Effective Advocacy. Consistent Results.
Selected Courtroom Experience:
- Abbasbayli v Fiera Foods Company, et al, 2021 ONCA 95 (Court of Appeal for Ontario, per van Rensburg, Hourigan and Brown JJ.A.)
Appeal (Employment). On February 16, 2021, the Court of Appeal for Ontario released a very interesting decision, which provides useful guidance in a number of employment and civil litigation issues. Our client was successful on appeal.
- D.J. v M.M.B.G., File No.:0007387-CL000 (Ministry of Labour, ESA Branch)
ESA Complaint (Severance). On March 8, 2021, the Ontario Ministry of Labour (Employment Standards Branch) found that the employee’s failure to return to work because of his fear of contracting and passing COVID-19 virus to his parents amounted to a willful neglect of duty. As a consequence, the ESA Officer found that our large corporate client is not required to pay termination pay and severance pay to the employee. This decision re-affirms that employees are still expected to report to work in the context of COVID-19.
- Surmanidze v Canada (MPSEP), File No.: IMM-7466-19 (Federal Court, per Pentney J.)
Judicial Review (Refusal to Defer Removal). On Friday, March 19, 2021 Justice Pentney granted leave to judicially review the CBSA’s decision not to administratively defer our client’s removal. Previously, the Federal Court granted the injunction (2019 FC 1615), which stayed our client’s removal from Canada.
- Christoforou v John Grant Haulage Ltd., 2020 CHRT 33 (Canadian Human Rights Tribunal, per Khurana J.)
Application (Discrimination). After – 7 years of litigation – 13 days of contentious hearings – 11 witnesses – a motion to exclude an expert witness (2016 CHRT 14) – a mistrial motion – a motion for recusal (2017 CHRT 17) – the Tribunal’s member abdication & disappearance – and a 44.8 months delay in issuing a decision, the Canadian Human Rights Tribunal ruled in our client’s favour on the issue of discrimination due to disability and John Grant Haulage Ltd’s failure to accommodate it.
- Harvey v ViaRail, 2020 FCA 95 (Federal Court of Appeal, per Laskin J., De Montigny J., Woods J.).
Appeal (Human Rights). Appeal from the Federal Court’s judgment, which upheld the adequacy of the Canadian Human Rights Commission’s investigation into the alleged human rights complaint. The FCA agreed with the FC and dismissed our client’s highly contested appeal.
- Holl v The Foundation for Student Achievement, Court File: 756/18 (Divisional Court, Pattillo J.)
Appeal (Employment). On Friday, February 21, 2020, Mr. Justice Pattillo upheld the trial judge’s judgment dismissing a claim for wrongful dismissal and confirmed that the Foundation’s termination clause was valid and enforceable. The court also awarded $10,000 in costs in our client’s favour.
- Surmanidze v Canada (MPSEP and IRCC), 2019 FC 1615 (Federal Court, Pentney J.)
Injunction (Stay of Removal). On Friday, December 13, 2019, Mr. Justice Pentney heard an emergency injunction to stop deportation, which is a rarely granted extraordinary, discretionary relief of an equitable nature. On Saturday, December 14, 2019, or just 1.5 days prior to the scheduled removal, Justice Pentney issued a 20-page decision, granting a stay of removal.
- Amphenol Canada Corp. v S., at el, 2019 ONCA 932 (Ontario Court of Appeal, van Rensburg, Paciocco and Thorburn JJ.A.).
Motion. Motion to quash an appeal for the lack of jurisdiction, where the Court of Appeal of Ontario provided helpful guidance vis-a-vis the court’s jurisdiction on appeals from final and interlocutory orders.
- Taghiyeva v Canada (CIC), 2019 FC 1160 (Federal Court, Kane J.)
