Law Cans Episode 2 – Google Inc. v. Equustek Solutions Inc. (Global Injunctions) with Daniel Cowper

Google Inc. v. Equustek Solutions Inc. is a 2017 Supreme Court of Canada decision in which the Supreme Court had to determine whether a British Columbia company could seek a worldwide injunction to to enjoin Google from displaying any part of another company’s websites on any of Google’s search results worldwide.

Daniel Cowper is an Associate at Robert Fleming Lawyers, the law firm which represented Equutsek Solutions Inc. He can be found at @DanielCowper online.

0:56 – An overview of the facts of the case. Equustek, a small technology company in British Columbia launched an action against Datalink, a former distributor who allegedly copied and sold their product.  Datalink left British Columbia and continued to carry on its business from an unknown location. Equustek sought a worldwide interlocutory injunction to enjoin Google from displaying any part of Datalink’s websites on any of its search results worldwide.

6:30 – An overview of the test for an interlocutory injunction. There needs to be (1) a serious issue to be tried, (2) irreparable harm, and (3) the balance of convenience must favour the party seeking the injunction.

7:40 – Can someone seek an injunction against a non-party?

9:40 – Can a British Columbia court issue a world wide injunction against a company? In this case, it is appropriate for a British Columbia court to order Google to de-index a website from its search engines globally rather than just in British Columbia or Canada?

14:40 – Would requiring that Google de-index websites breach Google’s freedom of expression?

16:45 – Is there a risk of inconsistent judgements where courts start making global declarations as to what a company should do which render it impossible for the company to do both?

24:00 – An overview of the dissent. Should an injunction be granted if it will be difficult to enforce?

36:20 – Dan talks about how he balances being a poet and being a lawyer.

44:30 – What advice does Dan have for people who feel guilty whenever they are doing non-law activities?

Daniel’s Tumblr page can be found here.  You can purchase his book of poems, The Gods of Doors, here.


When the Port of Entry Can Issue Exclusion Orders

Each day thousands of people cross Canadian ports of entry.  There, the Canada Border Services Agency (“CBSA“) will interview them to determine if they are admissible to Canada.  If CBSA has concerns about whether someone is inadmissible to Canada, or determines that they are in fact inadmissible to Canada, then the CBSA can either further (or pause) the examination and require that the foreign national appear back at the port of entry a later date for the examination to continue, ask the person to voluntarily withdraw their attempt to enter Canada, refer the matter to the Immigration Division, or issue the individual a removal order.

Section 228(1) of the Immigration and Refugee Protection Regulations (“IRPR“) stipulates when CBSA can issue the removal order directly instead of referring the matter to the Immigration Division.  It states:

228. (1) For the purposes of [determining someone inadmissible to Canada], …, if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division and any removal order made shall be

(a) if the foreign national is inadmissible under paragraph 36(1)(a) or (2)(a) of the [Immigration and Refugee Protection Act, (the “Act“)] on grounds of serious criminality or criminality, a deportation order;

(b) if the foreign national is inadmissible under paragraph 40(1)(c) of the Act on grounds of misrepresentation, a deportation order;

(b.1) if the foreign national is inadmissible under subsection 40.1(1) of the Act on grounds of the cessation of refugee protection, a departure order;

(c) if the foreign national is inadmissible under section 41 of the Act on grounds of

(i) failing to appear for further examination or an admissibility hearing under Part 1 of the Act, an exclusion order,

(ii) failing to obtain the authorization of an officer required by subsection 52(1) of the Act, a deportation order,

(iii) failing to establish that they hold the visa or other document as required under section 20 of the Act, an exclusion order,

(iv) failing to leave Canada by the end of the period authorized for their stay as required by subsection 29(2) of the Act, an exclusion order,

(v) failing to comply with subsection 29(2) of the Act as a result of non-compliance with any condition set out in section 184 or subsection 220.1(1), an exclusion order, or

(vi) failing to comply with the requirement under subsection 20(1.1) of the Act to not seek to enter or remain in Canada as a temporary resident while being the subject of a declaration made under subsection 22.1(1) of the Act, an exclusion order;

(d) subject to paragraph (e), if the foreign national is inadmissible under section 42 of the Act on grounds of an inadmissible family member, the same removal order as was made in respect of the inadmissible family member; and

(e) if the foreign national is inadmissible on grounds of an inadmissible family member in accordance with paragraph 42(2)(a) of the Act, a deportation order.

