Molnar v. Canada (Minister of Citizenship and Immigration)

Date: 20050121

Docket: IMM-1055-03

Citation: 2005 FC 98

Ottawa, Ontario, this 21st day of January, 2005

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                      ATTILA JOZSEF MOLNAR

                                                                                                                                            Applicant

                                                                        - and -

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                       Respondent

                                            REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                This is an application for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), dated January 10, 2003, which determined that the applicant is not a Convention refugee.

[2]                The applicant requested an order setting aside the Board's decision and referring his claim back for re-determination.

Background

[3]                The applicant, Attila Jozsef Molnar, is a citizen of Hungary who claims a well-founded fear of persecution on the basis of membership in a particular social group, namely as a homosexual.

[4]                In the narrative portion of his Personal Information Form ("PIF"), the applicant described four incidents that led to his departure from Hungary. First, in 1996, the applicant and his partner were expelled from a restaurant and told that homosexuals were not welcome. Then, in October 1996, the applicant and his partner were verbally and physically assaulted by a number of men. The attackers ran off when a police car drove by, but the police were not concerned or even sympathetic about the homophobic attack and told the applicant and his partner to consider themselves lucky that time. Thirdly, in October 1998, the applicant was fired when his boss learned that he was homosexual. Lastly, in June 1999, the applicant was invited to a supposed friend's birthday party, where he was brutally raped by four men.

[5]                The applicant left Hungary on January 11, 2000 and arrived in Canada the next day.

[6]                On November 8, 2001 and February 27, 2002, the applicant's refugee claim was heard by a two-member panel of the Board composed of Members Lampert and Chapley.

Reasons of the Immigration and Refugee Board (Refugee Protection Division)

[7]                The Board's negative decision, dated January 10, 2003, was made by a sole panel member because Member Chapley ceased to hold office as a member of the Board as of June 25, 2002. Member Chapley was not requested by the Chairperson to take part in the decision within eight weeks of the end of his term. The Board stated that pursuant to subsection 63(2) of the Immigration Act, R.S.C. 1985, c. I-2, the disposition of the remaining panel member, Mr. D. Lampert, was deemed to constitute its decision.

[8]                The Board accepted that the applicant was homosexual and did not question his account of the four incidents leading to his departure from Hungary. The Board held, however, that the applicant's claim was not objectively well-founded as there was not a serious possibility he would be persecuted if he were to return to Hungary.

[9]                The Board reviewed the documentary evidence regarding the experience of homosexuals in Hungary. It noted that legal rights are becoming more equalized with heterosexuals, and that street violence against homosexuals "is not a significant or widespread problem". The Board took into account documentary evidence to the contrary and accounts of individual attacks, but held that if violence against homosexuals was serious and widespread, it would have appeared in the United States' Department of State Report on Human Rights, Amnesty International Reports or the Human Rights Watch World Report. Since violence against homosexuals was not mentioned in any of these three reports, the Board concluded that it was not a serious and widespread problem in Hungary.

[10]            Furthermore, the Board reviewed evidence that discriminatory Hungarian laws were slowly changing, even though same-sex couples could still not adopt children. The differentiations based on sexual orientation noted by the Board, in its view, were not sufficiently serious to amount to persecution.

[11]            The Board also noted the existence of various social organizations, many of which were state-funded, intended to provide assistance or redress for discrimination against homosexuals. The existence of these organizations, coupled with reports of specific incidents of increased protection of the rights of homosexuals, led the Board to conclude the following (at page 8 of its decision):

The panel finds there is a serious possibility of discrimination related to the claimant's homosexuality. However, for the foregoing reasons, it does not find a serious possibility of persecution on any Convention ground, were he to return to Hungary.

[12]            This is the judicial review of the Board's decision.

Applicant's Submissions

[13]            First, the applicant submitted that it was a breach of natural justice and contrary to the legislative scheme for Member Lampert to decide his claim as a single member of the Board. In the applicant's view, the Board's statement that Member Chapley had ceased to hold office was not a satisfactory explanation for his failure to participate in the decision, and did not render him "unable" to take part in the decision within the meaning of subsection 63(2) of the Immigration Act, supra.