Judicial Review (H&C). On September 11, 2019, Justice Kane granted judicial review of a negative Humanitarian & Compassionate decision, which involves, inter alia, a legally blind man who requires his wife’s 24/7 support, which makes it impossible for her to obtain employment that pays enough to sponsor her widowed mother.
- LeBest v ZIM Integrated Shipping Services (Canada Ltd.), et al, Court File No.: SC-19-00120003 (Ont SCJ).
Stay of Proceeding. On September 10, 2019, in the context of maritime commerce, the Superior Court of Justice granted a stay proceeding preventing the plaintiff from litigating in the courts of Canada.
- Abbasbayli v Fiera Foods Company, 2019 ONSC 948 (Ont SCJ, Pollak J). Motion to strike pleadings (reversed, in part, on appeal in the Ontario Court of Appeal in our client’s favour).
- Holl v The Foundation For Student Achievement, Court File No.: SC18-1878-00 (Ont SCJ, Twohig, J)
Trial (Wrongful Dismissal). The trial concerned the question of the validity and enforceability of a termination clause. On October 31, 2018, Mr. Chsherbinin persuaded the Ontario Superior Court that the termination provision was valid and enforceable. As a result, the wrongful dismissal action brought against the Foundation by its former Director of Philanthropy (who sought to recover 4 months’ pay in lieu of notice) was dismissed, with costs.
- Monteiro v A & H Health Horizon Inc., 2018 CanLII 87418 (Vice-Chair Gita Anand, ON LRB)
Appeal (Employment; paralegal or employee?). On September 13, 2018, Mr. Chsherbinin persuaded the Ontario Labour Relations Board to dismiss an appeal by a paralegal who claimed that she was an employee and not an independent contractor. Credibility was a significant issue, which required testimony from 9 witnesses, over several days of hearing.
- Ricci v Chippingham Financial Group Ltd., 2017 ONSC 6958 (Ont SCJ, Koehnen J)
Appeal (Employment). On November 23, 2017, Mr. Chsherbinin persuaded the Ontario Superior Court to dismiss an appeal from Master Abramas’ order that compelled the corporate directors to produce income tax and account statements for all their personal accounts. The court also awarded $15,000 in legal costs to Mr. Chsherbinin’s client.
- Canada (CIC) v Abidi, 2017 FC 821 (Federal Court, Strickland J)
Judicial Review (Citizenship). On September 11, 2017, Mr. Chsherbinin successfully resisted the Minister of Citizenship & Immigration’s application for judicial review of a citizenship judge’s decision, which granted Canadian citizenship to his client.
- Shoults v Sputnik Travel Services Limited, 2017 ONSC 5036 (Ont. SCJ, Master McAfee)
Motion (Production of Documents & Amendment of a Claim). On September 11, 2017, Mr. Chsherbinin brought a successful motion in the Ontario Superior Court for a further and better affidavit and amendment of a statement of claim. Both reliefs were vigorously opposed and argued over two days. In addition, Mr. Chsherbinin successfully resisted the main reliefs that the Defendants sought in their cross-motion.
- Bousaleh v Canada (CIC), 2017 FC 716, (Federal Court, Fothergill J.)
Judicial Review (Sibling Sponsorship). This rare case stems from one brother’s desire to sponsor another to Canada. A Beirut-based visa officer refused the sponsorship, because the brothers’ mother is still alive and should be sponsored first. On April 28, 2017, Justice Shore granted leave to judicially review the negative decision, but on July 24, 2017, Justice Fothergill dismissed the judicial review. Nevertheless, His Honour was persuaded that the questions in this case transcended the interests of the parties and certified a question of “general importance,” which Mr. Chsherbinin proposed. The Federal Court certifies questions of general importance on very infrequent occasions and it is the only means by which this case was able to be elevated to the Federal Court of Appeal.
- Hong v Canada (CIC) (Federal Court, IMM-1365-17, Elliott J.)