It is important to note that CBSA cannot issue the Exclusion Order directly except in the scenarios outlined above.  In Gupta v. Canada (Public Safety and Emergency Preparedness), 2015 FC 1086, our firm successfully applied to have a removal order quashed, partially on the grounds that the CBSA acted outside of their jurisdiction.  The Federal Court agreed, and stated that:

The applicant also argues that an exclusion order is not the appropriate sanction in these circumstances. He asserts that concerns about alleged violation of a work permit should instead be referred to the Immigration Division for consideration and, if necessary, sanction. The applicant points to subsection 228(1) of the IRPR which provides for various grounds of inadmissibility. Some grounds of inadmissibility can lead to an exclusion order, whereas others cannot and must instead be referred to the Immigration Division. The applicant notes that the list of grounds in paragraph 228(1)(c) (which concern inadmissibility under section 41 of the IRPA and which can lead to an exclusion order) is limited to matters that are quite straightforward to determine, e.g. whether a person failed to appear, failed to leave Canada, or failed to obtain an authorization. Other matters are not dealt with by an exclusion order. The applicant notes also that this list of grounds that can lead to an exclusion order includes subparagraph 228(1)(c)(iii) which refers to “failing to establish that they hold the visa or other document as required under section 20 of the Act.” The applicability of this provision in the present situation is at the center of this section of my analysis.

The applicant argues that the determination of whether the holder of a work permit has contravened or will contravene the terms of that permit is far from the kind of straightforward determination that is contemplated in the rest of paragraph 228(1)(c) of the IRPR. For example, there may be issues of doubt as to the meaning of certain conditions, as discussed in Singh Brar v Canada (Citizenship and Immigration), 2006 FC 1502. In the absence of any jurisprudence on this question, and recognizing the important consequences the Exclusion Order would have for the applicant, I am inclined to agree with the applicant. I do not conclude that any issues of doubt about the applicant’s contravention of the conditions of his work permit necessarily exist in the present case, but the possibility of such issues does serve to demonstrate that this type of situation (concern about alleged violation of a work permit) should be referred to the Immigration Division, and was not intended to be dealt with by means of an exclusion order. It is certainly possible, based on the facts on the record, that the applicant knowingly acted in violation of his work permit (and even that he intended to continue working in violation of his work permit), but that is a matter that should be addressed in a forum other than a decision leading to an exclusion order.

It is important to note that in Gupta the CBSA tried to also argue that IRPR r. 228(1) applied because they believed that the applicant was trying to enter Canada to work without a work permit because he may have been entering Canada to work in contravention of one or more terms of his existing work permit.  The Federal Court disagreed, stating that:

The specific contravened provision of the [Act] cited in the Exclusion Order is paragraph 20(1)(b), which requires every foreign national (with exceptions not applicable here) who seeks to enter Canada as a temporary resident to establish “that they hold the visa or other document required under the regulations.”

The “regulations” referred to here are the IRPR, and the pertinent provision thereof cited in the Exclusion Order is section 8, which provides that “[a] foreign national may not enter Canada to work without first obtaining a work permit.” Accordingly, the accusation against the applicant is that he entered Canada to work “without first obtaining a work permit.”

Regardless of whether the Exclusion Order was based on past violation of the work permit, or concern about possible future violations, one key issue in the present application is whether a person can be found to have entered Canada without first obtaining a work permit (in contravention of section 8 of the IRPR) where they have a work permit, but intended to work in violation of its conditions. It appears that there is no jurisprudence directly on point.

Section 8 of the IRPR is short and not ambiguous. I find it easy to understand. It simply requires that a foreign national who enters Canada to work must first obtain a work permit. The Minister’s Delegate’s decision, as well as the respondent’s position, essentially reads in a requirement that is not included in section 8: that the work to be done under the work permit be in compliance with the conditions thereof.

Certainly, violations of the terms of a work permit are of concern, and there are measures that can be taken against the holder of a work permit who ignores the conditions of the permit. However, there is no indication that section 8 was intended to address such a situation. A reading of section 8 in its grammatical and ordinary sense harmoniously with the scheme and object of the IRPA and the intention of Parliament does not permit this.

