Law Times

Law Times • June 15, 2015 Page 15 www.lawtimesnews.com ONTARIO CIVIL CASES Courts JURISDICTION Fresh analysis on appeal revealed that England was more appropriate forum Respondents, HB, his wife and children, alleged that appellant MB and co-defendants com- pelled HB's abduction, incarcera- tion and torture in Iran. Respon- dents commenced proceedings and obtained default judgment. Superior Court took jurisdiction as forum of necessity. MB's mo- tion to set aside default judgment granted on consent, with terms permitting MB to challenge fo- rum. Parties agreed it was impos- sible to litigate in Iran but MB, citizen of Iran living and studying in England, asserted Ontario ac- tion should be stayed in favour of England. By time motion argued, MB voluntarily returned to Iran to face prosecution and unable to leave. Respondents were Canadi- an citizens who immigrated after leaving Iran and living in England for three years. HB and his wife had business interests in Eng- land, owned property there and travelled there from time-to-time. MB claimed he had no connec- tion with Canada and had been denied visas to enter and/or visit Canada. Motion judge dismissed motion to stay Ontario proceed- ings, finding MB had not met bur- den of proving England was clear- ly more appropriate forum. Ap- pellants' appeal allowed. MB's sole objection was that Ontario was not forum conveniens. MB's efforts to obtain temporary visa to enter Canada for purpose of defending action, as well as efforts to obtain short-term special ministerial visa or permit were unsuccessful. Evidence supported inference he would be denied entry to Canada in future and motion judge erred in finding otherwise. Her conclu- sion on important issue of MB's ability to defend himself in each country turned on faulty reason- ing. Motion judge concluded that deferring to English court might deprive respondents of certain rights and noted that respondents relied on Canadian law, including international covenants ratified by Canada, while MB provided no evidence that international covenants relied on by respon- dents had been adopted under English law. However, it was not MB's burden to prove that English law would afford same benefits as Canadian law. Fresh analysis of forum non conveniens ques- tion revealed that objectives of ensuring fairness and providing efficient process for resolving dis- pute would be better met through litigation in England. Although respondents resided in, and pre- ferred to litigate in, Canada, MB had no connection to or ability to enter Canada. Both parties had some connection to England. With one exception, all witnesses other than respondents resided outside of Canada. MB consented to action proceeding in England. England was more appropriate fo- rum; Ontario action stayed. Bouzari v. Bahremani (Apr. 21, 2015, Ont. C.A., R.G. Juriansz J.A., Paul Rouleau J.A., and K. van Rensburg J.A., File No. CA C58082) Decision at 235 A.C.W.S. (3d) 936 was reversed. 252 A.C.W.S. (3d) 249. Family Law CUSTODY Child should be vaccinated in her best interests Parties had one child, who was now 10 years old. Parties had dispute over whether or not to vaccinate child. Mother chose naturopathic health regimen that required children not to par- ticipate in immunization process while father wanted child to be immunized. Consent order pro- vided parties with joint custody and included term that parties agreed to not vaccinate child until she reached 12 years of age and then she could decide for herself whether to be vaccinated. Mother planned to travel with child to Germany. While father agreed trip was in best interests of child, he would only give his con- sent for child to travel if she was vaccinated for certain diseases, including measles. This was mo- tion to determine whether child should be vaccinated. Motion granted. Pursuant to parens pa- triae jurisdiction, amicus curiae was appointed to represent child. Amicus was needed not only to make legal submissions, but also to ensure that proper and com- plete evidence was before court in order to make important decision that had implications beyond this family. Best interests of child had to be considered and fact that par- ties entered into agreement that was incorporated into court order on consent was only one consid- eration. Court was not bound by terms of consent order in deciding what was in child's best interests. Absolute prohibition on vaccina- tions for child prior to age 12 was not in child's best interests. Agree- ment did not ref lect any reasoned analysis or consideration of issues that was required in order to de- cide whether to vaccinate child. Parents arbitrarily set age of 12 as when child could make own deci- sions. Child was not in position that would allow her to consider and understand all relevant in- formation and appreciate conse- quences of decision to vaccinate. Child was in conf lict of loyalty be- tween parents and she should not be placed in such position. Medi- cal decision-making was incident of custody. Evidence of mother's expert witnesses was not neutral and objective and it was not help- ful. Public policy expressed in leg- islation favoured vaccinations of children. There was sufficient evi- dence, on balance of probabilities, that child should be vaccinated in her best interests. Benefits far outweighed minimal risk of side effects. Father was granted deci- sion-making ability with respect to vaccinations and child should receive vaccination prior to travel- ling to Germany. G. (C.M.) v. S. (D.W.) (.Apr. 10, 2015, Ont. S.C.J., R.J. Harper J., File No. FS-809-13) 252 A.C.W.S. (3d) 288. FEDERAL COURT Human Rights Legislation HUMAN RIGHTS COMMISSION/TRIBUNAL Section 6 of Indian Act (Can.) is not service pursuant to s. 5 of Canadian Human Rights Act Complainants were registered as Indians under s. 6(2) of Indian Act (Can.) (IA), but were married to individuals who were not reg- istered or entitled to be registered under IA. Complainants had chil- dren and applied for registration on behalf of children, but applica- tions