Thursday, January 31, 2013

Enbridge's Line 9 reversal project has become a hot button issue in Ontario as Big Oil seeks to expand tar sands markets


Enbridge's Line 9 reversal project has become a hot button issue in Ontario as Big Oil seeks to expand tar sands markets in the 401 corridor, the U.S. and potentially Europe. Line 9 runs from Sarnia, Ontario to Montreal, Quebec, passing within 50 km of an estimated 9.1 million people, including 18 First Nation communities, and directly through 99 towns and cities. In true Orwellian language, the reversal is being sold to the public as a jobs-creating, low impact, and 'ethical' project. It is none of these things.
Early in the application process, Enbridge misled the public by promoting the Line 9 reversal as part of its $3.2 billion "Light Oil Market Access" initiative. Pressure by environmental groups clarified Enbridge's intent to pump tar sands dilbit through Line 9. The early mistrust established by Enbridge foreshadows the ethical doublespeak the public is expected to embrace with the Line 9 reversal. Indeed, the tar sands giga-project is one of the most violent projects on Earth and the extraction of dirty fuel represents at once a blatant case of environmental racism, climate chaos, and ecological catastrophe.
Line 9 was built in 1976 and was designed to carry light crude oil. In July 2012, the National Energy Board (NEB) approved Enbridge's application to reverse the flow of the pipeline from Sarnia to Westover, Ontario, and is currently reviewing Enbridge's application to reverse the rest of the pipeline to Montreal. Crucially, the reversal isn't about the direction of the pipeline flow, but its contents: Enbridge is now openly seeking approval to transport tar sands dilbit from Alberta through Line 9. This raises multiple flags.
First, Line 9 is a 37 years old pipeline and the risks of a spill are higher for dilbit pipelines (particularly old ones) as tar sands crude is more corrosive, and transported under higher heat and pressure. Moreover, if a spill occurs the impact of dilbit is more severe for health, water and land, as dilbit contains higher levels of toxic carcinogens, including naptha and benzene. In 2010, these risks were brought into sharp relief when Enbridge's Line 6B (originally constructed to transport light crude in 1969) ruptured spilling 20,000 barrels of dilbit into the Kalamzoo River in Michigan, a disaster that continues to have devastating impacts on surrounding communities and ecosystems. Most importantly however is the question of 'ethics' and how the Canadian state is responding to the apparent human rights and environmental crisis created by tar sands expansion.
Debunking the jobs argument
A core argument to support the Line 9 reversal has been job creation. In general, job creation has not been the goal of Big Oil -- instead the industry has strived towards mechanization and low-cost labour. The 'jobs' argument for tar sands creates a fictitious division between the economy and the environment, attempting to pit employment against health and environmental concerns. The Canadian Association of Petroleum Producers (CAPP) has projected that about 6335 jobs in Ontario would be related to tar sands by 2035. While seemingly substantive, this would represent less than 0.1 per cent of jobs in Ontario should an unemployment rate of 10 per cent be maintained with continued population trends -- hardly a boom for a rapidly declining economy. For Line 9 specifically, Mike Harris wrote to the Financial Post suggesting, "Ontario will gain 3,250 person-years of direct and indirect employment, and Quebec will gain 1,969 person-years [over three decades]." Breaking down the math, this translates at best to 108 jobs per year for 30 years related to Line 9 in Ontario, and about 66 in Quebec.