In my view, it was unreasonable for the Minister’s Delegate to read in a requirement, especially in view of the important consequences for the applicant of the Exclusion Order. In order to conclude that violation of the conditions of a work permit could lead to an exclusion order under section 8 of the IRPR, that provision would have to be more explicit.


Law Cans Episode 1 – Douez v. Facebook (Forum Selection Clauses) with Chris Rhone

Doez v. Facebook is a 2017 Supreme Court of Canada decision in which the Supreme Court had to determine the enforceability of a forum selection clause.  The case involved a class action lawsuit brought in British Columbia alleging that Facebook’s Sponsored Stories breached their privacy.  Facebook argued that because its Terms of Use stated that users had to litigate any claims in California that the British Columbia courts lacked jurisdiction.

Christopher Rhone is a Partner at Branch MacMaster LLP Barristers & Solicitors. He represented Ms. Doez, the plaintiff, at the Supreme Court.

 

0:30 – The distinction between civil and commercial litigation.

1:50 – Could Ms. Douez sue Facebook in British Columbia despite its Terms of Service specifying that people would have to litigate disputes in California?

3:30 – Why is Ms. Douez arguing that Facebook breached her privacy rights under British Columbia law? What was Facebook’s Sponsored Stories product?

9:40 – An overview of the Pompey test for determining forum selection clauses, which consists of the following two steps.  First, the party must show that a form selection clause is clear and enforceable and that it applies to the cause of action before a court. If this is the case, then second, the other party must show strong cause for why a court should not follow the forum selection clause Reasons to not can include public policy, fairness, convenience, etc.

16:00 – What impact did the size of Facebook have on the Supreme Court’s decision? What is the scope of the ruling? Should people assume that they can sue large, multinational e-technology companies in British Columbia?

23:30 – Chris discusses other times that he has argued before the Supreme Court of Canada.

26:40 – Tips and suggestions that Chris has for people who are deciding is law is for them?

31:10 – Steven and Chris discuss interesting privacy scenarios including where the Canada Border Services Agency was able to determine that someone was working without authorization by going through Google Maps history and where Canada student loan information vanished.

33:05 Steven asks Chris about tips to young lawyers who maybe love the law but who are perhaps unsure of loving the practice?

37:30 Chris describes his side practice as a SPCA litigator in cases where animal owners want to dispute the removal of their pet for violence or inadequate treatment.

Steven and Chris in this episode both mentioned that several of the lawyers that their respective firms, including Steven, are now using standing desks. Some of the models that the lawyers at Steve’s firm use include:

VIVO Height Adjustable Standing Desk Sit to Stand Gas Spring Riser Converter

ERGONEER Latest Model Adjustable Ergonomic Sit to Stand Desk Riser

Mount-It! Dual Monitor Desk Stand Mount for LCD LED Computer Displays Two Articulating Arms Clamp Desk Installation Fits up to 27 Inch Screens Heavy-Duty 44 Lb Capacity VESA 75 and 100


Borderlines Episode 17 – Issues with PreClearance at Customs Offices, with Michael Greene

Michael Greene, Q.C. is an immigration lawyer in Calgary. He served as the National Chair of the Canadian Bar Association’s Citizenship & Immigration Section in 2000-2001

In this episode we discuss Bill C-23, the Preclearance Act, 2016.  This episode was recorded in June 2017.

The United States currently operates border preclearance facilities at a number of airports and ports in Canada. These are staffed and operated by U.S. Customs and Border Protection officers. Travelers pass through U.S. Immigration and Customs, Public Health, and Agriculture inspections before boarding their aircraft, ship, or train.

Bill C-23 will:

  • provide United States preclearance officers with enhanced powers, including the ability to carry firearms;
  • establish that the exercise of any power and performance of any duty or function by a United States preclearance officer is subject to Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act;
  • authorizes Canadian police officers and the officers of the Canada Border Services Agency to assist United States preclearance officers in the exercise of their powers and performance of their duties and functions;
  • allows a traveller bound for the United States to withdraw from the preclearance process, unless the traveller is detained;
  • authorize Canada to set up preclearance facilities in the United States;
  • specifies how Canadian immigration law will apply to travellers bound for Canada who are in preclearance areas and preclearance perimeters in the United States, and extends the application of other Canadian legislation that relates to the entry of persons and importation of goods into Canada to those preclearance areas and preclearance perimeters; and
  • deems an act or omission committed in a preclearance area or preclearance perimeter to be committed in Canada, if the act or omission would constitute, in Canada, an offence relating to the entry of persons or importation of goods into Canada.

