in a timely fashion [13] I have reviewed the record before me. The PA has alleged that, on XXXX XXXX, 2019, her sister R texted her to inform her that their half-sisters had come to the PA's late mother's house (occupied at the time of the alleged kidnapping by the PA's two sisters, R and Y) and kidnapped Y. The PA further alleged that the two half-sisters held Y for a month in order to extract the PA's location from Y, before releasing her. The PA added these allegations to her BOC on XXXX XXXX, 2019, eight months later. The RPD asked the PA at the hearing why she did not update her BOC earlier as these were significant new allegations. The PA testified that she had no time as she was pressed by work obligations. The RPD found that her failure to update her BOC earlier undermined her credibility. I disagree. The PA is represented by experienced counsel. There was no need for the PA to update her BOC earlier. The PA amended her BOC a year before the hearing took place, thereby meeting the 10-day requirement for the disclosure of evidence before the RPD. I therefore find that the RPD erred in involving the PA's timing of her update in the RPD's assessment of her claim and I find that her actions here do not impugn her credibility or her claim. The failure of the PA's husband to relocate [14] I find the PA's husband's choice to remain in Ketu, Lagos State, is not consistent with the PA's testimony at the hearing and, moreover, is also not consistent with someone who feared discovery and I find this inconsistency undermines the PA's credibility for the reasons that follow. The RPD drew a negative inference from the PA's husband continuing to reside, unmolested, in the same town where the PA alleged that her half-sisters knew her to have resided before 2018 and where they had previously visited and harassed her. The Appellants argue on appeal that the PA's husband continuing to reside in the same town does not alter the problematic situation the PA faces. I have reviewed the record before me and I find that the Appellants' argument is not consistent with the PA's testimony, which describes both the PA and husband as fearing the PA's half-sisters. The PA testified at the hearing that her husband also feared her half-sisters, that he was equally imperiled by them, and that the PA decided to relocate the family to Ibadan in 2015 because she knew \"that I have to take my children and with my husband we have to run away from where I was living.\"10 The PA was asked by the RPD at the hearing where her husband was living. The PA testified that, although he had attempted to acquire a visa for the USA (it was not granted), that although he had attempted (unsuccessfully) to find employment in Benin he had returned to Nigeria and lives in Ketu. I find this choice - after having failed to secure employment in Benin - to return - not just to Nigeria, but to the very same town in Lagos State which the agents of persecution allegedly knew as the PA's last address in Nigeria - is not consistent with the testimony of the PA that she and her husband both feared her half-sisters. I find this inconsistency undermines the Appellants' credibility and I also find that the failure of the PA's husband to take steps to relocate away from Ketu also generally undermines the allegations of such fear that it compelled the family to flee - first to Ibadan and then to the USA. The presumption of truth [15] The PA did not disclose any evidence or communication from R or Y substantiating the allegations concerning Y's alleged kidnapping. The RPD found that the PA's failure to disclose any evidence at all to substantiate her claims that Y had been kidnapped, undermined her credibility. The Appellant argues that the presumption of truthfulness lies with the PA. I have reviewed the record before me. [16] I find the presumption of truthfulness has been rebutted by the PA's actions. The RPD asked the PA at the hearing why she had not disclosed the text which she alleged R had sent her telling her of Y's kidnapping. The PA testified that she did not know how to print out texts from a phone, but that she still possessed R's texts on her phone and offered to disclose them.11 The PA did not subsequently disclose these texts. The RPD then asked the PA why she had not disclosed letters or affidavits from either R or Y to substantiate Y's kidnapping. MEMBER: And why did you not present a letter or an affidavit from your sister explaining what happened to them in 2019? PRINCIPAL CLAIMANT: I didn't tell them to write me a letter. MEMBER: But why not, why not ask them to provide a letter or an affidavit of what happened in 2019? PRINCIPAL CLAIMANT: The only person that I told about was my uncle and he knows about all this (inaudible) and all that, he was the only one that wrote a letter but I was - due to the civil unrest in Nigeria I don't know the reason why I couldn't receive the letter. MEMBER: I'm sorry, you said that the only person who knew about the kidnapping is your uncle? PRINCIPAL CLAIMANT: No, I said the person I told about - who also knows about this, my uncle knows about this that she was - because they had to tell everybody that --- MEMBER: Okay. But this is not my question, and I really want you to answer that specific question. Why did you not ask your sister to provide you with a letter or an affidavit about the kidnapping that happened in 2019? PRINCIPAL CLAIMANT: I never knew I could - something I could do, because we even have (inaudible) talk on the phone again now. I didn't tell her that, I didn't know it was something that I had to. [17] I find the PA's responses to the RPD's repeated questions regarding why the PA did not ask her sisters to write a letter or affidavit to be evasive. The PA testified that she speaks with her sisters by telephone and therefore there was no physical impediment to her requesting substantiation from her sisters.12 Moreover, the PA is represented by experienced counsel. I therefore do not accept her testimony that she was unaware that she could disclose letters or affidavits from either R or Y to substantiate the kidnapping. I find that the failure to provide any substantiation of Y's kidnapping from either sister undermines the PA's credibility. The PA's omitting from her BOC, being specifically targeted by her half-sisters [18] I find the PA's credibility undermined by her omission from her BOC, allegations which later appeared as testimony. At the hearing, the PA testified that she believed her half-sisters were motivated to kill her because they believed the PA was her father's favourite and had inherited her father's house. The RPD drew a negative inference from this testimony's not having been included in the PA's