[14]            The applicant argued it was unfair for his claim to not be decided during the four month period between the time of his hearing and when Member Chapley's term ended. The applicant further submitted that as a matter of fairness, the Chairperson of the Board should have requested Member Chapley to participate in the determination of this claim within eight weeks of the end of his term, as permitted by the legislative scheme. Beyond the prejudicial effect of the delay, the applicant submitted that he was denied the potential legal benefit of a two-member panel split decision, which the Immigration Act, supra, deems to be resolved in a claimant's favour.

[15]            Moreover, the applicant argued that the duty of fairness required the Board to allow the applicant's counsel to make written submissions on these issues prior to the disposition of this claim.

[16]            The applicant submitted that the Board's failure to resolve his refugee claim until almost a year after his hearing breached the duty pursuant to subsection 69.1(9) of the Immigration Act, supra, to render decisions "as soon as possible". The applicant further argued that delay prejudiced the assessment of his claim, since the important element of the psychological impact of being raped and otherwise victimized was lost on the Board because of the excessive delay.

[17]            The applicant submitted that the Board's assessment of whether he suffered persecution or merely discrimination was incomplete and flawed because it failed to take into account the applicant's personal experiences and failed to apply the United Nations Handbook on Procedures and Criteria for Determining Refugee Status, (Geneva: January, 1988).

[18]            The applicant argued that the Board erred by brushing aside and rejecting credible and trustworthy documentary evidence regarding violence against homosexuals in Hungary. Based on the Board's disregard for this evidence, as well as evidence of other human rights violations against homosexuals in Hungary, the applicant submitted that the Board's decision cannot stand.

[19]            The applicant pointed out that the certified tribunal record does not contain a transcript of the November 8, 2001 portion of his hearing, and argued that this has caused him prejudice.

[20]            The applicant requested costs of this application.

Respondent's Submissions

[21]            The respondent submitted that is was proper for the Board's decision to be made by Member Lampert alone, pursuant to subsection 63(2) of the Immigration Act, supra. The respondent further submitted that the Board's statement that Member Chapley no longer held office and was not requested by the Chairperson to assist in the disposition of this matter satisfied the requirement of an explanation being provided for a single member decision in these circumstances.

[22]            The respondent submitted that it was not capricious or unreasonable for the Board to conclude that the applicant might be discriminated against, but that there was not more than a serious possibility he would be persecuted should he return to Hungary.

[23]            The respondent submitted that the Board concluded country conditions in Hungary had improved for homosexuals, which is a finding of fact that should only be set aside if unsupported by the evidence. Since the Board's decision was based in the extensive documentary evidence, the respondent argued that there is no basis for this Court's intervention.

[24]            The respondent pointed out that the applicant did not adequately seek out state protection while in Hungary and has not provided clear and convincing proof that state protection would not be available to him if he were to return to Hungary.

[25]            The respondent denied that the Board ignored or disregarded documentary evidence before it. Moreover, the respondent emphasized that the weight to be given to various pieces of evidence is a matter clearly within the Board's discretion and is owed considerable deference.

[26]            Alternatively, if the Board did fail to refer to some evidence in its reasons, the respondent submitted that the transcript indicated that the applicant was questioned thoroughly and that the totality of the evidence adduced supported the conclusions reached by the Board. In the respondent's view, no purpose would be served by referring the applicant's claim back to the Board for re-determination, since the outcome would ultimately be the same.

[27]            The respondent requested that this application for judicial review be dismissed.

Issues

[28]            The issues are as follows:

1.          Was it proper for a single-member panel of the Board to decide the applicant's claim?

2.          Did the Board breach the duty of fairness owed to the applicant in the circumstances?

3.          Was the Board's decision made without regard to the evidence before it?

4.          Has the applicant established any other basis for the intervention of this Court?

Relevant Statutory Provisions

[29]            On June 28, 2002, when the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") came into force, the applicant's Board hearing had been held but no decision had been rendered. Section 191 of IRPA, therefore, mandates that the former Immigration Act, supra, applies to his refugee claim:

[30]            The relevant provisions of the Immigration Act, supra, are the following:

Analysis and Decision

[31]            Issue 1

Was it proper for a single-member panel of the Board to decide the applicant's claim?