Realistically, the majority of the 'person years' of employment would be short term and take place during initial upgrades to Line 9 terminals and construction of a pumping station to reverse the flow. Importantly many jobs are considered 'indirect,' suggesting even lower projections for actual long term employment related to Line 9. For communities in Ontario and Quebec, Line 9 jobs would therefore benefit a very few in Sarnia and Montreal, while the risk of spill affects an estimated 9.1 million people. For Big Oil, the project anticipates billions in revenue at royalty and tariff rates amongst the lowest in the world.
Greedy corporate interests, and a religious belief in neoliberal doctrine by government has meant organized labour has faced massive legislative attacks through Bill C45, and a host of provincial regulations, including Bill C115 in Ontario. In Sarnia, manufacturing jobs have been on the decline for decades. A 2011 report by the Sarnia-Lambton Workforce Development Board notes that between 2001 and 2011, about 1514 jobs were lost in the petrochemical industry, while between 2008 and 2010 about 30 jobs were created. Between 2011 and 2016, the report anticipates a whopping 44 additional jobs will be created. Doing the math, that is an approximate net ratio of 20:1 jobs lost vs. jobs gained in chemical valley over a 15 year period. However, the production and export of petrochemicals has steadily increased since 2000, with a slight decline following the 2008 economic crisis. It's not about jobs, it's about profit, and exploitation.
In Alberta the much heralded tar sands job 'boom' has relied on a racist temporary foreign workers (TFW) program that bars migrant workers from accessing citizenship, as well as upon economic apartheid with a recently legislated 15 per cent difference in pay for 'new' immigrants. This month, the Tyee.ca reported: "Alberta currently has the highest per capita use of migrant workers, largely due to the oil sands projects -- 22 times higher than the rest of the Canada -- and their situation reveals troubling rates of mistreatment. As a 2010 audit by the Alberta Ministry of Employment and Immigration discovered, 74 per cent of migrant workers were mistreated by their employers, who typically violated labour laws on overtime, holiday and vacation pay." Clearly, just, fair, and unionized employment are not goals for tar sands development.
Line 9 reversal: Did you say 'Ethical'?
Communities along Line 9 have expressed opposition to the reversal, citing health, safety, and environmental risks associated with dilbit oil. Politically, these communities have received little support as all three major federal parties have in principle supported the Line 9 reversal, touting its potential economic benefits. In line with politicians, the most zealous endorsement of the Line 9 reversal comes from EthicalOil.org, an organization with documented ties to the Harper government and Big Oil, which in 2012 launched an online petition in support of the Line 9 reversal. The preamble reads: "This should be a no-brainer: more Canadian jobs across the country and more support for ethical Canadian oil instead of bloodstained oil coming from OPEC's tyrants." According to McEthicalTM, reversing Line 9 is a crucial step in ending Canada's "reliance on conflict oil from places like Saudi Arabia, Venezuela and Nigeria. Conflict oil destroys the environment, supports human rights abusers, fuels conflict and war, and exploits its workers."
In denouncing "human rights abusers" and environmental destruction "over there" in OPEC nations, Ethical Oil implicitly paints 'Canada' as a site of freedom, justice, and equality and in so doing, glosses over the devastation perpetuated through the expansion of the tar sands. Domestically, tar sands expansion occurs through the erosion of First Nation rights, exploitation of migrant workers, and criminalization of dissent. Indeed, Canada has been repeatedly condemned by the United Nations for its treatment of Indigenous peoples and by migrant justice activists for its racist immigration policies. Moreover, state repression of political dissent in Toronto during the G20 in 2010, and in Montreal during the Quebec student strike made apparent the will to protect the political and economic status quo over justice and democracy. CSIS, RCMP, OPP, FBI and industry monitoring of First Nation communities concerned about land issues has been widely documented.
Internationally, Canada has become the fuel tank for the U.S. military, the most aggressive and violent force on Earth. Similarly, Canada's extractive industry is globally associated with human rights abuses including forced displacement, gang rapes, targeted assassinations and mine security abuse. In late 2010 a leaked report from the Prospectors and Developers Association revealed that Canadian mining companies are implicated in four times as many violations of Corporate Social Responsibility (CSR) as mining companies from other countries. What's more, despite an acknowledgement in 2005 from Canada's Standing Committee on Foreign Affairs and International Trade (SCFAIT) that Canada, "does not yet have laws to ensure that the activities of Canadian mining companies in developing countries conform to human rights standards," the state has yet to create any regulatory framework for keeping this sector accountable. Ethical indeed.
Ground Zeros: Impacts and issues
At ground zero in Alberta, the Athabasca Chipewyan First Nation (ACFN) has been at the forefront of communities who for decades have called for health and environmental monitoring of tar sands projects. Environmental toxins including carcinogens, gene mutagens, and endocrine disruptors have been poorly tracked by governments, despite widespread knowledge since the 1970s by the Department of Indian Affairs and Department of the Environment of both their existence and potential health impacts (see Larry Pratt's 1976 The Tar Sands: Syncrude and the Politics of Oil). In 2008, Alberta Health indicated a 30 per cent increase of cancers in the community of Fort Chipewyan (where most ACFN members reside). Reports by Elders and community leaders document much more extreme environmental and community health changes, yet still a comprehensive study of health and environmental impacts has not taken place. Only this year -- 81 years after the first tar sands plant came online, and 34 years since the major Syncrude operation began -- have Federal scientists confirmed that carcinogens from tar sands operations are travelling and accumulating in watersheds north of operations.
In Ontario, the Aamjiwnaang First Nation near Sarnia has been described as a 'sacrifice zone' and is considered the most polluted place in North America by the World Health Organization. Currently, an estimated 225 000 barrels per day (bpd) of tar sands are being processed in Sarnia, and the Line 9 reversal will increase dilbit flow by 300 000 bpd. In Michigan, Enbridge has shamelessly used the Line 6B rupture and repair operation to increase the capacity of the pipeline to 500 000 bpd, bringing the total estimated flow of tar sands to Sarnia to over 1 million bpd if the Line 9 and Line 6B projects reach completion. When landowners in Michigan affected by the Kalamazoo spill began to resist Enbridge's plans to rebuild the ruptured 6B pipeline, the US government threatened expropriation of their lands to complete the project.
Sixty-three petrochemical refineries surround Aamjiwnaang (an estimated one third on stolen Aamjiwnaang lands) and it is the first community documented to experience endocrine disruption from pollution: two females are born for every male on the reserve, and 40 per cent of women experience miscarriages. Despite international knowledge of endocrine disruption and a 'cancer epidemic' in the community, the governments of Ontario and Canada have failed to conduct a baseline health study. Both Aamjiwnaang and ACFN citizens have been described the impact of tar sands as a 'slow industrial genocide.'
Tar sands, colonization and resistance
The expansion of the tar sands, and the sixty-three refineries surrounding Aamjiwnaang First Nation are markers of Canada's ongoing colonial legacy, though communities have been actively resisting. Several First Nations have launched lawsuits against governments and industry related to tar sands, asserting that the projects are illegal because in destroying local ecology, the projects violate First Nation’s constitutionally protected Treaty Rights to health, cultural traditions, and land/water integrity (see Aamjiwnaang citizens lawsuit, Beaver Lake Cree lawsuit, and ACFN lawsuits).
In September 2012 the Harper government made public its intentions to terminate the Inherent Treaty rights of First Nations, and in December passed Bill C-45, which makes major changes to environmental legislation, labour laws, and the Indian Act. A recent Greenpeace access to information request revealed that Harper took direction from Big Oil in crafting Bill C45. However, the legislative attack by Harper motivated Chief Spence to commence her fast and demonstrate to the globe true ethics in the face of oppression and environmental racism.
Since the passage of the illegal and undemocratic Bill C45, both the fast by Chief Spence and the Idle No More movement have sparked the largest social movement for Native rights seen on Turtle Island. Civil disobedience has spread throughout the continent with political marches, round dances, blockades, and teach-ins organized to bring attention to land, water and human rights abuses. Importantly, Chief Spence, and Idle No More have inspired and strengthened to voices of those speaking out about the destruction brought by tar sands developments. On Dec. 21, 2012 Aamjiwnaang community members launched a 13 day blockade of a CN Railway switch-line into chemical valley in support of both Chief Spence, and Idle No More, actively keeping 420 rail cars per day from transporting toxic chemicals in and out of their community.
Disturbingly, McEthicalTM spokesperson Ezra Levant has reverted to race-baiting in response to Idle No More, characterizing the 'Indian uprising' as a 'criminal' and even 'terrorist' movement. With regards to tar sands, Ethical Oil has positioned employment in First Nation communities as moral legitimacy for the destruction of land-based economies. Generations of Native communities have experienced apartheid, residential schools, and land theft under the 'Indian Act,' and employment at the community level has been described as akin to ‘feeling like economic hostages’.
Communities have not been given a choice about tar sands development, rather they have had to adapt to unabated expansion. Alternate economic visions based on ecologically and culturally sustainable industries have never been seriously considered. Rather, for communities downstream of projects, inflated prices on basic necessities like food, water, and hydro are the legacies of tar sands development. For those who harvest from the land to subsidize high food costs, the bioaccumulation of toxins in food and medicines has created serious health concerns, and forced many to abandon cultural traditions.
'Canadian' ethics and global climate change
The Harper government has sabotaged international climate negotiations at the United Nations, and is the only country in the world to walk away from the Kyoto accord. NASA scientist James Hansen has argued that further exploitation of the tar sands means game over for the climate, yet the Harper government is ignoring facts in favour of an ideological economic vision of Canada as an 'energy superpower.' Indeed, Harper has cut funding for world renowned climate research while greenhouse gas emissions have continued to grow, and tar sands have been the single largest contributor to increased emissions.
Climate change is expected to contribute to the displacement of an estimated 150 million people by 2050, yet Canada's borders are tightening. The acceptance rate for refugees has declined by roughly 40 per cent since the 1980s, and an average of 15,000 people per year are deported (see more). New federal immigration policies deny refugees healthcare and authorize the government to indefinitely detain refugees who cannot be processed quickly enough or who are deemed "bogus" by the Minister of Immigration. Meanwhile, the amount of people allowed to enter the country under exploitative Temporary Foreign Workers programs continues to rise, providing cheap and precarious labour for tar sands extraction. The Canadian state, provincial governments, and corporations invested in the tar sands have an interest in controlling the flow of people across Canadian borders, and determining under what conditions people are allowed to stay and work in the country.
Attacks on labour, racist immigration policies, violations of Indigenous Rights, international human rights abuses, and no accountability to a planet facing climate chaos are the current realities of 'Canadian ethics,' as espoused by 'Ethical Oil' and the Canadian state. However, communities and allies in Ontario and Quebec are stepping up to stop the Line 9 reversal, because ours is an ethics that embraces free, prior and informed consent, the rights of all peoples, and respect for the earth. We hope you join us.

