Thursday, October 28, 2010

MORE CHARGES AGAINST CONSULTANT

CBC News - Windsor - Former immigration consultant faces more charges



Former immigration consultant faces more charges

Last Updated: Thursday, October 28, 2010 12:27 PM ET
CBC News

RCMP have laid an additional 15 charges of fraud over $5,000 against a former immigration consultant in the Windsor area who already faces numerous fraud charges after leading people to believe he was assisting them in the process of getting into Canada.

Francesco Salvatore (Sam) Burgio, 45 of Amherstburg, Ont., was originally charged by police back in April with various fraud related offences over accusations he was taking money from potential immigrants and not submitting their applications.

Since then new victims have come forward alleging that Burgio's firm Burgio and Associates agreed to submit, on their behalf, applications and accompanying application fees to Citizenship and Immigration Canada in the hope of gaining status in Canada.

The victims said they later found out no such applications were submitted on their behalf.

The number of victims have now reached 25 resulting in 28 charges overall involving frauds of over $1 million, police said.

Immigration consultants require a formal licence to practice, but Burgio's licence was revoked for undisclosed reasons in May 2006.

"We congratulate the RCMP and CIC for their hard work on this file," Immigration Minister Jason Kenney said in a statement.

"The government of Canada remains committed to cracking down on crooked immigration consultants."

In June Kenney tabled new legislation to crack down on unscrupulous consultants who exploit Canada's immigration system.

The bill targets consultants who charge a fee for immigration advice, but also encourage applicants to lie or make up stories about persecution in their home countries.

Kenney said the bill would make it a crime for unauthorized people to charge such fees. It would also amend existing immigration and refugee law so that only authorized consultants, lawyers and notaries in good standing could charge immigrant fees.


Read more: http://www.cbc.ca/canada/windsor/story/2010/10/28/windsor-immigration-officer-fraud-charges.html#ixzz13gwgIN00

HEALTH INSURANCE AND RESIDENCY

This saga continues: the plaintiff has been in Canda for a while, without status, and has already argued her case at several court levels.

Toussaint v. Ontario (Minister of Health and Long Term Care)

Between
Nell Toussaint, Applicant, and
Her Majesty the Queen in Right of Ontario, as represented by
the Minister of Health and Long Term Care, Respondent

[2010] O.H.R.T.D. No. 2098
2010 HRTO 2102

File No. 2010-07047-I

Ontario Human Rights Tribunal

Panel: David A. Wright, Interim Chair

Decision: October 18, 2010.
(50 paras.)

________________________________________

INTERIM DECISION

INTRODUCTION

1 The applicant has lived in Canada since 1999, but has no legal status. She came to Canada as a visitor and remained here when this status expired. In 2008, she attempted to apply for permanent residence on humanitarian and compassionate grounds under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 25. Her application was not accepted because she did not pay the applicable $500 fee, which she says she is unable to afford.
2 The applicant has challenged the fee requirement unsuccessfully in Federal Court: Toussaint v. Canada (Citizenship and Immigration), 2009 FC 873 (CanLII). She has also challenged, unsuccessfully, the denial of health coverage under the Interim Federal Health Program ("IFHP") on various grounds, including on the basis that it discriminated against her on the basis of citizenship contrary to the Canadian Charter of Rights and Freedoms: Toussaint v. Canada (Attorney General), 2010 FC 810 (CanLII) ("Toussaint #2"). These decisions are both on appeal to the Federal Court of Appeal.
3 This case is about the applicant's attempt to obtain health coverage under the Ontario Health Insurance Plan ("OHIP"). The applicant applied for OHIP coverage in 2009. She was denied because she does not meet any of the criteria set out in R.R.O. 1990, Regulation 552, as amended, which defines the criteria for eligibility. Subject to a three-month waiting period, to receive OHIP coverage a person must be an Ontario resident and have an eligible status. Citizens, permanent residents, or "protected persons" under immigration law, among others, are eligible for OHIP. In addition, persons who have submitted an application for permanent residence in Canada are eligible if Citizenship and Immigration Canada has confirmed that the person meets the eligibility requirements for permanent residence in Canada. The applicant states that if she had been able to afford the $500 fee and make an application for permanent residence on humanitarian and compassionate grounds, she would have been covered by OHIP. Not having a legal status in Canada, the applicant is not eligible for OHIP.
4 On October 7, 2010, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended, alleging that the denial of OHIP coverage constitutes discrimination in services on the basis of citizenship and place of origin. Her argument is that in treating her differently from another non-citizen who, like her, wishes to stay in Canada, the government is discriminating against her on the basis of citizenship. She says that the ground of citizenship includes discrimination between any subcategories of non-citizens, including between non-citizens with legal status in Canada and those without.
5 The applicant also argues that the defence in s. 16(1) of the Code does not apply, because the distinction is not based on "Canadian citizenship". Section 16 reads as follows:

• 16.(1) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship is a requirement, qualification or consideration imposed or authorized by law.

• (2) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or lawful admission to Canada for permanent residence is a requirement, qualification or consideration adopted for the purpose of fostering and developing participation in cultural, educational, trade union or athletic activities by Canadian citizens or persons lawfully admitted to Canada for permanent residence.
• (3) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or domicile in Canada with the intention to obtain Canadian citizenship is a requirement, qualification or consideration adopted by an organization or enterprise for the holder of chief or senior executive positions.

Request for Interim Remedy

6 Together with her Application, the applicant filed a Request for Interim Remedy under Rule 23 on October 7, 2010, asking that the Tribunal order the Ontario government to provide her with OHIP coverage pending the determination of her Application. She argues that her health situation justifies this extraordinary remedy in the circumstances of this case. The respondent, on the other hand, takes the position that the Tribunal has no power to order substantive, as opposed to procedural, interim remedies. It also argues that even if the Tribunal does have this power, an interim remedy should not be awarded in this case.
7 The parties made oral argument on the Request for Interim Remedy on October 15, 2010. This Interim Decision deals with that Request.

ANALYSIS

Jurisdiction

8 I address first the issue of whether the Tribunal has the power to grant substantive interim remedies. On June 30, 2008, significant changes to the Code were implemented, which included the filing of applications directly with the Tribunal. The new Rules of Procedure for Applications under s. 34 include Rule 23, dealing with interim remedies. Rule 23 reads as follows:

• 23.1 An Applicant may request that the Tribunal order an interim remedy in an Application. A Request for an Interim Remedy must be made in Form 16. If the Request is made at the same time the Application is filed, it need not be delivered to the other parties. If it is made at a later stage, it must be delivered to the other parties and filed with the Tribunal.

• 23.2 The Tribunal may grant an interim remedy where it is satisfied that:

• a) the Application appears to have merit;
• b) the balance of harm or convenience favours granting the interim remedy requested; and,
• c) it is just and appropriate in the circumstances to do so.
23.3 A Request for an Interim Remedy must include:

• a) a detailed description of the order sought;
• b) one or more declarations signed by persons with direct first-hand knowledge detailing all of the facts upon which the Applicant relies; and,
• c) submissions with respect to the merits of the Application, the balance of harm or convenience and why an interim remedy would be just and appropriate in the circumstances, in accordance with the Rule 23.2.

• 23.4 The other parties must file their response, if any, in Form 17, Response to Request for Interim Remedy, not later than seven days after the Form 16 was delivered. The Form 17 must be delivered to the other parties and any affected persons identified in the Application and filed with the Tribunal not later than seven days after the request was sent or as the Tribunal directs.

• 23.5 A Response to Request for Interim Remedy must be delivered to all other parties and filed with the Tribunal and must include:

• a) one or more declarations signed by persons with direct first-hand knowledge detailing all of the facts upon which the Respondent relies; and,
• b) submissions with respect to the merits of the Application, the balance of harm or convenience and why an interim remedy would not be just and appropriate in the circumstances, in accordance with the Rule 23.2.
9 Since then, the Tribunal has granted substantive interim remedies in four decisions: Lavallee v. Zulich Enterprises, 2009 HRTO 402; C.D. v. Wal-Mart Canada, 2009 HRTO 801 (CanLII); Mitchell v. Halton Condominium Corporation #499, 2010 HRTO 1507 (CanLII); and Andersen v. Carleton Condominium Corporation #8, 2010 HRTO 1761 (CanLII). The Tribunal has also dealt with various other requests for interim remedy on the basis that it had the power to do so, see, in particular, TA v. 60 Montclair, 2009 HRTO 369 (CanLII). However, in none of those cases has the Tribunal's power to order an interim remedy been challenged. The respondent in this case is the first to raise this issue.
10 The Tribunal has only the powers given to it by statute. It is undisputed that the Code does not expressly provide the Tribunal with the jurisdiction to make substantive interim orders. If the Tribunal has the power to do so, it must arise from s. 16.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 ("SPPA"), which reads as follows:

• 16.1(1) A tribunal may make interim decisions and orders.
• (2) A tribunal may impose conditions on an interim decision or order.
• (3) An interim decision or order need not be accompanied by reasons.

11 The respondent argues that s. 16.1 does not grant the Tribunal the power to grant the equivalent of an interlocutory injunction. Its position is that this is an extraordinary power, normally limited to superior courts. Section 16.1, the respondent suggests, would have used more specific language had it intended to grant Ontario tribunals that power. It argues that s. 16.1 is restricted to the power to make interim procedural decisions and orders.
12 Second, the respondent argues, s. 42(2) of the Code provides that the Code and the Tribunal rules prevail over any provision of the SPPA with which they conflict. The Code's remedial provision, s. 45.2(1), restricts the Tribunal's power to make remedial orders to circumstances where the Tribunal has found that one party to a proceeding has infringed another party's right under the Code. The respondent says that if s. 16.1 of the SPPA provides the power to grant substantive interim orders, s. 45.2's requirement that a breach must be found before a remedy is awarded must prevail. Section 45.2(1) reads as follows:

• On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

• 1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
• 2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
• 3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
13 I will deal first with the question of whether s. 16.1 of the SPPA grants a power to make substantive interim orders and then with the question of whether s. 45.2 of the Code ousts that power.

