Snowbirds flying south and Yanks coming north will have to watch their financial Ps and Qs a little closer.
|The Federal Court declined to issue an injunction to prevent the automatic exchange of financial information between Canada and the U.S. (Photo: Shutterstock)|
Tax lawyer Roy Berg, of Moodys Gartner Tax Law in Calgary, has been keeping close tabs on the case, one brought forth in August 2014 by Vancouver’s Virginia Hillis and Gwendolyn Deegan.
“The plaintiffs’ arguments were innovative and creative, but were apparently not enough to convince the court to issue the injunction,” he said.
“I imagine there is a great feeling of relief within the Canadian banking industry because if the plaintiffs had been successful in enjoining the exchange of information, that would have cast into doubt whether the IGA could be given effect in Canada; and without the IGA, Canadian banks could have been subject to the full weight and force of FATCA, which would have been much worse.”
The plaintiff duo unsuccessfully argued that the FATCA violates the Canadian Charter of Rights and Freedoms and their right to security of person and against unreasonable search and seizure. In a press release about their case, they say they both left the U.S. at age five to live in Canada, never obtained a U.S. passport or developed meaningful ties with the U.S., but are considered “tax cheats” by the U.S. because they are not IRS compliant.
“I am a proud Canadian. Why is my government branding me with being a potential U.S. tax evader merely because of my place of birth — and turning my personal information over to a foreign government’s jurisdiction,” Hillis said in the release.
Berg says the ruling means the transfer of information between Canada and the U.S., currently scheduled for Sept. 23, will proceed as planned unless the plaintiffs are successful in obtaining an interlocutory ruling from the Federal Court of Appeal before that time.
“Given the short amount of time before the information is scheduled to be exchanged, it is unlikely an appeal will be heard and decision rendered,” says Berg.
He added the court did not rule on whether the IGA or the Canadian implementing legislation violates the Constitution or and those issues will be determined in another trial scheduled for late 2016.
He said the ruling means come the 23rd banks will start transferring financial information on about one million U.S. citizens living in the Great White North and those Snowbirds who live part-time in the U.S.
“If the information is exchanged with the U.S. before an appellate decision is rendered, the plaintiffs’ case, at least as it relates to the treaty arguments, will become moot,” Berg added.
“[But] the court noted that even if it did find a violation of the treaty or Canadian law, it questioned whether it had the authority to issue an injunction in the light of the plaintiff’s ability to simply renounce their U.S. citizenship or request relief from either CRA or IRS.”
Update Sept. 30:
Although the expected Sept. 23 transmission of tax information between the U.S. and Canada was delayed, it will go ahead today, Sept. 30.
Information on approximately 155,000 U.S. citizen accounts will be transferred to the IRS, says Berg.
As of Sept. 30, the Federal Court of Appeal had not ruled on a motion to prevent the transfer of information between Canada and the US pursuant to FATCA and the US-Canada IGA. The court was asked to prevent the transfer of information because of a Sept. 16 ruling of the Federal Court that denied the same request, but Berg says the door is now open for that transfer to take place.
A week after winning the NDP nomination for Ottawa-Vanier, former federal prosecutor Emilie Taman was in Federal Court Tuesday, asking for a judicial review of the Public Service Commission of Canada’s decision not to grant permission for her to seek nomination as a candidate in the federal election.
|Emilie Taman says many consituents in the Ottawa-area riding she is running in reached out to her.|
In early July, Taman vacated her office, beginning what she called “an unauthorized leave of absence” to enter the contest for Ottawa-Vanier’s NDP nomination.
She had applied for a leave of absence last year, but the Public Prosecution Service of Canada refused, arguing her ability to return to work after the political race would be “impaired or perceived to be impaired.” After receiving a series of warning letters, Taman was fired weeks after leaving her office.
“I received I think it was three warning letters which basically indicated that I was to return to work immediately or face termination for abandonment of position,” she says. “I followed up by saying I don’t have an intention to abandon my position, and could you please just wait until my judicial review hearing.”
But the PSC, she says, replied that “despite my representations it had been determined that I had abandoned my position.”
Even if the judicial review is successful, it won’t result in her being reinstated, says Taman. Although she hopes a favourable ruling would help her termination grievance.
Above all she’s hoping it results in clearer guidelines for politically minded federal prosecutors in the future.
The PSC is declining to comment on the case, given that it is currently before the court. In addition, “The Public Prosecution Service will not comment on personnel, past or present,” a spokesperson told Legal Feeds.