BOC. The Appellants argue on appeal that the omission does not affect the substance of the PA's claim. I have reviewed the record before me. I find the PA's claim that her half-sisters were targeting her specifically because they believed her to have inherited her late father's house to be a significant and material aspect of her claim. The PA was asked at the hearing to explain the omission of this important element of her claim from her BOC. The PA was unable to provide an explanation. MEMBER: And why do you believe that they would be looking for you specifically? PRINCIPAL CLAIMANT: Because when we came for, when we went for the meeting before my mother died, they said there that they've seen how my father loved me so much and really I was very (inaudible) like that. So this was kind of part of jealousy that I think from their own part, and they think that everything he has might want to give it to me (sic). MEMBER: Why did you not mention anywhere in your narrative that they specifically believed that you were the inheritor of the house? PRINCIPAL CLAIMANT: (Inaudible)? MEMBER: Because you never mentioned anywhere in the narrative that your sisters believed that you were the one that was to inherit the house specifically? Why not? PRINCIPAL CLAIMANT: I didn't (inaudible) because I felt - the common lawyer told me that I should just write some specific happenings, not that I should write too many notes or something. I was just being brief that we actually went for the meeting and all that. MEMBER: Did you not believe that it would be important to explain why your stepsisters would be specifically interested in you? PRINCIPAL CLAIMANT: I think it's important. MEMBER: If you do think it's important then why not mention it? PRINCIPAL CLAIMANT: [No verbal response].13 MEMBER: Okay. I think I'm done with my questions. [19] I find the allegation that the half-sisters targeted the PA specifically - and not her two sisters R or Y - goes directly to the alleged source of the half-sisters' harassment of the PA (alone) since the death of their father. I find that the omission of such a central and material element of her claim from the BOC undermines the credibility of the PA's claim because: a) the BOC sets out the PA's claim and the history of the half-sisters' alleged ten years of harassment in abundantly good detail; and b) the PA updated her BOC almost a year after initially claiming protection. No Convention nexus exists through the PA's membership in a particular social group - her family [20] The RPD found that no nexus existed linking the PA's claim to a Convention ground. The Appellants argue, on appeal, that a nexus lies in the PA's membership in a particular social group: her family. I have reviewed the record before me. The Supreme Court of Canada, in Ward, held, when addressing what constituted a particular social group, that: \"the meaning assigned to 'particular social group' in the Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative.\"14 Further, as was later identified, in M.C.I. v. B380, simply being a member of a particular social group is not sufficient on its own; \"there must be something about a group which is related to discrimination or human rights.\"15 Therefore, the Appellants must fear persecution because of membership in a particular social group and not because of what they do as an individual. Here, the PA is innately and unchangeably a member of her family, but not all members of her family are being discriminated against or persecuted by the half-sisters for their membership therein. The PA does not allege that her half-sisters are targeting her simply because she is a member of her family, nor does she claim that they are persecuting all members of the family. She has claimed and testified that they harass her - and her only - in order to pressure her into relinquishing an allegedly inherited house. There is no relation here to discrimination or an infringement of the PA's human rights or those of her family. The PA is, allegedly, enmeshed in what is - essentially - a property dispute between the potential heirs and beneficiaries of the PA's father, who died intestate.16 For all the above reason, I find there is no nexus to a Convention ground in the PA's membership in a particular social group - her family. CONCLUSION [21] For all the above reasons, I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) Andrea Poole Andrea Poole August 5, 2022 Date 1 Immigration and Refugee Protection Act, (IRPA) S.C. 2001, c. 27, as amended. 2 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, \"Handbook on Procedures and Criteria for Determining Refugee Status\", under the 1951 Convention. 3 IRPA S.C. 2001, c. 27, as amended, at para 111(1)(a). 4 IRPA, S.C. 2001, c. 27, section 110(6). 5 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157, at para. 103; see also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII), [2019] 2 FCR 597. 6 Exhibit P-2, Appellants' Record, at p. 15. 7 Ibid. 8 The Appellants obtained their American visas in XXXX 2016 and flew to the USA in XXXX 2017. See Exhibit RPD-1, RPD Record, RPD Reasons, at para. 18. 9 Exhibit RPD-1, RPD Record, Basis of Claim form (BOC), at p. 30. 10 Transcript of the RPD Hearing held on December 7, 2020, at p.. 29, lines 17-20; at p. 30, lines 43-44. 11 Ibid., at p. 47, line 15. 12 Ibid., at p. 47, lines 40-41. 13 The RPD's decision indicates that at this point the PA did not reply to the RPD's question, but shook her head. See Exhibit RPD-1, RPD Record, RPD Reasons, at para. 31. 14 Canada (Attorney General) v. Ward [1993] 2 SCR 689, at para. 70. 15 M.C.I. v. B380, 2012 FC 1334, paras. 23, 24. 16 Exhibit RPD-1, RPD Record, Letter from the Office of the Administrator General and Public Trustee, XXXX XXXX, 2016, at p. 199. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MC1-00548 MC1-00549 / MC1-00550 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français", "response": "## Analysis of Refugee Decision: MC1-00548\n\n### Key Issues\nBER: Okay. But this is not my question, and I really want you to answer that specific question. Why did you not ask your sister to provide you with a letter or an affidavit about t\n\n### Legal Analysis\nThe decision analyzes refugee protection criteria by examining: lied a correctness standard.5 ANALYSIS Failure to claim and re-availments [9] I find that the PA's actions - her failure to claim protection and her re-availments - undermine her credibility. The RPD found the PA's and her husband's failure to claim protection in the UK - the first country in which they arrived after allegedly f\n\n### Implications for Immigration Practice\nThis decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses."}