Monday, January 28, 2013

Globe and Mail reports that a new poll found a solid majority (59 per cent) did not want the debate reopened,

It has been 25 years since the Supreme Court of Canada ruled that banning abortion was unconstitutional and, except for a handful of political flare-ups, that is largely where the debate has rested since.
The Globe and Mail reports that a new poll found a solid majority (59 per cent) did not want the debate reopened, against 30 per cent who did. Another 11 per cent of respondents didn't even seem to want to debate whether the debate should be reopened.
Mario Canseco, vice-president of the polling firm, Angus Reid, told the Globe:
Canadians have mixed feelings about abortion but the attitude is: ‘Let sleeping dogs lie.'
[ Related: Abortion debate rages 25 years after Supreme Court ruling ]
Remember the last U.S. election? When it seemed every Republican near a microphone shared their thoughts on abortion? Representative Todd Akin introduced the world to “legitimate rape” and others compounded the problem, forcing Republican presidential candidate Mitt Romney and his running mate to discuss their own positions on the matter.
North of the border, we have largely avoided swimming in that pool. Officially, Prime Minister Stephen Harper is among those who would rather see Pandora's Box remain sealed.
"Very clearly I am against reopening that debate," he said during the 2011 federal election. "That is my position, now and in the past five years as well, and as long as I am prime minister, we will not reopen the debate on abortion."
[ Related: Parents take fight for double parental-leave to Supreme Court ]
But of course that hasn't stopped the debate from rearing its head from time to time. In September, a Conservative backbencher put forward a motion to review the legal definition of a human being — currently set at the moment it emerges from its mother.
The bill, seen as a bid to establish legal rights for fetuses, was voted down.
In December, another Conservative MP brought forth a motion condemning sex-selective abortion. And while no one was on the side of gender discrimination, some critics viewed the move as bid to open a side door on the abortion debate.
The front door of the abortion debate will remain closed as long as Canadians want it to remain that way. And, really, is there anything that could make Canadians want to talk about abortion?
It’s not as if Justin Bieber’s mother is suddenly going to become a vocal anti-abortion advocate. Things like that just don’t happen in Canada. Please and thank you.

Saturday, January 26, 2013

Dreamliner, safety concerns.

Securaplane is an Arizona-based subsidiary of the UK engineering company Meggitt, which said there was no connection between his dismissal and the Dreamliner battery issue according to reports.
The US National Transportation Safety Board confirmed it was speaking to various witnesses including whistleblowers, as a standard “part of the process” in such investigations.
Mr Leon alleged that Securaplane rushed to ship battery charges that he did not believe conformed to specifications and which he believed could have malfunctioned.
A federal administrative judge ultimately dismissed Mr Leon’s complaints and concluded he was fired for misconduct, according to court documents. The Federal Aviation Administration also concluded that the parts he was concerned about were not used in the aircraft as they were prototypes.
He appealed the decision in 2011 but no decision has been reached according to US reports.
All 50 Dreamliners in service remain grounded pending the conclusion of a safety investigation after a series of incidents were reported by Japanese carriers.
Japanese Airlines reported fuel leaks while a pilot flying an All Nippon Airways was forced into an emergency landing outside Tokyo after a the battery flashed an error warning and the cockpit filled with smoke.
A Japan/US safety investigation is still working to identify the cause of the problem with the battery, and a team was dispatched to Securaplane’s Arizona base this week as part of the inquiry.
A spokesman for the NTSB said the investigation into the Dreamliner battery incident was far-reaching: “We’re looking at everything that could have played some role in this battery mishap. There’s a lot yet to learn.”
The US Senate Committee on Commerce, Technology and Transportation has said that it will look into aviation safety in the coming weeks, taking in the 787 problems.
Boeing’s Dreamliner customers have so far supported the aerospace giant saying they have confidence the company will resolve the issue. While Boeing has continued production of the 787, it has suspended deliveries of the aircraft until the issues have been resolved.

Thursday, January 24, 2013

NTSB: JAL battery did not overcharge; 787

The battery used to start the auxiliary power unit (APU) on the Japan Airlines (JAL) Boeing 787 that caught fire did not overcharge, according to the US National Transportation Safety Board.
In a detailed third update on its investigation into the Jan. 7 fire aboard the JAL Dreamliner while it was parked at Boston Logan Airport, NTSB said examination of flight recorder data indicates the APU battery did not exceed its designed voltage of 32 volts.
The lithium ion battery has become a focus area of the JAL investigation and another investigation into a separate Jan. 16 incident involving an All Nippon Airways (ANA) 787, which had to make an emergency landing in Japan and also appears to have suffered a battery malfunction.
In its update on the JAL incident, NTSB said, “The battery was X-rayed and CT scans were generated of the assembled battery. The investigative team has disassembled the APU battery into its eight individual cells for detailed examination and documentation. Three of the cells were selected for more detailed radiographic examination to view the interior of the cells prior to their disassembly. These cells are in the process now of being disassembled and the cell's internal components are being examined and documented.
“Investigators have also examined several other components removed from the airplane, including wire bundles and battery management circuit boards. The team has developed test plans for the various components removed from the aircraft, including the battery management unit (for the APU battery), the APU controller, the battery charger and the start power unit.”
NTSB added that on Tuesday, the investigative team will meet in Arizona to test and examine the battery charger and download nonvolatile memory from the APU controller. Several other components have been sent for download or examination to Boeing’s facility in Seattle and manufacturer facilities in Japan.
The Japan Transport Safety Board is leading the ANA investigation, with assistance from NTSB. Similarly, JTSB officials have joined the NTSB-led JAL inquiry.
Meanwhile, ANA and JAL have both announced their 787 schedule cancellations have been extended through Jan. 28.
ANA, which was the 787 launch customer and operates 17 Dreamliners, said the total number of 787 flights it has been forced to cancel since the Jan. 16 incident now stands at 320 domestic and 51 international, with more than 50,000 passengers affected.
Flights of all 50 787s operated by eight carriers worldwide have been suspended; FAA grounded the aircraft after the ANA incident, although both Japanese carriers had already suspended flights by then.

Tuesday, January 22, 2013

HISTORIC $50 MILLION GIFT TO PRINCESS MARGARET CANCER CENTRE



Biggest Ever Private Donation To Cancer Research in Canada


 


 




 







(January 21, 2013; Toronto)
 
Canadian philanthropists Emmanuelle Gattuso, Allan Slaight and the Slaight family made history today with a $50 million gift to The Princess Margaret Cancer Foundation. The extraordinary donation is the biggest ever private gift to cancer research in Canadian history and will advance the Princess Margaret Cancer Centre's Personalized Cancer Medicine initiative.