The nomination battle appears to have been tightly contested. Although the party doesn’t release the number of votes each candidate received, the vote, which involved four candidates, went down to the wire with three ballots.
“It was a long night,” she says.
The media attention around her fight with the PSC likely helped her, she says.
“The riding obviously has a lot of public servants living in it, so a very large number of people reached out to me directly to express their unhappiness with how I’d been treated,” she says.
Party members may also have liked her family background. She is the daughter of Louise Arbour, the former Supreme Court of Canada justice and UN High Commissioner for Human Rights.
Now Taman finds herself up against someone she concedes is a formidable opponent: Liberal incumbent Mauril Bélanger, who has held the seat for 20 years. The riding has a solid history of Liberal dominance, both federally and provincially.
Nevertheless, Taman says she’s excited and hopeful about taking on Bélanger.
“The party has a huge amount of momentum right now,” she says. “I feel that I have momentum as a candidate, and based on how things went [on nomination night], I feel really confident, and I look forward to engaging with him and seeing where that goes.
“I appreciate it’s an uphill battle and I’m facing an adversary who’s experienced, but I’m attracted to what the NDP’s trying to do and I think I’m going to do a good job in pitching it to constituents.”
Update Sept. 18: To clarify Taman's judicial review is regarding the Public Service Commission's refusal to allow her to run for office and that she was terminated by her employer, the Public Prosecution Service of Canada.
|Anne Jacob is appointed to the Superior Court of Quebec.|
In several instances the appointments are said to be filling new positions created by Bill C-31.
Guy R. Smith, a sole practitioner in Ottawa, was appointed a judge of the Tax Court of Canada to replace Justice Joe E. Hershfield, who elected to become a supernumerary judge as of June 1, 2015.
Smith had been a sole practitioner since 2014. Previously, he had been the judicial affairs adviser for the federal Minister of Justice and Attorney General of Canada from March 2009 to July 2014. He practised administrative law, constitutional law and litigation with Perley-Robertson Hill & McDougall LLP from 1997 to 2005 and as a sole practitioner from 1991 to 1997. He was called to the Ontario bar in 1988.
Alberta Provincial Court Judge Robin Camp has been appointed to the Federal Court to replace Justice Yves de Montigny, who has been elevated to the Federal Court of Appeal.
Camp received his law degree in South Africa and successfully completed challenge exams to re-qualify to practise in Canada in 1998. He was appointed a judge of the Provincial Court, Criminal Division, in 2012. Prior to his appointment, he had been a lawyer at JSS Barristers from 2004 and a managing partner from 2008 to 2012. His main area of practice was commercial litigation. He was called to the Alberta bar in 1999.
E. Susan Elliott, a lawyer with Good Elliott Hawkins LLP in Kingston, Ont. has also been appointed to the Federal Court. She replaces Justice Mary.J.L. Gleason, who has been elevated to the Federal Court of Appeal.
Elliott was called to the Ontario bar in 1981. She had been at Good Elliott Hawkins (formerly Good & Elliott) since 1981, and during that time she had been general counsel, legal line of business, Teranet Inc. She also served as treasurer of the Law Society of Upper Canada; as well as hearing commissioner, part time, for the Rent Review Commissioner of Ontario and a smalls claims court judge since 2009.
Sylvie Roussel, a lawyer with the Security Intelligence Review Agency in Ottawa, is appointed to the Federal Court as well, replacing Justice Marie-Josée Bédard, who was appointed to the Superior Court of Quebec.
Roussel was called to the Ontario bar in 1987. She had been senior general counsel with the Security Intelligence Review Agency since 2007. Previously, she had practised with the firm Noël & Associés, s.e.n.c.. Her main areas of practice were public/constitutional law, criminal law, Charter Law and human rights law.
Fredricton’s Ann Marie McDonald, a lawyer with McInnes Cooper LLP, is also headed to the Federal Court. She replaces Justice R.T. Hughes, who elected to become a supernumerary judge, effective Sept. 1, 2015.
McDonald was called to the bar of New Brunswick in 1994. She became an associate with McInnes Cooper in 2000 and a partner in 2002, practising primarily in the areas of commercial litigation, employment law, administrative law and general litigation.
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A Vancouver family lawyer with Jenkins Marzban Logan LLP, Grace Choi has been appointed a judge of the Supreme Court of British Columbia, Family Division, to replace Justice R. Crawford, who elected supernumerary status in August of 2014.