Section 16.1 of the SPPA

14 There are conflicting decisions in Ontario tribunals about whether s. 16.1 confers on tribunals the power to make substantive interim awards. In Arzem v. Ontario (Community and Social Services), 2005 HRTO 11 (CanLII) ("Arzem"), a case referred to the HRTO by the Ontario Human Rights Commission under the old Code, the Tribunal found that s. 16.1 does not include the power to grant substantive interim orders. The Tribunal declined to follow various Ontario Labour Relations Board ("OLRB") decisions that held that s. 16.1 conferred this power: Ontario (Management Board of Cabinet), [1996] O.L.R.D. No. 3477 (QL), Ontario Hydro, [1996] O.L.R.D. No. 3638 (QL); and Tricin Electric Ltd., [2004] O.L.R.D. No. 5259 (QL).
15 In my view, the OLRB jurisprudence reflects the correct interpretation of s. 16.1, and is more consistent with the contemporary approach to statutory interpretation and the role of administrative tribunals. To explain why, it is helpful to review briefly the reasoning in each of these decisions.
16 In Arzem, the Tribunal held that the remedial section of the Code (s. 39(1) at the time) required that the Tribunal hold a hearing and find a violation of a right before awarding a remedy. It held that a respondent had a vested right that no remedies could be granted without a finding of a Code violation, and that s. 16.1 could not change that. It also relied upon the fact that following the OLRB cases, the legislature had amended the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, to "prohibit the OLRB from awarding substantive interim relief" (para. 178).
17 The Tribunal in Arzem also relied heavily upon the fact that the power to grant an injunction is an extraordinary equitable remedy traditionally within the inherent jurisdiction of superior courts. It held that when the Legislature confers such a power on tribunals, this "must be expressed in clear and unequivocal language" and include "the subject-matter of the application, the parties and the remedy being sought" (para. 197). Noting that the Small Claims Court does not have the power to grant equitable relief, the Tribunal held that it was inconceivable that the Legislature would have intended to confer on all Ontario tribunals the power to grant substantive interim remedies (para. 191):

• The specific exclusion of the Small Claims Court to grant equitable relief raises the question: why would the Legislature confer such extraordinary power, en masse, on 80 tribunals? The discernible deduction is, the language of section 16.1 of the SPPA is quite an impotent statutory implement to bestow such an extraordinary power on the entire administrative justice system.
It also noted the role of the SPPA in establishing a minimal procedural code, suggesting that a substantive power would be inconsistent with that approach.
18 In Ontario (Management Board), supra, the OLRB dealt with then-recent amendments to the Labour Relations Act that restricted the Board's jurisdiction to make interim orders to "procedural matters". The OLRB held that it nevertheless had the power under s. 16.1 of the SPPA to order substantive interim relief in light of the fact that the SPPA prevailed over the Labour Relations Act. In interpreting s. 16.1 to include the power to make substantive orders it held as follows, at paras. 36-37:

• However, the word "procedural" is not found in section 16.1 of the SPPA, and as with the LABOUR RELATIONS ACT, 1995, there are found elsewhere in the SPPA specific "process" powers. To read the unrestricted "interim" power in section 16.1 as so limited would render the section largely redundant. As well, section 16.1(2) empowers a tribunal to "impose conditions on an interim decision or order". It appears even less likely that the "interim orders" envisaged in section 16.1 were only of a "process" nature, given this explicit power to attach conditions to such orders. This linkage suggests orders of a more significant nature than merely running a hearing. We note also that section 16.1 authorizes the making of interim "decisions", not only "orders", further buttressing the argument that a tribunal can make substantive decisions on an interim basis under section 16.1.

• On balance, it appears to us that section 16.1 of the SPPA gives jurisdiction to tribunals, including this one, to make decisions or orders on an interim basis that relate to or derive from the tribunal's general or overall jurisdiction. Provided the tribunal acts generally within its jurisdiction, it has a largely unfettered discretion to make interim "decisions or orders" that it has the jurisdiction to make on a final basis, after a hearing on the merits, or that it considers necessary in order to ensure that the statutory rights it deals with are protected until a final decision issues.
19 The OLRB, differently constituted, reached the same conclusion for similar reasons in Ontario Hydro, supra, at paras. 54-55:

• The words "procedural" or "relating to proceedings" (or any other derivation of the word "procedure") is nowhere to be found in section 16.1 of the SPPA. As in the LABOUR RELATIONS ACT, 1995, such references are found elsewhere in the SPPA (for example, "procedural requirements" in section 4(1); "procedural matters" in section 4.2(1); "with respect to the conduct of the proceeding" in section 5.3(3)). In addition, section 16.1(2) provides that a tribunal may impose conditions on an interim decision or order, the same sort of provision which accompanied the substantive interim relief power in section 92.1 of the Bill 40 Act, and which is found in provisions of the current Act which gives the Board substantive interim relief power (in section 99, for example).

• Finally, notwithstanding that the SPPA is primarily directed at procedural matters, it is difficult to see what section 16.1 could be directed at if not substantive interim relief jurisdiction, having regard to the comprehensive procedural provisions in the rest of the SPPA. (Similarly, it is far from obvious that other provisions of the SPPA, section 21.2 for example, do not have substantive elements to them.) And unlike section 98 of the current Act, which replaced an earlier provision (section 92.1) in the Bill 40 Act with a clearly narrower jurisdiction, section 16.1 replaced nothing. It was a new provision added in 1994 which was not altered by Bill 7 (although Bill 7 did address the SPPA in changes it made to the LABOUR RELATIONS ACT). As such, it must have been intended to add something to the jurisdiction of tribunals to which the SPPA applies. I am unable to discern what that addition could be other than a substantive interim relief power.
20 Following those two cases, the Legislature amended s. 98 of the Labour Relations Act, to provide that s. 98 of the Labour Relations Act applied under that legislation instead of the power under s. 16.1(1) of the SPPA. No such amendment was made to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 ("OHSA"). In Tricin Electric, supra, the Board found that s. 16.1 of the SPPA gives it jurisdiction to order a substantive interim remedy in an application under s. 50 of OHSA, as the Legislature had not excluded the application of s. 16.1 to the OLRB's powers under that statute.
21 Arzem, on one hand, and Ontario (Management Board) and Ontario Hydro, on the other, take dramatically different approaches to the interpretation of s. 16.1 of the SPPA. Arzem begins from the premise that the power to grant the equivalent of injunctive relief was historically reserved to the courts of equity, and is considered part of the inherent jurisdiction of superior courts. It develops a presumption that the Legislature would not delegate such jurisdiction to administrative tribunals without using specific language. Accordingly, it reasons, the broad language of s. 16.1 cannot be interpreted to grant such a broad power. The OLRB cases begin with the words of s. 16.1 and reason that their broad language suggests an intention to confer broad powers. They look at the rest of s. 16.1, noting that there would be little reason for s. 16.1(2) if there was no intention to confer substantive interim relief powers. Finally, they look at s. 16.1 in the context of the SPPA as a whole, noting that given the other matters provided for in the SPPA, s. 16.1 would accomplish little if it were restricted to procedural matters.
22 The Supreme Court has discussed extensively the approach that should be taken to statutory interpretation. The words of the statute must be considered in "their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament". See R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 1; Saulnier v. Royal Bank of Canada, 2008 SCC 58 (CanLII) at para. 16; Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105 (CanLII) at para. 42.
23 As the Court stated in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 (CanLII) at para. 37:

• The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute: as Professor John Willis incisively noted in his seminal article "Statute Interpretation in a Nutshell" (1938), 16 Can. Bar Rev. 1, at p. 6, "words, like people, take their colour from their surroundings". This being the case, where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive. In such an instance, the application of Driedger's principle gives rise to what was described in R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56, at para. 52, as "the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter". (See also Stoddard v. Watson, [1993] 2 S.C.R. 1069, at p. 1079; Pointe-Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015, at para. 61, per Lamer C.J.)
24 I also note s. 64(1) of the Legislation Act, S.O. 2006, c. 21, which reads as follows:

• An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.
25 I adopt the reasoning of the OLRB in Ontario (Management Board) and Ontario Hydro, which reflects this approach. The words of s. 16.1 of the SPPA suggest a broad power to make interim orders and the Legislature did not restrict this to procedural matters as it did, for example, in the Labour Relations Act itself. There would be no reason to include a power to attach conditions to interim orders as contemplated in subsection (2) if the power merely related to procedural matters. It is unlikely that the Legislature would have found it necessary to add a mere power to make interim procedural orders to the SPPA in 1994, when the legislation included the power to make all kinds of interim procedural orders.
26 The approach to interpreting the SPPA should be grounded not in the history of the distinction between common law courts and courts of equity in England, but rather in a contextual recognition of the role of adjudicative tribunals in delivering justice in Ontario. In 2010, many more citizens have their rights determined by administrative tribunals than by courts. The Legislature, in delegating powers to administrative tribunals in many areas of law, has decided that justice can be delivered well by specialized administrative tribunals, with expert adjudicators and dispute resolution processes tailored to the nature of the dispute. The SPPA, in particular as it has been amended over the years, defines both minimum standards and general powers of administrative tribunals. I do not believe that its interpretation should be restricted by a special presumption that the Legislature did not intend to confer jurisdiction on tribunals where such jurisdiction previously fell under the courts of equity or also falls within the inherent jurisdiction of superior courts. There is no principled reason for doing so.
27 The respondent also argues, echoing the reasoning in Arzem, that the fact that the Legislature removed the power to award substantive interim relief from the Labour Relations Act suggests that the OLRB was incorrect in its interpretation of the SPPA. I disagree. In my view, this history suggests the opposite conclusion. When the Legislature amended s. 98 of the Labour Relations Act following the decisions in Ontario (Management Board) and Ontario Hydro, it provided that s. 98 applied "instead of the power under subsection 16.1(1) of the Statutory Powers Procedure Act". The Legislature thereby recognized a difference between the more limited power in the Labour Relations Act and the broader power in the SPPA. It did not choose, as it could have done, to amend s. 16.1.
28 Therefore, I find that s. 16.1 of the SPPA gives the Tribunal the power to make substantive interim orders.
The Relationship between s. 45.2 of the Code and the SPPA
29 Again echoing Arzem, the respondent argues that even if s. 16.1 does confer such a power, the Code excludes its application and must take precedence because of s. 42(2). I do not agree. Section 45.2 sets out the powers of the Tribunal to award final remedies once a violation of the Code has been found. It does not, however, exclude the possibility of interim remedies. In my view, the SPPA confers on tribunals an additional jurisdiction to make interim remedies that reflect orders it could make on a final basis once a final decision has been made. There is no contradiction because, unlike the Labour Relations Act provision considered in the OLRB cases, nothing in the Code limits the ability of the Tribunal to make an interim order.
30 Indeed, I note that s. 46.1 of the Code permits courts to make orders in a civil proceeding if it finds that a party has infringed a Code right of another party to a proceeding, and I do not believe that anyone would seriously suggest that this has removed the courts' inherent power to order interim injunctive relief.
31 Therefore, I find that the Tribunal has the jurisdiction to grant substantive interim remedies. I turn now to the question of whether an interim remedy should be granted in this case.
Should an Interim Remedy be granted?
32 The Rule governing the awarding of interim remedies is set out above at para. 8. The approach that the Tribunal takes in determining requests for interim remedies was set out in detail in TA, supra.
33 TA articulated various principles that apply to requests for interim remedies. They include the following:

• * The focus of the inquiry is on whether an interim remedy is necessary to ensure a complete, appropriate and effective remedy at the end of a hearing (paras. 15-27).

• * Interim remedies are extraordinary remedies and an applicant has a significant onus to meet in demonstrating that an interim remedy is necessary (paras. 28-29).

• * To satisfy the first element of the test, the Tribunal need generally only be satisfied that there is an arguable case and the claim is not frivolous or vexatious (paras. 30-32).

• * The second factor involves a balancing of the harm to the applicant against the harm to the respondent (paras. 33-34).

• * The third factor calls upon the Tribunal member to decide whether the request is necessary to further the remedial purposes of the Code and is fair in all of the circumstances (para. 35).

• * The three criteria should not be seen as successive hurdles, but the decision should consider the collective impact of all factors and the purpose of the provision as a whole (para. 36).
34 I find that it would not be just and appropriate to award an interim remedy in this case at this stage for the following reasons, upon which I elaborate below:

• * There is good reason to doubt that this Application falls within the Tribunal's jurisdiction, on the basis that the allegations do not fall under the ground of citizenship,

• * If the Application does fall under the ground of citizenship, there is considerable doubt about whether the application can be successful in light of the defence in s. 16.

• * Both these questions are matters of legal argument that can be determined in an expeditious manner, within weeks.

• * The Request for Interim Remedy discloses no immediate urgency as of the time of filing this Application that requires a remedy before addressing the jurisdictional issue and the question of whether s. 16 applies.