I have come to the conclusion that it was proper for a single member of the panel of the Board to decide the applicant's claim. Two Board members heard the applicant's claim for refugee protection but only one member participated in the decision. The decision of the Board stated in part at page 1:

. . . The hearing was held before me and my colleague, David Chapley. Mr. Chapley ceased to hold office as a member of the Refugee Division on June 25, 2002. Pursuant to sections 187 and 191 of the Immigration and Refugee Protection Act, which came into force on June 28, 2002, this matter is being continued by the Refugee Protection Division in accordance with the provisions of the former Immigration Act. Mr. Chapley is unable to take part in the disposition of this matter, as he has ceased to hold office and the Chairperson did not request Mr. Chapley to take part in the disposition of this matter within eight weeks after Mr. Chapley ceased to hold office. Therefore, pursuant to subsection 63(2) of the Immigration Act, my disposition of this matter is deemed to constitute the decision of the Board.

[32]            Under the former Immigration Act, supra, the applicant's application had to be heard by a two member panel of the Board, unless the applicant consented to an one member panel or unless the provisions of subsections 63(1) and 63(2) apply to the case. For ease of reference, subsections 63(1) and (2) are repeated:

[33]            In Singh v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 127 (C.A.), Stone J.A. stated at paragraphs 7, 8, 11, 12, 13, 14, 17, 18 and 19:

7. It had been earlier held that "the mere invocation of subsection 63(2)", without more, "is not sufficient to give rise to its application": Mehael v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 838 (T.D.) (QL), at paragraph 9. As was noted by Nöel J. in that case, at paragraph 10, such invocation left him "unable to ascertain whether the member in question had passed away, had ceased to hold office, or was simply unavailable when the reasons were given".

8. In Odameh v. Minister of Employment and Immigration (1995), 185 N.R. 9 (C.A.), this Court had to decide whether an explanation of the remaining member that the departed member of the panel had "ceased to hold office" satisfied the Weerasinge principle for invoking subsection 63(2). In disposing of the appeal MacGuigan J.A. stated for the Court, at page 10:

It should be noted that in Weerasinge, as was pointed out by McKeown, J., in Soukhaniouk et al. v. Minister of Employment and Immigration (1994), 85 F.T.R. 55 (T.D.), there was no statement at all put on the record as to why the matter was decided by a single member. McKeown, J., went on to distinguish the case before him as follows (58):

In the case before me the member clearly sets out the reasons the claim was decided by one member and that was because the second member had left the board at the time the decision was made. Accordingly, in my view, the reasons for decision disclose why s. 63(2) is properly engaged.

In our opinion the case at bar is on all fours with Soukhaniouk and ought to be decided in the same way.

Although it would not be undesirable for details to be provided by the continuing Board member, we believe it is not strictly necessary. If s. 63(2) is invoked by that member, with the explanation that the other member has ceased to hold office as a member, that invocation carries with it the clear implication that the departed member was not requested by the chairman to participate in the decision of the matter within eight weeks of departure and did not in fact participate in the decision either then or earlier. In our view, this is a sufficiently complete statement of the material circumstances in accordance with the Weerasinge rule.

. . .

11. In light of these conflicting opinions, it appears desirable to offer some guidance regarding the interpretation of subsection 63(2) and the application of the Weerasinge principle in the context of this appeal. At the same time, my analysis must be responsive to the particular question certified by Reed J., in that it must bear on the reasons for which she allowed the application for judicial review and be determinative of the appeal. See Malouf v. Canada (Minister of Citizenship and Immigration) (1995), 190 N.R. 230 (F.C.A.); Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.).

12. In my view, the objective of section 63 is to permit the Board to retain jurisdiction over a claim in cases where one of the Board members who participated in the hearing is unable to take part in the decision. This provision is intended to free the Board from having to reopen the claim and conduct a new hearing in the event that one of the members who heard the matter resigns or otherwise ceases to hold office, dies or is unable to partake in its final disposition.

13. Subsection 63(1) bestows upon the Chairperson the power of requesting that a Board member who has "resigned or otherwise ceased to hold office" participate in the disposition of a matter previously heard within eight weeks of that member resigning or otherwise ceasing to hold office. Absent such a request, the departed member could possess no authority to take part in the decision. I note that subsection 63(1) does not require such a person to participate in the disposition of a matter previously heard. It merely permits that person to do so.

14. Subsection 63(2), on the other hand, describes the circumstances in which one Board member alone may dispose of a matter previously heard by a panel of two Board members. It appears to address four distinct situations in which such a disposition may be made: first, "[w]here a person to whom subsection (1) applies . . . is unable to take part in the disposition [of the matter]"; secondly, where "any other member by whom a matter has been heard is unable to take part in the disposition" of the matter; thirdly, where a person to whom subsection (1) applies "has died"; and fourthly, where any other member by whom a matter has been previously heard "has died".

. . .

17. Subsection 63(2) recognizes that during the eight-week period of extension the Board member might not be in a position to participate in the disposition of a matter. In my view, the very fact that the person has not taken part in the disposition of the matter after the expiry of such extension indicates that he or she was "unable" to do so. The departed Board member will have lost the required authority. There may well be many and varied reasons, depending on the circumstances of each individual case, why the decision was not rendered by both members during that extension period but that, it seems to me, is a separate matter. The statute itself does not, strictly speaking, command that any explanation be given. However, the existing jurisprudence of the Court, cited above, requires that a sufficient explanation be provided by the member who ultimately disposes of the matter on behalf of the Board by signing it alone. Whatever the explanation may be it obviously must be one that is contemplated by section 63.

18. Herein lies the significance of the Weerasinge principle. In order "to ensure", as Mahoney J.A. stated, "that justice is seen to have been done", the remaining Board member must place on the record a "complete statement of the material circumstances" giving rise to the invocation of subsection 63(2). Such a statement is intended to inform claimants of why they have lost the advantage secured to them by subsection 69.1(10). Reed J. concluded that this requirement was not satisfied in the case at bar. That issue must now be addressed.

19. Counsel for the respondent submits that the circumstances of this case are not comparable to a case in which a Board member simply loses authority to decide by "ceasing to hold office" and a statement to that effect is included in the decision. Such a situation existed in Odameh, supra, where this Court decided that a simple statement in the Board's decision to the effect that the departed Board member had ceased to hold office is a sufficient explanation for invoking subsection 63(2). Counsel contends that the requirement for a complete statement of the material circumstances is particularly needed where a decision is not rendered within a subsection 63(1) period of extension.

[34]            The decisions in Odameh, supra, and Soukhaniouk, supra, stand for the proposition that the Board's statement that a member was unable to participate in the decision because their term expired is sufficient to meet the standard set out in Weerasinge, supra. A more detailed explanation may be desirable, but it is not required by the statute.

[35]            The applicant also submitted that Member Chapley had four months between the hearing of the claim and the end of his term with the Board, he was not "truly" unable to participate in the disposition of the case within the meaning of subsection 63(2) of the Act. I disagree with this argument as subsection 63(2) applies only to the eight week extension period. The failure to give a decision within the four month period from the hearing date to the expiry of his term is a separate matter.

[36]            Issue 2

Did the Board breach the duty of fairness owed to the applicant in the circumstances?

The applicant submitted that the following acts of the Board constitute breaches of natural justice that invalidated the Board's decision:

i)               the Board's chairperson failed to request that Member Chapley participate in the disposition of the applicant's claim according to subsection 63(1);

ii)             the Board failed to ask the applicant to make written submissions on the propriety of Member Lampert making a decision as a single member;

iii)             the delay between the time of hearing and date of decision was unfair, prejudicial and in breach of the Board's statutory obligations; and

iv)             the Certified Tribunal Record is missing transcript of the first day of hearing (November 8, 2001);

It is trite law that refugee claimants are entitled to a strict degree of procedural fairness from the Board. I will deal with each argument in turn.

[37]            i)          The Board's Chairperson failed to request that Member Chapley participate in the

disposition of the applicant's claim according to subsection 63(1).

The applicant argued that the Board's Chairperson should have triggered subsection 63(1) of the Act and asked Member Chapley to participate in the disposition of the case within eight weeks of the end of his term. I cannot agree as the wording of subsection 63(2) is permissive not mandatory. To have one member decide a matter is not, per se, unfair. Richard J. (as he then was) stated in Sereguine v. Canada (Minister of Citizenship and Immigration) (1996), 108 F.T.R. 133, [1996] F.C.J. No. 305 (QL) at paragraphs 20 to 23:

Board members are appointed by Order-in-Council [See Note 7 below] for a fixed term not exceeding seven years, after which they cease to hold office. Parliament has given the Chairperson a discretion as to whether or not to request their participation, at any time within eight weeks of ceasing to hold office, to make or take part in the disposition of any matter previously heard by that person. The statute makes it clear that in such event, that person shall be deemed to be a member. Clearly, in the absence of such a request, the person is no longer a member and is unable to perform the functions of that office.

The word "unable" means lacking the ability to perform the functions of the office including participating in decisions. The two Court of Appeal decisions dealing with section 63 make no distinction between decisions made within or without the eight week period.

The Associate Chief Justice has considered this matter and concluded that participation in the disposition of a previously heard matter within eight weeks of a member having ceased to hold office is purely discretionary.

The intent of Parliament, as evidenced by the reading of all of section 63, must be respected. Parliament has granted a discretion to the Chairperson in it's use of the word "may" in subsection 63(1). If the Chairperson chooses not to exercise this discretion, then the departing member is unable to participate in the disposition of the matter.

There was no mandatory requirement for the Chairperson to request Member Chapley to participate in the decision. There is no breach of the rules of natural justice in this respect.

[38]            ii)          The Board failed to ask the applicant to make written submissions on the

propriety of Member Lampert making a decision as a single member.

The applicant submitted that once it was apparent that Member Chapley's term was going to expire before a decision was made on the claim, the Chairperson should have invited submissions from counsel as to how it should proceed. I do not agree as subsection 63(2) of the Act gives the Chairperson a discretion as to whether to ask Member Chapley to take part in the decision in the eight weeks after the expiry of his term. That decision was the Chairperson's decision to make. There was no breach of the duty of fairness.

[39]            iii)         The delay between the time of hearing and date of decision was unfair, prejudicial and in breach of the Board's statutory obligations.

The applicant's hearing was completed on February 27, 2002. The Board's decision is dated January 10, 2003. The applicant argued that this almost eleven month delay constitutes a breach of the Board's duty pursuant to subsection 69.1(9) of the Act to "render its decision as soon as possible after completion of the hearing". Furthermore, the applicant argued that the delay prejudiced his claim because the impact of his testimony would be forgotten after such a long period of time.

[40]            The wording "as soon as possible" does not set a specific time frame for board decisions to be made. There is no doubt that delays in giving board decisions can be frustrating for some refugee claimants. There is no evidence before me that the Board did not render its decision "as soon as possible" after the hearing. The delay of almost eleven months may have been as a result of the workload of the Board. As well, there is no indication that the Board had forgotten the impact of the testimony. I am of the opinion that there has been no denial of natural justice in this respect.

[41]            iv)         The Certified Tribunal Record is missing transcript of the first day of hearing (November 8, 2001).

The applicant submitted that he was prejudiced by the fact that the transcript of the first day's hearing was missing. Pinard J. recently summarized the principles relating to when the lack of a full hearing transcript constitutes a denial of natural justice. In Shergill v. Canada (Minister of Citizenship and Immigration) 2003 FCT 24, [2003] F.C.J. No. 57 (QL), he stated at paragraphs 5 to 7:

The applicant submits that the Board failed to observe a principle of natural justice or procedural fairness when it reached its decision without the benefit of a full transcript of the hearing. The applicant relies on Tung v. Canada (M.E.I.) (1991), 124 N.R. 388, [1991] F.C.J. No. 292 (QL), where the Federal Court of Appeal held that the failure to have a full transcript was prejudicial to the applicant and denied him natural justice. The applicant then cites Kandiah v. M.E.I. (1992), 141 N.R. 232 (F.C.A.), which, he states, narrows the reasoning in Tung, establishing that while the failure of the Board to provide a transcript did not ipso facto vitiate its decision, an appellant could succeed if he shows by the record before the Court that the decision under appeal is wrong. In fact, the Court of Appeal in Kandiah contradicted the findings in Tung:

... the failure of the Refugee Division to make or keep a verbatim record of its hearings is not a ground on which its decisions may be set aside by the Court on an appeal under subsection 82.3(1). The Tung decision, insofar as it says otherwise, should not be followed.

In Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793, the Supreme Court of Canada addressed the conflict between Kandiah and Tung and resolved the issue in favour of the reasoning in Kandiah, which more closely followed the traditional direction of the Court, at pages 840 and 842:

Even in cases where the statute creates a right to a recording of the hearing, courts have found that the applicant must show a "serious possibility" of an error on the record or an error regarding which the lack of recording deprived the applicant of his or her grounds of review: Cameron v. National Parole Board, [1993] B.C.J. No. 1630 (S.C.), which follows Desjardins v. National Parole Board (1989), 29 F.T.R. 38. . . .

. . .

In the absence of a statutory right to a recording, courts must determine whether the record before it allows it to properly dispose of the application for appeal or review. If so, the absence of a transcript will not violate the rules of natural justice... .

Neither the Act nor the Convention Refugee Determination Division Rules, SOR/93-45, require the recording of a refugee hearing, therefore, the Court must simply determine whether the record before it allows it to properly dispose of the application for appeal or review.

[42]            The applicant, in order to establish a breach of natural justice must demonstrate that there is a serious possibility of an error on the record or that the incomplete transcript deprived him of a ground of review. The applicant has not satisfied me that this is the case. There was no breach of the rules of natural justice on this point.

[43]            Issue 3

Was the Board's decision made without regard to the evidence before it?

The applicant submitted that the Board erred by ignoring his personal victimization and focussing on the general situation of homosexuals in Hungary. It is argued that the applicant's personal experience should have been taken into account in the Board's analysis of the discrimination versus persecution issue. Furthermore, the applicant argued that the Board "brushed aside" documentary evidence supporting the well-foundedness of his fear of persecution.

[44]            From my reading of the Board's decision, I conclude that the applicant's credibility was not in question therefore, the Board accepted his testimony concerning his personal situation. This is the subjective aspect of the applicant's well-founded fear. As a result, the Board did not need to assess in detail the applicant's personal situation as the Board accepted these facts.

[45]            There is, however, a second aspect to the applicant's well-founded fear and that is the applicant's subjective fear must be objectively well-founded. In the present case, the Board considered the documentary evidence in detail and came to the conclusion that the applicant's subjective fear was not well-founded. The Board also referred to the reports put forward by the applicant but did not give them as much weight as other reports, such as Amnesty International, and concluded that there was not a serious possibility of persecution were he to return to Hungary. The Board found that there was a serious possibility of discrimination. The decision that there was not a serious possibility of persecution was reasonably open to it. The Board is entitled to deference by this Court on its weighing of the documentary evidence.

[46]            Issue 4

Has the applicant established any other basis for the intervention of this Court?

The applicant submitted that the Board erred in failing to apply the the United Nations Handbook on Procedures and Criteria for Determining Refugee Status, supra. The provisions quoted by the applicant, however, relate to the assessment of the subjective component of the definition of Convention refugee. I do not agree that the Board erred by not referring to this document, since the objective component of the definition was the key issue before the Board.

[47]            The application for judicial review is therefore dismissed.

[48]            Neither party wished to submit a serious question of general importance for my consideration for certification.

ORDER

[49]            IT IS ORDERED that the application for judicial review is dismissed.

                                                                              "John A. O'Keefe"               

J.F.C.                     

Ottawa, Ontario

January 21, 2005

                        FEDERAL COURT OF CANADA

                                      TRIAL DIVISION

   NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-1055-03

STYLE OF CAUSE: ATTILA JOZSEF MOLNAR

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:                                 Toronto, Ontario

DATE OF HEARING:                                  September 20, 2004

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                     January 21, 2005

APPEARANCES:

Mark E. Rosenblatt

FOR APPLICANT

Marina Stefanovic

FOR RESPONDENT

SOLICITORS OF RECORD:

Mark E. Rosenblatt

Toronto, Ontario

FOR APPLICANT

John H. Sims

Deputy Attorney General of Canada

FOR RESPONDENT