Law Times

Law Times ��� February 25, 2013 ficer���s comments indicated that officer was concerned about fraudulent behaviour and violated principles of natural justice by not giving him opportunity to address these concerns. Application allowed. Officer reconsidering negative eligibility decision under agreement has duty to give applicant opportunity to disabuse officer of any concern over authenticity of applicant���s documents. There was no indication in officer���s notes from initial screening that applicant was given such opportunity. Officer breached duty of procedural fairness by not giving applicant this opportunity before drawing adverse inference from officer���s concern over document forgery. Cishahayo v. Canada (Minister of Public Safety and Emergency Preparedness) (Oct. 29, 2012, F.C., Pinard J., File No. IMM-765-12) 222 A.C.W.S. (3d) 205. ONTARIO CIVIL CASES Appeal LEAVE TO APPEAL Appellate guidance would be useful for subsequent cases This was application for leave to appeal decision respecting carriage of class action. In 2011, securities of defendant were sold through public offering. Defendant issued press release that disclosed disappointing financial results for first quarter of 2011. Payment of dividends was suspended and share price fell dramatically. Two class proceedings were commenced in Ontario. Plaintiffs applied to court to determine who should have carriage of class action. Judge concluded that first plaintiff action should continue because of its simple and cohesive but adequately comprehensive approach to class and to damages and fact that benefits of plaintiffs outweighed any concern over fewer numbers of defendants. Action commenced by second plaintiff was stayed. Leave to appeal granted. Order was discretionary and was entitled to deference. There were conflicting decisions with respect to principles to be applied when determining carriage motions. Appellate guidance would be useful not only for purposes of case but for subsequent cases. Extent to which court could and should undertake substantive review of cases advanced by competitors to carriage motion was not solely academic and transcended facts of and parties to proceedings. There was reason to doubt correctness of order. It might be argued that analysis was internally inconsistent. Extent of analysis of several factors underlying decision was subject to serious debate. Issue was relevant and important because it related to current state and development of law. Resolution might provide guidance with respect to approach to be adopted by those pursuing or deciding between Page 15 CASELAW competing class actions. Simmonds v. Armtec Infrastructure Inc. (Sep. 18, 2012, Ont. S.C.J., Grace J., File No. 4622/11CP; CV-11-16465) Leave to appeal from 212 A.C.W.S. (3d) 22 was allowed. 222 A.C.W.S. (3d) 9. Family Law CHILD WELFARE Mother did nothing to show ability to organize her life Child was apprehended at birth. Mother had supervised and partially supervised access. Father was unknown to society. Mother was unable to obtain and maintain appropriate housing. Society had concerns about mother���s attendance for access. Mother had on-again/off-again relationship with partner. Mother���s partner refused to meet with society workers and admitted to using marijuana to manage chronic pain. There was domestic violence. Mother indicated partner was part of mother���s plan for child. Society sought order making child Crown ward with no access to mother. Society brought motion for summary judgment. Mother filed no material and made no submissions challenging society���s analysis. Child was made Crown ward without access by mother. There was overwhelming lack of progress by mother in addressing fundamental parenting issues. There were concerns about mother���s chronic lifestyle and relationship problems. There was no genuine issue for trial. Mother did nothing to show mother had ability to organize mother���s life to provide safe and stable physical and emotional environment for child. There were no other less intrusive alternatives available. There was no evidence to suggest that continuing access would be beneficial and meaningful from child���s perspective. Children���s Aid Society of Hamilton v. M. (A.) (Oct. 31, 2012, Ont. S.C.J., Pazaratz J., File No. C-1333/06) 222 A.C.W.S. (3d) 135. PROPERTY Well-being of children did not depend on children remaining in matrimonial home Parties were married for 24 years and had two children. Father sought order for immediate partition and sale of matrimonial home. Mother brought motion for exclusive possession of matrimonial home, and order that matrimonial home be listed for sale after specified time. Parties agreed mother would have exclusive possession pending sale of matrimonial home. Father was in difficult financial circumstances finding it difficult to pay rent, to contribute to matrimonial home and to provide child support. Children would be adversely affected by sale of matrimonial home. Order required matrimonial home to be listed for sale immediately. Current and continuing well-being of children did not depend in any substantial way on children remaining in matrimonial home. Carson v. Carson (Oct. 25, 2012, Ont. S.C.J., Murray J., File No. 4271/11) 222 A.C.W.S. (3d) 173. ONTARIO CRIMINAL CASES Appeal GROUNDS Accused not required to provide information about safe operation of vehicles as worker not allowed to drive Appeal by accused of two convictions under Occupational Health and Safety Act (Ont.). Accused was alleged to have failed to ensure that worker received information about safe operation and parking of vehicles in workplace and it was also alleged that accused failed to ensure that worker who drove car at workplace had valid driver���s licence and was sufficiently trained in safe operation of motor vehicle. Accused cleaned automobiles. Worker was employed as cleaner and as such he was not allowed to drive. Worker drove vehicle into wash bay area of accused���s cleaning facility and he set off chain of collisions between two other cars which injured another worker. Co-worker, who was one of coowners of accused, told worker twice that he was not allowed to drive. First time he so informed worker was day he was hired and second time was on day of incident. Worker was aware of accused���s safety policy. Worker never received training in safe operation of vehicles. Co-worker testified that there was no reason for worker