BLG Monthly Update - December 2012

ADMINISTRATIVE

Decision-maker's academic writings not enough to create reasonable apprehension of bias

Carleen Francis, a citizen of St Vincent and the Grenadines, applied for refugee status in Canada on the grounds that, as a lesbian, she faced discrimination in her home country. Homosexuality is still a criminal offence in St Vincent, and Francis had been the subject of physical abuse on account of her sexual orientation. The Refugee Protection Division rejected her claim, not finding the discrimination she faced in St Vincent sufficiently serious; the board concluded that St Vincent does not actually enforce its Criminal Code provisions, the physical abuse seemed to be an isolated incident and Francis didn't face persecution if she was sent back. Francis challenged that determination, arguing that the decision-maker, a Mr Gallagher, had published a number of academic articles on Canadian immigration and refugee policy, in which he had criticised some aspects of the system for processing refugee claims and suggested that mass immigration had a negative effect on Canada's social cohesion. He also singled out St Vincent as an example of a country which produced questionable refugee claims.

In the Federal Court, Justice Noel didn't buy the argument that having expressed views on immigration in previous academic work automatically meant that Gallagher should be disqualified; indeed, his previous experience probably made him a better decision-maker: Francis v Canada (Citizenship and Immigration), 2012 FC 1141. Gallagher did fail, however, to consider all of the evidence on St Vincent's treatment of gays and lesbians, which attested to the fact that its anti-homosexuality provisions have been enforced as recently as 2009 (the year before Francis made her refugee claim), and didn't come to a reasonable conclusion on the level of discrimination Francis would face if she returned to St Vincent. A new panel was ordered to hear Francis's claim.

[Link available here].

Oral hearing not required to terminate membership of Order of Canada

If Lord Black did not exist, he would need to be invented, if only to provide fodder for comment. Freshly sprung from time spent at the pleasure of the US government, his Lordship challenged a decision of the body that advises on appointments to (and ejections from) the Order of Canada: Black v Advisory Council for the Order of Canada, 2012 FC 1234.

Justice de Montigny concluded that while the Advisory Council was subject to judicial review, procedural fairness and natural justice did not require it to hold an oral hearing including submissions from the noble lord, although things appeared to go well for him at the start. The Council's decision was interlocutory only (the final decision rests with the Governor General), and the usual rule is that such decisions should not be subject to judicial review except in unusual circumstances. Because the ultimate decision on his membership would probably not, as an exercise of Crown prerogative, be subject to judicial review, Lord Black's application was not premature. Was the Council's decision also immune from judicial review? No, and Black had a reasonable expectation that the Council would follow its stated policy on terminations. Two points for his Lordship. Where his case fell down was on procedural fairness, which under the circumstances did not require an oral hearing. The judge rejected the argument that there should be a high degree of procedural fairness because of the potential effect on Black's reputation; in the judge's view, there is no right to or legitimate expectation of an honour from the Crown, and no right to maintain an honour once granted. If there was anything that was going to tarnish Black's reputation it was his convictions for fraud in the United States. His credibility was not in issue; the Council was not considering the merits of those convictions but merely assessing them as facts to be considered in making a recommendation to the GG. Black had made - and could make further - written submissions and that was really enough. The necessary level of procedural fairness was, in the end, 'minimal'.

[Link available here].

CIVIL PROCEDURE

Are you being served?

A little gem from the BC Supreme Court: Wang v Wang, 2012 BCSC 1077. The Wangs wanted to set aside the transfer of a piece of real estate that their son Danny had made to his common-law spouse, Ellen Chiang, and to kick the couple out of the premises. The issue before Humphries J was whether default judgments against Danny and Ellen should be set aside because they were improperly served. The evidence disclosed that a process server had approached Ellen's car as she waited for the light to change, shoved the court document under one of the windshield wipers and walked away. Ellen testified that she had no recollection of the incident and did not find any papers on her windshield when she arrived home. Danny was served in a restaurant but claimed to have been served in other ways too - to the point where, he said, he was so drunk that he could not remember having been served with anything other than alcohol.

The judge set aside default judgment against both parties. It was clear that Ellen had not been properly served, because delivery of the document had not been effected in such a way that she would have realised she was being presented with legal documents. No reasonable person would have thought that. As for Danny, the judge didn't buy his story but, in the interests of not having potentially inconsistent results, she set aside the default judgment against him too.

[Link available here].

Good brief summary of requirements for Anton Piller and Norwich Pharmacal orders

Perell J of the Ontario SCJ provides another of his potted summaries of the law in Bergmanis v Diamond & Diamond, 2012 ONSC 5762, this time on the requirements for obtaining Anton Piller and Norwich Pharmacal orders. (Too bad the judgment sometimes refers to the former under the name Anton Pillar.)

Procedural points first. You must satisfy the technical requirements of Ontario rule 40.02 (motion for interlocutory injunction or mandatory order without notice), and also disclose all material facts, or risk having the order set aside. Because both remedies are injunctive in nature, you also need to satisfy all the requirements for that (serious issue to be tried or strong prima facie case, irreparable harm, balance of convenience favours granting rather than refusing, undertaking as to damages). As to substance, an Anton Piller order is 'very intrusive and exceptional', 'at the extremity of the court's powers'.

It prevents property from being destroyed but does not authorise access to privileged communications. In order to obtain an Anton Piller order, there must be (a) an extremely strong prima facie case, (b) very serious actual or potential damage to the plaintiff, (c) convincing evidence that the defendant possesses incriminating documents or objects and (d) a real possibility that the material may be destroyed or secreted before trial. A Norwich order is 'a form of equitable discovery against third parties before the commencement of proceedings', predicated on the principle that the third party has a duty to assist the applicant in pursuing...