Ms. Gattuso and Mr. Slaight's gift to The Princess Margaret Cancer Foundation's Billion Dollar Challenge is pledged over ten years, and is an investment in human capital. It will create an unprecedented Personalized Cancer Medicine "superfund to support superstars" that will provide the necessary long-term, sustainable funding to attract, support and retain the best and brightest minds in the world whose sole focus is to eradicate cancer. In 2012, Emmanuelle Gattuso and Allan Slaight were named Philanthropists of the Year by the Association of Fundraising Professionals (AFP). The couple has dedicated their lives to transforming the things that matter to them. Helping cancer patients is at the top of their list. As a 10-year cancer survivor, Ms. Gattuso has seen significant change driven by the dedicated scientists and caregivers at The Princess Margaret over the past decade. For Ms. Gattuso, Mr. Slaight and the Slaight family, The Princess Margaret's vision of Personalized Cancer Medicine resonates and is the reason for their generous gift.

Emmanuelle Gattuso commented, "I have been touched by cancer, as have so many friends and family members. Allan and I are extremely pleased to be able to support The Princess Margaret's Billion Dollar Challenge for Personalized Cancer Medicine and hope others will join us. We believe in The Princess Margaret's vision to conquer cancer in our lifetime."

The Princess Margaret Cancer Centre, one of the top 5 cancer research centres in the world, is revolutionizing cancer care by creating and delivering its own distinct model of Personalized Cancer Medicine encompassing four key themes: detect, diagnose, target and support. Personalized Cancer Medicine will help detect cancers earlier, diagnose cancers more precisely, provide targeted treatment, and better support patients and their families through their cancer journey.

"This outstanding gift will add significant momentum to the Princess Margaret Cancer Centre's global leadership role in advancing Personalized Cancer Medicine," said Dr. Robert Bell, President & CEO of University Health Network (UHN).

Dr. Benjamin Neel, Research Director of the Princess Margaret Cancer Centre, said, "This unprecedented "superfund" allows us to build and support research teams focused on precision genomics, advanced tumour biology, immune therapy and molecular imaging." He added, "I truly believe that we can conquer cancer."

"Emmanuelle Gattuso, Allan Slaight and the Slaight family have made this historic gift to our Billion Dollar Challenge to help transform cancer care as we know it today," said Paul Alofs, President & CEO of The Princess Margaret Cancer Foundation. "This will be a revolution that will take place over the next ten years. Please join us as we raise funds to create the new gold standard in cancer care."

In 2009, Emmanuelle Gattuso, Allan Slaight and the Slaight family donated more than $22 million to create The Gattuso Rapid Diagnostic Centre at The Princess Margaret. The centre provides one-day diagnoses and treatment plans to breast cancer patients. Rapid diagnosis is now being embraced by other cancer sites, including colorectal, lung, pancreatic and prostate cancers. To date, The Princess Margaret will have received donations totaling more than $72 million from Ms. Gattuso, Mr. Slaight and the Slaight family.

The Princess Margaret Cancer Foundation launched a Billion Dollar Challenge in April 2012. To date, this challenge has raised $243 million in a combination of donations and grants To donate to Personalized Cancer Medicine at The Princess Margaret, please visit www.ibelieveit.ca


About Princess Margaret Cancer Centre
The Princess Margaret Cancer Centre and its research arm, the Ontario Cancer Institute, which includes The Campbell Family Cancer Research Institute, have achieved an international reputation as global leaders in the fight against cancer and delivering Personalized Cancer Medicine. The Princess Margaret, one of the top 5 cancer research centres in the world, is a member of the University Health Network, which also includes Toronto General Hospital, Toronto Western Hospital and Toronto Rehabilitation Institute. For more information about the Princess Margaret Cancer Centre, visit www.theprincessmargaret.ca or www.ibelieveit.ca.

About The Princess Margaret Hospital Foundation

The Princess Margaret Cancer Foundation at University Health Network raises funds for Personalized Cancer Medicine at the Princess Margaret Cancer Centre and its research arm, the Ontario Cancer Institute, which now includes The Campbell Family Cancer Research Institute. More information about The Foundation can be found at www.thepmcf.ca.