• * It would therefore be just and appropriate in the circumstances of this case to dismiss the Request for an interim remedy.
35 In my view, there is considerable question about whether this Application falls within the Tribunal's jurisdiction by raising the ground of "citizenship" and about whether it can succeed if it does. To come within the Tribunal's jurisdiction, the applicant will have to establish that the ground of "citizenship" is not limited to distinctions between citizens and non-citizens and includes distinctions between non-citizens with legal status in Canada and those without legal status.
36 In this regard, the applicant will have to establish that the scope of the ground of citizenship is different under the Code than under the Charter and/or that previous Charter jurisprudence should not be followed in light of the arguments that she makes. In Irshad (Litigation Guardian of) v. Ontario (Minister of Health) (2001), 55 O.R. (3d) 43 (C.A.), the Court dismissed a s. 15 Charter challenge on various grounds, including citizenship, to a previous version of the regulation in question here. At para. 125, the Court rejected the argument that there was discrimination on the basis of citizenship. It held as follows, at para. 137:

• Immigration status can determine a person's right to take up permanent residence in a province. Once it is accepted that the process that results in a particular immigration status does not offend s. 15(1), I fail to see how Ontario's reliance on that status in determining the nature of an individual's residence in the province can be classified as discriminatory.
37 Similarly, in the applicant's own case, Toussaint #2, at para. 81, the Federal Court specifically held that the exclusion of persons from a health care program on the basis of their lack of legal status in Canada does not constitute discrimination on the basis of citizenship contrary to s. 15. While I appreciate that the applicant suggests that the Court misunderstood her submissions in this regard (see 2010 FC 926 (CanLII)), this does not change the fact that the Court held that the ground of citizenship does not cover her circumstances.
38 There are additional legal hurdles she will have to overcome beyond the question of jurisdiction. If the ground of citizenship applies, she will have to establish that in these circumstances, the distinction constitutes substantive discrimination. Moreover, to avoid the defence in s. 16(1), she will have to establish that the meaning of "citizenship" is different in s. 1 than in s. 16(1). I note that, in this regard, the applicant argues that the text of ss. 16(2) and (3) support such a distinction, in separating citizenship from permanent residence.
39 These hurdles do not mean, in my view, that the Application is frivolous and vexatious or that the applicant does not have an "arguable case". This is a low threshold. I accept that the applicant has a somewhat different theory of discrimination than was put forward in Irshad and Toussaint #2 and that there is some support for the proposition that the ground of "citizenship" in the Code includes more than just the status of being a citizen or a non-citizen. For the reasons set out in Marakkaparambil v. Ontario (Health and Long Term Care), 2007 HRTO 24 (CanLII), a decision under s. 15 of the Charter does not necessarily doom a Code challenge on the same grounds, particularly in light of the fact that jurisprudence may have evolved and the claim may be made differently. However, the reasoning of the courts in these cases will certainly be important in determining whether "citizenship" under s. 1 of the Code has the meaning for which the applicant contends.
40 In TA, supra, at para. 32, the Tribunal held that in considering the first stage of the test, "[t]here may be circumstances where a higher onus [than whether the applicant has an arguable case] is required ..." In my view, a strong factor militating against an interim remedy in this case is that based on the Code and the jurisprudence cited to the Tribunal, there is a serious issue about whether the Tribunal has the power to deal with this Application.
41 There are both legal and practical reasons to be more reluctant to award an interim remedy because of the doubt about the Tribunal's jurisdiction and whether the defence in s. 16 applies. First, as discussed above, the Tribunal's power to award interim remedies stems from its jurisdiction over the subject matter of the dispute itself and ability to award final remedies in that dispute. The Tribunal only has jurisdiction over allegations of discrimination on the grounds and under the social areas covered by the Code. It has no inherent jurisdiction to award injunctive relief. It should be particularly cautious in awarding such an extraordinary remedy when there is good reason to doubt the Tribunal's jurisdiction.
42 The issues of jurisdiction and of whether the defence under s. 16 bars the Application can be determined in an expeditious manner, within several weeks, based on discrete legal submissions. There is no indication of a need for evidence on these questions. There is nothing in the Request that suggests a particular urgency in granting the relief immediately, even assuming the other stages of the test are met. This is not a case where the asserted need for the interim remedy is to preserve a state of affairs that would be destroyed if the remedy were not granted. The applicant seeks access to OHIP coverage, which she has not had throughout her 11 years in Canada.
43 The applicant is able to access emergency health care, because section 20 of the Public Hospitals Act, R.S.O. 1990, c. P.40 and s. 11 of O. Reg. 965 under that Act require hospitals to accept a person as an in-patient if the person has been admitted by a physician and the person requires the level or type of care for which the hospital is approved. The applicant's declaration makes it clear that she has received emergency health care in hospitals and there is no evidence that the applicant has ever been denied hospital care because of her lack of OHIP coverage.
44 Moreover, primary health care is available to the applicant through Community Health Clinics ("CHCs"). CHCs are non-profit organizations funded by the province to provide primary and integrated health care for individuals, families and communities, some who, for a variety of reasons, may have difficulty accessing health care. CHCs offer a broad range of comprehensive primary health care and health promotion programs to individuals and families including those without OHIP coverage. According to the respondent's evidence, which has not been tested by cross-examination, some CHCs use their funding to cover specialist and diagnostic tests services for uninsured persons by way of agreements with local hospitals and clinics. The applicant's declaration indicates that she has obtained treatment through her local CHC and other sources, despite not being insured by OHIP.
45 The applicant's evidence, which has not been tested by cross-examination, suggests that although she has received primary health care, she has had difficulty obtaining specialist and diagnostic services. It is not clear why she has recently been unable to obtain the treatments recommended by her physicians through CHCs, in light of what the respondent says is the availability of CHCs as a "safety net" for people without OHIP coverage.
46 As I understand the expert medical evidence filed by the applicant, which has not been tested by cross-examination, the risk of complications from the applicant's various medical conditions place her at greater risk of a grave medical emergency than if she received such care. The deterioration in her health, in various respects, has been ongoing since February of 2009, if not before. Nothing particularly urgent arose in October 2010 when this application was filed that means that the decision on whether an interim remedy should be granted cannot await a decision about the Tribunal's jurisdiction over the Application.
47 In the circumstances, I believe that the doubt over the Tribunal's jurisdiction and whether s. 16 provides a full defence to the allegations, the ability to determine this issue in an expeditious manner, and the lack of immediate urgency militate against granting the interim remedy. Accordingly, I find that the request for interim remedy should be dismissed.
NEXT STEPS
48 The parties made considerable argument about the interpretation of "citizenship" in s. 1 and s. 16 in their oral submissions on this Request. However, they had limited time to research and prepare in view of the timelines for interim remedy requests and the argument was made on the question of whether the Application appeared to have merit. The parties should be given the opportunity to prepare and make full legal submissions on the issues of whether the Application raises the ground of "citizenship" and whether, if it does, the defence of s. 16(1) applies.
49 The Tribunal therefore sets the following schedule for further written submissions on these issues:

• (1) The applicant shall make written submissions on these issues by November 1, 2010.
• (2) The respondent shall make written submissions on these issues by November 15, 2010.
• (3) The applicant may reply by November 22, 2010.
50 The Tribunal will take into account the written and oral submissions that have already been made in reaching its decision on these issues. If either party wishes to make further oral submissions it shall advise the Tribunal by October 29, 2010 and a conference call will be scheduled for that purpose.

Dated at Toronto, this 18th day of October, 2010.

David A. Wright
Interim Chair

Wednesday, October 27, 2010

CASE HIGHLIGHTS CLIENT COMMUNICATION ISSUES

Thsi is a fairly typical case of miscommuniction betewen client and service provider. teh claism seems outlandish and the court rightly rejected it.


Romans v. Howlund International Corp.

Between
Scott Romans and Ayumi Takei, Plaintiffs, and
Howlund International Corp., Defendant

[2010] A.J. No. 1207
2010 ABPC 333

Docket: P0990303754

Registry: Edmonton

Alberta Provincial Court

L.D. Young Prov. Ct. J.

Heard: July 29, 2010; by final written reasons September 27,
2010.

Judgment: October 18, 2010.

(46 paras.)

________________________________________

Decision

1 L.D. YOUNG PROV. CT. J.:-- This is a claim by the Plaintiffs, whereby they allege that the Defendant was negligent in the advice given to them respecting the Plaintiff, Ayumi Takei, obtaining a work permit in Canada. According to the Plaintiffs, this resulted in the Plaintiff, Ayumi Takei, not being able to obtain a work permit until September 2008, which, but for the alleged negligence of the Defendant, she could have received in March 2008. The Plaintiffs further allege that they have incurred the damages set out in their prayer for relief, in an amount totalling $23,470.85, being:



"a. Loss of income based on an approximate gross salary for the Plaintiff, Ayumi Takei, of $3,296.25 per month for 6 months = $19,777.50;


•b. Expenses incurred by the Plaintiffs in a trip to Vancouver B.C. and the attempt to cross the United States border to go to Seattle including air fair [sic ], vehicle rental and airport parking in the amount of $1,324.55;
• c. The initial retainer paid to the Defendant in the amount of $2,100.00; and
• d. Notarized and translated documents required by the Defendant throughout in the amount of $268.80."

At the outset of the trial, Counsel for the Plaintiffs applied to amend the amount claimed to $25,000.00, and Counsel for the Defendant did not oppose the application. As a result, the amount of the Plaintiffs' claim now totals $25,000.00.

2 The Defendant denies the Plaintiffs' allegations and contends that the Defendant prepared the necessary documents and submitted those documents as required by Citizenship and Immigration Canada ("Immigration Canada"), which ultimately led to the Plaintiff, Ayumi Takei, obtaining her work permit.
3 At the trial of this matter, both of the Plaintiffs testified as did their expert, Carla Hess, an immigration consultant. The officer of the Defendant, one Jonathon Dai, who is an immigration consultant, testified, as did the Defendant's expert, Rishi Mittal, who is also an immigration consultant.
FACTS
4 The Plaintiffs, Scott Romans and Ayumi Takei, met while both were travelling in Australia in 2005. Mr. Romans was a Canadian citizen and Ms. Takei was a Japanese citizen. The couple travelled together for some months and eventually, Ms. Takei came to visit Mr. Romans in Calgary, late in 2005 and again in March 2006.
5 Ms. Takei then came to Canada for six months commencing in July 2006. She went to school for the first three months in Vancouver, taking a business-English course and she spent the last three months working in Calgary. This had been arranged through a company called "WISH Vancouver". The company that she worked for in Calgary wanted to hire her full-time and Ms. Takei went to an Immigration Canada office in Calgary to determine how this could be done. Ms. Takei was informed by Immigration Canada that she was in Canada on a visitor's visa and she was not supposed to be working or studying in Canada and that she should leave the Country. According to Ms. Takei's testimony, the officer who met with her put the rejection on her record and stamped her passport accordingly.
6 Mr. Romans and Ms. Takei wanted to further pursue their relationship and decided that Ms. Takei would apply for a "working holiday visa" which would allow Ms. Takei to stay in Canada for one year. They had also discussed living together for one year so that Ms. Takei could then apply for a "common-law visa" which would enable Ms. Takei to stay in Canada for a longer period of time.
7 Ms. Takei did, while she was still living in Japan, apply for the working holiday visa which was rejected by Immigration Canada. According to Mr. Romans, the application for the working holiday visa was rejected because Immigration Canada determined that Ms. Takei's interest in coming to Canada was not to holiday and work but rather, to be with Mr. Romans, her boyfriend.
8 Ms. Takei then came to Canada to visit with Mr. Romans on January 30, 2008. Mr. Romans and Ms. Takei made inquiries of possible employment for Ms. Takei and indeed found an employer, Shiso Japanese Restaurant in Red Deer ("Shiso"), who was willing to hire her. According to Mr. Romans, the owner of Shiso seemed quite familiar with the immigration process and he referred the Plaintiffs to the Defendant, an immigration consulting company.
9 It was Mr. Romans who first contacted the Defendant in mid-February 2008 and spoke with Jonathon Dai, the President of the Defendant. Mr. Romans testified that Mr. Dai indicated that Ms. Takei could be working as soon as one month from the time of the application. Mr. Romans also testified that he advised Mr. Dai of the problem that Ms. Takei had with her visitor's visa that had been arranged through WISH Vancouver and of the rejection of Ms. Takei's application for a working holiday visa. Mr. Romans further testified that he told Mr. Dai that what he and Ms. Takei wanted was for Ms. Takei to come to Canada for one year, so that they could live together, and then apply for a common-law visa for Ms. Takei. Under cross-examination, Ms. Takei agreed that she was aware that this one month time period was just an estimate and that it could take longer.
10 In an e-mail from Mr. Dai to Mr. Romans dated February 15, 2008 [Exhibit 1], Mr. Dai sent the invoice for the services to be provided, which Mr. Romans and Mr. Dai had agreed was to be $2,000.00 (plus GST of $100.00). The e-mail reads, inter alia, as follows:

