Law Times

Law Times • sepTember 21, 2015 Page 19 www.lawtimesnews.com specify documents relating to particular incidents of abuse. Federal government was to provide unredacted copies of publicly available court records to independent assessment process administrators, and to students or their lawyers if requested. Finally, federal gov- ernment was required to pro- vide redacted copies of other documents gathered for inde- pendent assessment process. Agreement required reports to identify all allegations or incidents of physical or sexual abuse at schools in meaningful way that made it easier for stu- dents to advance their claims and made it more efficient for adjudicators to decide claims. This was bargained-for term of agreement. Agreement did not require that all documents be unredacted. Redaction of doc- uments was another major item in negotiations and required balancing of disclosure neces- sary for adjudication of claims and sensitivity to privacy of students and alleged abusers. Federal government was not required to update reports re- lating to school H since reports had not been filed to establish problems with them. Fontaine v. Canada (Attorney General) (Jun. 23, 2015, Ont. S.C.J., Perell J., File No. 00-CV- 192059) 255 A.C.W.S. (3d) 802. Arbitration AWARD Motion to adjourn enforcement of arbitral award granted Applicant applied for order recognizing arbitral award ren- dered on May 14, 2014 in Peru against respondent and enforc- ing same in Ontario against respondent. Respondent's head office was in Toronto. Arbitral award held that respondent breached option agreement with applicant. Respondent and its subsidiaries were ordered to pay applicant approximately US$2.3 million. Respondent commenced annulment appli- cation in Peruvian courts seek- ing to set aside arbitral award. Application was heard in June 2015 and it was anticipated that decision would be delivered in September or October 2015. Respondent brought motion to adjourn enforcement of arbitral award. Despite annulment ap- plication, applicant was entitled under Peruvian law to pursue enforcement of arbitral award. It was doing so against respon- dent in Ontario and respon- dent's subsidiaries in Peru. If respondent posted full amount of arbitral award in Peru as se- curity with courts there, award would be stayed pending an- nulment decision. Respondent stated that it lacked sufficient funds and fundraising ability to post any amount of security, let alone full amount of award. Motion granted. It was proper to adjourn enforcement ap- plication until annulment ap- plication decision had been delivered. There was issue to be tried. On applicant's own evidence, while success of an- nulment application was very low, it was not without any prospect of success. There was more prejudice to respondent if applicant was allowed to en- force its award in Ontario and respondent was successful in Peru than to applicant in be- ing unable to collect upon its award. Applicant was subsid- iary of company with multi- billion dollar capitalization. As condition of adjournment, respondent was to post security in amount of $250,000 in spe- cial trust account. Amount was not so substantial that it would cripple respondent, nor should it pose insurmountable obsta- cle. Amount would also show good faith on respondent's behalf that it did everything it could do to ensure that annul- ment decision was rendered as soon as possible. Empresa Minera Los Quenuales S.A. v. Vena Resources Inc. (Jul. 9, 2015, Ont. S.C.J., K. Hood J., File No. CV-14-518402) 255 A.C.W.S. (3d) 823. Conflict of Laws JURISDICTION St. Kitts was appropriate forum for litigation concerning mortgage Plaintiffs brought action in Ontario concerning equitable mortgage made on island of St. Kitts between plaintiffs and defendant to finance con- struction of house on St. Kitts property registered to resident of Barbados. Plaintiffs had al- ready commenced actions in St. Kitts concerning mortgage agreement and property. First action was struck in its entirety. Second action was to proceed to trial in 2015. Defendants moved to dismiss or perma- nently stay Ontario action on basis that court had no jurisdic- tion or Ontario was forum non conveniens. Motion was grant- ed. Plaintiffs appealed. Appeal dismissed. In light of terms of contract governing acceptance, contract was entered into in St. Kitts. Situs of contract did not provide presumptive connect- ing factor for purposes of deter- mining jurisdiction. Misrepre- sentations relied on to support fraudulent misrepresentation claim were made in and relied on in St. Kitts. Tort was com- pleted there. Repetition of same representations in letter re- ceived by plaintiffs in Ontario had no impact on situs of tort. Location of tort did not provide presumptive connecting factor. Ontario court had no jurisdic- tion. St. Kitts was appropriate forum for litigation. Glasford v. Canadian Imperial Bank of Commerce (Jul. 9, 2015, Ont. C.A., Doherty J.A., Pepall J.A., and Huscroft J.A., File No. CA C60001) Decision at 248 A.C.W.S. (3d) 65 was affirmed. 255 A.C.W.S. (3d) 879. Constitutional Law CHARTER OF RIGHTS Tribunal properly balanced relevant Charter values with objectives of code Applicant and respondent D both worked at jail. Applicant was D's manager and D was president of jail's local branch of respondent union. During period of labour unrest and intense collective bargaining, D operated blog about union matters. D wrote blog post and permitted posting of comment written by someone else both accusing applicant of nepotism and incompetence. Applicant made human rights complaint alleging discrimination with respect to employment con- trary to s. 5(1) of Human Rights Code. Respondent tribunal found that comments were sexist and offensive but found that conduct complained of did not fall within areas of activity regulated by code. Tribunal in- terpreted s. 5(1) taking into ac- count applicant's rights of free- dom of expression and associa- tion under Canadian Charter of Rights and Freedoms. Tribu- nal found that D had not dis- criminated against applicant with respect to employment. Applicant applied for judicial review. Divisional Court found that tribunal's decision was reasonable and dismissed ap- plication. Applicant appealed. Appeal dismissed. Divisional Court properly examined tri- bunal's reasons as whole. Tri- bunal could consider Charter values as part of its analysis under s. 5(1) of code. Tribunal properly identified freedom of expression and freedom of as- sociation as relevant Charter rights in circumstances. Tri- bunal explained in transparent and intelligent way how Char- ter rights it selected arose on specific facts of case. Charter rights selected were logically related to facts of case. Tribu- nal properly balanced relevant Charter values with objectives of code. Tribunal was alive to various interests at play in de- termining whether conduct fell within reach of s. 5(1) of code. Tribunal's conclusion fell with- in range of possible, acceptable outcomes defensible in respect of facts and law. Taylor-Baptiste v. OPSEU (Jul. 3, 2015, Ont. C.A., Alexandra Hoy A.C.J.O., David Watt J.A., and David Brown J.A., File No. CA C59529, C59543) Decision at 240 A.C.W.S. (3d) 707 was affirmed. 