to leave his work area or to drive any cars. Appeal allowed and convictions were set aside. Convictions under appeal were strict liability offences. Trial judge failed to fundamentally understand or address accused���s position and this was serious error of law. Worker was hired simply to clean cars, he was instructed about his job, he understood what it entailed and he further understood that his job did not involve driving any cars. There was no reason for accused to ensure that he was supervised for every minute that he worked. Since worker was not to drive accused did not have to provide with him information about safe operation of vehicles and it did not have to verify that he had valid driver���s licence. Ontario (Ministry of Labour) v. 679052 Ontario Ltd. (Nov. 30, 2012, Ont. C.J., Zisman J., File No. 1211-999-07-7113-04) 104 W.C.B. (2d) 406. RIGHT OF APPEAL Application of new Supreme Court of Canada decision potentially significant to administration of justice Accused applied for leave to appeal decision overturning his acquittal on charges of importing diamonds contrary to Export and Import of Rough Diamonds www.lawtimesnews.com Act as well as acquiring illegally imported goods and smuggling. Trial judge had excluded evidence finding warrantless search of accused���s office by police violated his s. 8 rights. Appeal court overturned that decision and ordered new trial. Investigation leading to charges began when Border Services officer opened package addressed to accused and discovered four wooden statues containing hidden rough diamonds. Police installed alarm and tracking device in package so that investigators would know when package was opened and obtained general warrant authorizing this installation. Police decided to make controlled delivery of package using undercover officer posing as courier. Approximately ten minutes later, investigators received notification that package had been opened and undercover officer immediately returned to office, claiming to have forgotten her gloves and was buzzed through outer door of office. Emergency response team (���ERT���), with weapons drawn, then breached inner door and secured premises. Accused was then arrested by plain clothes officers; ERT left premises seven minutes after entry. Plain clothes officers searched two-room office suite and seized package that had been delivered by undercover officer, another similar package, and 54 diamonds valued at about $12,900. Leave to appeal granted. Application of new Supreme Court of Canada decision, which was used by appeal court to overturn trial judge���s decision, to manner of ERT���s entry to accused���s business premises was potentially significant to general administration of justice. R. v. MacKay (Oct. 4, 2012, Ont. C.A., MacPherson, Armstrong and Watt JJ.A., File No. CA C53979) Decision at 95 W.C.B. (2d) 423 was affirmed. 104 W.C.B. (2d) 457. Evidence CONFESSIONS AND ADMISSIONS Detective chose to create poor record when dealing with interactions with accused Crown applied to have statement of accused to police, made after he voluntarily attended their station and was arrested, declared voluntary and waiver and consent to take DNA sample valid. Statement involuntary and subsequent DNA sample therefore inadmissible. Court did not accept testimony of interviewing officer that her notes were complete; there was not complete and reliable record before court, officer repeatedly told court that it was impossible to keep verbatim record and court found that her note keeping appeared to have been selective. It made no sense that statements to and from suspect were summarized to get gist of discussion but that conversation with witness was significantly more detailed; inference court drew was that detective chose to create poor record when dealing with her interactions with accused. In absence of full, complete and reliable record as to what was actually said, court was left in doubt as to how this statement came to be and why accused came to station to cooperate fully with police, without counsel and without exercising any of his rights. Accused should have immediately been provided his right to counsel upon arrest in lobby of police station or immediately upon arriving in interview room. Once statement was ruled to be involuntary, statement in its entirety was inadmissible for any purpose. Statement could not be relied upon to prove that waiver and consent were valid and fully informed or justify warrantless seizure of accused���s blood sample. R. v. Harris (Nov. 27, 2012, Ont. S.C.J., Ferguson J., File No. 1012484) 104 W.C.B. (2d) 480. Extradition and Fugitive Offenders SURRENDER Fugitive had not met onus to show he would not get fair trial in Hungary Fugitive appealed decisions of minister to order his unconditional surrender to Hungary to face charges of fraud and decision confirming that original order. Fugitive was dual Hungarian and Canadian citizen, and was Jewish, but had not come to Canada as refugee. Minister rejected his argument that his surrender would be unjust or oppressive because he would not get fair trial in Hungary particularly due to lack of respect for rule of law, and significant anti-Semitism. Minister also rejected his submission that minister should require assurances from Hungary that fugitive would not be prosecuted for offence other than those for which he was extradited and that he would be granted bail pending trial. Fugitive applied for minister to reconsider his decision in light of new guiding case law and minister rejected fugitive���s submissions and confirmed his original decision. Application dismissed. Jurisprudence fugitive alleged should have been followed in minister���s decision only applied when person facing surrender was refugee. There was ample material before minister to support his conclusion that fugitive had not met his onus to show that he would not get fair trial in Hungary so as to render his surrender unjust or oppressive. Fugitive established no basis for asserting that Hungary would violate rule of specialty should he be returned and it was open to minister to find that assurance requiring bail was unnecessary in light of Hungary���s functioning bail system. Hungary (Republic) v. Pataki (Oct. 2, 2012, Ont. C.A., Goudge, Watt and Hoy JJ.A., File No. CA C52020; C52935) Decision at 87 W.C.B. (2d) 921 was affirmed. 104 W.C.B. (2d) 485. LT

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