The Dalhousie graduate was admitted to the B.C. bar in 1993 and in Ontario in 1996. She became an accredited family law mediator in 2013 and was appointed Queen’s Counsel in 2014.
Federal Court Justice Denis Gascon, who also sat on the Competition Tribunal, has been named chairman of the Competition Tribunal to replace Justice D.J. Rennie, who in turn has been appointed to the Federal Court of Appeal. Gascon was appointed to the Federal Court on Feb, 26, 2015. Prior to that, he joined Ogilvy Renault (now Norton Rose Fulbright Canada) in 1989, where he became a partner in 1997.
Recently retired Canadian Forces legal adviser Patrick K. Gleeson, has been appointed to the Federal Court to fill a new position created by Bill C-11.
After being admitted to the bar of New Brunswick in 1994, he joined the Office of the Assistant Judge Advocate General in Halifax as a legal adviser and worked in different directorates until 2000. He became the JAG’s Director of Legal Services, where from 2005 he served as the senior legal adviser.
Cilian Sheahan, of Poole Althouse in Corner Brook, N.L., has been appointed as a judge of the Newfoundland and Labrador’s Supreme Court, Trial and Family Division to replace Justice R.A. Fowler who will move to supernumerary status this month.
He was called to the N.L. in 2000 and appointed Queen’s Counsel in 2013. Sheahan’s areas of practice were corporate and commercial law, municipal, labour and employment law and corporate estate planning. In 2004, he joined the Canadian Forces as a legal officer.
Following the resignation of Justice V.A. Schuler, Justice Andrew M. Mahar of the Nunavut Court of Justice in Iqaluit, will become a judge of the Supreme Court of the Northwest Territories.
Mahar is called to the bars in Ontario, Nunavut, and the Northwest Territories. Clinic Director of the Kitikmeot Law Centre of the Northwest Territories Legal Aid Clinic. He has mostly practised as a sole practitioner but was also Clinic Director of the Kitikmeot Law Centre of the Northwest Territories Legal Aid Clinic in Cambridge Bay.
Sylvia Corthorn, a lawyer with Kelly Santini LLP/SRL in Ottawa, will replace Justice L.D. Ratushny of the Ontario Superior Court of Justice. Ratushny has been elected to supernumerary status, which had come in effect in June last year.
Corthorn was called to the bar in 1984 and has mainly practised in the areas of personal injury law, medical and dental malpractice, insurance defence litigation, and commercial and estate litigation.
Superior Court of Quebec Justice Charles Ouellet moves from the districts of Saint-François and Bedford, with residence in Cowansville, to the districts of Saint-François and Bedford, with residence in Sherbrooke. Ouellet will replace Justice Y. Tardif who has elected supernumerary status effective June 1. He was originally appointed to the Superior Court of Quebec in 2011.
Also in Quebec, Serge Gaudet, a lawyer with Langlois Kronström Desjardins in Montréal will replace Justice J. Lanctôt as puisne judge of the Superior Court of Quebec. Justice Lanctot has elected supernumerary status.
Gaudet was called to the bar in 1987. His main areas of practice were civil and commercial litigation.
A lawyer with Bouchard Page Tremblay in Quebec, Simon Hebert is appointed to Superior Court of Quebec to replace a by Justice M. Fortin, who has resigned.
Mostly a class action counsel, Heber was called to the bar in 1989. He has also been an officer with the Canadian Armed Forces since 1983
Chantal Tremblay, who is a lawyer with McCarthy Tétrault LLP in Montreal, also joins the Superior Court, taking over for Justice A. Denis.
Called to the bar in 1995, Tremblay is a former Quebec managing partner at McCarthys. Her main areas of practice were commercial litigation, class actions, professional liability, insurance law, environmental law, medical liability and disciplinary law.
Finally, Alexandre Bouchar a lawyer with the Director of Criminal and Penal Prosecutions has also been appointed to the Superior Court. He will be replacing Justice C. Champagne, who elected to supernumerary status.
Bouchar was called to the bar in 1996. He joined the Director of Criminal and Penal Prosecutions in 2010, and was previously a sole practitioner from 1995 to 2010.
Saskatchewan provincial court Judge Jeffery D. Kalmakoff in Regina has elevated to the court of Queen’s Bench of Saskatchewan. Justice D.P Ball of Regina has elected supernumerary status on May 9, 2014.