255 A.C.W.S. (3d) 954. Family Law PROPERT Y Wife had no capacity to assert equalization claim because it vested in trustee on assign- ment in bankruptcy Parties were married for 48 years and had three children. Parties purchased island and over years they developed property and it became mat- rimonial home. Property was transferred to parties' adult children for saving estate taxes but family continued to treat property as owned by parents. Parties entered into separa- tion agreement. Wife brought action to set aside separation agreement, to accelerate sale process of property, for equal- ization payment and lump sum spousal support. Wife made voluntary assignment into bankruptcy before action pro- ceeded to trial. Wife's law yer and law firm removed them- selves as solicitors of record in matrimonial proceedings. Law firm filed proof of claim for unpaid fees of $15,000, which trustee in bankruptcy admit- ted. Law firm obtained order pursuant to s. 38 of Bank- ruptcy and Insolvency Act authorizing it to continue and prosecute wife's claims in mat- rimonial proceeding. Law firm later purported to assign s. 38 of Act rights to parties' son for $90,000. Trial judge set aside separation agreement. Trial judge rejected son's request that wife's interest property be transferred to him. Trial judge ordered husband to pay wife equalization payment of $433,388.86. Wife was awarded lump sum spousal support of $173,136. Trial judge ordered assessment of both law firm's provable claim of $15,000 and s. 38 of act account. Trial judge ordered husband to pay costs of $231,087.13 to wife. Parties' daughter was to re- cover $40,643.24 from son and $31,817.75 from law yer person- ally. Husband, law yer, law firm and son appealed. Appeal al- lowed in part. Neither law firm nor son was required to pursue equalization claim. Wife had no capacity to assert equaliza- tion claim because it vested in trustee on assignment in bank- ruptcy. It was not open to trial judge to make equalization or- der. Validity of assignment to son was not challenged but as- signment was subject to obliga- tion to account for any surplus to bankrupt's estate. Son was not entitled to recover wind- fall to detriment of bankrupt estate. Son was not entitled to wife's half interest in property. Son was to recover his payment of $90,000. Green v. Green (Jul. 21, 2015, Ont. C.A., Robert J. Sharpe J.A., S.E. Pepall J.A., and K. van Rensburg J.A., File No. CA C58093, C58101) Decision at 245 A.C.W.S. (3d) 357 was re- versed in part. 255 A.C.W.S. (3d) 932. ONTARIO CRIMINAL CASES Sentence SEXUAL OFFENCES Cultural norms that condone or tolerate conduct contrary to Canadian law must not be considered mitigating Crown appealed 18-month custodial sentence accused re- ceived for sexual assault and four counts of assault. Accused regularly assaulted his wife and their children. Accused sexually assaulted his wife several times per month. Ac- cused was convicted of sexual assault and four counts of as- sault for crimes that occurred in Canada. Sentence included 18 months for sexual assault, and 30 days for one count of assault and four months for each other count of assault to be served concurrently. Trial judge credited accused for un- specified amount of time for his pre-trial house arrest and took into account "cultural impact" of family's move from Iran to Canada. Trial judge ac- cepted that there was pattern of domestic violence ref lect- ing longstanding and ongoing abuse. Trial judge found that aggravating factors included that there was domestic vio- lence, breach of trust and in- volvement of minor children. Mitigating factors included that accused did not have criminal record, medical help had never been sought, there were no injuries and there had been stringent bail conditions. Trial judge ruled that differ- ence in culture was factor in his considerations. Appeal al- lowed; sentence varied to 44 months' for sexual assault and sentence for assault was left at four months but ordered to be served consecutively. Sentence was demonstrably unfit. Trial judge made number of errors that cumulatively led to unfit sentence. Consideration of cul- tural issue was wrong as trial judge appeared to have given it weight in mitigation. Accused never took position that cul- tural differences impacted his conduct. Cultural norms that condone or tolerate conduct contrary to Canadian law must not be considered mitigating. Trial judge's finding there were no injuries was misapprehen- sion of evidence as medical at- tention is not required for find- ing there was no injuries. Trial judge's conclusion there was no risk of re-offending was con- trary to evidence in pre-sen- tence report which showed ac- cused lacked remorse and was ashamed of his predicament and not his behaviour. There was no evidence on which trial judge could make that find- ing. Specific deterrence was relevant. Trial judge's imposi- tion of concurrent sentences was inappropriate as assaults on children were separate and distinct from sexual assault on their mother and sentences should have been consecutive. Given that accused had raped his wife repeatedly for several years and terrorized his family, denunciation and deterrence were paramount. Accused was in position of trust to his fam- ily. Accused expressed no re- morse. Accused was entitled to one-year credit for time served on parole. R. v. E. (H.) (Jul. 15, 2015, Ont. C.A., Alexandra Hoy A.C.J.O., Doherty J.A., and M.L. Benotto J.A., File No. CA C59048) 123 W.C.B. (2d) 200. LT CASELAW

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