Barbara Louise Jackman

The plaintiff successfully defended a motion brought by the defendant to dismiss her Charter action regarding exclusion from health care coverage.

The plaintiff sought costs of the motion on a substantial indemnity basis in the amount of $181,666.71, or alternatively on a partial indemnity basis in the amount of $121,111.14.

The court found no justification for substantial indemnity costs and awarded costs on a partial indemnity scale.

Applying the principle of reasonableness and the factors under Rule 57.01(1), the court fixed the plaintiff's costs at $92,000 all inclusive.

The defendant, the Attorney General of Canada, brought a motion to strike the plaintiff's action for damages and declaratory relief arising from the denial of public health care while she was an irregular migrant.

The plaintiff alleged violations of her Charter rights and customary international law, relying on a decision by the United Nations Human Rights Committee.

The court dismissed the motion to strike, finding that the Ontario Superior Court has jurisdiction, the claims are not statute-barred, it is not plain and obvious that the claims are barred by res judicata, and the claims disclose a reasonable cause of action that is not doomed to fail.

The appellant mother took her three children from Kuwait to Canada without the respondent father's consent and claimed refugee status, alleging domestic violence.

The father applied for the children's return to Kuwait.

The application judge ordered the children returned, finding no risk of serious harm under s. 23 of the Children's Law Reform Act.

On appeal, the Court of Appeal found the application judge erred by rejecting uncontradicted expert evidence that the children's fears of their father were independent and not influenced by the mother.

The Court also held that ordering the children's return before their refugee claims were determined violated the principle of non-refoulement.

The appeal was allowed and a custody hearing was ordered in Ontario.

Landmark decision reforming the framework for judicial review of administrative decisions.

The Court established a presumption that reasonableness is the applicable standard of review, rebuttable where the legislature has indicated a different standard (including by providing a statutory appeal mechanism) or where the rule of law requires correctness review on constitutional questions, general questions of central legal importance, or jurisdictional boundaries between administrative bodies.

The Court also provided extensive guidance on conducting reasonableness review.

On the merits, the Registrar's decision to cancel the respondent's citizenship certificate was found unreasonable, as the statutory exception denying citizenship by birth to children of foreign government employees was intended to apply only to individuals whose parents had been granted diplomatic privileges and immunities.

An immigration detainee applied for habeas corpus after 13 months in immigration detention, challenging the legality of his detention on the grounds that it was lengthy and of indeterminate duration and was being served in inappropriate maximum-security lockdown conditions, both in alleged violation of ss. 7 and 9 of the Charter.

The chambers judge declined jurisdiction on the basis that the Immigration and Refugee Protection Act provided a complete, comprehensive and expert statutory scheme at least as broad and advantageous as habeas corpus (the Peiroo exception).

The majority of the Supreme Court held that the Peiroo exception does not bar habeas corpus applications in all immigration matters; rather, a court must examine whether the statutory scheme is as broad and advantageous as habeas corpus with respect to the specific grounds raised.

The IRPA scheme fell short in three ways regarding lengthy, indeterminate detention: the onus on detainees is less advantageous; the scope of federal court review is narrower than superior court review on habeas corpus; and the IRPA offers a less timely remedy.

The appeal was dismissed, with Abella J. dissenting on the basis that the IRPA scheme, properly interpreted, provides review at least as broad and advantageous as habeas corpus.

The appellant challenged the refusal of humanitarian and compassionate relief under s. 25(1) of the Immigration and Refugee Protection Act after unsuccessful refugee and risk-assessment proceedings.

The majority held that the officer unreasonably constrained discretion by treating 'unusual and undeserved or disproportionate hardship' as rigid legal thresholds rather than descriptive guidance.

The reasons emphasized holistic assessment, including mental health evidence, discrimination risk evidence, and the best interests of a directly affected child.

The appeal was allowed, the officer’s decision was set aside, and the matter was remitted for reconsideration.

A dissent would have upheld the refusal as reasonable under a stringent but flexible exceptional-relief framework.

The appellants, who had been in immigration detention for lengthy periods awaiting deportation, brought applications for habeas corpus in the Ontario Superior Court.

The application judge declined jurisdiction, finding that the Immigration and Refugee Protection Act (IRPA) provided a comprehensive statutory review mechanism as broad and advantageous as habeas corpus.

The Court of Appeal allowed the appeals, holding that where the legality of a continuing lengthy detention of uncertain duration is challenged, the IRPA review process is less broad and less advantageous than habeas corpus.

The Court found that habeas corpus places the onus on the Minister to justify the detention and is available as of right, unlike the discretionary judicial review process under the IRPA.

The moving party brought an urgent motion to stay a deportation order pending the release of the Court of Appeal's decision in an appeal concerning habeas corpus applications for lengthy immigration detention.

The motion judge dismissed the motion, finding no serious question to be tried because the deportation order is an independent immigration determination that would not be affected by the outcome of the habeas corpus appeal.

The court noted that deportation would actually bring an end to the detention the moving party sought to review.

The applicant, a permanent resident detained as a flight risk and danger to the public under the Immigration and Refugee Protection Act, appealed the dismissal of his habeas corpus application.

Pending the appeal, he brought a motion for a stay of any potential future deportation order.

The Court of Appeal dismissed the motion, finding it premature as no deportation order had yet been made, and holding that the appeal did not raise a serious issue to be tried because the IRPA provides a complete and comprehensive scheme for reviewing detention.

