Law Times

Page 14 February 4, 2013 Law Times • CASELAW current condition and strong family ties but nonetheless balanced this against her expected deterioration and possibility of visits to Canada and ability of family members to travel to Bangladesh to assist her. IAD was entitled to balance H&C factors, and considered such important aspects as goal of family reunification, against issues associated with excessive demands on healthcare system. IAD's conclusions were reasonable and reflective of the evidence presented. Kabir v. Canada (Minister of Citizenship and Immigration) (Aug. 28, 2012, F.C., Near J., File No. IMM-480-12) 221 A.C.W.S. (3d) 701. ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Association of franchisees formed for sole purpose of defeating class action Plaintiff was franchisee of retail pet food and supply company. Common issue certified was that company had duty to share volume discounts and rebates from suppliers with franchisees. Communication with class members contentious and certain franchisees began campaign to defeat class action resulting in significant spike in opt-out notices. Plaintiff brought successful motion to set aside opt-out notices. Case management judge held that while franchisees had right of association, class members unfairly pressured, singled out and misinformed by actions of association, and opt-out process corrupted. Costs awarded to plaintiff. Motion important as it involved integrity of opt-out process. Association of franchisees formed for sole purpose of defeating class action and took active and inappropriate role in doing so. Company supported position of association of franchisees, and while company was not party to activities of association, company's CEO clearly aware of what association was doing and let it continue unabated. Plaintiff awarded costs in amount of $60,000, payable by company and association of franchisees jointly and severally. 1250264 Ontario Inc. v. Pet Valu Canada Inc. (Sep. 11, 2012, Ont. S.C.J., Strathy J., File No. CV-09-392962-00CP) Additional reasons to 218 A.C.W.S. (3d) 762. 221 A.C.W.S. (3d) 524. Evidence OPINION EVIDENCE Problematic accepting expert's opinion given with rigorous independence Ruling on admissibility of expert evidence. Property owner owned two new 12-unit residential buildings. Owner wished to allow up to seven students to occupy each unit. Municipal- ity refused to issue occupancy permit allowing more than four occupants per unit. Owner commenced application for declaratory relief and for order requiring municipality to issue unconditional occupancy permit. Owner filed affidavit from planning expert who opined on characterization of buildings. Evidence inadmissible. Expert's evidence had been unnecessary and would have been given little weight in any event. Expert had advised owner on project and had accompanied owner when meeting with municipal officials. Expert had acted as advocate in that position. Given expert's prior role, it would have been problematic accepting that her opinion was being given with rigorous independence. Balmoral Developments Hilda Inc. v. Orillia (City) (Oct. 24, 2012, Ont. S.C.J., Healey J., File No. CV-120310) 221 A.C.W.S. (3d) 744. Family Law ADOPTION Mother non-cooperative with interventions regarding behaviour or referrals Society's application for finding that child, aged four, in need of protection, and order that child be made Crown ward for purposes of adoption. Society first involved with child in July 2010. Child had special needs. Mother unable to control child's behaviour. Safety hazards in home. Mother non-co-operative with interventions regarding behaviour, or referrals. Support worker concerned child required speech and language assessment. Mother failed to make appointment for 18-month immunization. Physician concerned child possibly autistic. Child apprehended November 2010 at age of 22 months. Child in society's continuous care since apprehension. Mother opposed application. Mother's plan to place child with paternal aunt, subject to society supervision, or that child be placed with self, subject to society supervision. Application allowed. Child in need of protection at time of apprehension. Mother noticeably overwhelmed. Home very unsanitary and unsafe. Mother unable to describe or address child's serious needs or necessary therapies. Mother treated for depression and panic attacks. Paternal aunt's evidence vague. Aunt's inability to attend regular access sufficient to indicate unable to commit to long-term plan to care for child. Aunt had no real understanding of child's needs. Aunt failed to appreciate that plan to address needs necessary. Aunt's son's behaviour would add to aunt's challenges caring for child. Mother's mental health issues a significant roadblock in historical ability to manage child and regularly attend post-apprehension access visits. Mother's inability to address own mental health issues indicated child could not be returned to her. Proposed fam- ily supports sincere, but family's love alone insufficient to ensure child received competent care. Adoption would give child best opportunity. Children's Aid Society of Toronto v. A. (A.) (Oct. 9, 2012, Ont. C.J., Spence J., File No. C52598/10) 221 A.C.W.S. (3d) 601. CHILD WELFARE Simple luck that children not harmed in home invasion Society requested order two children in need of protection, and be made Crown wards for adoption. Children born in March 2009 and March 2010. Children apprehended in August 2010 after home invasion at residence. Parents opposed application. Parents' relationship terminated. Both parents lost housing and resident with friends. Neither parent employed or in school. Both parents' income were from Ontario Works. Father had lengthy criminal record, including for assault, assault with weapon, assault police, robbery, possession, escape custody, uttering threats, mischief, and non-compliance with bail and probation conditions. Criminal record included entries every year since 18 years old in 2000. Most recent conviction February 2012 for assault on mother. Father frequently in violent conflict with intimate partners from 2005 to 2012. Society believed father a gang member and home