• "I wish you had told me earlier about Ayumi's problems with CIC, but since I promised Shirley that I will be giving Ayumi the very special rate of $2,000, I will honour it. But this special offer is valid until the end of February 2008. I need to emphasize that although there is no guarantee, we will try our best and hardest to help her. Our latest experience shows that WP applications to a US post can be completed in as short a period as a little more than one month. Once we have received your funds, we will start the process."
The reference to a "WP application" is to a working permit application, which is what Ms. Takei would now be trying to secure from Immigration Canada.
11 There is an e-mail in response from Mr. Romans to Mr. Dai dated February 17, 2008 [Exhibit 1]. The e-mail indicates that Mr. Romans will be forwarding the payment of $2,000.00 "first thing this coming week" and asks some further questions of Mr. Dai.
12 The next e-mail is dated March 12, 2008, from Wendy Yu, an employee of the Defendant, to Mr. Romans [Exhibits 1 and 6] and is addressed to "Scott and Ayumi" and sets out the documents which are needed from Ms. Takei.
13 The Plaintiffs respond by way of an e-mail sent from Mr. Romans to Ms. Yu dated March 12, 2008 [Exhibit 1]. The Plaintiffs express their confusion "on several points" and ask "why was this information not given to us a month ago after we first started with this process ..." and that " several of these requirements cannot be done over night ...". The Plaintiffs apologize for what they call their "frustration" and advise that "one of the major reasons we decided to go with Howlund International is because Johnathan assured us it would reduce delays, and therefore expenses, as opposed to doing this ourselves" and that "the longer this takes, the more expensive it becomes."
14 Ms. Yu then responds by way of an e-mail dated March 13, 2008 to Mr. Romans [Exhibit 1], and addressed to "Scott and Ayumi" to "clarify some of the issues you are confused with". In that e-mail, Ms. Yu advises Mr. Romans that Ms. Takei's "LMO [labour market opinion] application was approved a few days ago by Service Canada" and that, "without this approval, the employer cannot hire Ayumi as a foreign worker." Ms. Yu advises the Plaintiffs that Ms. Takei needs to have reference letters translated from Japanese to English, and that all of the documents to be sent to Immigration Canada as part of her application must be in either English or French. The Plaintiffs are further advised that a short video to "provide the vivid picture of Ayu's English level" and that although a video is not required by Immigration Canada, it would be "really helpful in successfully getting the Work Permit". In the remainder of the e-mail, Ms. Yu outlines the further documentation that is necessary (some required, some not required but helpful to the process) that Ms. Takei must provide.
15 According to Mr. Romans, it was not until May 1, 2008, that Ms. Takei's application was submitted to Immigration Canada. Mr. Romans testified that he then spoke with Mr. Dai on July 17, 2008, to discuss the situation, but also to advise Mr. Dai that Ms. Takei's visitor status would expire on July 30, 2008. An e-mail was sent to Mr. Romans on July 17, 2008 by Ms. Yu [Exhibit 1] which provided Mr. Romans with a copy of the inquiry e-mail that had been sent by the Defendant to Immigration Canada. Mr. Romans further testified that this e-mail confirmed what Mr. Dai had said in their conversation, namely, that Ms. Takei could "stay in Canada for another 90 days after her status as a visitor has been lost" and that Ms. Takei could seek "restoration within 90 days after your status as a visitor ... has been lost." As a result, Ms. Takei stayed in Canada. Ms. Takei did in fact apply for the restoration by way of a written application to Immigration Canada dated August 19, 2008 [Exhibit 3]. In that application, among other things, Ms. Takei wrote that she "was advised by my consultant that I would be working by June 1, 2008."
16 On July 29, 2008, Ms. Yu sent an e-mail to Mr. Romans [Exhibit 1] addressed to "Scott and Ayumi" advising the Plaintiffs that the Defendant had "received a letter from the immigration office in Seattle" and that "Ayumi is required to take an interview at the Seattle immigration office". Further, it advised that "they also require Ayumi to submit additional documents". The e-mail provided information as what documentation was required of Ms. Takei and that she had to present herself at the Seattle immigration office before September 22, 2008.
17 The e-mail in response from Mr. Romans to Ms. Yu dated August 4, 2008 [Exhibit 1] , asked Ms. Yu some further questions of the process and advised her that a trip to Seattle was being planned. The e-mail specifically asked: "What about getting Ayumi back into Canada? (her visitor visa expired on July 30/08). Is there anything we should be doing regarding this? If the interview goes well is there a chance they will issue the work permit while we're there?".
18 Ms. Yu responded by way of e-mail to Mr. Romans on August 5, 2008 [Exhibit 1] addressed to "Scott and Ayumi" to address the Plaintiffs' concerns. Ms. Yu wrote: "there is no specific reason for the interview. According to our experience, most of the cases with interview request are due to the applicant's history. Since Ayumi has been in Canada for several times, the immigration office may doubt about her purpose of the visit." In response to the Plaintiffs' concerns about Ms. Takei re-entering Canada, Ms. Yu wrote: "If Ayumi successfully receives her Work Permit, there will be no difficulty upon her re-entry to Canada, although her visa has expired. If Ayumi is rejected by the immigration officer, upon her entry to Canada, the officer from the customs or immigration may ask her purpose of visit. Ayumi could explain to the officers that she has been rejected for the work permit application. She needs to come to Canada to close her bank account, rent her apartment, explain to the employer, sell her furniture, etc. All she needs to do is to tell them that she needs several months to process some personal issues. After that, she will go back to Japan."
19 Mr. Romans then sent an e-mail in response to Ms. Yu dated August 5, 2008 [Exhibit 1]. His concern was as to what to tell the immigration officer about Ms. Takei's "purpose" and further, "should I go into the interview, or even show up with her?".
20 Ms. Yu responded by way of e-mail to Mr. Romans on August 5, 2008 [Exhibit 1] addressed to "Scott and Ayumi" and wrote: "For Ayumi's case, she can say that she has a friend in Canada, and it is the reason why she frequently comes to Canada for visit. However, it is not good for her application if she says this friend is her boyfriend ... " and that "What immigration officer is looking at is that Ayumi will work temporarily for two years in Canada and does not have any intentions to stay permanently at this moment". Further, that "since [Ayumi] is the applicant, you are not allowed to show up for the interview unless Ayumi needs your help as an interpreter. However according to the job requirement, Ayumi is supposed to have English language ability; so it does not make sense to bring an interpreter with her for the interview."
21 The Plaintiffs went to Seattle, via a flight to Vancouver, and then rented a car to drive to Seattle. This occurred on August 24, 2008. According to Mr. Romans, they could not fly directly to Seattle because he did not have a valid passport but he could drive across the border using his driver's license. At the border, the United States border official expressed a concern with allowing Ms. Takei entry into the United States because she had no formal status in Canada, her visitor's visa having expired. It was explained that if Ms. Takei went into the United States, she may not get back into Canada and she would "be stuck in the U.S. and would be their problem." It was suggested that they speak to the Canadian border officials to see if they would grant Ms. Takei some form of temporary status that would allow her entry back into Canada.
22 The Plaintiffs did just that and went to speak to a Canadian border official who denied Ms. Takei such "temporary status". After bidding them to leave, the Canadian border official in what Mr. Romans described as an "afterthought" indicated to the Plaintiffs that they would "at least need a labour market opinion before you're going to get approved for, you know, this work permit". The Plaintiffs told this border official that they had a labour market opinion in response to which, the border official "went on his computer" and printed out the labour market opinion and told the Plaintiffs that Ms. Takei could get her work permit "right now". The Plaintiffs were advised to go to and pay $150.00 and to come back and it will be given to them. According to Mr. Romans, the border official was not interested in any of the paperwork that the Plaintiffs had brought with them. The work permit was issued [Exhibit 4] and Ms. Takei then went to work at Shiso two or three days thereafter. The issuance of a work permit in this fashion is what is known as a "flagpole application".
23 Mr. Romans and Ms. Takei both testified that at no time had anyone with the Defendant mentioned this process of receiving a work permit at the border (i.e. the flagpole application). Mr. Dai agreed that he did not tell either of the Plaintiffs about a flagpole application. Mr. Dai's position is that it was not in their "best interests" and because of Ms. Takei's previous problems with Immigration Canada it was "not even near consideration". Mr. Dai also testified that his fee for a flagpole application would normally be $8,000.00 because he would attend with his client, usually to the closest border point, at Coutts, Alberta. Mr. Dai also testified as to the possibility of a language barrier creating a problem for Ms. Takei, although Mr. Dai does not speak Japanese and so could not translate for her. He did agree in cross-examination that a flagpole application was technically possible in Ms. Takei's case. He also agreed that it was not a requirement for him to accompany a client to a flagpole application.
24 Mr. Romans testified that if presented with this option, he and the Plaintiff would have opted to proceed in that fashion because he and Ms. Takei would rather than been rejected "sooner rather than later" due to the fact that Ms. Takei was not working and financially, it had been difficult for them as a result. Furthermore, that with an earlier rejection, the Plaintiffs would have looked at an alternate plan of action, perhaps getting married. Ms. Takei also testified that she would have proceeded with a flagpole application had she known about it. Under cross-examination though, both Mr. Romans and Ms. Takei agreed that they would not do anything that would risk Ms. Takei having to leave Canada early and that they both wanted Ms. Takei to stay in Canada as long as possible. Still further, both Mr. Romans and Ms. Takei agreed under cross-examination that if they had been advised by the Defendant that it would cost them $8,000.00 for a flagpole application, they would not have pursued it as an option.
25 The expert who testified for the Plaintiffs, Carla Hess, explained that a flagpole application was one where a person who is legally allowed to be in Canada would, armed with the proper documentation, including a valid passport, labour market opinion and a job offer letter, go to a border crossing, leave Canada and tell the United States border official that you are making a "flagpole turn". You are then directed to return to the Canadian side of the border and deal with a Canadian border official who will process your application. This is something that can be done if one is looking to secure a work permit and is virtually only available to someone who comes from a country where they do not need a permit to enter Canada, which is the case with a Japanese citizen like Ms. Takei. A flagpole application is not something that is promoted by Immigration Canada and is not part of the training of an immigration consultant but the consultants learn of it through experience.
26 According to Ms. Hess, the benefit of a flagpole application is that it is quick. Ms. Hess also testified that there is a risk that the Canadian border official who processes the application may refuse to issue the work permit if everything is not in order and may even refuse to process the application at all and may also refuse the applicant re-entry into Canada. However, in her experience, with her clientele, flagpole applications have been largely successful (perhaps as high as ninety percent). In Ms. Hess' opinion, she would have given Ms. Takei the option of applying in the "usual" way for a work permit (i.e. a written application) or proceeding with a flagpole application, in order that Ms. Takei could have made an informed decision. In Ms. Hess' further opinion, it would be standard for immigration consultants to advise a client of both options, outlining what is required for both, and the risks associated with both procedures, in order that the client could make an informed decision.
27 Mr. Dai did not disagree in any significant way with Ms. Hess' explanation of a flagpole application. Both Mr. Dai and Ms. Hess explained that the application was not without risk. However, Mr. Dai's experience has been that with his clientele, flagpole applications are only moderately successful, i.e fifty percent.
28 Mr. Mittal, who does not have the years of experience as an immigration consultant that both Ms. Hess and Mr. Dai have, also did not disagree in any significant way with the explanations given by Ms. Hess and Mr. Dai as to a flagpole application. In Mr. Mittal's opinion, he would not have recommended a flagpole application for Ms. Takei because "there wouldn't appear to be a need for that kind of recommendation", but he did not further elaborate to any great degree. Under cross-examination, he testified that in his experience, with his clientele, he has had about a thirty percent success rate with flagpole applications. He also testified that if he had been advised by Ms. Takei that it was urgent that she obtain her work permit, "I may have mentioned it [i.e. flagpole application] ... but I would definitely not have brought it up and I would have still sent the application overseas ... or outside the country".
29 The damages the Plaintiffs are claiming have been set forth in paragraph 1 of this decision. A copy of the invoice issued by the Defendant to the Plaintiffs for $2,100.00, together with the bank transaction fee of $6.00 for the bank draft that paid same, were entered into evidence as Exhibit 5. That Exhibit also includes the invoice for the translation of documents totalling $268.80. Yet further, Exhibit 5 includes the receipt for the initial return airfare between Calgary and Vancouver totalling $710.50, which airfare increased by the sum of $525.00 as the Plaintiffs changed their flight to return to Calgary on August 24, 2008. In addition, Exhibit 5 includes the receipt for the car rental from the Vancouver airport to Seattle and return in an amount totalling $76.50 and the receipt for parking at the Calgary airport in the sum of $12.55.
30 With respect to the Defendant's invoice for $2,100.00, it made reference to "consulting service fees for work permit application" and listed four items thereunder: "arrangement of E-LMO [expedited labour market opinion], preparation of work permit application overseas, one time government fees and courier cost included and consultation and advice regarding issues related to the above mentioned matters". The Plaintiffs agreed under cross-examination that the Defendant did obtain the E-LMO and that the Defendant prepared the work permit application and that it would be sent to Seattle. They further agreed that the Defendant paid $150.00 to Immigration Canada when it submitted the original application. Yet further, they agreed that the Defendant did provide consultation and advice respecting the issues related to the obtaining of the E-LMO, the preparation of the work permit application and its submission to Immigration Canada.
31 Mr. Romans and Ms. Takei both testified under cross-examination that the Defendant never agreed to pay for the Plaintiffs' travel costs to Seattle and never agreed to pay for the translation of documents. Furthermore, the Plaintiffs knew that only Ms. Takei was to be interviewed in Seattle.
32 The other portion of the Plaintiffs' damage claim is for the loss of Ms. Takei's income which the Plaintiffs base on a gross salary for Ms. Takei of $3,296.25 per month for 6 months, in the total sum of $19,777.50. Ms. Takei signed her employment contract with Shiso on April 11, 2008 [Exhibit 7]. The Plaintiffs moved to Red Deer on or about May 5, 2008. Ms. Takei's work permit application [Exhibit 8] indicates an expected employment start date of June 1, 2008. Once Ms. Takei commenced her employment, she was a server, and later on, became a supervisor, although the evidence does not disclose when that change in her job took effect. For the approximately four months that Ms. Takei worked in 2008 (September through December), she earned a total of $13,185.00 (or $3,296.25 per month), which sum included her base income and tips [Exhibit 9]