Four applicants sought habeas corpus with certiorari in aid, arguing that their continued immigration detention was unlawful.

The court held that it should decline habeas corpus jurisdiction because the Immigration and Refugee Protection Act and its regulations create a complete, comprehensive and expert scheme for detention review, with further judicial review available in the Federal Court.

Applying the Peiroo exception recognized in the habeas corpus jurisprudence, the court found the statutory process to be at least as broad and advantageous as superior court habeas corpus review in this context.

All applications were dismissed, and a post-hearing request to seal one applicant's record was also denied.

The applicant, a failed refugee claimant from Sri Lanka, sought an emergency interim injunction in the Superior Court of Justice to stay his removal after the Federal Court dismissed a similar application earlier the same day.

The Superior Court dismissed the application, holding that it should defer to the Federal Court, which has primary jurisdiction over immigration matters and provides an effective remedy.

The court also found that the applicant failed to establish irreparable harm to meet the test for an injunction.

The appellants, foreign nationals and a permanent resident, were detained under security certificates issued pursuant to the Immigration and Refugee Protection Act (IRPA).

They challenged the constitutionality of the IRPA's certificate scheme, which allows for detention and deportation based on secret evidence not disclosed to the named person.

The Supreme Court of Canada held that the procedure for determining the reasonableness of a certificate infringes section 7 of the Charter because it denies the named person the right to know the case to meet, and is not saved by section 1.

The Court also found that the lack of prompt review for the detention of foreign nationals infringes sections 9 and 10(c) of the Charter.

The Court struck down the offending provisions but suspended the declaration of invalidity for one year to allow Parliament to amend the law.

The appellant, a Convention refugee, was ordered deported after the Minister determined he constituted a danger to the security of Canada due to his involvement in terrorism.

After exhausting domestic remedies, the appellant petitioned the UN Human Rights Committee, which requested Canada stay the deportation.

When Canada refused, the appellant sought an injunction, arguing that his deportation violated section 7 of the Charter and his legitimate expectations.

The Court of Appeal dismissed the appeal, holding that unincorporated international treaties do not create binding domestic obligations and that the doctrine of legitimate expectations does not grant substantive rights to remain in Canada.

However, the Court granted a 30-day stay to permit the appellant to seek leave to appeal to the Supreme Court of Canada.

The appellant, a Convention refugee subject to a deportation order, sought an interim stay of deportation pending his appeal of a Superior Court decision.

The Superior Court had dismissed his application for an injunction to prevent deportation until the United Nations Human Rights Committee considered his petition.

The Court of Appeal found it had jurisdiction to stay the deportation order under s. 134(2) of the Courts of Justice Act.

Applying the RJR Macdonald test, the court concluded there was a serious issue to be tried regarding whether the Charter protects the right to complete the international petition process before deportation.

The balance of convenience and irreparable harm also favoured the appellant, and the stay was granted pending an expedited appeal.

The appellant, a Convention refugee from Iran, was suspected of being an assassin for the Iranian Ministry of Intelligence and Security.

The Minister of Citizenship and Immigration issued an opinion under s. 53(1)(b) of the Immigration Act that the appellant constituted a danger to the security of Canada and faced only a minimal risk of harm if deported.

The appellant challenged the decision and the constitutionality of the deportation provisions.

Applying the framework from the companion case of Suresh, the Supreme Court of Canada held that the appellant did not make out a prima facie case of a substantial risk of torture.

The Court found the Minister's decision was not patently unreasonable and that the appellant was provided with adequate procedural protections consistent with the principles of fundamental justice.

The appeal was dismissed.

The appellant, a Convention refugee from Sri Lanka, faced deportation on security grounds due to alleged membership in a terrorist organization.

The Minister issued an opinion declaring him a danger to the security of Canada without providing him a copy of the immigration officer's memorandum or an opportunity to respond.

The Supreme Court of Canada held that deporting a refugee to face a substantial risk of torture generally violates section 7 of the Charter.

The Court found that the appellant had established a prima facie case of a risk of torture and was denied the required procedural safeguards.

The appeal was allowed and the case remanded to the Minister for reconsideration.

The respondent's refugee claim was rejected and a deportation order was issued.

After exhausting immigration review and Federal Court appellate processes, the respondent brought a constitutional challenge in the Ontario Court (General Division).

The motions court judge stayed the application, finding the Federal Court was the appropriate forum.

The Court of Appeal set aside the stay.

The Supreme Court of Canada allowed the appeal, holding that the motions court judge properly exercised his discretion to stay the proceedings, as Parliament had created a comprehensive scheme of review in the Federal Court.

The appellant, a citizen of Iran, arrived in Canada and claimed Convention refugee status.

He was referred to a secondary examination by an immigration officer, during which he omitted important factual details about his claim.

He was not advised of his right to counsel until the conclusion of this examination.

The appellant argued that the secondary examination constituted a detention under s. 10(b) of the Charter and that his s. 7 rights were violated.

The Supreme Court of Canada held that a secondary examination at a port of entry is a routine part of the screening process and does not constitute a detention within the meaning of s. 10(b).

Furthermore, the principles of fundamental justice under s. 7 do not require the provision of counsel during routine information gathering at a port of entry.

The appeal was dismissed.