Saturday, January 19, 2013

Date: 20121116 Docket: IMM-610-12 Citation: 2012 FC 1222

Source: http://decisions.fct-cf.gc.ca/en/2012/2012fc1222/2012fc1222.html





Date: 20121116
Docket: IMM-610-12
Citation: 2012 FC 1222
Ottawa, Ontario, November 16, 2012
PRESENT: The Honourable Madam Justice Gleason
BETWEEN:
ADEL BENHMUDA, AISHA BENMATUG, AND MUAWIYA BENHMUDA, MOHAMED BENHMUDA, OMAR BENHMUDA AND ADAM BENHMUDA (by their litigation guardians ADEL BENHMUDA AND AISHA BENMATUG)
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicants are a family of six, comprised of the father, Adel Benhmuda, the mother, Aisha Benmatug, and their four sons. Mr. Benhmuda, Ms. Benmatug and their two eldest sons, Muawiya and Mohamed, are citizens of Libya. Their two younger children are Canadian citizens, having been born in this country in 2000 and 2002. The family now resides in Malta and was granted refugee status in that country in 2010. In this application for judicial review, they seek to set aside the November 8, 2011 decision of the First Secretary (Immigration) of the Canadian Embassy in Rome, who denied their application for permanent resident visas as members of the Convention Refugee Abroad Class and also dismissed the application they made on humanitarian and compassionate [H&C] grounds.
[2] While the applicants raise several grounds in support of their judicial review application, only one needs be considered, namely, their claim that the First Secretary’s decision should be set aside because there is a reasonable apprehension of bias on her part. For the reasons set out below, I have determined that there is merit to this claim and, accordingly, the decision will be set aside and a tailored remedy granted to ensure that the offending information contained in the respondent’s files is excised and the matter is remitted to a new decision-maker, who has not been tainted by the circumstances that give rise to the apprehension of bias. I also find it appropriate to award the applicants their costs in this matter, because the respondent unduly prolonged proceedings in not consenting to judgment after the Certified Tribunal Record [CTR] was filed. Even a cursory look at the CTR should have indicated that the applicants would be successful in their bias arguments, given the striking similarity between this case and the decision of the Supreme Court of Canada in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, [1999] SCJ No 39 [Baker].
[3] Because my decision turns on the facts – including the lengthy immigration history of the applicants – they are discussed in detail below.
Background
[4] The applicants’ immigration history is over a decade long and contains several unfortunate chapters.
[5] In 2000, Mr. Benhmuda, Ms. Benmatug, and their two eldest children, Muawiya and Mohamed, fled from Libya to Canada and made refuge claims upon arrival. The claims were based on the activities of Mr. Benhmuda’s brother, who was an opponent of the Gaddafi regime. While the Refugee Protection Division of the Immigration and Refugee Board [RPD] accepted that Mr. Benhmuda’s brother was an anti-Gaddafi activist, it did not accept that this placed Mr. Benhmuda or his family at risk and rejected Mr. Benhmuda’s evidence as not being credible. The RPD accordingly dismissed their refugee claims in January 2003. An application for judicial review of the RPD’s decision was filed, but it was not perfected. The application was therefore dismissed by this Court on June 13, 2003.
[6] The family settled in Toronto, where Mr. Benhmuda found employment as a laboratory assistant to an optician. (He had worked in his father’s optometry business in Libya.) The family became integrated into their local community. The eldest son, Muawiya, was diagnosed with muscular dystrophy, which contributed to a learning disability, and he received accommodations and support at school as well as medical treatment. The other boys did well in school.
[7] No attempts were made to return the applicants to Libya until 2008, when they were afforded the opportunity to apply for a pre-removal risk assessment [PRRA]. They did so on January 23, 2008. In support of the PRRA application, Mr. Benhmuda filed a letter from his father in Tripoli, confirming that the Libyan police were seeking Mr. Benhmuda, a police summons and reports on the detention of his brother by the Libyan authorities. By decision dated June 10, 2008, a PRRA officer dismissed the family’s PRRA application, finding that because the summons did not set out why the authorities were seeking Mr. Benhmuda, it did not establish that he would be at risk if returned to Libya. The PRRA officer gave no weight to the evidence concerning the Mr. Benhumda’s brother and minimal weight to the letter from the applicant’s father. The applicants did not seek to judicially review the decision on their PRRA application. Nor did they make an H&C application while in Canada.
[8] Following the dismissal of the applicants’ PRRA application, the Canada Boarder Service Agency [CBSA] provided the adult applicants with the forms necessary for CBSA to renew their Libyan passports. The adult applicants expressed reluctance to sign the forms as they feared that if CBSA renewed the passports the applicants would become known to the Libyan authorities as failed refugee claimants and they would be detained upon arrival in Libya. They instead requested and obtained the opportunity to themselves renew their Libyan passports. They did so at the Libyan embassy and the family was deported from Toronto to Tripoli on August 12, 2008.
[9] The applicants had hoped that they could board the flight in Canada with their own passports in hand, but CBSA, in accordance with its usual procedure, took the passports and provided them to the flight crew who, in turn, handed them over to Libyan customs officials when the flight landed in Tripoli. The family was detained and questioned for several hours at the airport by the Libyan authorities, who retained Mr. Benhmuda’s passport. Ms. Benmatug and the children were released but Mr. Benhmuda was taken to Ain Zara prison where he was held for several months. Mr. Benhmuda has filed affidavit evidence indicating that he was subject to repeated torture while incarcerated and that his jailors were intent on learning what connections he had to opponents of the Gaddafi regime in Canada. (Mr. Benhmuda states he had no information in this regard.)
[10] Mr. Benhmuda was released at the end of December 2008. He was unable to find employment in Libya, and the family lived with a number of different relatives, moving from place to place. The children were not able to attend school after funding for private school ran out, as they spoke little Arabic. Medical care was not available for Muawiya’s muscular dystrophy in Libya.
[11] In June 2009, the Libyan authorities again arrested Mr. Benhmuda and held him for an additional two months, during which time he states in his affidavit that he was again interrogated and tortured. Following his release, he learned that the security police were yet again looking for him so he paid a bribe, obtained his passport and Schengen Visas for the family (issued by Malta), which allowed for travel to and throughout the European Union. On January 20, 2010, the family took a flight to Sweden and, upon arrival, made another refugee claim. On May 10, 2010, however, the family was removed from Sweden to Malta because Malta had issued them visas and under the so-called “Dublin II Regulation”, EU Council Regulation (EC) No 343/2003, the applicable EU regulations governing asylum seekers, their asylum claim was to be adjudicated by the visa-issuing state.
[12] In Malta, the family resided for nearly a year in an open air camp, the Hal Far Tent Village Open Centre, where they lived in a shipping container, which did not have running water or cooking facilities. The limited bathroom facilities (for over 600 refugees) were shared, and Ms. Benmatug and the younger children could not use the facilities at night due to assaults that occurred there. The Jesuit Refugee Service, in a letter written on the applicants’ behalf, described the living condition in the camp as falling “…way below acceptable standards for dignified living” (Certified Tribunal Record [CTR] at p 175).
[13] In light of the conditions in the camp, the torture Mr. Benhmuda suffered and the family’s attachment to Canada, their counsel sought the intervention of the respondent, requesting either a Temporary Resident Permit, expedited resettlement to Canada as Government Assisted Refugees or H&C consideration. Representatives of the respondent in Ottawa indicated that they would give consideration to a resettlement request if an official request were made by the United Nations Commissioner for Refugees [the UNHCR].
[14] On December 17, 2012, a Resettlement Officer with UNHRC’s Malta office emailed the respondent’s embassy in Rome to request an opportunity to discuss the applicants’ situation. A mere eighteen minutes later, Laurent Beaulieu, an Immigration Officer at the Embassy who was temporarily acting as the section manager that day, replied by email, indicting that he did not see what could be done, noting that the applicants had been rejected as refugee claimants in Canada “after an exhaustive process”. Officer Beaulieu concluded his email by suggesting that the UNHCR might “wish to look at other options” (CTR at p 222).
[15] The UNHCR responded that it had been advised by representatives of the respondent in Ottawa that resettlement would be considered if a formal request were made and requested contact information for such a request. The respondent eventually advised that Officer Beaulieu would be charged with handling the UNHCR’s request.
[16] On February 15, 2011, the UNHCR issued a Resettlement Registration form, requesting that Canada accept the applicants as refugees. Even though the applicants, by that time, had been granted refugee status in Malta, had been relocated to an apartment and the children were attending (or, in Muawiya’s case, slated to attend) Maltese schools, the UNHRC nonetheless submitted that the applicants did not have a durable solution in Malta, in part due to the number of refugees that the small country needed to accept and to the xenophobia the UNHCR claimed existed in Malta towards Muslim immigrants from North Africa. In the application, the UNHCR suggested that Canada should accept the resettlement of the applicants by reason of the family’s close ties to Canada (including the fact that two of the children are Canadian citizens) (see CTR at pp 118-134 ).
[17] The UNHRC emailed the resettlement request to Officer Beaulieu on March 4, 1011. At that point, the applicants had not yet filed an application for resettlement from outside Canada as members of the Convention Refugees Abroad Class under section 144 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the Regulations]. As is detailed below, these forms were filed in early July 2011, when the respondent required the applicants complete them.
[18] Email exchanges between Officer Beaulieu and the respondent's managers in Ottawa and Paris, that occurred between March and July 2011, highlight the tensions between the visa post in Rome and the respondent's headquarters in Ottawa. In the email exchange Officer Beaulieu also expressed his views on the merits of the applicants’ applications and clearly indicated they would be rejected. These statements were made based on incomplete and inaccurate information, were repeated in several emails from Officer Beaulieu and were made before the applications were even filed and before the applicants were interviewed. Officer Beaulieu’s email exchanges were copied to several individuals at the Rome visa post and were contained in the file that the First Secretary considered in reaching her decision. Because these emails are the central pieces in the applicants’ bias claim, large parts of the exchanges are reproduced below.
[19] By email dated March 18, 2011, Judy Renwick, one of the respondent’s managers at headquarters in Ottawa, wrote as follows to Officer Beaulieu:
I am writing further to our telephone conversation of March 1, 2011, concerning Mr. Ben Hmuda [sic] and his family who, as you know, are to be referred to your office by the UNHCR for resettlement in Canada.