Judicial Review (PRRA). On July 6, 2017, Justice Elliott granted leave to judicially review a negative Pre-removal Risk Assessment decision, where the Officer treated a child as an adult, and failed to consider whether state protection is available in South Korea to North Koreans who are discriminated there on the basis of their ethnicity.
- Christoforu v John Grant Haulage Ltd., 2017 CHRT 17 (CHRT, Member Bryan)
Motion for Recusal (Human Rights). On June 13, 2017, Mr. Chsherbinin persuaded the Canadian Human Rights Tribunal to dismiss John Grant Haulage’s motion seeking Member Bryan’s recusal for “shaking hands” with the complainant.
- Gonzalez v Canada (CIC), 2017 FC 448 (Federal Court, Elliott J.)
Judicial Review (H&C). On May 4, 2017, Justice Elliott set aside Citizenship & Immigration Canada’s refusal of the Gonzales family’s Humanitarian & Compassionate application. This case stresses the importance for immigration officers to weigh the negative consequences on the children of their parents removal from Canada.
- Vakromova v Canada (CIC), 2017 CanLII 45414 (CA IRB)
Appeal (Residency). On April 3, 2017, Mr. Chsherbinin persuaded the Immigration Appeal Division and Canada Border Services Agency to overturn a Moscow-based visa officer’s decision, which revoked Ms. Vakhromova’s permanent resident status due to her failure to meet the residency obligation.
- Arzaumanov, et al v Canada (CIC), (Federal Court, IMM-3951-16, Mactavish J.)
Judicial Review (H&C). On February 23, 2017, Justice Mactavish set aside Citizenship & Immigration Canada’s refusal of the Arzaumanov family’s Humanitarian & Compassionate application. This case stresses the importance for immigration officers to recognize and to accord the applicants’ establishment in Canada a greater weight, if it was developed in circumstances that were beyond their control. The leave was granted on November 30, 2016 by Justice Southcott.
- Sparx Logistics v Streit Manufacturing Inc., et al, (Ont. S.C.J., Pattillo J.)
Judgment. On February 14, 2017, Mr. Chsherbinin successfully obtained a judgment against Streit Manufacturing Inc. for unpaid invoices.
- Christoforu v John Grant Haulage Ltd., 2016 CHRT 14 (CHRT, Member Bryan)
Human Rights (admissibility of expert evidence). On August 19, 2016, the Canadian Human Rights Tribunal granted Mr. Christoforou’s preliminary motion to exclude his ex-employer’s “expert” (medical) evidence for lacking impartiality, being unnecessary and prejudicial. The Tribunal also excluded the ex-employer’s doctor’s oral evidence and refused to qualify him as an “expert”. A 40-page ruling stresses the importance of evidence control procedures in the hearings before the Tribunal and highlights its “gatekeeping” role.
- Arzaumanov, et al v Canada (CIC), (Federal Court, IMM-1775-16, Southcott J.)
Judicial Review (H&C). On July 13, 2016, Justice Southcott granted the application for judicial review, which quashed the decision of a Senior Immigration Officer dated November 19, 2012, refusing the Arzaumanov family’s Humanitarian & Compassionate application. The leave in this matter was granted on June 14, 2016 by Madam Justice Tremblay-Lamer.
- Gechuashvili v Canada (MPSEP), 2016 FC 365 (Federal Court, Gleeson J.)
Judicial Review (organized criminality / people smuggling). On March 31, 2016, Justice Gleeson quashed and set aside the Immigration Division’s decision, which found Mr. Gechuashvili inadmissible for the alleged people smuggling, stripped him of his lawful status in Canada and ordered him deported. The leave application was brought and decided on the expedited basis.
- Kvitsaridze v Canada (CIC), (Federal Court, IMM-1978-15, Diner, J.)
Judicial Review (misrepresentation). On March 2, 2016 Justice Diner allowed Mr. Kvitsaridze’s application for judicial review and set aside the Citizenship and Immigration Canada’s decision, which refused Mr. Kvitsaridze’s permanent residence application for the alleged misrepresentation (concealment of his foreign criminal convictions). Justice Heneghan granted leave in this matter on December 24, 2015.