Prior to his appointment Saskatchewan Court of Justice in 2009, Kalmakoff was a Crown prosecutor with the Public Prosecutions Division of the Saskatchewan Ministry and Attorney General in Regina between 1996 and 2009. He was called to the bar in 1994.
Don R. Sommerfeldt, a counsel with Dentons Canada LLP in Edmonton, is the newest appointed judge of the Tax Court of Canada to replace a resignation by Justice G. Sheridan.
He was called in Alberta in 1978 and to the bar of New York in 2004. Sommerfeldt has been with Dentons Canada LLP (formerly Fraser Milner Casgrain LLP) since 2000 practising taxation, estate planning, and pensions.
A lawyer with McInnes Cooper in Halifax, Henry A. Visser, is also appointed to the Tax Court to replace Justice D. Cambell who elected supernumerary status as of this year, June 19., will take over.
Visser mainly practised tax law, corporate law, commercial law, labour law, and employment law. He was admitted to the bar of Nova Scotia in 1995 and to P.E.I. in 1998
|Justice Marianne Rivoalen is the new associate chief justice of the Manitoba Court of Queen’s Bench (Family Division).|
Rivoalen was appointed a judge of the Court of Queen’s Bench for Manitoba (Family Division) in 2005. Prior to that, she was a senior counsel and team leader of aboriginal law services with the Department of Justice Canada as well as the indian residential school litigation counsel as well as a long-practising litigation lawyer with Aikins,MacAulay & Thorvaldson in Winnipeg. She has also been an arbitrator with the Manitoba Labour Board, deputy chief commissioner of the Residential Tenancies Commission in Winnipeg, and a litigation lawyer with Pitlabo & Hoskin in Winnipeg.
Richard F. Southcott, vice president and general counsel at Irving Shipbuilding Inc. in Halifax, has been appointed to the Federal Court to fill a new position created by Bill C-11.
Southcott was called to the bar in 1993, then joined Stewart McKelvey in Halifax as an associate, practising marine law and commercial litigation. He became a partner in 2001, and was the regional managing partner from 2008 until 2013, when he joined Irving Shipbuilding.
Also from Halifax, R. Lester Jesudason has been appointed to the Supreme Court of Nova Scotia, Family Division. He replaces Justice R. James Williams, who elected to become a supernumerary judge as of April 18.
Jesudason was called to the bar in 1997, then joined Blois Nickerson & Bryson LLP in Halifax as an associate, practising civil litigation and insurance law. He became a partner in 2002. He has been chairman of the Nova Scotia Police Review Board and active with various bar associations.
In Saint John, N.B., Marie-Claude Blais is the newest judge of the Court of Queen’s Bench of New Brunswick, Trial Division. She replaces to replace Justice Peter Glennie who went supernumerary April 22.
Blais was called to the bar of Quebec in 1995 and New Brunswick in 1998. She was appointed Queen’s Counsel in 2010. She has been counsel with McInnes Cooper since 2014. Prior to that, she had been minister of education and early childhood development for the province of New Brunswick. She was also the first woman to serve as attorney general and minister of justice and consumer affairs for New Brunswick. She was also a lawyer with LeBlanc Maillet, where she practised corporate and business, family, and real estate law.
In Ontario, Superior Court Justice Lois B. Roberts has been elevated to the Court of Appeal. She fills the spot left when Justice George Strathy was named chief last June.
Roberts was appointed to the Superior Court in 2008. Prior to her appointment, she was a lawyer with Genest Murray LLP and Cassels Brock & Blackwell LLP, practising commercial litigation, employment law, and human rights law.
Toronto lawyer Kenneth G. Hood fills Roberts spot on the Superior Court. He was called to the bar in 1982 and was a certified specialist in civil litigation.
Hood was counsel with Schneider Ruggiero LLP since 2010. Prior to that, he was worked with firms Lawrence Lawrence Stevenson LLP in Brampton, Ont., Glaholt LLP in Toronto, Dingwall McLaughlin and Woolley Dale & Dingwall (later changed to Dale and Dingwall).
Federal Court of Canada Justice Michael Manson overturned three of four decisions made by the registrar of trademarks in part because of the common use of the word “secret” for companies that sell lingerie.
The judge approved the marks for Valentine Secret, a stylized way of writing the name and one that reads “Valentine lingerie Secret.” A logo with Vs and the subheading “a secret that women love” was found to be too similar to Victoria’s Secret “given the fame and notoriety of the respondent’s VS trademarks,” Manson concluded.
