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Law Times • November 5, 2012 not sufficiently credible. Board determined that respondent was not excluded from refugee protection by reason of crimi- nality. Application granted. Matter was remitted for rede- termination by differently con- stituted panel. Board did not accurately determine whether respondent was excluded from refugee protection in Canada because of his criminal history. It was erroneous for board to use test developed by Federal Court of Appeal specifically for s. 36 of Act when issue was one of exclusion and not inadmissi- bility. Board committed error in failing to determine that crime punishable by at least ten years of imprisonment in Canada constituted serious non-politi- cal crime. Board erred when it determined that because Ca- nadian offence of sexual inter- ference was hybrid offence, it could be considered not seri- ous. Raina v. Canada (Minister of Citizenship and Immigration) (May 23, 2012, F.C., Shore J., File No. IMM-7164-11) 217 A.C.W.S. (3d) 934 (15 pp.). Application by refugee claim- ant and his wife and child for judicial review of decision that they were neither Convention Refugees nor persons in need of protection. Refugee claimant' Board used bare speculation to discredit particular document family was allegedly involved in blood feud with another family. Refugee claimant fled to United States in December 1999. Wife and child joined refugee claim- ant in January 2001. Refugee claimant and wife unsuccess- fully claimed asylum in United States. Refugee claimant' lum claim had been based on political opinion rather than blood feud. Refugee claimant, wife, and child came to Canada in September 2009 and unsuc- cessfully applied for refugee protection based on blood feud. Application granted; mat- ter remitted for re-determina- tion. Immigration and Refugee Board' s asy- ing was unreasonable. Board had reason to be suspicious about parts of refugee claimant' s adverse credibility find- narrative but board engaged in less objective assessment of oth- er areas of evidence. Refugee claimant had good reason not to raise blood feud in United States since United States did not recognize this ground as basis for asylum claim. Possibil- ity that asylum claim in United States might have been fraudu- lent did not mean his claim in Canada was fraudulent. Board erred in its interpretation of newspaper article documenting legal proceedings arising from murder that had allegedly trig- gered blood feud. Board used bare s and reject particular document that confirmed blood feud. Mernacaj v. Canada (Minister of Citizenship and Immigra- tion) (June 15, 2012, F.C., Rus- sell J., File No. IMM-6500-11) speculation to discredit s 217 A.C.W.S. (3d) 948 (28 pp.). ONTARIO CIVIL CASES Administrative Law Application by fire chief for order directing respondent to comply with fire safety inspec- tion order regarding installa- tion of sprinkler system. Fire marshal on appeal of directive upheld directive but allowed that respondent could make proposals for alternative mea- sures through a professional engineer that if approved by fire department would constitute compliance with order. Respon- dent did not appeal decision of fire marshal to Fire Safety Com- mission and fire department had not accepted alternatives proposed. Order that matter be referred to fire marshal for de- termination as to whether alter- native measures carried out by respondent constituted compli- ance with order. Fire marshal leſt ultimate decision in hands of fire department with no pro- vision for appeal or reference back to fire marshal if parties could not agree. Improper del- egation of its power. Decision lacked procedural fairness and contained no mechanism for review or oversight. Referring matter back for further consid- eration struck out as appropri- ate balance between interests of two parties and respected com- mon law duty of fairness. Port Hope (Municipality) Fire Chief v. 1660524 Ontario Inc. (July 19, 2012, Ont. S.C.J., Mul- ligan J., File No. 77845/12) 217 A.C.W.S. (3d) 753 (10 pp.). Improper delegation of powers of fire marshal DUTY TO ACT FAIRLY Motion by parties for approval of proposed settlement agree- ment in class action proceeding for damages arising out of loss of USB key holding unencrypted personal and confidential infor- mation of 83,524 persons who had received immunization shot at clinic. Motion granted. Over course of action, anxiety about abuse of private informa- tion had given way to realiza- tion of probability that no one had missing USB key. Chances of success quite low. Informa- tion on key would not be par- ticularly useful in identify theſt. Risks to class high if settlement agreement not approved as de- fendant intended to bring mo- tion for summary judgment. Benefits of settlement were that defendant waived any common law defences on liability if claim pursued before expiry of claim period, process was cost-free and relatively quick. Proposed settlement fair and reasonable and was best that class could best interests of class or cost effec- tive Further pursuit of lawsuit not in Civil Procedure CLASS ACTIONS CASELAW accomplish given develop- ments in case. Ongoing risks to members of class appeared to be negligible. Further pursuit of lawsuit not in best interests of class or cost effective. Rowlands v. Durham Region Health (July 4, 2012, Ont. S.C.J., Lauwers J., File No. 66247/10) 217 A.C.W.S. (3d) 779 (9 pp.). Conflict of Laws JURISDICTION Unfair to require plaintiff to con- duct litigation in country from which he was prohibited entry Motion by defendant for stay of action on basis that claim should be tried in Vermont. Plaintiff claimed damages in relation to unpaid promissory note. Plaintiff and defendant originally partners in relation to purchase and development of lands for operation of vari- ous hotels in New Hampshire and Vermont. Plaintiff and de- fendant were equal sharehold- ers in ten different companies which owned properties and operated hotels. Defendant be- came interested in buying out plaintiff ' of purchase and sale concluded. Motion dismissed. Real and substantial connection between litigation and Ontario. Defen- dant failed to establish that Ver- mont clearly more appropriate and convenient forum for trial. At least one presumptive con- necting factor in that