Law Times

Law Times • January 28, 2013 Court noted complainant came to accused for guidance and support because her parents had separated and he took advantage of her vulnerability. Accused had sexual activities in cars in parking lots, in hotel rooms in Italy and in tents in Kenya with complainant. Further aggravating factor was he consented to enormous deception of complainant's parents in order to be with her in Italy. Court emphasized it must denounce what accused did in strongest terms to try to protect young girls in schools and to ensure all parents with young daughters in school that this behaviour would not be condoned or treated lightly. Complainant now suffered from much anxiety and eating disorder and in order to deter this conduct, court sent clear and stern message to all teachers who may be tempted to engage in sexual relations with their students that they will be punished in meaningful way. R. v. Biss (Sep. 27, 2012, Ont. C.J., Bovard J., File No. 12-3539) 103 W.C.B. (2d) 1092. not raised concerns for some two and one-half years after signing first agreement. Assistant commissioner was entitled to take employee's silence into account. Assistant commissioner reasonably concluded that requirement in initial agreement that employee retire had not been modified by extensions of second agreement. Persons with whom employee had dealt when extending second agreement had no authority to vary initial agreement. CRA had acquiesced in extensions but this in itself did not amount to waiver of requirement to retire. Assistant commissioner reasonably concluded there had been no mutual agreement to vary requirement to retire. Lawton v. Canada Revenue Agency (Sep. 11, 2012, F.C., Hughes J., File No. T-456-11) 221 A.C.W.S. (3d) 352. FEDERAL COURT Motion by federal government for summary judgment dismissing action brought by public interest group. Public interest group was non-profit society dedicated to preserving large peat bog and raising public awareness of its ecological significance. At least part of bog had been purchased by municipalities and provincial government for conservation purposes. Municipalities and provincial government entered into conservation covenant requiring them to refrain from altering bog. Several years later, municipalities and provincial government finalized management plan for protecting at least 5,000 acres of bog. Provincial government intended to construct road adjacent to bog. Federal government agreed to contribute funding. Environmental assessment indicated no adverse environmental effects if certain mitigating measures were followed. Public interest group commenced action against federal government for order compelling it to protect bog. Motion granted; action dismissed. There were no contested facts that needed to be resolved in order to determine action had no chance of success. Central issue was whether construction of road adjacent to bog might impact ecology of bog. Related issue was whether federal government had duty to ensure construction of road did not impact ecological integrity of bog. Public interest group provided little evidence or authority in support of its claims. There was no evidence at all of federal government having legal obligation to prevent provincial government from constructing road in manner that might compromise bog's ecological integrity. Public interest group simply asserted legal duties in abstract and made no effort to show how such duties could arise on facts of this Employment PUBLIC SERVICE Requirement that employee retire not modified by extensions of agreement Application by employee for judicial review of decision of assistant commissioner of Canada Revenue Agency (CRA) dismissing grievance. Employee worked for predecessor of CRA as director of human resources (Pacific region). In May 2004, employee signed initial agreement accepting another position until her retirement in October 2007. In June 2005, employee signed second agreement allowing her to be placed temporarily with Public Service Human Resources Management Agency of Canada. Second agreement was extended number of times with latest extension covering up to December 2007. In March 2007, CRA asked employee to sign third agreement extending initial agreement up to December 2007. Employee refused to sign third agreement due to requirement to resign in December 2007. Second agreement was extended to June 2008. CRA terminated employee in June 2008. Employee unsuccessfully grieved to one of CRA's assistant commissioners. Application dismissed. Assistant commissioner had applied correct legal principles despite not expressly considering them, and her decision was reasonable. Employee had clearly signed initial agreement despite any misgivings. Assistant commissioner could reasonably conclude employee had not been subjected to kind of pressure that would make initial agreement void or voidable. Record before assistant commissioner indicated employee had Page 15 CASELAW Environmental Law ENFORCEMENT No public trust duty requiring Crown to take positive steps to protect environment case. Public interest group had not even provided factual underpinning showing what alleged dangers to bog were. Federal government did not have duty to protect bog's ecological integrity. Federal government did not own bog. Conservation covenant and management plan did not impose any obligations on federal government. No Canadian courts had yet recognized public trust duty requiring Crown to take positive steps to protect environment. Circumstances did not give rise to any fiduciary or statutory duties. Burns Bog Conservation Society v. Canada (Attorney General) (Aug. 29, 2012, F.C., Russell J., File No. T-1963-10) 221 A.C.W.S. (3d) 356. Public Health Studies insufficient to evaluate safety of manufacturer's product Application by natural health products manufacturer for judicial review of decision of Natural Health Products Directorate refusing manufacturer's product licence application. Manufacturer applied for product license for product TherapeutxTM "Maori Miracle" Joint Health Companion. Directorate informed manufacturer that evidence on safety and efficacy of product was deficient. Manufacturer provided further evidence but directorate was still not satisfied. After further correspondence, directorate refused manufacturer's application. After further correspondence, directorate