Electric Edge Inc., an Indonesian-based company that sells the Valentine Secret products, originally filed the trademarks in 2008 for proposed use in Canada. Victoria’s Secret Stores Brand Management Inc. opposed the registrations, arguing that the Valentine Secret marks were not distinctive.
The Federal Court heard evidence about the sales of Victoria’s Secret products in Canada, both in stores and online, based on its widely distributed catalogues. All of its goods sold in this country have the Victoria’s Secret trademark affixed on them somewhere, the court was told.
“The only-real issue for the Court to decide is whether the applicant’s applied-for trademarks are likely to be confusing with the respondent’s asserted VS marks,” said Manson, in the decision issued earlier this month.
“There is no question that the Victoria’s Secret and VS marks are well-known, if not famous in Canada,” the judge said. The proper approach however, is “to look at the trademarks without dissecting them into component parts, as a matter of first impression to the relevant public,” wrote Manson.
Eclectic Edge presented evidence that a search of the ThomsonCompuMark databases revealed that there are more than 300 registrations and pending applications that incorporate the word “secret” for use in the sale of clothing or cosmetics. As well, there are 170 corporations or registered businesses with “secret” in their name.
“The new evidence shows that the use of “secret” is relatively common place in Canada by third parties in association with lingerie, women’s clothing and women’s undergarments,” Manson concluded.
The judge compared the use of the word secret in the lingerie industry to that of “nutri” in the food products sector. “Where two trademarks contain a common element that is also contained in a number of other trademarks, the common nature of the element in the market causes consumers to pay closer attention to the other non-common features of the marks,” wrote Manson in explaining why he found there is “no likelihood of confusion” between Valentine Secret and Victoria’s Secret.
|Winnipeg lawyer Sandra A. Zinchuk joins the Court of Queen’s Bench of Manitoba.|
Rennie was initially appointed to the Federal Court in 2010, after a nearly 30 year-career with the federal Justice Department, rising to the position of assistant deputy attorney general (litigation).
His replacement on the Federal Court is Denis Gascon, a lawyer with Norton Rose Fulbright in Montreal. Gascon was called to the bar in 1989 and his practice focused on competition and international trade law.
Four of the other nine appointments are lawyers who were either Crown attorneys or government counsel, continuing a recent trend by the Conservative government. In Ontario for example, of the 28 new appointments to the Superior Court since December, just over 40 per cent were lawyers with the provincial or federal governments, or in one instance, a military judge.
The latest Ontario appointments include Robert Charney, a lawyer with the Ministry of the Attorney General, will preside in Newmarket. Since 1999, he has been the general counsel of MAG’s constitutional law branch. He replaces Justice Kelly Wright, who has been transferred to replace Justice Edward Then, who is now a supernumerary judge.
Laurie Lacelle, a Crown attorney in Kingston, has been appointed a judge in Cornwall. Lacelle was admitted to the bar in 1998. Her main areas of practice were criminal and constitutional law.
Jennifer Wollcombe, a lawyer with MAG in Toronto, has been appointed to sit in Brampton. She is replacing Justice Richard Lococo, who has transferred to St. Catharines from Hamilton (his vacancy was transferred to Brampton). Wollcombe was most recently a deputy director in the criminal branch of the ministry, in charge of its human resources management portfolio.
Adriana Doyle, a lawyer in Ottawa, is appointed to the family court division, replacing Justice Maria Linhares de Sousa, who is now a supernumerary judge. Doyle was most recently a bencher of the Law Society of Upper Canada and a member of the Ottawa Police Services Board. Her main areas of practice were family law, mediation, and child representation.
David Jarvis, a lawyer with Beard Winter LLP in Toronto, is appointed a family court judge in Newmarket. He replaces Justice Margaret Scott, who is now a supernumerary judge. Jarvis was called to the bar in 1978. He is a former director of the Toronto Collaborative Family Law Group.
In Oshawa, Susan Woodley has been named to the Superior Court. A sole practitioner in Bowmanville, she specialized in estates, trusts, and guardianship law. She replaces Justice Mary Hatton, who is now a supernumerary judge.
Phillip Sutherland has been appointed to sit in Newmarket. The lawyer, with Sutherland Law in Vaughan, was called to the bar in 1989. His main areas of practice were construction law, family law and property law. Sutherland obtained a certificate in alternative dispute resolution from Osgoode Hall Law School in 2005. He is also a member of the Canadian Association of Black Lawyers. Sutherland replaces Justice Fred Graham who has transferred to family court.