- Gechuashvili v Canada (CIC), 2016 FC 365 (Federal Court, Boswell J.)
Judicial Review (spouse sponsorship). On February 1, 2016 Justice Boswell granted leave in Mr. Gechuashvili’s judicial review application, where he challenged the immigration officer’s decision refusing his in-Canada spouse sponsorship application. On March 31, 2016, Justice Gleeson granted the judicial review and remitted Mr. Gechuashvili’s application for reconsideration.
- Kosolapova v Canada (MPSEP), (Federal Court, IMM-2380-15, Brown J.)
Judicial Review (H&C refusal). On December 14, 2015 Justice Brown granted the judicial review and remitted the matter back for re-determination. Notably, on December 10, 2015, the Supreme Court of Canada rendered an important judgment in Kanthasamy v. Canada (CIC), 2015 SCC 61, where it revamped the legal test for granting permanent resident status on H&C grounds.
- Logachov v Canada (MPSEP), (Federal Court, IMM-1387-15, Fothergill J.)
Judicial Review (stay of deportation). On September 24, 2015 Justice Fothergill granted leave in the case that deals with the Canada Border Service Agency’s refusal to defer Mr. Logachov’s deportation to Ukraine. On December 16, 2015, during the course of judicial review hearing, the CBSA formally undertook not to remove Mr. Logachov to Ukraine, until his Pre-removal Risk Assessment is decided.
- Canada (MPSEP) v Apakidze, (Federal Court, IMM-3113-15, Bell J.)
Injunction (organized criminality). On July 9, 2015 Mr. Chsherbinin successfully resisted the Minister of Public Safety and Emergency Preparedness’ motion seeking to stay the execution of the Immigration Division’s order, which released his client from the immigration detention, where he was held on the allegation of association with a criminal organization. Due to the government’s improper conduct, Justice Bell condemned it – with a rarely awarded – legal cost in the amount of $1,000.
- Globe Express v Sparx Logistics, et al., 2015 ONSC 5047 (Ont. S.C.J., McCarthy J.)
Injunction (restrictive covenants). On July 3, 2015 Mr. Chsherbinin successfully resisted Globe Express’ injunction, brought in the context of the breach of non-competition covenant, in which it sought to: (a) prevent Sparx Logistics from allegedly “misusing” its confidential information; and (b) obtain an order to inspect its computers. Justice McCarthy dismissed Globe Express’ motion in its entirety and awarded $15,000 in legal costs to Mr. Chsherbinin’s clients.
- Logachov v Canada (MPSEP), (Federal Court, IMM-2380-15, Fothergill J.)
Injunction (stay of deportation). On May 29, 2015 (or 2 days before the scheduled deportation) the Federal Court granted a stay of Mr. Logachov’s removal from Canada to Ukraine. The court was persuaded that some of the CBSA Officer’s reasons were “incomprehensible” and that there is “a real probability that unavoidable, irreparable harm will result” if Mr. Logachov was removed.
- L.B. v Co-ex-Tec, a Division of Magna Closures Inc., 2015 HRTO 567 (per Vice-chair Cook)
Human Rights (discrimination based on disability). On May 5, 2015 the Ontario Human Rights Tribunal denied Co-ex-Tec’s application for an order dismissing the Applicant’s human rights complaint. In addition, the OHRT refused to defer the consideration of the Applicant’s application until the WSIAT appeal is concluded.
- Trus v Canada (CIC), (Federal Court, IMM-7006-13, Manson J.)
Judicial Review (H&C refusal). On January 21, 2015 the Federal Court set aside the Citizenship and Immigration Canada’s decision refusing the Trus family’s humanitarian & compassionate application. In light of the medical evidence, the CIC’s findings were unreasonable.
