Top 5 Civil Appeals From The Court Of Appeal Last Month (July 2011)

1. A.M.R.I. v. K.E.R., 2011 ONCA 417, (Cronk, Gillese and MacFarland JJ.A.), June 2, 2011

2. Antrim Truck Centre Ltd. v. Ontario (Transportation), 2011 ONCA 419, (Doherty, Watt and Epstein JJ.A.), June 2, 2011

3. Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460, (Goudge, Gillese and Juriansz JJ.A.), June 20, 2011

4. Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482, (Doherty, Moldaver and Simmons JJ.A.), June 29, 2011

5. Elgner v. Elgner, 2011 ONCA 483, (Cronk, Gillese and MacFarland JJ.A.), June 29, 2011

1. A.M.R.I. v. K.E.R., 2011 ONCA 417, (Cronk, Gillese and MacFarland JJ.A.), June 2, 2011

   In a case that received a good deal of media coverage, the court addressed important issues concerning the interplay between Canada's international obligations dealing with the return of children to parents/guardians in other jurisdictions who have legal custody (via the Hague Convention, as incorporated into provisions of Ontario's Children's Law Reform Act) and its international obligations for the protection of children entitled to refugee status (via the Refugee Convention, as implemented by the federal Immigration and Refugee Protection Act).

   At the centre of the litigious storm was a young girl whose parents had married, separated and divorced in Mexico, where she had been born. In Mexican court proceedings, the mother had been granted legal custody of the child, and the father had been granted access. The father then moved to Canada. During an agreed visit of the child to Canada (with her maternal grandmother as a travelling companion), the grandmother told the child's father and paternal aunts that the child had been abused by the mother and had problems with her step-father. The child herself later disclosed that she was the victim of regular physical and emotional abuse by her mother.

   The child's grandmother returned alone to Mexico, leaving the child with the father and paternal aunts in Ontario, without the mother's consent. The mother contacted the Mexican Central Authority under the Hague Convention, and eventually initiated an application for the child's return to Mexico. In the meantime, the child had commenced an application in Ontario for refugee protection, based on the alleged abuse by her mother, while the aunts commenced an application in Ontario for joint custody of the child.

   At the hearing of the child's application for refugee protection (which proceeded in the customary fashion without notice to or participation of the those responsible for creating an alleged situation of danger, in this case the mother), the Immigration and Refugee Board of Canada received testimony from the child (who was represented by counsel and a Designated Representative appointed to act on her behalf), testimony from the father and a formal assessment by a psychologist (who described the child's abuse claims in detail, noted the child's desire to stay in Canada, and opined that the child's symptoms aligned with post-traumatic stress disorder). The Board determined that the child was a Convention refugee by reason of the mother's abuse, that the child had rebutted the presumption that Mexico could provide her with sufficient protection and that removing the child to Mexico would force a return to the child's abuser.

   The mother then issued her Hague application in Ontario, requesting a declaration that the child had been wrongfully detained in Ontario, and requiring her immediate return to Mexico. By that time, the child had been in Ontario for more than 1½ years, living with her aunts and attending a local school. The father had since relocated to Norway. The child was not made party to the application, and no notice of the application was served on her, her counsel or her Designated Representative in the refugee proceeding. Her aunts were not named respondents, but were personally served when service on the father proved problematic.

   The aunts brought a procedural motion in the Ontario Superior Court of Justice, seeking an order adding them as parties, consolidating the Hague application with their custody application and appointing counsel to represent the child. Their requests were denied by the motions judge, who saw "no pressing need to do so", felt it would "just encumber and delay" what was intended to be a "speedy" Hague Convention process and effectively pre-empted the aunts' application for custody.

   As a result, the mother's Hague application essentially proceeded on an ex parte basis (without service on the child, who was then almost 14, or the aunts). Although some evidence of the alleged abuse and refugee proceedings was before the court, the mother contended that the abuse claims were "completely false" and a fabrication designed to "manipulate the immigration system" in order to keep the child in Canada. Without releasing any formal reasons, the presiding judge granted the Hague application, found the child to be wrongfully detained in Ontario and ordered her immediate and summary return to Mexico.

   About one month later, without forewarning and with the aid of police, the child then was dramatically taken from her school despite her "vociferous objections" and placed in the care of her mother and some of her mother's legal counsel. Although the child informed police and others present that she was a Convention refugee, she was denied permission to return home for her refugee papers and not allowed to communicate with anyone in any way. She was flown to Mexico early the next morning. The Court of Appeal emphasized that, "apart entirely from the legality of the girl's removal", the manner in which it was effected offended the girl's right to dignity and respect and potentially undermined public confidence in the administration of justice.

   The father then appealed the Hague application judge's decision to the Court of Appeal. Having regard to the public importance of the issues, numerous organizations were allowed to participate as parties or intervenors. By the time of oral argument before the Court of Appeal, the child had run away from her mother in Mexico and was in hiding. By the time the court released its reasons, she had made her way safely back to Ontario.

   In the course of setting aside the decision of the Hague application judge and ordering a new hearing, the court decided or emphasized the following points, providing substantive and procedural guidance for the future:

   In terms of constitutionality, there is no inherent operational conflict or incompatibility between the relevant provincial legislation and federal legislation sufficient to render the former invalid via the doctrine of paramountcy. In particular, the Hague Convention implemented by the provincial legislation contemplates respect for and fulfillment of Canada's "non-refoulement" obligations under the Refugee Convention, e.g. by provisions permitting exceptional refusal of a child's automatic return if there is a "grave risk" that doing so would expose the child to physical or psychological harm, place the child in "an intolerable situation" or otherwise conflict with fundamental principles "relating to the protection of human rights and fundamental freedoms". As the refugee determination process is inherently one-sided (insofar as an alleged abuser is not given notice or an opportunity to respond to allegations of abuse), and is not bound by any legal or technical rules of evidence, "there is potential for abuse of the IRB refugee determination process by an abducting parent to gain tactical advantage in a looming or pending custody battle". An IRB ruling granting refugee status to a child therefore is not dispositive in subsequent Hague Convention proceedings of whether the Convention's "grave risk of harm" exception to automatic return of a child should apply. However, when a child has been recognized as a Convention refugee, a rebuttable presumption arises that there is indeed a risk of persecution or other serious harm on return of the child to his or her country of habitual residence. In such circumstances, the Hague applications judge must accord "real weight" to the child's refugee status and entitlement to protection from refoulement, and assess the existence and extent of any persisting risk of persecution in determining whether to grant an order of return. In that regard, there is no onus on the child to persuade the Hague application judge that the conditions which led to the conferral of refugee protection remain the same. An aggrieved custodial parent nevertheless has no obligation to set aside a finding of refugee status before proceeding with a Hague Convention application. Hague Convention proceedings are intended to be summary in nature and, in any event, such a parent is unable to apply directly to the IRB to vacate an earlier child refugee decision. The decision of a Hague application judge normally will attract considerable deference. However, this is displaced where the judge applies the wrong legal principles, makes unreasonable findings of fact or permits a breach of natural justice or hearing unfairness. Such risks are augmented when the hearing effectively is one-sided, proceeds on a less than comprehensive "paper" record and arrangements are not made, on an exceptional basis, for the child to be brought before the court and/or to require live testimony from witnesses. Where a child has been given the status of Convention refugee, his or her section 7 Charter rights to life, liberty and security of the person are engaged on any Hague application to compel his or her...