defendant resides in Ontario. Defendant had not rebutted presumption of jurisdiction. Litigation had number of important connec- tions to Vermont. Ontario also had numerous connections to litigation. Plaintiff and defen- dant resided in Ontario. De- fendant had never even been to Vermont in connection with dispute and made his invest- ments from Ontario. Defendant alleged to have defaulted on his payment obligations from his home in Ontario. Comparative convenience and expense of conducting litigation favoured continuing litigation in On- tario given location of parties, witnesses and other evidence. Litigation would have to take place in Ontario for litigation to result in immediately effec- tive and enforceable judgment against defendant' s shares and agreement gation must continue in On- tario to ensure fairness. Most unfair to require plaintiff to try to conduct litigation in country from which he was prohibited entry. Nagra v. Malhotra (July 31, 2012, Ont. S.C.J., Campbell J., File No. CV-10-413793) 217 A.C.W.S. (3d) 837 (11 pp.). s assets. Liti- Family Law Application by Children's Aid relationship through access not significant for children CHILD WELFARE Continuation of parental Society (CAS) for order of Crown wardship for two chil- dren without access. Mother www.lawtimesnews.com and father had low level of in- tellectual functioning, espe- cially mother. Mother and fa- ther had two children who were apprehended aſter period of CAS involvement. Mother and father separated. Mother was very regular and faithful access parent but usually brought sup- port person due to her limited abilities. Application granted. Mother and father failed to es- tablish access would be mean- ingful and beneficial for chil- dren. Fact that children were happy to see mother and father was not sufficient. Continua- tion of parental relationship through access was not all that significant for these children. In addition, access could cre- ate impediment to prospects of adoption. Children' goma v. L. (S.) (June 14, 2012, Ont. C.J., Kukurin J., File No. 68/2009) 217 A.C.W.S. (3d) 877 (39 pp.). s Aid Society of Al- Real Property Applicants sought declaration that respondent' Not unreasonable for respondent to enforce completion of resident information form CONDOMINIUMS oppressive, unfairly prejudicial and unfairly disregarded their interests and they sought dam- ages. Access to condominium and garage was through use of FOBs and clickers provided to residents. Building had recre- ational facilities that were re- stricted to residents. Owners of condominiums units who were not residents were not entitled to use common ele- ments and facilities except for purpose of visiting units or dealing with management. Ap- plicant company owned con- dominium unit. Unit had four FOBs and three clickers issued to it, mostly to applicant hus- band. Husband was unable to reserve squash court and made complaint to respondent. Re- spondent looked into matter and from its records it appeared that only husband' s actions were and boyfriend were residents. Respondent deactivated FOBs and clickers of husband and wife. Respondent wrote to hus- band and told him that only residents of building could use recreational facilities. Husband refused to complete resident information form. He refused to provide proof of residency to respondent. Aſter application was commenced, husband' s daughter of recreational facilities was re- instated. Application granted in part. Although company owned building at relevant time, respondent had treated husband and wife as owner and residents for years. Husband had reasonable expectation to have continued uninterrupted access to unit as owner and resident. It was reasonable for husband to have expected to receive notice if there were too many FOBs and clickers and that he needed to confirm he s use PAGE 15 was resident. Respondent did not pursue its legitimate inter- est in identifying who residents of unit were in reasonable man- ner when it denied husband ac- cess to building by unilaterally deactivating FOBs and click- ers. Respondent' contrary to by-laws and were oppressive, unfairly prejudicial and unfairly disregarded hus- band' s actions were ever, respondent had legitimate interest in knowing and record- ing who residents were to pro- tect residents and owners from unauthorized use of building and amenities. It was not un- reasonable for respondent to enforce completion of resident information form. Husband' s interests as owner. How- inability to access recreational facilities was of his own doing. Husband did not have reason- able expectation to be entitled to use recreational facilities without completing resident in- formation form. Respondent' s actions were not oppressive or unfairly prejudicial and did not unfairly disregarded husband' s interests. Applicants were awarded nominal damages of $500. Sarah Computer Consulting Inc. v. Peel Condominium Corp. #421 (June 22, 2012, Ont. S.C.J., Ric- chetti J., File No. CV-11-2377- 00) 217 A.C.W.S. (3d) 989 (14 pp.). s ONTARIO CRIMINAL CASES Defences Victim entitled to respond to accused' SELF-DEFENCE s attack Accused claiming self defence in stabbing death of victim. Ac- cused having attempted to rob victim at knifepoint. In course of struggle, victim being stabbed to death. Accused making out- of-court statement that victim had gained control of knife, and would have stabbed him. Trial judge holding self defence under s. 34(2) or s. 35 having no air of reality. Trial judge holding bald statement by accused that vic- tim had knife did not provide basis for objectively reasonable belief fully assault him. Appeal from conviction for first degree mur- der dismissed. Bald statement about deceased having knife not evidence of objective reason- ableness of threat posed by de- ceased, to trigger s. 34(2). Victim entitled to respond to accused' accused would unlaw- attack as matter of law. No air of reality to show accused reason- ably believed victim doing any- thing other than defending him- self lawfully. No air of reality to s. 35 self defence as no evidence accused attempted to extricate himself from perilous situation he brought about. R. v. M. (S.) (Apr. 20, 2012, Ont. C.A., Weiler, Sharpe and Blair JJ.A., File No. C50403) 102 W.C.B. (2d) 317 (18 pp.). LT s

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