ISSUES

33 Was the Defendant negligent in the services it provided to the Plaintiffs? If so, what damages, if any, flow from that negligence?

DECISION

34 The Plaintiffs have framed their claim in both contract and negligence and submit "that negligence can arise in a contract for services". That is correct. As is set out in the text, The Law of Contracts (2005, Irwin Law Inc.), by John D. McCamus:

• "As a general principle, the traditional doctrine held that once the parties had entered into a contractual relationship, the terms of the contract ought to provide the exclusive source of the parties' mutual rights and obligations. This principle was, in turn, subject to a number of limitations and exceptions of uncertain ambit. In recent years, however, this subject has been greatly simplified by the decision of the Supreme Court of Canada in BG Checo International Ltd. v. British Columbia Hydro & Power Authority. ... For purposes of Canadian law, the Supreme Court swept aside the remarkable complexity of the traditional doctrine of concurrent liability and adopted a straightforward principle that parties who are guilty of tortious misconduct when breaching a contract will be liable concurrently in contract and tort, unless the agreement between the parties stipulates to the contrary."
35 As to the contract between the parties, there was agreement between them that the services to be provided by the Defendant were as set out in the Defendant's invoice, being:

• a.
arrangement of E-LMO [i.e. an expedited labour market opinion]
• b.
preparation of work permit application overseas [in this case, to the Canadian immigration office in Seattle];
• c.
one time Government fees and courier cost included; and
• d.
consultation and advice regarding issues related to the above mentioned matters.
The Plaintiffs acknowledged in their testimony that this agreement was in fact carried out by the Defendant. However, their concern is that the Defendant did not advise the Plaintiffs of the existence of such a thing as a "flagpole application" and that this was negligent on the part of the Defendant and caused them to suffer damages as a result.
36 In order to succeed in their claim, the Plaintiffs must establish that:

• a.
the Defendant owes them a duty of care;
• b.
the Defendant breached that duty of care (that is, the Defendant was negligent); and
• c.
the Defendant's negligence caused the Plaintiffs to suffer damages as a result, with those damages not being too remote (in other words, that the damages suffered were reasonably foreseeable).
37 In the case before me, the Plaintiffs were referred to the Defendant, a professional immigration consulting company, and had dealings with its principal, Mr. Dai, who is a professional immigration consultant and Ms. Yu, the Defendant's employee referred to earlier in this decision. I use the word "professional" in the sense that it denotes a company or individual whose business it is to, in this instance, handle immigration matters for clients. There has been a substantial body of law that has developed with respect to the duty of care that a professional or someone with superior knowledge and skill owes to a client. I find that in the present case, the Defendant, being as I described it, a professional immigration consulting company does indeed owe a duty of care to the Plaintiffs.
38 The question then becomes: what is that duty of care? As set out in the text, The Law of Torts, 3rd Ed., (2007, Irwin Law Inc.) by Philip H. Osborne:

• "A higher standard of care is applied to those persons who represent themselves as having special skill and knowledge that allow them to perform tasks that are normally beyond the capacity of the ordinary person. The public may reasonably expect such people to exercise a degree of skill and knowledge commensurate with that representation. An elevated standard of care applies not only to members of the professions but also to business, commercial, and trades people ... The standard of care is that of the reasonably prudent and competent member of the particular profession or vocation to which the defendant belongs."
So in the case before, did the Defendant breach its duty of care in that it did not advise the Plaintiffs as to the availability of a flagpole application?
39 As I set out earlier in this decision, I not only heard from Mr. Dai, as to what a flagpole application entails, I also heard from two experts, one for the Plaintiffs and one for the Defendant. As I also set out earlier in this decision, the testimony of the experts did not differ significantly on this point. The experts and Mr. Dai all agreed that a flagpole application is not something that is "taught" if you will, to immigration consultants, but it is something that is known to immigration consultants and is something that each of these three immigration consultants have each used with their own clientele, to varying degrees and with varying success. In the case of Ms. Hess, with her clientele, it has been largely successful. In the case of Mr. Mittal, his estimate was that it was successful in approximately thirty percent of his cases and with Mr. Dai, it was successful in approximately fifty percent of his cases.
40 The experts and Mr. Dai all testified that it depends on the circumstances of each case before them as to whether or not those circumstances warrant the making of a flagpole application. The success rate appears to be not insubstantial - somewhere between thirty percent at the low end and up to ninety percent at the high end. I appreciate that these were "guesstimates" by those who testified and that they are case-specific, and I do not doubt that the Defendant reviewed Ms. Takei's circumstances and assessed her chances at success in making a flagpole application, but the concern I have is that the Defendant never advised the Plaintiffs as to the fact that a flagpole application even existed. Counsel for the Plaintiffs takes the position that this constitutes a breach of the standard of care that was owed to the Plaintiffs by the Defendant in that it "did not accord with what would be expected of a reasonable immigration consultant with a similar knowledge". Counsel for the Defendant takes the position that the flagpole option was not recommended because the Defendant did not see it as a viable option.
41 There is no doubt that there are risks to a flagpole application. These were testified to by the experts and Mr. Dai. The biggest risk appears to be that an unsuccessful applicant could be forced to return to their home country with little, if any, time to arrange their affairs in Canada, despite whether or not there is any time remaining on their visitor's visa. That there is no certainty to the application is not in question. Again, the testimony of the experts and Mr. Dai is that the border officials are very unpredictable and may even refuse to deal with such an application outright.
42 Notwithstanding these risks though, the Plaintiffs were not even given an opportunity to hear about a flagpole application and the possibility that it might be an alternative to the method of applying for a work permit that the Defendant advised the Plaintiffs to pursue (i.e. through a written application to Seattle). The situation is somewhat analogous to that of informed consent in the medical cases that come before the Courts. In the Supreme Court of Canada decision in Hopp v. Lepp [1980] 2 S.C.R. 192, Chief Justice Laskin described informed consent as:

• "... [reflecting] the fact that although there is, generally, prior consent by a patient to proposed surgery or therapy, this does not immunize a surgeon or physician from liability for battery or for negligence if he has failed in a duty to disclose risks of the surgery or treatment, known or which should be known to him, and which are unknown to the patient."
In other words, to apply this to the case before me, just because the Defendant had determined to dismiss the possibility of a flagpole application, that does not protect the Defendant from liability if the Defendant failed in its duty of care by not disclosing that possibility to the Plaintiffs.
43 I find that the Defendant has breached its duty of care. Having heard from the experts and Mr. Dai, it would be reasonable for an immigration consultant to have at least advised the Plaintiffs as to what a flagpole application was and to have informed them of the advantages and disadvantages of it, as it was available to Ms. Takei as an option in her circumstances, even if the Defendant believed it was not a viable option. The Defendant should have presented the pros and the cons to the Plaintiffs and did not do so, and thereby prevented the Plaintiffs from making an informed decision as to the best route to take.
44 The Plaintiffs have argued that they have suffered damages as a result of the negligence of the Defendant. I have outlined the Plaintiffs' damages claim earlier in this decision. I will deal with each of them in turn as follows:

• a.
"The initial retainer paid to the Defendant in the amount of $2,100.00."

• The Plaintiffs both agreed in their testimony that the Defendant did indeed do the work that it was contracted to do. Ms. Takei required that this work be done in order for her to apply for a work permit. This work enabled Ms. Takei to be successful in her flagpole application. Consequently, I have determined that the Plaintiffs did not suffer any damage with respect to this portion of their claim.

• b.
"Notarized and translated documents required by the Defendant through in the amount of $268.80."

• The Plaintiffs also both agreed in their testimony that it was their responsibility and their cost to obtain such documents. These were again a necessary part of the work permit application process. Consequently, I have determined that the Plaintiffs did not suffer any damage with respect to this portion of their claim.

• c.
"Loss of income based on an approximate gross salary for the Plaintiff, Ayumi Takei, of $3,296.25 per month for 6 months = $19,777.50."

• According to the written argument submitted by Counsel for the Plaintiffs, this portion of the Plaintiffs' claim is now for Ms. Takei's salary for five and one half months, from March 6, 2008 to August 23, 2008. According to the Plaintiffs, Ms. Takei would have been able to work from at least March 6, 2008, when she was granted a positive labour market opinion and could have applied for her work permit via a flagpole application, and would then not have been idle, without income, until August 24, 2008, when her flag pole application was granted and she was able to work.