First allow me to address your concern and clarify Case Management Branch’s (CMB) involvement in this case. At no time did CMB indicate to counsel or to the UNHCR, that Citizenship and Immigration Canada will be facilitating the return of this family to Canada. CMB has always communicated that the visa office would conduct their assessment of the case.
[…]
We have been advised by the UNHCR that the referral has been submitted to your office. Could you confirm if it has been received and a file created?
[…]
(CTR at p 238)
[20] Officer Beaulieu replied as follows on March 21, 2011:
[…] Thank you for your message and clarification. We first heard of this case by phone call from the UNHCR Malta who told us that someone (never got a name despite frequent inquiries) in CIC had said we would expedite and return this family to Canada. UNHCR Ottawa and the lawyer are the ones who are pushing for this family to be returned pronto to Canada. Find this odd that UNHCR would be involved to make this case a priority with a family who has been resettled in Malta by Maltese authorities, when there are so many other urgent cases due to the crisis in the Mag[h]reb.
We received last week a UNHCR Registration Form for this family but nothing else. The registration form also contains information you already would have seen from their initial application in Canada, referring to events in L[iby]a which occurred some time ago prior to the current uprising against the [Gaddafi] regime. At this point I wish to review what is presented, though I have some concerns this family has decided they will not accept any other resettlement country but Canada. I also learned from UNHCR Malta that the family [was] in Sweden, they tried to enter Sweden but the authorities told them that since they had already entered the Shengen Zone of the European Union at Malta, the well known rule is that you make you[r] claim at the first border point, in this case Malta […] The family returned to Malta, made a new refugee claim and were accepted. Now Canada is again the focus of their attention and again according to UNHCR Malta, not finding life in Malta to their liking are once again trying for Canada.
We also have an email correspondence from Aisha Benhmuda to Andrew Brouwer where she suggest[s] they go to the media to pressure CIC, I am concerned with this approach, a form of blackmail.
I do not see what is Canada's obligation this case, they were heard and the applicant[s] received the attention they deserved. A decision was made, they returned to L[iby]a and then decided after some time, on their own, to leave L[iby]a again for Sweden and are now in Malta.
The other issue has to do with the four children, or at least one of them who appears to have a medical problem that may render him inadmissible. The two youngest children who are born in Canada are 10 and 8 years old. I note that the initial grouping of this family is 6 persons but the UNHCR has added the rest of the family (all other relatives living in Tripoli) 16 other individuals.
What this family wants is another refugee claim hearing from us in the hope that this time they will be successful. Since the claim was already heard in Canada do not see what mechanism we have here to re-hear yet again same claim. Also am concerned for the precedent being set, since the applicant has been resettled by the Maltese authorities, why are we giving the impression that we are willing to take refugees resettled in safe countries and resettle them in Canada.
As for your role, we cannot act without instruction since this case came from Ottawa and CMB is involved. Rome [as] you know does not have any refugee target […]
(CTR at p 237)
[21] By email dated April 12, 2011, Ms. Renwick wrote to Officer Beaulieu that “[w]e noticed that in your email of March 21, 2011, you expressed concerns that the family was seeking a review of the claim that was heard before the IRB. However it is our understanding that the current UNHCR’s referral speaks to persecution and events which occurred after the family was deported from Canada”. The email continued, noting Officer Beaulieu’s “concerns” regarding the processing of the case and reassuring him that the decision on the application rested with the visa post in Rome and not Ottawa. Ms. Renwick attached to her email the submissions that had been made by counsel for the applicants, which included several documents that were not before the RPD or the PRRA officer (CTR at p 168). Notable in this regard were a letter from Mr. Benhmuda’s former employer in Canada, offering him employment in the event he returned to Canada, because he was “one of [their] best employees (Applicants’ Record at p 87) and a strong submission from a teacher at the children’s school, who wrote in eloquent terms regarding the children’s best interests and her knowledge of the family (Applicants’ Record at p 106).
[22] The fact that the applicants were relying on facts that were not before the RPD and were also advancing an H&C application appears to have been ignored by Officer Beaulieu. On April 20, 2011, he forwarded a case analysis to the respondent’s office in Ottawa and in his cover email concluded:
Since we do not have an application filled out and only various summaries about this family, I recommend we not invite them to apply and inform UNHCR Malta that we will not consider this case. Malta has offered a solution and has recognized this family according to the information we have received. I also understand that the family would much prefer to go to Canada instead. However the long-established princi[ple] remains that refugee claimants do not get to choose country of resettlement.
(CTR at p 248)
[23] In his attached case analysis, Officer Beaulieu wrote as follows:
Both Adel Ben-Hmuda and his spouse Aisha Ben-Matug who was already in advance state of pregnancy, traveled to Canada as tourists on 4 July 2000 with two children Mohamed and Muawiya.
[…]
The refugee claim was rejected by the IRB, no appeal was made and all other avenues open to the applicant and his spouse [were] rejected. The family was removed from Canada on 12 August 2008. The applicant and his family spent 8 years in Canada at public expense.
[…]
Adel Ben-Hmuda is not happy [or] satisfied with the asylum provided for him and his family and is seeking to move to Canada and present yet again another refugee claim based on the same claim presented in 2000, according to information from UNHCR Malta.
[…]
However given that while Adel Ben-Hmuda and his wife Aisha Ben-Matug [were] in Canada they had two other children, Omar and Adam. These two children are Canadian Citizens by birth. The family hopes to gain entry to Canada by using the Canadian Citizenship of these two minor children, who because of their citizenship could not be considered refugee claimants.
What is also interesting in this case is that the UNHCR presents this case to us as if the whole family where [were] refugees, when in fact two members are Canadians and the four others have been resettled in Malta.
The sole argument made by the family is that they would prefer to live in Canada. Though if we follow their travels we see that Sweden was also a chosen option for them until they were told they had to apply in Malta.
I also note that Adel Ben-Hmuda declares suffering from diabetes and one son suffers from muscular dystrophy. It is likely that this family will be in need of social assistance and other social services.
[…]
It should be explained to this family that you cannot choose a country of asylum and once asylum has been granted, you cannot start another asylum claim elsewhere.
I recommend we not consider this case given that it has been settled by Malta. There is no claim for us to consider.
[Emphasis added]
(CTR at pp 249-250)
[24] Many of the facts in this analysis are inaccurate. In light of the job offer and the fact that Mr. Benhmuda had been employed for the majority of the time the family lived in Canada, there was no basis upon which Officer Beaulieu could conclude it was likely that the family would be in need of social assistance if they returned to Canada. Nor had the family remained in Canada for eight years at public expense. Likewise, the family did not pursue all avenues open to it while they lived in Canada. Notably, judicial review applications were not pursued and, more importantly, no H&C application was made. Officer Beaulieu additionally ignored the fact that the family was relying on circumstances that had not been considered by the RPD and the PRRA Officer, including the incarceration and torture of Mr. Benhmuda by the Libyan authorities. The analysis also fails to discuss the applicants’ request for H&C consideration, the situation in Malta, the family’s ties to Canada and the children’s best interests. It also contains gratuitous comments, like the mention that Ms. Benmatug “was already in advance state of pregnancy” when the family first sought refuge in Canada.
[25] Ms. Renwick replied the next day, inquiring as to whether Officer Beaulieu had consulted with his manager about the case. Officer Beaulieu replied a few minutes later, noting that they “were just talking about [the] case” when Ms. Renwick’s email arrived and that “consensus in Rome [was] that [they would] write to the Head of UNHCR to inform him that [they would] not consider this case” [emphasis added]. Officer Beaulieu continued as follows in his April 21, 2011 email:
We do not have an application with us at this time. What we have is a series of documents explaining the case. In reading those documents it is clear that there is no new claim to examine and that what we have was examined in Canada years ago and decided upon. It is interesting to note that UNHCR Malta only approached us after being told by UNHCR Ottawa that CIC would reconsider the case and was favourably disposed towards the family. How they came to that conclusion has never been made clear. We are also aware that the applicant has a lawyer in Ottawa. However this has not swayed us.
Now Malta is a signatory to the Convention and an EU member has acc[ep]ted the case and is resettling the family on its territory. We should also not forget that the family had originally tried to present a claim to Sweden. The [on]going Civil war in L[iby]a and the support the EU is now showing for the rebellion and the NATO strikes indicates clearly that the regime of [Gaddafi] is at an end.
What remains is the fact that Mr. Adel Ben Hmuda stated that he would prefer to live in any other country than Malta. That of itself is not sufficient to support priority resettlement to Canada. He has 2 children born in Canada and 2 born in L[iby]a, the argument that he should be resettled in Canada because of [his] 2 Canadian children is not an overwhelming factor. It is in this case the only factor he presents, as for the health issues for himself and one other child, Malta has modern facilities like any other Western European country. Had this been determining factors to begin with, the family would not have been removed from Canada in the first place.
So given these facts we will send a letter to UNHCR declining to proceed on this case as per my recommendation in my analysis.
[….]
[Emphasis added]
(CTR at p 246)
[26] Once again this email contains factual inaccuracies in that it fails to recognize that there were several new facts and a new request for H&C consideration that the applicants wished to advance, which had not previously been ruled upon.
[27] The tug-of-war between Ottawa and the Rome visa post continued. On May 11, 2011, Ms. Renwick wrote to Officer Beaulieu, noting that representatives in Ottawa had met with representatives of the respondent in the international region the preceding week and had “determined that the Ben Humda [sic] family meets the UNHCR’s criteria for resettlement referral in that they do not have a durable solution in the EU and they have a connection to Canada”. She continued by stating that the family also met the requirements of section 150(1)(a) of the Regulations and requested that Officer Beaulieu open a file and process the application. She reiterated that counsel for the applicants had been in touch with the respondent’s Ottawa office to reiterate the family’s request for H&C consideration in the event they could not meet the requirements of the Convention Refugee Class and noted that target space to accept government sponsored refugees could be allocated to Rome, if that were necessary to facilitate the processing of the application. She concluded her email by requesting Officer Beaulieu to advise as to the file number he opened to process the family’s applications (CTR at p 245).