were refused. Complainants brought human rights complaints alleging that application of s. 6 of IA by government agency was discriminatory because it denied them ability to pass Indian status to their children. Human Rights Tribunal found it did not have jurisdiction to hear complaints under Canadian Human Rights Act (CHRA), because complaints were directed against legislation. Tribunal held that s. 6 of IA should be dealt with as challenge under Canadian Charter of Rights and Freedoms. Tribunal found that s. 6 of IA was not service pursuant to s. 5 of CHRA. Tribunal relied on PSAC v. Canada Revenue Agency (2012), 346 D.L.R. (4th) 488, 212 A.C.W.S. (3d) 870 (F.C.A.) (Mur- phy). Complaints were dismissed. Human Rights Commission applied for judicial review. Ap- plication dismissed. Standard of review was reasonableness. Mur- phy determined that legislation was not service as defined in s. 5 of CHRA. Legislative criteria that were determined by Parliament to identify individual as Indian were not service as envisioned by s. 5 of CHRA. Processing ap- plications for registration might constitute service but not criteria that needed to be met to be reg- istered as Indian under IA. Chal- lenge to way formula was applied was challenge to law itself. It was law that denied access to benefit and not government agency. Tri- bunal's analysis was reasonable, as was its reliance on Murphy. Mur- phy was binding and was not in- consistent with Supreme Court of Canada jurisprudence. Tribunal could not disregard binding juris- prudence on point from Federal Court of Appeal. Tribunal did not dispute that human rights legisla- tion could render other legislation inoperable. Tribunal found it did not have jurisdiction to consider legislation as service in s. 5 of CHRA and primacy was not at issue. Tribunal did not err by fail- ing to interpret s. 5 within context of former s. 67 of CHRA. It was possible to conclude that reasons for implementing s. 67 was to give Parliament opportunity to con- sult with First Nations regarding changes to IA. However, evidence was not sufficient to show that registration was intended to be service pursuant to s. 5 of CHRA. Section 67 was implemented prior to Charter and would have been only way of challenging IA pro- visions as discriminatory. Since Charter came into effect it was clear that Charter was appropriate means to bring challenge. Repeal of s. 67 would not be meaningless if tribunal followed Murphy. Tri- bunal's decisions were reasonable. Canadian Human Rights Com- mission v. Canada (Attorney Gen- eral) (Mar. 30, 2015, F.C., Glennys L. McVeigh J., File No. T-1088-13, T-1777-13) 252 A.C.W.S. (3d) 308. ONTARIO CRIMINAL CASES DNA Identification WARRANT FOR SAMPLES Admission of DNA evidence would not bring administra- tion of justice into disrepute Application by accused RB for order to exclude at trial forensic DNA evidence obtained through bodily substances warrant ex- ecuted on RB. Three armed per- sons participated in home inva- sion and they escaped in vehicle that collided with public transit bus. Several occupants of vehicle f led and they discarded cloth- ing nearby. Police seized clothing and had them tested for presence of DNA. Black jacket contained DNA and it matched RB's DNA that was on convicted offender database. Warrant was obtained to have RB's DNA tested, by prick- ing his finger and obtaining blood sample. Application dismissed. Police acted improperly when they failed to repeat to accused conditions set out in warrant. Even though taking blood sample by pricking accused's finger was intrusion of bodily integrity, RB was required to comply with war- rant. Accused's rights under s. 8 of Canadian Charter of Rights and Freedoms were violated. DNA ev- idence, however, was not exclud- ed, for its admission would not bring administration of justice into disrepute. Violations were minor and there was no deliber- ate misconduct not to inform RB right away. RB was given warrant to read and it listed all of charges he faced. He confirmed that he spoke to his lawyer about DNA warrant and he could speak to lawyer again if required. He also was aware of what would be result by providing his hand and fin- ger to obtain sample. There was no wilful disregard of accused's rights under s. 8. R. v. Ahmad (Mar. 21, 2015, Ont. S.C.J., A.J. O'Marra J., File No. CR-14-10000056-0000) 120 W.C.B. (2d) 569. FEDERAL COURT OF APPEAL Crown ARMED FORCES No breach of procedural fairness in processing of soldier's grievance Soldier was member of Canadian Forces since 1995. Soldier started Common Army Phase course in 2003. Soldier failed several performance objectives despite repeated attempts. Investigation regarding evaluation process revealed no discrepancies in ap- plication of course standards. Sol- dier filed grievance regarding his failure and included allegations of harassment. Chief of Defence Staff (CDS) dismissed grievance. Soldier brought application for judicial review. Federal Court judge concluded that there was no breach of procedural fairness in processing of grievance and that it was reasonable for CDS to dismiss grievance. Application for judicial review was dismissed. Soldier ap- pealed. Appeal dismissed. Federal Court judge did not err in reject- ing soldier's submissions that he was denied procedural fairness. Disclosure had been adequate. Delay had not been so oppressive as to taint proceedings. It was not role of court to re-weigh evidence before CDS. Conclusions made by CDS were reasonably open to it to make and decision of CDS was reasonable. Decision fell within range of reasonable outcomes that were defensible in respect of facts and law and reasons were justifi- able, transparent, and intelligible. Moodie v. Canada (Attorney Gen- eral) (Apr. 7, 2015, F.C.A., C. Mi- chael Ryer J.A., Wyman W. Webb J.A., and David G. Near J.A., File No. A-272-14) Decision at 240 A.C.W.S. (3d) 879 was affirmed. 252 A.C.W.S. (3d) 252. LT caseLaw CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164.

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