invasion connected to gang activities. Society concerned parents unable to protect children from violence. Mother transient and homeless. Mother unable to master basic childcare skills or follow through with educational programs. Mother suffered depression and emotional issues, and used marijuana. Society's motion for summary judgment granted. No triable issue. Simple luck that children not harmed in home invasion or as result of father's violent associations. Mentally ill mother's involvement in intimate relationships featuring conflict and violence created chaotic, unstable and risky home environment. Children at risk of emotional harm from disclosure to domestic conflict. Father's two proposed alternatives not prepared to plan for children. Mother's proposed alternative did not initially respond to society's queries. Society had open protection file with daughter of mother's proposed alternative. Society did not proceed with assessment. Society's plan to place children for adoption the only viable plan presented. Children made Crown wards. Children's Aid Society of Toronto v. M. (N.) (Oct. 15, 2012, Ont. C.J., Murray J., File No. C47321/09) 221 A.C.W.S. (3d) 599. MARRIAGE Applicant not entitled to order for equalization as marriage not legally valid www.lawtimesnews.com Application for equalization of net family property. In June 2008, parties went through Sikh religious marriage ceremony attended by 500 guests, followed by reception attended by 1,000 guests, but never obtained marriage licence or registered marriage as required by Marriage Act (Ont.). Parties lived together for some time, and had one child, before separating in June 2011. While applicant claimed to have been unaware of legal requirement for licence, respondent claimed parties knowingly did not obtain one because applicant wanted to be free to marry and sponsor immigration of cousin in India. Applicant suggested respondent wanted to marry someone in India. After participating in marriage ceremony, both parties signed tax and insurance documents identifying other as common law spouse or friend rather than legal spouse. Application dismissed. Under s. 31 of Act, marriage could be deemed valid notwithstanding absence of licence provided marriage solemnized in good faith, intended to be in compliance with laws of Ontario, neither party under legal disqualification and parties cohabited as married couple. Intention of party advancing claim for equalization determinative. Applicant's evidence not credible. Respondent's version of events more detailed, corroborated by documents and recorded telephone conversations. Court satisfied applicant never intended to comply with requirement for licence. Since marriage not legally valid and applicant never entered into marriage in good faith, applicant not spouse as defined by s. 1 of Family Law Act (Ont.), and not entitled to order for equalization. Chhokar v. Bains (Dec. 3, 2012, Ont. S.C.J., Bielby J., File No. FS-11-72537) 221 A.C.W.S. (3d) 647. TAX COURT OF CANADA Taxation INCOME TAX Appellant failed to treat tax compliance obligations as priority Appeal by taxpayer from late filing penalties. Appellant land development company filed 2003 tax return, due April 30, 2004, in November 2004 declaring no net income and no tax payable. Appellant filed amended return for 2003 in November 2008 declaring income of $292,232 and tax payable of $28,659. Appellant filed 2006 tax return, due April 30, 2007, in August 2009. Appellant assessed late filing penalties of $3,152 for 2003 and $216,479 for 2006. Appellant also assessed late GST filing penalties for various periods. Appellant's sole shareholder testified 2003 return not filed in timely manner because loss anticipated and appellant had unused noncapital losses from previous years to offset any income. Witness erred in anticipating loss as result of failure to consider "soft expenses" not deductible from income. Witness testified 2006 return also not filed in timely manner because of anticipated loss, but could not explain how income underestimated by $5.8 million. Witness provided similar explanation for failure to file returns and remit GST in timely manner. Appeal dismissed. Issue whether appellant exercised requisite level of due diligence in relation to filing various returns within time required. In circumstances, proof of due diligence required proof of reasonable mistake of fact. Taxpayer could avoid late filing penalties if able to establish, on balance of probabilities, reasonable grounds to believe no tax owing. Witness's evidence fell short of establishing reasonable grounds on both subjective and objective tests. Court satisfied appellant had simply failed to treat tax compliance obligations as priority. 830480 Alberta Inc. v. Canada (Dec. 3, 2012, T.C.C., Hogan J., File No. 2010-3252(IT)G; 2012115(GST)I) 221 A.C.W.S. (3d) 757. ONTARIO CRIMINAL CASES Appeal GROUNDS Memory loss did not undermine credibility on crucial issue of consent Appeal by accused from his conviction for sexual assault and for breach of probation. Complainant attended concert when she was intoxicated. Her recollection of events was problematic because of her drunkenness but she recalled lying on ground with her pants down and accused was on top of her and he penetrated her vaginally. She also testified that co-accused penetrated her vaginally. Complainant's evidence was unclear as to her memory gaps. Accused did not testify but coaccused did and he claimed that sexual relations were consensual. Co-accused did not appeal his conviction. Trial judge accepted complainant's evidence and rejected co-accused's testimony. Trial judge did not expressly deal with effect of complainant's memory gap on her credibility. However, he dealt with her credibility and her reliability and his reasons responded to real issues in this case. Memory gap was not issue in this case because complainant, who earlier flirted with both accused clearly expressed her lack of consent and memory loss did not undermine her credibility on crucial issue of consent. R. v. Rand (Oct. 30, 2012, Ont. C.A., Rosenberg, Blair and Tulloch JJ.A., File No. CA C53113) 104 W.C.B. (2d) 10.

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