• This portion of the Plaintiffs' claim assumes that the Plaintiffs would have proceeded with a flagpole application. According to the testimony of both Plaintiffs, they agreed that if they had known that the Defendant's cost to proceed with a flagpole application was $8,000.00, they would not have been able to go that route, notwithstanding that they wanted to proceed with Ms. Takei's work permit application in as expeditious a manner as possible. There was some contradiction in Ms. Takei's evidence with respect to whether or not she would have made a flagpole application, (assuming cost not being a factor). On the one hand, Ms. Takei testified that she wanted to stay in Canada as long as possible and did not want to do anything to jeopardize the status she had under her visitor's visa, which was not due to expire until July 30, 2008. On the other hand, Ms. Takei testified, somewhat hesitantly, that she would have risked making the flagpole application in March 2008 knowing that it could result in her having to leave Canada as early as sometime in March 2008. This does not accord with the Plaintiffs' evidence as a whole which was that they wanted to be together, for longer terms than had previously been possible, so as to be able to pursue their relationship. I find that the Plaintiffs would not, based on their evidence, have proceeded with a flagpole application.

• However, if I am wrong in that determination, and the Plaintiffs would have proceeded with a flagpole application, then I find that these damages are too remote to be recoverable. There is no way of knowing when Ms. Takei would have proceeded with such application. There is no way of knowing whether or not the flagpole application would have been successful. Just because it was successful on that given day, does not mean it would have been successful on another day, given another border official. One cannot say that but for the negligence of the Defendant, Ms. Takei would have been successful in such application and consequently, the loss of wages does not flow from that negligence.

• d.
"Expenses incurred by the Plaintiffs in a trip to Vancouver B.C. and the attempt to cross the United States border to go to Seattle including air fair [sic ], vehicle rental and airport parking in the amount of $1,324.55."

• The Plaintiffs were aware that Ms. Takei's application for a working permit was being made through Seattle. They were also then made aware that an interview with Ms. Takei was requested by Immigration Canada and that Ms. Takei would need to attend in Seattle for that interview. This was not something that Mr. Romans was required to do, and in fact, was advised by the Defendant that he could not attend with Ms. Takei at the interview. As a result, any costs incurred by Mr. Romans are not recoverable. As for Ms. Takei, these are costs that she would have had to incur as she was required to attend in Seattle. Consequently, her costs are also recoverable.

• I have already determined that the Plaintiffs would not have proceeded with a flagpole application. However, as I indicate in paragraph c. above, if I am wrong in that determination, then there would have been expenses associated with such an application in any event. Those expenses would only be recoverable by Ms. Takei as she, and not Mr. Romans, would have been the one required to attend at such application and there was no evidence led by the Plaintiffs as to what travel expenses would have been incurred by Ms. Takei had she proceeded with a flagpole application. As a result, there is simply no evidence before this Court which would provide me with any basis on which to make any award for expenses under this portion of the Plaintiff's claim.
45 The end result is that the Plaintiffs' claim is dismissed in its entirety as the Plaintiffs have not been able to prove, on a balance of probabilities, that they suffered any loss or damage as a result of the actions of the Defendant.
46 I would like to thank both Counsel for their very capable presentations at trial and for their very thorough written submissions. As for the matter of costs, if Counsel cannot agree on same, they may arrange to speak to me respecting costs through this Court's Trial Coordinator.

L.D. YOUNG PROV. CT. J.

AG POINTS TO PROBLEMS AT CIC

More of the same....no surprises.

AG cites problems at immigration department Canada News Toronto Sun

Tuesday, October 26, 2010

WAITING TIMES INCREASING FOR CITIZENSHIP

Canadian citizenship process takes time - UPI.com


Canadian citizenship process takes time


Published: Oct. 25, 2010 at 9:18 AM


SYDNEY, Nova Scotia, Oct. 25 (UPI) -- Increased demand for Canadian citizenship has applicants waiting as long as 19 months for the application process to be completed, officials said.

The Citizenship and Immigration Canada office in Sydney, Nova Scotia, which has been swamped since the handles citizenship applications for the entire country, the Immigration Act was changed in 2009. The office also is responsible for processing tens of thousands of permanent resident cards.

"Really it's just a question of enough resources to process all the applications we receive," CIC operations manager Paul Snow told the Canadian Broadcasting Corp. "Citizenship and Immigration as a department has a fixed amount of resources and we're facing increasing applications in all of our program areas."

Some say delays are too long.

"I don't think this is a good way of welcoming our fellow Canadian citizens-to-be, considering the fact that they pay all kinds of taxes," said Edward Chung, president of the Korean Association of Prince Edward Island.

He said it only took four months for his application to be approved when he filed it 30 years ago. Just a few years ago the average wait was five months.

Monday, October 25, 2010

QUOTED ON TODAY'S GLOBE AND MAIL EDITORIAL

I was quoted in today's Globe and Mial Editorial.

A bold move on human smuggling - The Globe and Mail

October 24, 2010

A bold move on human smuggling

From Monday's Globe and Mail

Interpol calls people smuggling a transnational crime, a violation of human rights and a contemporary form of slavery. The government is right to introduce new legislation to combat it.
Interpol calls people smuggling a transnational crime, a violation of human rights and a contemporary form of slavery. It is also a growing phenomenon - even in Canada, where two ships ferrying 568 Sri Lankan refugee claimants arrived in less than 12 months.

The government is right, then, to introduce new legislation to combat human smuggling, and to appoint Ward Elcock, former head of the Canadian Security Intelligence Service, as a special adviser to stop the crime at its source.

The government must act to safeguard the integrity of Canada's immigration system, which welcomes 250,000 newcomers a year. Polls show that the public's high level of support for immigration dipped by 20 per cent after the arrival of the Sun Sea and Ocean Lady - even though asylum seekers and skilled immigrants are two very different streams.

Large-scale arrivals of refugee claimants strain the system, and make it difficult to determine their identity, and whether they are a security risk.

The Preventing Human Smugglers from Abusing Canada's Immigration System Act proposes to make it easier to prosecute human smugglers, impose mandatory prison sentences on convicted smugglers and hold ship operators to account.

The act also aims to deter asylum seekers from paying human smugglers by introducing punitive measures, should they arrive in this manner. They can be detained for up to one year. And, if their claims are approved, they may not return to the country from which they are fleeing.

"The refugee debate is emotional. But human smuggling is a global phenomenon and other target countries are cracking down, including Australia and the U.S. Canada must do something," says Sergio Karas, past chair of the Ontario Bar Association's immigration section.

The act, however, goes too far by forcing successful claimants who entered via human-smuggling ships to wait five years to apply for permanent residence, and not letting them sponsor family members. Asylum seekers must be encouraged to approach the United Nations High Commissioner for Refugees in the first safe haven they reach. But Canada should not deny citizenship rights to people who are found to be genuine refugees, no matter how they managed to get here. Overall, though, the thrust of the act is welcome. The government is right to tackle this crime.

Sunday, October 24, 2010

Friday, October 22, 2010

SERIAL CRIMINAL RELEASED DESPITE OBJECTIONS

This is quite incredible: a serial criminal with 23 (twenty three) convictions is released after refusing to cooperate for his removal to Iran, and the court upheld the release. It makes little sense. What kind of message is being sent by the IRB?

Canada (Minister of Public Safety and Emergency Preparedness)
v. Karimi-Arshad


Between
The Minister of Public Safety and Emergency Preparedness,
Applicant, and
Mehdi Karimi-Arshad, Respondent
[2010] F.C.J. No. 1194
2010 FC 964

Docket IMM-4875-10

Federal Court
Toronto, Ontario

Zinn J.

Heard: September 22, 2010.
Judgment: September 27, 2010.
(55 paras.)
________________________________________

REASONS FOR JUDGMENT AND JUDGMENT

1 ZINN J.:-- The Minister asks this Court to set aside the August 18, 2010 decision of the Immigration Division of the Immigration and Refugee Board which ordered that Mr. Karimi-Arshad be released from detention on the conditions set out in the Order for Release.
2 The Order under review was stayed by this Court pending the final determination of this application for judicial review. The Court expedited the hearing of the application and it was heard little more than a month after the Order under review issued. In light of the fact that the respondent remains in detention pending this decision and that it was ordered that no further detention reviews be conducted pending this decision, it is being issued with some haste.

Background

3 The respondent is 50 years old. He is a citizen of Iran. He came to Canada in 1989 and was granted refugee status. He then embarked on a series of crimes which Board members appear to accept were a consequence of his heroin addiction. Since 1992 he has been convicted of 23 criminal offences, the majority of which related to theft. The respondent's record includes a very serious August 2001 conviction for robbery and the use of an imitation firearm during the commission of an offence, which related to a bank robbery he committed. His record also includes convictions for failure to attend court in February 2000 and failure to comply with a probation order in June 2001. Most recently, in September 2007, he was convicted of theft under $5000. He has been in detention since then.
4 As a result of the respondent's criminality, on October 15, 2002 he was found inadmissible and ordered deported pursuant to subsection 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27; an appeal from this order was dismissed. On November 18, 2002 a warrant to arrest the respondent for removal was executed while he was incarcerated at Collins Bay Institution in Kingston, Ontario. On May 31, 2004 the respondent was found by the Minister to be a danger to the public pursuant to section 115(2)(a) of the Act. On December 15, 2004 the respondent was transferred to immigration detention.
5 The Toronto Bail Program has repeatedly declined to offer supervision to Mr. Karimi-Arshad because of his serious criminal record and his failure to cooperate with Canada Border Service Agency's (CBSA) attempts to obtain the travel document necessary for him to return to Iran. Nonetheless, on July 20, 2006 CBSA recommended the respondent's release from detention on terms and conditions that included his own promise to appear and to observe the conditions of release.
6 His release did not last for long as the respondent resumed his criminal behaviour. On April 8, 2007 the respondent was arrested by CBSA as he had been charged with theft under $5000, attempting to resist arrest, and dangerous driving. On September 14, 2007 he was convicted of theft under $5000 and sentenced to four months time served. On that same day he was transferred to immigration detention, where he remains. Since then, he has had numerous and regular detention reviews, as is required by the Act, and until the decision under review was made no member had ordered his release from detention.
7 There have been ongoing and continuing problems arranging for Mr. Karimi-Arshad's removal to Iran. At first the respondent was the principal cause of the delay in getting the required travel document; however, more recently it appears that Iranian authorities are not fully co-operating with attempts to return the respondent to his country of birth.
8 From November 2004 to October 2005 the respondent refused to complete the Travel Document application. He informed CBSA that he had no Iranian identification documents nor any family or friends who could assist in obtaining them. In November 2005 the respondent provided CBSA with an unsigned Travel Document application, which was then forwarded to the Iranian Embassy. The necessary documents from Iran were not forthcoming.
9 At the April 2008 detention review, Mr. Karimi-Arshad said that he had received correspondence from the Iranian embassy advising him that he did not need identification to be issued a travel document, but that he was required to attend an interview and sign a form indicating that he was leaving Canada and returning to Iran voluntarily. An interview with Iranian Embassy officials was arranged for the respondent but he was not taken to the interview because he refused to sign a letter indicating he would voluntarily return to Iran. Such a letter was required by the Iranian Embassy before it would issue travel documents.
10 In August 2009 Mr. Karimi-Arshad signed a statutory declaration affirming that he was a citizen of Iran and that he was prepared to return to Iran. On February 24, 2010 he attended a private interview with officials from the Iranian Embassy and signed a statutory declaration affirming that he had signed all travel documentation applications and was voluntarily returning to Iran.
11 The record reveals that since November 2004 the Minister has made a number of efforts to obtain Iranian identification and a travel document for the respondent so that he could be removed to Iran. As stated, originally the respondent was the major impediment to obtaining these documents. The member whose decision is under review stated in her July 28, 2010 reasons that "It was only at the point when the Iranian Embassy decided that Mr. Karimi-Arshad would not be issued a passport even if he signed the letter of voluntary return that Mr. Karimi-Arshad finally agreed to sign the required letter." Therefore, while the respondent had been the principal impediment to removal prior to February 24, 2010, the Iranian authorities appear to have been the principal impediment since then.
12 The respondent had a number of recent detention reviews leading up to the August 18, 2010 review that resulted in the release order which is the subject of this application. At these detention reviews, members of the Board declined to release the respondent because of concerns relating to the inadequacy of the proposed release terms and because of the possibility that the applicant would be able to arrange for the respondent's removal to Iran.
13 After the detention review hearing of August 18, 2010, Board Member O.M. Kowalyk ordered the respondent released. The Board came to this decision despite finding that Mr. Karimi-Arshad remained a danger to the public and that he was unlikely to appear for removal from Canada. The Board member's specific finding with respect to the respondent being a continuing danger to the public is reflected in the following passage from her reasons:

