Wednesday, 8 April 2009

Court rules on CAF injunction

Recently Jason Kenney, the Clown Prince of Cabinet, announced he was cutting of government funding to the Canadian Arab Federation because of its stance on the recent Gaza war - accusing CAF of being anti-Semitic. CAF went to court to seek an injunction to continue the funding. The court ruled today and while the emergency injunction was not granted since the ESL program CAF ran can be run by other groups the ruling does open the way for Kenney's decision to be overturned when a full hearing into the matter is held. Here is the conclusion of Justice Kellen's ruling.

CONCLUSION

[30] Does the Minister of Citizenship and Immigration have the right to cancel the contract with the Canadian Arab Federation for this ESL program for new Canadians because its president made public comments attacking the Minister’s political positions and personal character? Is it appropriate for government to cancel the contract because the Canadian Arab Federation loudly protests the Israeli invasion of Palestine, and calls a Canadian cabinet minister a name for not opposing the Israeli invasion?

[31] Being a target of public criticism is part of holding political office. If the Minister decided to cancel the English as a Second Language funding contract for the Canadian Arab community simply because he was called a name in the heat of a political protest against the Israeli attacks in Gaza, his decision should not stand. It was not unexpected that the Arab community would be repulsed by Israel’s invasion of Gaza. Naturally, the Arab community was upset that the Canadian government did not strongly protest this attack. Many reputable Canadian Jews were similarly opposed to Israel’s attack on Gaza.

[32] However, the Court recognizes that Mr. Kenney alleges that the Canadian Arab Federation is racist, anti-Semitic, and a supporter of a terrorist organization and that it was for these reasons that he cancelled the contract, and not because he was called a name.

[33] Regardless of his reasons for cancelling the funding contract, the Minister clearly owes a duty to the Canadian Arab Federation to give them notice that he intends to cancel the contract, provide the reasons for cancelling the contract, and give the Canadian Arab Federation an opportunity to respond before making his decision. The Minister may have breached the duty of fairness in this regard. For that reason the Minister’s decision may be set aside by the Court after a full hearing. This is a serious issue, an elementary principle of administrative law, and the Minister and his officials must act according to the law.

[34] In this case the Minister has made arrangements so that the CAF employees working exclusively on the LINC contract will continue to be employed and the LINC program will continue. Accordingly, the employees of the Canadian Arab Federation and the community that it serves will not suffer irreparable harm. As a result, the Court will not grant an interim injunction. At the same time, this application for judicial review of the Minister’s decision can proceed and the Canadian Arab Federation may obtain a decision declaring that the Minister’s decision was illegal. Following that, the Canadian Arab Federation may be entitled to commence an action for damages, but that is all in the future.

[35] On the other hand, at the full hearing of this application to set aside the decision of Minister Kenney, the Minister’s evidence may satisfy the Court the applicant should not be extended funding for the reasons cited by Mr. Kenney, namely anti-Semitism, hate mongering and support of terrorism. The Court will decide this question after a full hearing of the evidence on both sides.

[36] For these reasons, this motion for an interim injunction must be dismissed.


The full decision can be found here.
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1 comment:

Blazing Cat Fur said...

Thanks. It will be an interesting day in court if this ever makes it there.