[28] On June 16, 2011, counsel for the applicants wrote to the Rome visa post, asking for an update on the processing of the case and a file number. He also noted that he had learned from the respondent’s office in Ottawa that the Rome visa post had forwarded forms directly to the adult applicants, for completion (CTR at p 151). The forms in question were signed by the applicants and forwarded to the Rome visa post by counsel for the applicants on July 1, 2011.
[29] After the case received media attention in Canada, the respondent’s Paris office (to whom the Rome visa post appears to have reported) became involved, and the manager of the Paris office wrote to Officer Beaulieu, requesting details about the case. On July 6, 2011, after having received the applicants’ application forms a few days earlier, Officer Beaulieu wrote to the manager of the respondent’s Paris office, noting that he had already explained to Ms. Renwick that he was going to refuse the case and did not understand all the back and forth between the respondent in Ottawa and the UNHCR in Malta. The Paris manager replied, noting that Officer Beaulieu was bound to consider the new facts raised by the applicants as well as the various grounds for admissibility they were invoking, and directed Officer Beaulieu to ensure that in-depth interviews were conducted, as they were absolutely required (CTR at pp 278-279).
[30] Officer Beaulieu was transferred from Rome in late July and the case was assigned to the First Secretary for decision. She was newly-arrived at the Rome visa post. The entire file, including Officer Beaulieu’s emails and analyses, was placed before her to consider in reaching her decision. She travelled to Malta and interviewed the applicants at length before writing her decision.
[31] In her November 8, 2011 decision, the First Secretary rejected the applicants’ resettlement application because they had been granted refugee status in Malta and found that H&C considerations did not warrant granting an exemption. Much of her reasoning echoes the comments made by Officer Beaulieu in his various emails. Notably, she found that:
  • The family had “full access to the benefits and processes of Canada’s refugee determination system”;
  • The applicants were asylum shopping and based their claim on the fact that they preferred the conditions in Canada to those in Malta; and
  • The applicants could safely return to Libya following the overthrow of the Gaddafi regime.
The Issues
[32] In light of the foregoing, three issues arise in this case:
1. Do the applicants have a reasonable apprehension that the First Secretary was biased in light of the materials in the record that were placed before her?
2. If so, what is the appropriate remedy?
3. Should the applicants be awarded their costs, which is unusual in a judicial review application in the immigration context?
Reasonable Apprehension of Bias
[33] The applicants submit that the test for a reasonable apprehension of bias is set out in Committee for Justice and Liberty v National Energy Board, [1978] 1 SCR 369, where Justice de Grandpré states that the test involves asking “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly” (at para 44). The respondent further argues that, as in Baker (cited above at para 2), a reasonable apprehension of bias arises here given the comments made in Officer Beaulieu’s notes, which contain multiple indications that Officer Beaulieu had prejudged the case, based on inadequate and inaccurate information and the fact that these notes were placed before the First Secretary.
[34] The respondent, on the other hand, argues that the formulation of the test for a reasonable apprehension of bias has been articulated in the context of visa officers to require only a lack of conflict of interest and a “mind that is open to persuasion”, citing in this regard Au v Canada (Minister of Citizenship and Immigration), 202 FTR 57, [2001] FCJ No 435 [Au] and Horvat v Canada (Minister of Citizenship and Immigration), 2003 FCT 262, [2003] FCJ No 354. The respondent argues that application of this test results in a determination that the First Secretary was not biased because she conducted interviews of the applicants and there is no evidence that she (as opposed to Officer Beaulieu) had prejudged the case.
[35] In my view, this case is on all fours with Baker and, indeed, bears a striking similarity to many of the facts in that case. There, an officer, who was someone other than the officer who had decided Ms. Baker’s H&C application, compiled notes that the decision-maker reviewed before rendering the decision. These notes concluded that Ms. Baker would be a “tremendous strain” on the Canadian social welfare system for the rest of her life and mentioned her psychiatric condition, limited skills and training and number of children she had, using capital letters at several points for emphasis. The conclusion stood in contrast to the evidence that Ms. Baker had filed from her treating psychiatrist, which indicated that she was recovering from her illness and might be able to work in the future. Justice L’Heureux-Dubé held that the duty to act fairly and in a manner that does not give rise to a reasonable apprehension of bias applies to all immigration officers involved in the handling of an application, who play a significant role in the making of decisions. Thus, notes from the officer that were considered by the decision-maker could – and did – give rise to a reasonable apprehension of bias. Justice L’Heureux-Dubé concluded that a well-informed member of the community would perceive bias when reading the notes in Baker, which seemed to link Ms. Baker’s mental illness, her training as a domestic worker and the fact she had a number of children with the conclusion that she was likely to be a strain on the social welfare system. Because this conclusion was contradicted by the evidence, she found there to be a reasonable apprehension of bias.
[36] An identical conclusion must be drawn in this case. Here, Officer Beaulieu clearly prejudged the applicant’s claims, jumping to conclusions before he had even received a formal application. Moreover, his conclusions were based on inaccurate information. Thus, his lack of objectivity is even more striking than was the case with the author of the notes in the Baker case. In addition, Officer Beaulieu’s emails reflect a similarly troubling tone and lack of objectivity, evidenced, for example, by his needless comments regarding Ms. Benmatug’s pregnancy and the comments regarding the number of members of the applicants’ extended family in Libya. Moreover, as in Baker, the documents Officer Beaulieu authored were considered by the decision-maker. And, indeed, one of the offending emails indicated that the entire Rome visa post had reached the conclusion that the applications were to be dismissed, before they had even been submitted. As in Baker, it is my view that a reasonable, well-informed member of the community would perceive bias in reading Officer Beaulieu’s emails and therefore have a reasonable apprehension that the First Secretary did not have a mind that is open to persuasion, to use the terminology from Au and Horvat. This apprehension is not undone by the fact that the First Secretary conducted interviews of the applicants. Rather, a fair-minded person would believe that she had prejudged the case, through her reading of the file and making of several conclusions that are very similar to those reached by Officer Beaulieu. Accordingly, a reasonable apprehension of bias has been shown to exist, and the decision of the First Secretary must be set aside.
Remedy
[37] The applicants request that in the event I find a reasonable apprehension of bias, I order that all Officer Beaulieu’s notes, emails in which he expresses an opinion and other similar analyses be stripped from the file and the matter be remitted to a visa post other than Rome, for fresh consideration by individuals who have not previously been involved in considering the file. The applicants also request that, given the passage of time, the nature of the application, and the events the applicants have endured, I order that the re-determination be conducted within 90 days or otherwise provide for ongoing supervision by the Court of the re-determination to ensure it is completed expeditiously.
[38] While not contesting the propriety of expunging the offending materials from the file, before the re-determination is conducted (if one is ordered), the respondent argues that there is no need to referred the file to visa post other than Rome, arguing that it moves individuals between posts frequently and that, were I to order the file transferred to visa post other than Rome, it is not inconceivable that Officer Beaulieu might be involved in the re-determination. As for the applicants’ request for a time limit on the re-determination, counsel for the respondent objected to the same as she was not in a position to advise how long a re-determination might reasonably require.
[39] Given the comments in one of Officer Beaulieu’s emails, which noted that the entire Rome visa post had concluded that the applications should be denied (well before the applications were actually filed) and the fact that his emails were copied to several others at the Rome visa post, in order to ensure a fair re-determination, I believe the file must be remitted for fresh consideration at a visa post other than Rome. The respondent’s concerns, regarding inadvertently involving Officer Beaulieu, can be addressed by ensuring that the file is not sent to the visa post to which Officer Beaulieu has been transferred.
[40] As for the request that the matter be re-determined on an expeditious basis within a stipulated time period, counsel for the respondent ought to have been prepared to deal with this request during the hearing of this application, as a request for this remedy was clearly set out by the applicants in their Further Memorandum of Fact and Law. Thus, counsel’s inability to provide the Court with information regarding how long the respondent might need in order to conduct a re-determination is no reason for denying the applicant’s request. In the absence of any evidence or argument from the respondent regarding the reasonableness of the 90-day time period, I have ordered that the re-determination be conducted within 90 days, leaving open the possibility that the respondent may apply to the Court for an extension, in the event it is impossible for it to meet a 90-day deadline.
Costs
[41] Pursuant to Rule 22 of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22, special reasons are required before costs may be awarded in an immigration application for judicial review. Such special reasons have been held to include situations where one party has unreasonably prolonged proceedings or acted in an oppressive or improper manner or in bad faith (Johnson v Canada (Minister of Citizenship and Immigration), 2005 FC 1262 at para 26 [Johnson]; Ndererehe v Canada (Minister of Citizenship and Immigration), 2007 FC 880 at para 29). The respondent relies on Johnson to argue that costs should not be awarded against it. In that decision, Justice Dawson declined to award costs because, although the decision of the RPD was perverse, the respondent consented to the decision being set aside “on a timely basis” after the CTR was delivered. The respondent would have been well-advised to adopt a similar approach in this case, as, in my view, the case’s outcome was a foregone conclusion, given the striking similarity between it and Baker. Moreover, while there is no evidence of bad faith on the respondent's part, Officer Beaulieu did behave improperly in prejudging the applicants’ applications and in basing his recommendations on a fundamental misapprehension of the facts before him. Accordingly, the applicant shall have their costs in the lump sum amount of $5000.00 which I have determined is a reasonable amount, with reference to the amounts awarded in somewhat similar circumstances in Ndererehe v Canada (Minister of Citizenship and Immigration), 2007 FC 880.