• I find that that evidence concerning the Danger Opinion and the circumstances of the convictions, escalation of violence and the sentence imposed establish that Mr. Karimi-Arshad is a danger to the public.
14 With respect to the respondent continuing to be unlikely to appear for removal, the member recites much of the history of the respondent's dealings with CBSA but does not provide the same sort of analysis as was provided with respect to the danger finding. Nonetheless, the member says at the beginning of her reasons: "I find that I am satisfied that Mr. Karimi-Arshad is a danger to the public and that Mr. Karimi-Arshad is unlikely to appear for removal from Canada."
Issues
15 The applicant Minister raises two issues:

• 1. Whether the member's order unreasonably releases the respondent, a danger to the public and a flight risk, without supervision or monitoring; and
• 2. Whether the member failed to provide clear and compelling reasons to depart from several previous decisions ordering the respondent's continued detention.
Analysis
16 The Court must be guided by the following principles:

• (i) The standard of review for a decision by a member of the Board to release a foreign national from detention is reasonableness: Canada (Minister of Citizenship and Immigration) v. Panahi-Dargahloo, 2010 FC 647, para. 25.
• (ii) Deference is owed to the member's findings of fact and assessment of the evidence: Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, para. 59.
• (iii) The role of this Court is not to substitute its opinion for that of the member: Walker v. Canada (Minister of Citizenship and Immigration, 2010 FC 392, paras. 25-26.
• (iv) If a member departs from prior decisions that maintained the detention, then the member must set out clear and compelling reasons for so doing: Canada (Minister of Employment and Immigration) v. Thanabalasingham, 2004 FCA 4.
17 The reasonableness of the Order for release and the reasons provided require an examination of the specific terms of release in light of the Board's findings that the respondent remains a flight risk and a danger to the public and in light of the previous decisions of the Board. Accordingly, an examination of earlier rejected proposals for release is necessary. In the present circumstances, the more recent detention review hearings are the most relevant.

Previous Recent Detention Reviews

2009 Reviews
18 Comments from members in two of the detention reviews before 2010 reflect previous decisions, and set the tone for subsequent reviews.
19 Member Shepherd provided lengthy reasons following his review on March 12, 2009. He considered each of the previous reviews.1 In his reasons he notes that the respondent was "released on terms and conditions on July 24, 2006 that included monthly reporting" and that he failed to report on April 5, 2007 after he lost his cell phone which contained his appointment calendar. The member finds this explanation wanting but does find that he is likely to report to CBSA, notwithstanding this one occasion of non-reporting:

• Notwithstanding this explanation, his conduct demonstrates a lack of due diligence in complying with his conditions of release. He knew that he was subject to monthly reporting. He could reasonably be expected to contact CBSA to confirm the next reporting date in the event that he did not remember it. Notwithstanding this point, his reporting history was otherwise good. ... Based on all the facts of the case, I am satisfied that he would likely report to CBSA on a monthly basis.
20 The proposal before Member Shepherd was that Mr. Karimi-Arshad be released on his own recognisance and reside with his former landlord. The member states:

• Release to a person who has not been interviewed for purposes of establishing suitability would not be appropriate in this case. Given his criminal history, past heroine [sic] addiction and flight risk, a release Order would need to address such issues as accommodation, medical assessment and treatment, and meaningful supervision by a suitable bondsperson to offset the various issues identified to justify release.

21 The member who conducted the review on September 23, 2009 wrote that "I can easily describe both the danger to the public that you pose if released as well as your unlikelyness [sic] to appear for lawful removal as high to extremely high."
22 It is against this backdrop of the respondent having breached the terms of his earlier release as well as being found to be a high to extremely high risk of being a danger to the public and failing to attend for removal that subsequent decisions must be read.

April 13, 2010 Review - Member Heyes
23 On April 13, 2010 Member Heyes continued the respondent's detention and rejected the new proposed terms of release which were outlined in letters from Salvation Army Gateway (Gateway) and the Fred Victor Centre. This review is of particular relevance as it appears to have been the first time these two agencies were involved and because the decision under review did release the respondent on the basis of letters from these same agencies, albeit under modified terms.
24 It was proposed that Mr. Karimi-Arshad would become a resident at Gateway. As it was put in the letter from Gateway dated March 9, 2010, it was responding to his lawyers who were "looking to place Mr. Karimi Arshad [sic] at a suitable address where supervision and case management would be present." The letter describes Gateway and its relationship with its residents as follows:

• Salvation Army Gateway is a men's shelter which provides case management, housing support, and a small clinic for our residents. Residents are required to actively participate with a case manager to create a reasonable case plan and are responsible to meet all pre-arranged appointments. Gateway does not provide strict supervision of its residents; rather it is the resident's responsibility to comply with all shelter rules and policies and adhere to their case plan. Failure to do so will result in the loss of their space in the bed program, in which case they will be referred to alternate shelter accommodation. (Emphasis added)
25 The letter went on to set out the conditions that had to be met before Gateway would accept the respondent at its shelter:

• We are willing to accept Mr. Karimi Arshad [sic] at our shelter, provided the following conditions are met:

• 1. Mr. Karimi Arshad [sic] is willing to sign a consent to release and disclose personal information forms between Gateway and any agencies/systems he is to be held accountable to such as Immigration, Legal Aid Ontario and probation/parole/bail officers for the purposes of creating a case plan and accountability.
• 2. Mr. Karimi Arshad [sic] is able to self-care and is ambulatory.
• 3. Mr. Karimi Arshad [sic] agrees to be compliant with all rules and policies of this facility.

26 The letter dated March 11, 2010 from the Fred Victor Centre sets out the services that it offers as follows:

• We are a preventative program that provides responsive support in the community to people living with mental illness who are at risk of involvement or re-involvement with the criminal justice system. We offer intensive case management, programming, practical support and advocacy to our clients. We make appropriate referrals to community supports such as safe beds, legal representation, health services, housing workers, and other services identified by the client.
27 Specifically with respect to Mr. Karimi-Arshad, the Fred Victor Centre writes: "Please let me know where and when I can meet or contact Mr. Arshad [sic] to do an intake and begin working on a case plan with him."
28 It was proposed that the services of these organizations, as described, would be provided to Mr. Karimi-Arshad. At the hearing the respondent's counsel indicated that Gateway would provide the respondent with shelter while awaiting intake into Transition House, which would provide a maximum three-month stay and assistance in dealing with his addiction. Member Heyes rejected the proposal principally because it failed to provide supervision and because there was a lack of detail concerning the programs that would be in put in place for the respondent. Although lengthy, her statements of her concerns in this regard are instructive when considering the decision under review:

• Your past release on your own promise to abide by conditions when combined with the treatment program dealing with the drug addiction was not effective.

• That was over two years ago and I do not see anything specific in this proposal that would allay my concern that this would not occur again.

• Past failure to comply when released on a promise to abide by conditions and rehabilitation is not determinative, but it is certainly significant evidence pointing to the requirement that there needs to be more to reduce or mitigate danger and flight risk.

• Frankly, I do not see how simply increasing the frequency of reporting to the Greater Toronto Enforcement Centre reduces the flight risk or danger given the absence of any supervising surety.

• This is to say that I do not find the alternative that has been proposed is viable. There are things that are lacking in the release plan, supervision for one thing.

• It is clear from Exhibit DR-1. The letter from Gateway that Gateway does not provide strict supervision.

• The letter indicates it is the resident's responsibility to comply with shelter rules and policies.

• Transition House can offer a three-month stay, but does not in my view offer supervision. It indicates that their in-depth counseling [sic] is provided by an outside primary counselor [sic] and this is a voluntary program.

• There is [sic] not a lot of specifics in the plan to deal with the heroin addiction in terms of who would provide it, what specifically is being offered, what monitoring there is, what is in place to report any breaches to Canada Border Services Agency.

• ...

• There is nothing, there is no supervising surety attached to this release plan. Clearly it is not legally required, but for someone who has not complied with previous release on his own promise in my view is simply not enough to simply to rely on rehabilitation programs that are based on a voluntary participation.

• I do not see anything specific in the program that would ensure appearance for removal for example.

• And I find what is in Exhibit DR-1, DR-2, and DR-3 somewhat lacking in details in terms of what specific treatment is being proposed for you.

• For example, in Exhibit DR-3, there is reference to treating you for mental illness, but it does not specify that they are aware what mental illness you are suffering from, how they intend to treat that.

• I find that the information is somewhat general and does not specifically address violence in terms of your history and what would be done to reduce this.

• I do not after having reviewed the document have any great understanding of what is actually being offered for you and how this can address danger and flight risk.

• Given the lack of detail and the fact that I do not believe your detention is at this point indefinite, I'm going to continue your detention on both grounds of both danger and flight risk.
May 11, 2010 Review - Member Heyes
29 There was no new alternative to detention presented for the member to consider and she re-affirmed her view that "some sort of supervision would be required in the circumstances ... given that a release on your own promise to abide by conditions did not succeed in the past." However, the member did note that the detention was becoming lengthy and asked the Minister to "contact the Department of Foreign Affairs to find out what specific documents the Iranian officials are looking for" and prepare a case history to assist in "sorting out what can still be done."
June 9, 2010 Review - Member Kowalyk
30 This member considered the same letters from Gateway and the Fred Victor Centre as had been considered by Member Heyes at the April 13, 2010 review and concluded that "the alternative proposed does not offset the concerns that arise from the two factors of detention." She specifically stated: "I agree with Member Heyes' assessment that the letter indicates that Gateway offers no monitoring or supervision but rather relies on the individual to comply with the rules and follow their case plan."
31 Member Kowalyk in her written reasons dated July 28, 2010 considers factors listed under section 248 of the Regulations to the Act that are to be considered before a decision is made on release or continued detention. Her concerns may be listed as the following:

• 1. The proposed alternatives do not include the posting of any security deposit or guarantee by a Canadian citizen or permanent resident living in Canada;
• 2. The proposed alternatives do not include monitoring or supervision by a third party or professional organizations such as the Toronto Bail Program;
• 3. Gateway offers no monitoring or supervision but relies on the individual to comply with the rules and follow their case plan;
• 4. Gateway does not indicate whether its services are available to an individual regardless of legal status;
• 5. Gateway takes no responsibility to advise the CBSA that the individual has failed to comply with the rules and is no longer in good standing with Gateway, or that their address has changed because the individual lost his space in the bed program;
• 6. Gateway has not confirmed the availability of a space in the bed program which it must before an order for release is issued;
• 7. It is necessary that the case plan confirms that Gateway recognizes that Mr. Karimi-Arshad is no longer a permanent resident and is subject to removal from Canada as soon as a travel document is issued;
• 8. All of issues 1 to 7 "would have to be addressed in a case plan, agreement or conditions" and the case plan has to be developed before an order for release is issued ("it is not clear why the case plan cannot include monitoring and reporting conditions to meet the concerns of CBSA and a copy of the case plan be provided to the ID for consideration as basis of an order for release");
• 9. It is not clear why the Fred Victor Center cannot develop the case plan, including the confirmation of a safe bed, and present it at a detention review hearing; and
• 10. The case plan by either Gateway or the Fred Victor Center has to recognize and deal with Mr. Karimi-Arshad's precarious legal circumstances and "in their present form, the letters from Gateway and the Fred Victor Centre do not deal with those circumstances."