- Berdzenadze v Canada (CIC), (Federal Court, IMM-7805-14, Russell J.)
Judicial Review (alternatives to detention). On December 16, 2014 the Federal Court considered, on an expedited basis, and overturned the Immigration Division’s decision, because it found that Member Nupponen erred in law by refusing to consider alternatives to detention even though Ms. Berdzenadze’s identity was not yet determined. Justice Russell observed: “ The alternatives must be considered. The Board has its own view how the system works, but that view does not accord with the jurisprudence on point.”
- Moscicki v Canada (CIC), 2014 FC 993, paras. 4-5 (Federal Court, Hughes J.)
Judicial Review (can a person on ODSP act as a bondsperson?) The Federal Court said “yes”. While it clarified the law that plagued the Immigration Division with uncertainty, the court ultimately dismissed the application for becoming moot.
- Zaidline v Canada (CIC), (Federal Court, IMM-3269-14, Hughes J.)
Judicial Review (Immigration Appeal Division’s refusal to hear an appeal). The Applicant was found ineligible to act as a sponsor. She appealed that decision to the Appeal Division, where Member Zanfir concluded that due to the Applicant’s ineligibility, the decision not to issue her mother a permanent resident visa was made. As such, in his view, the Applicant had no statutory right to appeal seemingly “non-existent” decision. On September 11, 2014, Justice Hughes overturned Member Zanfir’s decision.
- Grigorovich v Canada (CIC), (IRB, Appeal Division, TB4-00096, Member Paul)
Appeal (spouse sponsorship refusal). On September 9, 2014 the Immigration Appeal Division overturned a Moscow-based visa officer’s decision refusing an outside-Canada spouse sponsorship application.
- Chenhova v Canada (CIC), (Federal Court, IMM-1713-14, Prothonotary Milczynsky).
Motion (new evidence). Having been satisfied that Ms. Chenhova raised serious issues preventing her from filing her own affidavit, on June 30, 2014 the Federal Court granted an order permitting her to file evidence after the pleadings were closed.
- Gavashelishvili v Canada (MPSEP), (Immigration Division, IRB)
Detention Review (organized criminality). Issue: should a person who is alleged to be a danger to the Canadian public and a flight risk be released from immigration detention 3 days before his admissibility hearing? As a result of vigorous submissions during April 11, 14, 15, 22, 29 and 30, 2014 hearings, Mr. Chsherbinin persuaded the Immigration Division that his client is neither a danger to the public nor a flight risk. Consequently, the Immigration Division released Mr. Gavashelishvili after 3 months of immigration detention and 3 days before his admissibility hearing. Curiously, at the outset of the May 7, 2014 admissibility hearing, the Minister withdrew all allegations.
- Pataraia v Canada (CIC), (Federal Court, IMM-2241-14, Heneghan J. )
Judicial Review (organized criminality). On April 11, 2014 Mr. Chsherbinin persuaded the Federal Court that the judicial review should be decided within 1 week. On April 17, 2014 the Court granted leave and judicially reviewed the Immigration Division’s decision. On April 22, 2014 Justice Heneghan set the Immigration Division’s decision aside for being unreasonable. In addition to Odosashvili (below), this case further reaffirms detainees’ right to sur-reply during detention reviews.
- Odosashvili v Canada (CIC), 2014 FC 308 (Federal Court, Zinn J.)
Judicial Review (organized criminality). On March 31, 2014 the Federal Court overturned the Immigration Division’s decision that continued Mr. Odosashvili’s immigration detention, because the court was persuaded that the Minister made “false submissions” and provided “inaccurate information in…the statutory declaration”. Significantly, this case clarifies detainees’ right to sur-reply during detention reviews.
- Canada (MPSEP) v Sidamonidze (Federal Court, IMM-1380-14, McVeigh J.)