In Quebec, Michel Pennou, a Crown prosecutor with the office of the Director of Criminal and Penal Prosecutions, was appointed to the Superior Court of Quebec in Montreal to replace Justice R. Mongeau, who resigned effective Jan. 13.
Pennou was called to the bar in 1992. He was a Crown prosecutor with the Director of Criminal and Penal Prosecutions since 2012 and a Crown in the Appeals Division from 2001 to 2012.
Winnipeg lawyer Sandra A. Zinchuk joins the Court of Queen’s Bench of Manitoba to replace Justice B.B. Midwinter of Dauphin, who resigned last September.
Zinchuk joined Monk Goodwin LLP after she was called to the bar in 1995. She was most recently managing partner of human resources. She practised bankruptcy law, insolvency law, and civil litigation.
|C. LouAnn Chiasson has been appointed to the Nova Scotia Supreme Court Family Division.|
Justice Michael Gibson, an Ottawa-based military judge, has also been appointed to the Superior Court to replace Justice John Murray, who resigned at the end of last year. Before his appointment as military judge in 2013, Gibson was a legal counsel with the Judge Advocate General in Ottawa. He was also a defence counsel, JAG directorate of defence counsel services in Hull, Que., and deputy judge advocate at the Canadian Forces Base in Trenton, Ont.
The Feb. 6 announcement also included four appointments from the bar in Ontario.
Windsor, Ont., sole practitioner Kirk Munroe is replacing former Superior Court Justice Thea Herman, who resigned her post in Toronto in December 2013. Herman’s vacancy was transferred to Windsor. Munro, who practised criminal law since 1996, is the past-president of the Essex Law Association, the Windsor Criminal Lawyers’ Association, and the Florida Association of Criminal Defence Lawyers.
Also joining the bench from the bar in Ontario is former family lawyer Richard Bennett from Mississauga, Ont. He will replace Justice Sherrill Rogers, who became a supernumerary judge in November 2014.
Laura Fryer, also a family lawyer who practised with Fryer & Associates in Markham, Ont., now replaces Justice D. Roger Timms at the family court branch. Timms chose to become a supernumerary judge in November 2014.
James F. Diamond, formerly a lawyer at Levine Sherkin Boussidan Barristers in Toronto, is replacing Justice Wailan Low, who has been a supernumerary judge since April 2014.
In New Brunswick, Dalhousie, N.B., lawyer Larry Landry has been appointed a judge of the Court of Queens Bench to replace Justice Hugh McLellan of Saint John, N.B., who became a supernumerary judge in May 2013. Landry has practised civil litigation, municipal, criminal, family, and corporate law. He is a former chairman of the New Brunswick Review Board.
In Nova Scotia, Justice Elizabeth Van den Eynden, a former judge of the Supreme Court of Nova Scotia, has been elevated to the Nova Scotia Court of Appeal to fill the void left by Justice Jamie Saunders, who became a supernumerary judge at the end of last year.
The two other appointments in Nova Scotia come straight from the bar. C. LouAnn Chiasson was a lawyer with Weldom McInnis in Dartmouth, N.S. She now replaces Justice Deborah Gass at the family division of the Supreme Court of Nova Scotia. Gass became a supernumerary judge in January.
Jeffery Hunt, formerly a lawyer at Patterson Law in Truro, N.S., has been appointed to the trial division of the N.S. Supreme Court. That vacancy was created as a result of Van den Eynden’s appointed to the Court of Appeal. Hunt, who was called to the bar in 1992, practised civil litigation, insurance, and criminal law.
The Federal Court of Canada also gets one more judge. Justice Richard Bell, who was a judge of the Court of Appeal of New Brunswick, now moves to the Federal Court to replace Justice Dolores Hansen, who became a supernumerary judge in December 2014.
Bell was appointed to the Court of Appeal of New Brunswick in 2007. A year earlier, he had been appointed to the N.B. Court of Queen’s Bench.
There are two additions to the Tax Court of Canada.
Dominique Lafleur, a lawyer with KPMG in Montreal, now sits on the court in lieu of Justice Lucie Lamarre, who was appointed associate chief justice of the Tax Court. Lafleur, who joined KPMG in 2014, previously worked at Heenan Blaikie LLP in Montreal.
Sylvain Ouimet, a Department of Justice lawyer, joins the Tax Court to replace Justice Paul Bédard, who resigned in August 2014. Ouimet had been a taxation lawyer with the DOJ’s Ottawa and Montreal offices since 2002. Prior to that, he had been a completion law officer for Industry Canada in Gatineau, Que.
All of the appointments are effective immediately.
In Asad v. Canada (Citizenship and Immigration), Justice James Russell sided with the government and denied citizenship to a Pakistani child who was being cared for by a Canadian couple.
Rahim Ahmed was born in Pakistan in 2008 and less than a year later, Owais Ahmed Asad and his wife, who are both Canadian, entered into a deed of adoption with his parents and were appointed his guardians.
In 2013, the Canadian government denied Ahmed’s application for citizenship. The government argued that no provision for adoption exists in Pakistan and thus Ahmed was not actually Asad’s child. This meant that he could not be granted automatic citizenship, which the adopted children of Canadian citizens are entitled to.
Russell denied the couple’s appeal and stated that they did not establish to the court that the adoption severed the legal relationship between the child and his biological parents.
“In my view, the adoption deed and related documentation do not establish that, under the law of Pakistan, a severance has occurred in this case,” he wrote. “We do not know whether these parties could, by agreement, sever the biological relationship as a matter of law.”
Canada had accepted adoptions from Pakistan until last year when the Canadian High Commission for Pakistan recommended they stop.
The High Commission raised concerns that adoption is not actually permissible under Pakistani law.
Like many other Muslim-majority countries, Pakistan relies on Sharia for much of its civil law, which generally does not recognize adoption. Instead, kafala, a strengthened-form of guardianship, is generally seen by most jurisdictions that use Sharia as an acceptable alternative to adoption.
The government has maintained that kafala is a fundamentally different institution than Canadian adoption and is not covered under the Hague Convention on adoption.
Though Pakistan, like most Muslim-majority countries, is not a signatory to the Hague Convention, adoptions from the country are allowed by most other Western nations, including the United Kingdom and the United States.
Pakistan is now one of five countries, along with Georgia, Guatemala, Liberia, and Nepal, from which Canada does not allow any adoptions.
In June, the government of Saskatchewan wrote a non-objection letter to the federal government in support of a Saskatoon couple who had been unable to gain a visa for their adopted Pakistani child.
The committee cites a number of factors that led to the wholesale resignation including the fact ongoing delays and associated costs over debates about the process itself were not in the public interest.
“In the normal course, by now the committee would have concluded its hearings, prepared its report, and forwarded it to the Canadian Judicial Council for consideration. As matters have transpired, more than two years have now gone by and the hearings have not been completed,” the committee said in its reasons last week.
Currently, the Federal Court is scheduled to hear a challenge from Douglas later this month about a number of issues relating to the process of the inquiry. Some questions remain about whether these proceedings will go ahead as planned.
The committee noted costs in this Federal Court case have been exacerbated by interlocutory court proceedings and they “will continue to rise and will no doubt be significant.” It had tried to resume hearings but Douglas was granted a stay until the final determination of her judicial review application.
As well, it noted that in the Federal Court proceedings, there are huge conflicts for the federal attorney general meaning “there is no voice in defence of the process and an inquiry committee’s role in it. Thus, this fundamental part of the process is silenced and paralyzed.”
In the face of so many challenges, the committee felt it had only one way forward.
“In light of recent events, it has become apparent that this committee as presently constituted will not be in a position to complete its inquiry and submit its report to the council for a very extended period of time. Even further delays and costs are unavoidable. In these circumstances, the committee has determined that it must consider whether the public interest would be better served by resigning to permit a new inquiry committee to be appointed.”
In a 10-page explanation signed by Alberta Chief Justice Catherine Fraser, Newfoundland and Labrador Chief Justice Derek Green, P.E.I. Supreme Court Chief Justice Jacqueline Matheson, Barry Adams, and Marie-Claude Landry, the committee lamented the various judicial reviews Douglas has pursued and how those proceedings have interrupted their inquiry.
“If this process is to work as Parliament intended, it is imperative that there be no ability to interrupt an inquiry with litigation in another court that spawns its own further litigation and takes the process ever further away from theobject of the inquiry,” they wrote. “This is not in the public interest.”
“In due course, another inquiry committee may be appointed in respect of Associate Chief Justice Douglas,” said the CJC in a statement.
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