32 Member Kowalyk then focused her comments on the length of time in detention and the efforts made by the Minister to enforce the deportation order as soon as reasonably practicable. She notes that the last entry in the chronology of attempts to obtain a travel document is March 11, 2010 and that at previous hearings the Minister had referenced diplomatic contacts with the Iranian Embassy. The member writes: "The CBSA will have to present a detailed update on the obligations that the Iranian Embassy has concerning nationals of Iran and the steps or processes available to ensure or convince Iranian authorities to carry out their obligations."
July 28, 2010 Review - Member Kowalyk
33 On this date the member released the reasons for her decision on the previous review and she continued the detention as there had been no change since then. She set the next review date and stated: "I will again hear from both parties and in particular I would want the parties to address my analysis in the decision that I have issued today."

August 18, 2010 Review - Member Kowalyk
34 At the hearing the respondent presented two revised letters, both dated August 17, 2010. The first was from Gateway and the second was from the Fred Victor Centre.
35 The Gateway letter contained the same paragraphs set out in paragraphs 24 and 25 of these Reasons and to that extent was no different from that considered previously by Board members and rejected as insufficient; however, the letters contained additions.
36 The Fred Victor Centre letter indicates that its author and the representative from Gateway had a telephone conference call with the respondent which was an opportunity "to begin to form a case plan with him." This beginning of a case plan contained the following provisions:

• 1. Mr. Karimi-Arshad if released would go directly to Gateway, be admitted to its shelter and access its addictions counsellor "once he settles in";
• 2. He will be referred to a doctor in order to continue with his medication for Post Traumatic Stress Disorder; and
• 3. Gateway and the Fred Victor Centre would continue to work collaboratively with the respondent "to provide the optimum quality of support with his case plan."

37 The Gateway letter confirms that its author spoke to the respondent during a telephone conference call and confirms the following:

• 1. Mr. Karimi-Arshad "expressed an interest in a case plan which includes meeting with Gateway's addictions counsellor, exploring possible treatment options for his drug use and finding long-term housing";
• 2. The respondent and the author of the letter will meet on "a regular basis (every 1-2 weeks, depending on need)"; and
• 3. The specifics of the case plan would be crafted in collaboration with the Fred Victor Centre and would be "explored in more depth once the respondent is a resident at the shelter."

38 Gateway confirms that it knows that Mr. Karimi-Arshad is incarcerated, does not have status, and is waiting for his travel documents to be issued. It further confirms that it is able to provide the respondent with a bed on his release.
39 Gateway reiterates that it does not provide strict supervision to its residents but that it will be the responsibility of Mr. Karimi-Arshad to comply with the shelter's rules and policies and "adhere to his case plan." Importantly, it adds:

• With proper consents, Gateway will be able to respond to CBSA, should they call and ask if Mr. Arshad [sic] is residing at Gateway. However, Gateway will not be responsible for reporting Mr. Arshad [sic] to CBSA, should he leave Gateway, as that is not our mandate. I am willing to write a letter of support (at Mr. Arshad's [sic] request) to take to immigration with the dates of any appointments that Mr. Arshad [sic] has with Gateway's case management."
40 Lastly, echoing the letter from Fred Victor Centre, Gateway says that it is committed to connecting the respondent to its case management staff "in order to start the process of developing a case plan to which he will be held accountable."
41 The member ordered the release of the respondent on terms and conditions, the most relevant of which, for the purposes of this application, are the following:

• * Be accepted as a client for supervision and case management by the Salvation Army Gateway Counselling Services and the Fred Victor Mental Health and Justice program and remain in good standing with the agencies and the case plan developed.

• * Shall report on the next working day to an officer at the CBSA office at GTEC, 6900 Airport Road, Entrance 2B, Mississauga, Ontario, L4V 1E8 if he is rejected as a client for supervision and case management.

• * Shall comply with conditions of the case plan, treatment program for mental health and substance abuse developed by the case management by the Salvation Army Gateway Counselling Services and the Fred Victor Mental Health and Justice program.

• * Shall sign a consent form to release and disclose to the CBSA personal information forms given to agencies or physicians dealing with the case plan, programs or treatment he is enrolled in; updates of the case plan, treatment and program set up in his case; updates on his compliance with the case plan, programs, treatment and medication plan.

• * Shall sign a consent form to allow the CBSA to request information, updates and documentation on the case plan, treatment and his compliance with the conditions, rules and policies of the case plan and to confirm that he remains in good standing with the agencies and the case plan.

• * Present himself at the date, time and place that a Canada Border Services Agency (CBSA) officer or the Immigration Division requires him to appear to comply with any obligation imposed on him under the Act, including removal, if necessary.

• * Provide CBSA, prior to release with his address and advise the CBSA in person of any change in address prior to the change being made.

• * Report to an officer at the CBSA office at GTEC, 6900 Airport Road, Entrance 2B, Mississauga, Ontario, L4V 1E8 on or before date scheduled by the CBSA and once a week thereafter. A CBSA officer may, in writing, reduce the frequency or change the reporting location.

• * Reside at all times at the address referred to by the Salvation Army Gateway, Counselling services or the Fred Victor Mental Health and Justice program and comply with all rules and policies of that facility.
42 The letters from Gateway and Fred Victor Centre satisfy some of the conditions set out by Member Kowalyk in her reasons of July 28, 2010. Specifically they address items 4, 6, and 7 as summarized in paragraph 31 of these Reasons in that they indicate that services are available to someone regardless of legal status, that a bed will be available for the respondent on release, and that the agencies acknowledge that they know that the respondent is subject to removal.
43 Gateway does not directly address the remaining previous concerns. Specifically, the proposed alternative does not include the posting of any security deposit or guarantee by a Canadian citizen or permanent resident living in Canada; does not include the monitoring or supervision by a third party or professional organization such as the Toronto Bail Program; does not include the reporting to CBSA by the agencies of non-compliance or change of address, and does not set out a developed case plan prior to release, although one has begun to be created.
44 The Minister submits that the reasons of the member do not set out how the consents that the respondent is ordered to provide to CBSA will ensure compliance by the respondent with the terms and conditions of release. The Minister further submits that the member fails to provide clear and compelling reasons for departing from earlier decisions that maintained the detention of the respondent. These are inter-related issues and I will deal with them together.
45 Unlike earlier decisions, this member finds that she is "unable to determine that removal will be effected as soon as reasonably practicable." She reaches this conclusion after having reviewed the previous history of contacts with the Iranian authorities. The record before the member indicated that the Iranian authorities were not consistent in indicating what exactly was required to provide the necessary travel document; however, it appears that what is now required is original documentation that shows that the respondent is a citizen of Iran. He has none and it appears that none can be obtained from Iran unless one is actually present in the country - thus a Catch-22 faces the parties.
46 The Minister has been in contact with the respondent's family members in Canada (who appear to have had little contact with the respondent) in an attempt to obtain original documentation; however, they do not appear to have any such documents. There is some suggestion that the respondent's mother in Iran may have original records of his Iranian military service and that she may be coming to Canada and she may be able to bring these with her; however, this is all very speculative. Lastly, the Minister advised the member that he was looking into whether someone in Iran with a power of attorney from the respondent might be able to access original documents; again this was very speculative and success was uncertain. Nonetheless, the member noted that while the respondent had previously refused to provide such a power of attorney at the hearing in August he agreed to sign a power of attorney "to allow the Canadian Mission in Tehran to act on his behalf to secure a birth certificate or other original identity document."
47 Although the Minister submitted that there were ongoing diplomatic discussions between the two countries, the member noted that no specifics had been provided. She specifically found that there was no update provided as to "the actions DFAIT will implement to resolve the issues and when the parties expect the issuance of a travel document."
48 The member, in my view, clearly weighed all of the evidence that had previously been submitted, the history of efforts to obtain the necessary travel document, the lack of any information showing the current state of these efforts, and, most importantly, the lack of any indication of when the necessary document might be provided. With that background, the member's assessment that she was unable to determine that removal would be effected as soon as reasonably practicable was reasonable, transparent and justified. I agree with the applicant that the member did not find that the respondent will be detained indefinitely or in a manner contrary to the Charter, however her finding regarding the likelihood of removal was significantly different from that of previous members. She was entitled to consider this factor and determine what weight to give it.
49 The fact that removal from Canada was not likely to happen within the foreseeable future was a significant change in circumstance and it warranted the member seriously examining the new proposal for release, which she did.
50 The major obstacle to release had always been supervision and monitoring of the respondent while on release from detention both to ensure that he was not a danger to the public and to ensure his compliance with the terms of release. The member notes and is aware that the current proposal for release does not include the posting of a security deposit or guarantee by a Canadian citizen or resident and does not include any third party agency alerting CBSA when the respondent has breached any of the terms of release, breached his treatment plan, or left Gateway. However, the member concludes:

• I am satisfied that with the signing of the consent by Mr. Karimi-Arshad that the CBSA will have access to current and reliable information as to Mr. Karimi-Arshad's compliance with terms and conditions of the order for release. The requirement that Mr. Karimi-Arshad reports once a week to the Bond Reporting Centre will allow the CBSA to monitor weekly his compliance with his case plan for rehabilitation and control his mental health and drug addiction. His compliance with the case plan for rehabilitation is necessary to ensure that his criminal activity is checked and prevent such incidents as lead to the serious convictions in 2001.
51 If a surety, guarantor, or third party providing direct supervision and reporting to CBSA had been available to the respondent, it is reasonable to assume that he would have advanced it at some point during his three-year detention. I agree with the submission of the respondent that the member engaged in a weighing of the factors and a balancing exercise. The respondent did not have a surety or guarantor and there was no third party prepared to provide supervision and monitoring that included alerting CBSA when he was in default of the terms and conditions of release or his treatment plan. The member clearly recognized that CBSA had to have some mechanism in place to allow it to become aware of any such breach. Gateway's agreement that it would provide information to CBSA, given the consent of the respondent, on his compliance with his case plan and with the terms and conditions of the two agencies was found by the member, when coupled with weekly reporting to CBSA, to provide the supervision and monitoring that was required and reasonably available in the circumstances.
52 I have no doubt that CBSA would prefer that a third party call it when a foreign national on release breaches the conditions of release; however, the record before this member indicated that no such system is available to this respondent. If such a system were a pre-condition to release and it was not available to a detainee, then that detainee could never be released from detention. This cannot be the case. While inconvenient to CBSA, there is nothing that prevents it from contacting Gateway as often as it deems necessary to check on the respondent's status and, if it learns that he is non-compliant, to detain him again.
53 The applicant submits that it was unreasonable for the member not to require as a term of release that the respondent execute the consents necessary to permit CBSA to contact Gateway and obtain information. The Minister submits that "the agencies, given their mandates, are certainly not going to require these consents and the member has imposed no deadline as to when such consents must be provided for the order to be complied with." I find this submission to be without merit. The timing of the execution of the consents is fully within the control of the applicant. I accept the submission of the respondent that "since it is a condition of release that the consents be signed, these consents can easily be prepared for the applicant's signature by CBSA to be signed upon release."
54 For these reasons, I find that the decision releasing the respondent on the terms set out in the Order for Release is not unreasonable and further find that the member provided clear and compelling reasons to depart from previous detention orders.
55 No question was proposed by either party for certification and there is no serious question of general importance involved in this application.

JUDGMENT

THIS COURT ORDERS that:

• 1. This application is dismissed; and
• 2. No question is certified.
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