upheld its decision. Application dismissed. Directorate had properly considered information submitted by manufacturer and its decision was reasonable. Directorate reasonably determined studies relating to different version of particular ingredient in manufacturer's product were insufficient for evaluating safety of manufacturer's product. Expert evidence had been insufficient due to failure to refer to recommended dosages. Collective evidence remained insufficient to support safety finding. Directorate's reasons for decision were adequate. Manufacturer failed to establish any impropriety such as trying to reduce backlog of applications. North American Nutriceutical Inc. v. Canada (Attorney General) (Aug. 30, 2012, F.C., O'Keefe J., File No. T-768-11) 221 A.C.W.S. (3d) 474. ONTARIO CIVIL CASES Family Law CHILD WELFARE Children at risk of physical harm due to prospect of recurrence of domestic violence Application by Children's Aid Society (CAS) for Crown wardship of two children for purpose of adoption. Mother had been subjected to physical and emotional abuse as child. Mother had first child at end of www.lawtimesnews.com abusive relationship with first father. Mother received services from CAS due to inability to provide food. Concerns arose from mother's failure to follow through with appointments and her use of physical discipline. Mother became involved in abusive relationship with second father and had second child with him. Children were apprehended based on reports of physical discipline while mother and children were living in shelter. Mother eventually lived with friend who was herself subject to CAS involvement. Mother was often late for access visits or cancelled them entirely. Mother declined access visits in foster home where she could have tried to enhance her parenting skills. Access visits revealed emotional detachment on part of mother. First child was resistant to attending access visits for period of time. Comprehensive assessment indicated mother would not be able to care for children on her own. During one access visit, mother chastised first child by saying she would take second child home and leave first child in care. Application granted. Children were in need of protection for several reasons. Older child had suffered physical harm at hands of mother before being apprehended at age of five. Mother's treatment of older child had exceeded what might have been considered justifiable for disciplinary purposes. Mother's conduct had resulted from loss of control when she was angry. Older child was at risk of future physical harm since mother's harsh disciplinary tactics could recur if she was under stress. Nothing indicated younger child had been physically abused but there was risk that he would be subjected to same treatment as he grew older. Prospect of recurrence of domestic violence in mother's life constituted further reason that children would be at risk of physical harm in her care. Mother was unable to offer anything other than bald assertion that she would not expose children to domestic violence. Mother had not yet obtained necessary counselling. Children were at further risk of serious emotional harm stemming from mother's actions or omissions. Older child had already been diagnosed with, inter alia, post-traumatic stress disorder and anxiety that impaired his functioning in daily life. Mother's lack of sensitivity to older child's needs was welldocumented. Younger child was again at risk of same treatment as he grew older. Catholic Children's Aid Society of Toronto v. B. (S.S.) (Sep. 7, 2012, Ont. C.J., Murray J., File No. C 49201/09) 221 A.C.W.S. (3d) 357. Judgments and Orders SETTING ASIDE Giving landlord one last chance would have been collateral attack on prior order Motion by landlord for order setting aside order striking out statement of defence and counterclaim with prejudice. Landlord had allegedly committed to completing numerous substantial repairs and improvements for tenant. Tenant alleged much work was either not done or was done late or poorly. Tenant also alleged landlord interfered with quiet enjoyment of premises and improperly tried to evict tenant. Tenant commenced action against landlord in March 2009 for damages and injunctive relief for breach of contract. Landlord commenced counterclaim for declaration that written lease was invalid and for damages for, inter alia, wrongful occupation. During examination for discovery in December 2011, landlord provided undertaking to produce relevant documents. Landlord chose not to respond to motion successfully brought by tenant in March 2012 for order requiring landlord to fulfil undertaking. Order permitted tenant to bring ex parte motion for order striking out statement of defence and counterclaim if landlord failed to comply. Landlord failed to comply so tenant successfully brought ex parte motion in April 2012 for order striking out statement of defence and counterclaim with prejudice. Motion dismissed. Landlord failed to establish basis for exercise of discretion in its favour. Since landlord claimed not to have had any notice of motion for order striking out statement of defence and counterclaim, landlord could not rely on Rule 37.14(1)(b) of Rules of Civil Procedure (Ont.). Rule 37.14(1)(b) only applied to accident, mistake, or insufficient notice rather than lack of any notice. Lack of notice fell within Rule 37.14(1)(a). Fact that order requiring landlord to fulfil undertaking permitted ex parte motion did not preclude landlord from pursuing relief under Rule 37.14(1)(a). Rule 37.14(1)(a) was designed to remedy possible injustice resulting from temporary suspension of normal adversarial process. No such injustice was apparent in this case. If landlord had appeared at ex parte motion, landlord's evidence would have only confirmed non-compliance without good excuse. Giving landlord one last chance would have been collateral attack on prior order permitting ex parte motion. Landlord had deliberately chosen not to appear for motion at which that order had been made and had never appealed. Landlord had repeatedly demonstrated reluctance to address this litigation in prompt and proper way and had to suffer consequences. Wayne v. 1690416 Ontario Inc. (Sep. 18, 2012, Ont. S.C.J., Leach J., File No. 61476) 221 A.C.W.S. (3d) 449. LT

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