Subodh Singh Bharati

The Court of Appeal for Ontario dismissed an appeal by the Attorney General of Canada from a certification order of a class action brought by immigration detainees.

Between May 2016 and July 2023, the Canada Border Services Agency placed approximately 8,360 immigration detainees in provincial and territorial prisons instead of Immigration Holding Centers.

The respondents challenged this practice as violating sections 7, 9, 12, and 15 of the Canadian Charter of Rights and Freedoms, and as constituting negligence.

The motion judge certified the class action, finding that the Charter and negligence claims disclosed reasonable causes of action and that common issues existed.

The appellate court upheld the certification, finding no palpable and overriding errors in the motion judge's analysis.

The plaintiffs brought a motion to certify a class action against Canada on behalf of immigration detainees who were incarcerated in provincial prisons.

The plaintiffs alleged that the practice of detaining immigration detainees in provincial prisons, where they are subjected to penal conditions such as co-mingling with criminal inmates, strip searches, and the use of restraints, violates sections 7, 9, 12, and 15 of the Charter and constitutes systemic negligence.

The court dismissed all of Canada's objections, finding that the pleadings disclosed reasonable causes of action, the class was identifiable, the common issues could be determined in common, a class action was the preferable procedure, and the representative plaintiffs were adequate.

The motion for certification was granted.

The defendant, the Attorney General of Canada, brought a motion to defer filing its statement of defence until after the certification motion in a proposed class proceeding regarding immigration detention.

The court dismissed the motion, applying the presumption that a defendant must file a statement of defence before certification unless special circumstances justify a deferral.

The court found that the legal issues were well-defined and the defendant's concerns about the complexity and resources required to prepare the defence conflated pleading preparation with discovery or trial preparation.

The appellant appealed the dismissal of its motion for summary judgment, which sought to dismiss the respondent's action for false arrest, false imprisonment, and Charter breaches as statute-barred.

The respondent had been detained by the CBSA for 467 days before being deported, but only discovered evidence of alleged CBSA misconduct years later when internal notes were disclosed in separate litigation.

The Court of Appeal upheld the motion judge's finding that the presumptive limitation period starting on the date of arrest was rebutted, as the respondent did not have sufficient material facts to discover his claim until the internal notes were disclosed.

The appeal was dismissed.

The applicant sought judicial review of a Refugee Appeal Division (RAD) decision confirming the Refugee Protection Division's finding that he failed to establish his identity.

The RAD had refused to admit new evidence, including a passport application receipt and a birth information verification.

The Federal Court found the RAD's refusal to admit the new evidence unreasonable, noting the RAD failed to consider the materiality of the potential arrival of the passport and unreasonably relied on a lack of authenticity features for the birth verification without internal coherence.

The application for judicial review was granted.

The plaintiff sought costs on a substantial indemnity basis or, alternatively, on a partial indemnity basis, following the dismissal of the defendant's motion for summary judgment.

The court declined substantial indemnity due to a lack of "reprehensible conduct" but awarded partial indemnity costs, finding the amount reasonable given the complexity and importance of the motion, proportionality, and access to justice.

The defendant moved for summary judgment to dismiss the plaintiff's action for false arrest, false imprisonment, and Charter breaches, arguing it was statute-barred under the Limitations Act, 2002.

The plaintiff was arrested by the CBSA in June 2013 and detained until October 2014, but only commenced the action in October 2016.

The court dismissed the motion, finding that the claim was not discoverable until June 2015, when the plaintiff received disclosure indicating the CBSA had relied on an interpreter for a key witness statement, casting doubt on the grounds for his detention.

The court also found genuine issues for trial regarding the merits of the claim.

Following a successful habeas corpus application resulting in his release from immigration detention, the applicant sought costs on a partial indemnity basis.

The respondent opposed the quantum, arguing the applicant should have pursued judicial review in Federal Court.

The court found that the respondent had treated the matter as a test case to defend the jurisdiction of the Immigration Division, despite agreeing the applicant should be released.

The court awarded the applicant his full requested costs of $61,760.50 on a partial indemnity scale pursuant to section 24(1) of the Charter and Rule 57.01.

The applicant, a refugee claimant, sought a writ of habeas corpus to be released from immigration detention after being held for 17 months.

The detention was based on a series of alleged breaches of release conditions that were either inadvertent or based on errors by police and immigration authorities.

The Superior Court of Justice granted the application, finding that the continued detention lacked a valid purpose, was arbitrary, and violated the principles of fundamental justice under sections 7 and 9 of the Charter.

The court held that the Immigration Division's deference to the Canada Border Services Agency in determining breaches constituted procedural unfairness.

The respondent in a human rights application requested an order to amend its Response after retaining new counsel.

The applicant opposed the request, arguing prejudice and delay.

The Tribunal granted the request, finding it was made early in the proceedings, related directly to the issues in dispute, and caused no prejudice or delay to the applicant.