JUDGMENT
THIS COURT’S JUDGMENT is that:
1. This application for judicial review is granted and the decision of the First Secretary (Immigration) in Rome, made on November 8, 2011 is set aside;
2. The respondent shall forthwith remove from its files all of Officer Beaulieu’s emails and analyses in which he expresses any opinion on the merits of the applicants’ applications, any similar analyses or expressions of opinion contained in the applicants’ files and the First Secretary’s November 8, 2011 decision;
3. The applicants’ applications for permanent resident visas as members of the Convention Refugee Abroad Class and for H&C consideration shall be remitted to a visa office, other than Rome, where Officer Beaulieu is not employed. The Officer to whom the applications are submitted for re-determination shall have had no previous involvement in the applicants’ files;
4. The applicants shall be afforded the opportunity to file additional evidence and to make additional submissions for consideration on the re-determination regarding any new matters that may have arisen since July 2011;
5. The respondent shall complete the re-determination as expeditiously as possible and in any event within no later than 90 days following the date of this decision. If it is impossible for the respondent to do so, it may apply to this Court for an extension of the 90-day time limit;
6. No question of general importance is certified. No question was proposed for certification and none arises in this case as my decision is closely tied to the facts; and
7. Costs are fixed on a lump sum basis in the amount of $5000.00, inclusive of fees, disbursements and HST, to be paid by the respondent to the applicants.
"Mary J.L. Gleason"
Judge


FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-610-12
STYLE OF CAUSE: Adel Benhmuda et al v The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 13, 2012
AMENDED REASONS FOR
JUDGMENT AND JUDGMENT: GLEASON J.
DATED: November 16, 2012
APPEARANCES:
Andrew J. Brouwer
FOR THE APPLICANTS
Neeta Logsetty
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Refugee Law Office
Toronto, Ontario
FOR THE APPLICANTS
Myles J. Kirvan, Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT