AuthorMitchell, Teresa
  1. Discrimination Based on Country of Origin

    The Federal Court of Canada has struck down as unconstitutional a provision of the Immigration and Refugee Protection Act (IRPA). In 2012 the Act was changed to create two categories of refugees, based on their country of origin. So called "safe countries" were deemed unlikely to produce refugees and other countries were deemed "not safe". Refugee claimants from designated "not-safe" countries were obliged to wait two years longer for a risk assessment of their removal from Canada. A risk assessment looks at risk to life, to torture or to cruel treatment. A group of Romani from Hungary (a non-safe country) claimed that they were discriminated against on the basis of nationality, contrary to s. 15 of the Canadian Charter of Rights and Freedoms. Justice Boswell of the Federal Court of Canada agreed that they were. He used a two-step analysis:

    * does the law draw a distinction based on one of the grounds of discrimination under the Charter, and if so,

    * does the distinction impose a burden or deny a benefit to the person affected.

    On the first step, Justice Boswell stated "the differential treatment is clearly a distinction based on the national origin of the refugee claimant". With regard to the second step, he ruled that discrimination based on national origin perpetuates prejudice or stereotyping. He wrote: "It perpetuates a stereotype that refugees from DCO (designated countries of origin) countries are somehow queue-jumpers or bogus claimants who only come here to take advantage of Canada's refugee system and its generosity."

    Justice Boswell ruled that the offending section of the Immigration and Refugee Protection Act violated s. 15 of the Charter (equality) and it could not be saved under s. 1 of the Charter as a reasonable limit on freedoms as justified in a free and democratic society.

    Feher v. Canada (Public Safety and Emergency Preparedness), 2019 FC 335 (CanLII)

  2. A No Contest Clause Challenges Fortitude

    A no contest clause in a will is a bit like a "double or nothing" bet. It is meant to discourage beneficiaries from contesting a will and says that if a beneficiary unsuccessfully challenges a will, he or she forfeits their gift altogether. In a case recently decided by the Alberta Court of Appeal, the Court considered whether a beneficiary asking the personal representatives of the testator to obtain formal proof of the will, as opposed to a grant of probate in...

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