The Canadian Bar Association’s comments can be found here – http://www.cba.org/CMSPages/GetFile.aspx?guid=1b0e8f11-c92b-4d80-859b-1e06c379a538

A copy of the Agreement on Land, Rail, Marine and Air Transport Preclearance Between the Government of Canada and the Government of the United States of America is embedded below.


Minors in Immigration Detention

On November 6, 2017 Ralph Goodale, Canada’s Public Safety Minister, issued a Ministerial Direction to the Canada Border Services Agency (“CBSA”) titled Minors in Canada’s Immigration Detention System (the “Ministerial Direction”), as part of its National Immigration Detention Framework (the “NIDF”).  The Ministerial Direction notes that:

  • Canada’s immigration detention program is based on the principle that detention shall be used only as a last resort, in limited circumstances and only after appropriate alternatives to detention (“ATDs”) are considered and determined to be unsuitable or unavailable;
  • The well-being of children, family unity and the use of ATDs shall be core tenets underpinning policy direction, in accordance with the expectations and values of Canadians;
  • The best interests of a child shall be a primary consideration to be assessed against other primary and mandatory factors in legislation;
  • That Canada has the objective to stop the detention or housing minors and family separation, except in extremely limited circumstances;
  • That Canada will ensure that the detention or housing of a minor or the separation of a minor from his/her detained parent(s) or guardian(s) is for the shortest time possible; and
  • That Canada will never place minors in segregation or segregate them.

Prior to the NIDF and the Ministerial Direction the number of minors that the CBSA had been holding in detention had been steadily decreasing.

According to internal government statistics, from April 1, 2016 to December 31, 2016 the parents of accompanied minors were detained for the following reasons: 78.95% (90) for unlikely to appear, 10.52% (12) for examination, and 10.52% (12) for identity.

As well, the average length of time that a minor was detained also had fallen dramatically.

Given the current influx of refugees arriving in Canada from the United States, it will be interesting to see if CBSA is able to maintain the trend, even with the introduction of the NDIF.  If it does, then I think it would be reasonable to presume that the NDIF was a success.


The Right to be Heard

On May 19, 2017 the Federal Court of Canada issued a scathing criticism of how the Department of Employment and Social Development Canada is breaching procedural fairness in how it bans companies from the Temporary Foreign Worker Program.

In Ayr Motors Express Inc. v. Canada (Employment Workforce Development and Labour), Justice Le Blanc noted that the Department had not respected a trucking company’s “basic right to be heard” before it banned them for two years from hiring foreign workers.

Citing the Federal Court decision in Tiedeman v Canada (Human Rights Commission), Justice Le Blanc further found that “[t]o solicit the representations of a party and, subsequently, to fail to consider them, renders hollow the hallowed principle of the right to be heard”.

The breach of procedural fairness arose during an inspection involving whether Ayr Motors Express Inc. had failed to comply with the Temporary Foreign Worker Program.  Canada’s Immigration and Refugee Protection Regulations require that the Minister of Employment, Workforce Development and Labour be the individual who actually bans a company from hiring foreign workers under the Temporary Foreign Worker Program.  However, because that individual is as a federal Cabinet Minister understandably very busy, she instead based her decision on a six page memo that her Department provided her.  This memo contained none of Ayr Motors Express Inc.’s representations, and instead simply contained the Department’s summary conclusions.

Justice Le Blanc found that this was unacceptable, and it will be interesting to see how the Department responds.


Misrepresentations and H&C

Several large scale immigration frauds in recent years have resulted in thousands of permanent residents facing removal of Canada for misrepresentation.  Many are filing appeals based on humanitarian & compassionate considerations.

In assessing such appeals, both the Canada Border Services Agency and the Immigration Appeal Division face the task of weighing an individual’s previous misconduct against the compassionate mitigating factors which may exist.

