Barbara 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.

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.

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.