Injunction (organized crimiality). Mr. Chsherbinin successfully resisted the Minister of Public Safety and Emergency Preparedness’ injunction seeking to stay the Immigration Division’s decision that released Ms. Sidamonidze from the immigration detention. The Federal Court dismissed the Minister’s injunction on March 6, 2014.
- Cohen, Husson and Bravi v Canada (MPSEP), (Immigration Division, IRB)
Detention Review. On November 12, 2013 Mr. Chsherbinin persuaded the Immigration Division that Ms. Cohen, Ms. Husson and Mr. Brami’s continued detention is not justified. A week earlier, Mr. Chsherbinin assisted these clients in obtaining an “absolute discharge” for rare charges laid against them under the Immigration and Refugee Protection Act for working in Canada without authorization.
- Sterling Tile v LIUNA 183, (Lab. Arbitr., Arbitrator Trachuk)
Motion (non-union employee’s standing in a labour arbitration proceeding). On July 16, 2013 Mr. Chsherbinin successfully argued that a supervisor was entitled to the third party standing in the arbitration proceeding together with an opportunity to cross-examine witnesses and make submissions, and without bearing his share of costs.
- Korolove v Canada (CIC), 2013 FC 370 (Federal Court, Strickland J.)
Appeal (citizenship refusal). On April 12, 2013 Mr. Chsherbinin prevailed in a highly contested appeal arising from the Citizenship Judge’s denial of Canadian citizenship to Ms. Korolove.
- Singh v Chandel, (Ont. S.C.J., FS-12-00038-29922, Czutrin J.)
Mareva Injunction & Norwich Order (freezing of bank accounts). On November 27, 2012 Mr. Chsherbinin successfully obtained exceptional ordersfreezing the defendants’ banks accounts in Ontario and Canada-wide and requiring the Royal Bank of Canada to release the detailed records of financial transactions.
- Khodov v Canada (CIC), (Federal Court, IMM-8163-11, Hughes J.)
Judicial Review (stay of deportation). On July 26, 2012 the Federal Court decided the judicial review in Mr. Khodov’s favour. The decision of an enforcement officer not to defer his removal was quashed and remitted back for re-determination.
- Khodov v Canada (MPSEP), (Federal Court, IMM-8163-11, O’Keefe J.)
Injunction (stay of deportation). On November 16, 2011 Mr. Chsherbinin successfully persuaded the Federal Court that the Enforcement Officer erred in law when he refused to administratively defer Mr. Khodov’s removal from Canada.
- Bennett v. Cunningham, 2011 ONSC 28 (Ont. Div. Court, Hackland J.)
Appeal (just cause dismissal). In this case, the Ontario Divisional Court upheld that one ill-advised letter from the employee to her employer, calling her “dishonest and negligent”, was not enough to justify firing her without notice. This case provides an interesting look into the nature of dismissal for cause and the challenge employers face when seeking to establish just cause for dismissal.
- Elliott v Mills Pontiac Buick GMC Ltd., 2010 HRTO 2360 (Vice-chair Overend)
Motion (disclosure of privileged information). In this case, Mr. Chsherbinin, on behalf of the corporate respondent, successfully persuaded the Ontario Human Rights Tribunal that the privilege was the employer’s and not the employee’s to waive.
- Zvorygin v Canada (CIC), 2010 CanLII83654 (IRB (App. Div.), Member Macdougall)
Appeal (revocation of permanent resident status). In this case, Mr. Chsherbinin successfully argued, before the Immigration Appeal Division, that a Moscow-based visa officer’s decision, which revoked Mr. Zvorygin’s permanent resident status due to his alleged failure to meet the residency obligation was not valid in law.
- La Citadelle Academy of Art & Science Inc. v Taheri, 2009, (Ont. S.C.J (Sm. Crt.)).
Trial (breach of contract). At trial, Mr. Chsherbinin successfully argued, on behalf of the Academy that the defendants fundamentally breached the contract for supply of educational services.