To quote Justice Russel in Yu v. Canada, the decision in Dowers v Canada (Minister of Immigration, Refugees and Citizenship, 2017 FC 593 at paragraphs 2 to 6, stresses the point that concern about the past must be separated from concern about the future:

A situation such as the Applicant’s, where a person comes to Canada and stays without adhering to the immigration laws, but, nevertheless, succeeds to be a positive, productive, and valuable member of society must be given careful attention. Section 25 has no purpose if that person is easily condemned for her or his immigration history. The history must be viewed as a fact which is to be taken into consideration, but within a serious holistic and empathetic exploration of the totality of the evidence, to discover whether good reason exists to be compassionate and humanitarian. The discovery requires full engagement:

Applying compassion requires an empathetic approach. This approach is achieved by a decision-maker stepping into the shoes of an applicant and asking the question: how would I feel if I were her or him? In coming to the answer, the decision-maker’s heart, as well as analytical mind, must be engaged (Tigist Damte v Canada (Citizenship and Immigration), 2011 FC 1212, para. 34).

[Emphasis added]

 


IRCC Complaints About Immigration Consultants

In June 2017 I wrote an article for Policy Options about how I believed that while the existence of the immigration consultant profession in Canada promoted access to justice reforms were needed to strengthen the weeding out of some unethical behaviour.  One of the things that I recommended was that Immigration, Refugees and Citizenship Canada (“IRCC”) temporarily have the power to refuse to process applications submitted by people represented by consultants whom IRCC has previously determined to be unscrupulous, and that IRCC should also be allowed to levy fines against unscrupulous representatives in certain circumstances.

I recently received the results of an Access to Information Act request where the requester asked to see copies of all complaints sent by IRCC to provincial law societies and the Immigration Consultants of Canada Regulatory Council (the “ICCRC”), the body which regulates immigration consulants.  The results, which were over 13o pages, were astonishing for several reasons.

First, I have previously suspected despite general perception to the contrary that the number of complaints filed against immigration consultants was probably the same as against lawyers.  However, I seem to have been wrong. Based on the Access to Information Act results, it appears that IRCC has never filed a complaint about a lawyer to a provincial law society.  While it is possible that complaints against lawyers simply did not make their way into the Access to Information Act results, or that all of the complaints against lawyers were redacted, this seems unlikely, and at a minimum after reviewing the Access to Information Act results it is clear that the number of complaints that IRCC has made to the ICCRC about unscrupulous consultants dwarfs the number of complaints made about lawyers (which again appears to be none).

Second, the unethical behaviour that IRCC has encountered from unscrupulous representatives ranged from “what was that person thinking” to the truly disturbing.

Finally, the Access to Information Act results make it clear that IRCC is (or at least was previously as things may have changed since the release of the Access to Information Act results) frustrated with the ICCRC disciplinary process.  I know many upstanding immigration consultants who are exasperated with what some of their fellow less ethical colleagues appear to have gotten away with impunity.  These concerned professionals would not be comforted in learning how broken the complaints process between IRCC and the IRCC appears to be.

Examples of Complaints

Not all of the complaints that IRCC made to the ICCRC were related to particularly egregious conduct.  Indeed, some of the actions appear to simply be childish behaviour.  For example, as shown in the screen shots below, one instance involved an immigration consultant who submitted a request for a status update on the reconsideration request for a client whose permanent residence application was refused.

The visa office responded by stating that an immigration officer had reviewed the immigration consultant’s reconsideration request, and that the visa office was maintaining the refusal.

The immigration consultant responded by calling the visa officers assholes.

One can only wonder what was going through this person’s head.

Most of the other complaints that IRCC sent the ICCRC were for much more egregious behavior.  For example, in one case IRCC sent the ICCRC a complaint which contained allegations that an immigration consultant was conspiring with an educational institution to provide fake transcripts to international students who were not attending the school but needed proof of attendance to renew their study permits.  As IRCC’s complaint noted, this constitutes criminal behaviour (s. 127 of IRPA pertains to criminal misrepresentation).

In another case a consultant allegedly counselled his clients who wished to seek asylum in Canada to pretend that they were gay and to even “attend [a] gay pride parade in order to support their claims.”  The issue of the Refugee Protection Division (the “RPD”) occasionally requiring that LGBT claimants prove their sexual orientation is controversial.  The idea that an authorised representative has apparently been recommending that people fabricate their orientation is insulting to everyone who represents legitimate LGBT claimants.

Other examples of complaints that IRCC sent the ICCRC include situations where consultants:

  • advised privately sponsored refugee that he had to pay all resettlement costs;
  • encouraged clients to contact Members of Parliament on the basis that MPs can help expedite applications;
  • fabricated employer reference letters;
  • forged signatures;
  • counselled misrepresentation; and
  • advertised in a way to suggest that they had inside connections at IRCC.

In highlighting all of the above my point is not to disparage all immigration consultants. As I have said repeatedly, many, if not most, immigration consultants are upstanding and provide valuable advice to their clients.  Early on in my practice one of my mentor’s was a licensed consultant.  Rather, in reproducing and summarizing the complaints above my goal is to demonstrate that IRCC has been diligently referring complaints about unethical behaviour on the part of some immigration consultants to the ICCRC.

As well, it is of course necessary to note that all of the complaints that IRCC sent to the ICCRC are allegations.  However, most appear to have been well founded and were substantiated by documentary evidence.

Frustration with the Disciplinary Process

The Access to Information Act results also demonstrated a certain level of frustration amongst IRCC with the ICCRC disciplinary process.  When reading the disclosed documents I was astounded at how IRCC complaints were handled.  I really hope that there is more co-operation than what the Access to Information Act results revealed, or that things have changed, because if not, the current situation is simply depressing.

In almost every instance, the ICCRC Complaints Committee determined that it had decided not to refer an IRCC complaint about unscrupulous behaviour to the ICCRC Disciplinary Committee.  What was very interesting to read was that the letter that the ICCRC representative sent IRCC conveyed the impression that the author didn’t even realize that the complainant was the government.   The ICCRC even informed IRCC, a government agency, that if it wanted a refund for the consultant’s services that IRCC would have to pursue the matter in a local “small claims court.”

Given the ICCRC’s boiler plate responses which often did not seem to even acknowledge that the complainant was the government, it was not surprising then to see that in some of its complaints, IRCC expressed frustration with the ICCRC complaints referral process process.  For example, in one instance, IRCC sent a second complaint to the ICCRC about a particular immigration consultant and expressly stated that the ICCRC’s response to the matter had been insufficient.

In another example, IRCC essentially demanded an explanation for why no action had apparently been taken by the ICCRC against an immigration consultant who had an active arrest warrant for counselling misrepresentation and who had fled the country.

It is also apparent that in response to IRCC’s expressed dissatisfaction with the ICCRC disciplinary process that the ICCRC committed to changing its processes.  Indeed, as shown below, in May 2015 ICCRC legal counsel even met with IRCC to discuss the issue.  The ICCRC subsequently committed to changing how it handles complaints.

While it is possible that these changes have resulted in a more robust disciplinary mechanism, I am skeptical.  For one, many of the e-mails from the ICCRC to IRCC in which the ICCRC treated the government as if it were the client of an immigration consultant post-date the above letter.  As well, at the Standing Committee of Citizenship and Immigration an Assistant Deputy Minister with the Ministry of Immigration, Refugees and Citizenship Canada stated in May 2017 about the ICCRC that:

I don’t think we’re where we need to be yet. I think there are issues with the organization that can be strengthened in terms of its own internal governance, in terms of some of its issues around finance, and thirdly, I think, in terms of sometimes the effectiveness of its own enforcement processes. This includes ensuring timely enforcement that is appropriately calibrated to the nature of the infraction, and ensuring that there’s follow up in those areas.
I think it’s an organization that is, frankly, still finding its feet. It’s still fairly early days and it has made real progress, but, yes, there are areas where it can be strengthened.

I continue to believe that most immigration consultants play a valuable role in ensuring access to justice. I also think that it makes little sense to replace the ICCRC, which is only six years old, with a new regulatory body that has no experience.  However, until the ICCRC “finds its feet” (to quote the Assistant Deputy Minister) Canada’s immigration department should have the ability to sanction or refuse to process applications from consultants that it knows are unethical.  Such a temporary measure would ultimately be in the best interests of the ICCRC, the immigration consulting profession, and the integrity of Canada’s immigration system.