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Law Times • April 15, 2013 plicable, enforceable and served to bar initiation of class proceeding for any amount exceeding $1,000. Appellants class proceeding was stayed. Appeal dismissed. Appeal from judge's decision lay to Federal Court of Appeal. By incorporating the Arbitration Act, 1991 (Ont.), into their bargain parties could not oust Federal Court of Appeal's jurisdiction found in s. 27(2) of Federal Courts Act (Can.). Private claim for damages brought under s. 36 of CA was arbitrable. Supreme Court of Canada made it clear that express legislative language was required before courts would refuse to give effect to terms of arbitration agreement. CA did not contain language that would indicate that Parliament intended that arbitration clauses were to be restricted or prohibited. There was no basis to conclude that claims brought under s. 36 of CA could not be determined by arbitration. Appellant's claim under s. 36 of CA must be sent to arbitration as parties intended when they entered into arbitration agreement. Rhodes v. Cie Amway Corp. (Feb. 14, 2013, F.C.A., Nadon, Gauthier and Trudel JJ.A., File No. A-487-11) 223 A.C.W.S. (3d) 770. Immigration INADMISSIBLE AND REMOVABLE CLASSES Rehabilitation of claimant after committing crime irrelevant This was appeal of dismissal of application for judicial review. Appellant was national of Albania. Greek court found that appellant fatally stabbed another Albanian while living in Greece during fight. Appellant was convicted and released. He could no longer live in Albania because killing provoked blood feud between his family and deceased's family. Appellant came to Canada and claimed refugee protection. Delegate of respondent Minister refused to provide opinion that appellant was dangerous. Claim for refugee protection was not ineligible to be referred to the Refugee Protection Division ("RPD"). Minister of Public Safety and Emergency Preparedness ("MPSEP") intervened. RPD rejected appellant's claim for refugee protection on ground that he was excluded from definition of refugee by Article 1F(B) of United Nations Convention relating to the Status of Refugees. Application judge dismissed application for judicial review. Appeal dismissed. Claimant's dangerousness was not relevant to determination of whether claim was excluded from refugee definition by Article 1F(b). Fact that respondent declined to provide opinion that appellant was danger to public in Canada did not estop MPSEP from intervening before RPD to argue for exclusion. Issues at eligibility and exclusion stages Page 19 CASELAW were different. MPSEP did not unreasonably exercise discretion to intervene. Rehabilitation of claimant after committing crime and current dangerousness were irrelevant at exclusion stage. Appellant's crime was presumptively serious because if he had been found guilty in Canada of equivalent crime of manslaughter, he could have been sentenced to maximum of at least ten years' imprisonment. RPD's overall conclusion on material before it that there were serious reasons for considering that appellant committed serious crime was not unreasonable. Feimi v. Canada (Minister of Citizenship and Immigration) (Dec. 7, 2012, F.C.A., Evans, Sharlow and Stratas JJ.A., File No. A-90-12) Decision at 216 A.C.W.S. (3d) 989 was affirmed. 223 A.C.W.S. (3d) 851. ONTARIO CRIMINAL CASES Appeal GROUNDS Fact that panel characterized witness' breach of Order as technical was exercise of judgment Accused appealed decision of Ontario Securities Commission dismissing his application to set aside earlier order of commission approving settlement he had made with staff of commission. Accused argued that earlier order should have been set aside because of nondisclosure of material information by commission staff prior to settlement and also argued that there was bias because of participation of one member of commission in revocation hearing. Accused had been Managing Director in Mergers and Acquisitions Department of Securities firm when he was charged with ten counts of insider trading and ten counts of tipping under it was alleged that he had given confidential information to individual with whom he had had close personal relationship since secondary school, and that individual used this information in purchasing securities. Accused tried to have settlement order revoked on basis his counsel did not inform him that Crown witness, individual who had traded on accused's information, was charged with regards to breach of his own cease trade order. Commission found that oral disclosure of witness' breach to accused's lawyer was sufficient, and in any event, characterized breach of Cease Trade Order as unintentional and concluded that information would not have further substantially impaired witness' credibility in administrative or criminal proceedings. Commission noted that granting application would lead to "perverse outcome", because new quasi-criminal charges or administrative pro- ceedings were barred by six year limitation period. Appeal dismissed. Commission decision was reasonable and there was no evidence to support finding of bias. No reasonable person would have run risk of second criminal trial or administrative proceeding on basis of information disclosed in second interview with witness or on basis of his subsequent sanction. Accused had been informed of option to file motion to recuse commission member who had been involved in revocation hearing, but did not contest that member's participation. Detailed reasons for decision showed careful consideration of arguments made on behalf of accused; fact that panel characterized witness' breach of Cease Trade Order as technical breach was exercise of their judgment, based on facts presented to them. There was dissenting opinion. Rankin, Re (Jan. 11, 2013, Ont. S.C.J. (Div. Ct.), Brown R.S.J., Swinton and Matlow JJ., File No. 590/11) 104 W.C.B. (2d) 1164. Assault ASSAULT CAUSING BODILY HARM Accused involved in group assault of overpowered complainant Two accused appealed their convictions for assault causing bodily harm. Injuries complainant ultimately suffered were significant including lacerated liver, blackened eyes and broken nose. Complainant and his female passenger found themselves in fast food drive through behind car occupied by four males and one female. Complainant apparently became impatient with time that car was taking and words were exchanged. After leaving drive through complainant confronted occupants of other car and trial judge found that soon thereafter those occupants exited their vehicle; trial judge found complainant was quickly overpowered and that all four male occupants of vehicle punched complainant while they knew he was overpowered and continued to punch and kick him while he was on ground. Trial judge found that all involved were under influence of alcohol to some degree. Counsel for one of accused submitted trial judge erred in dismissing accused's claim of self defence even though he had found that complainant initiated altercation that resulted in ultimate assault. Appeal dismissed. Evidence presented reasonably supported trial judge's finding that, while complainant unwisely initiated confrontation with four males, and while evidence was unclear as to who made first physical contact, there was no question that complainant was quickly overpowered by choke hold by one of assailants and fell to ground. Based on evidence of independent eyewitnesses, trial www.lawtimesnews.com judge could reasonably find that even after complainant was overpowered, all four males were observed to be punching complainant. Defence lost any air of reality when trial judge found accused was involved in group assault of overpowered complainant and that accused must have known that complainant was defenceless and overpowered. R. v. Derochie (Jan. 16, 2013, Ont. S.C.J., de Sousa J., File No. 11-109AP; 11-114AP) 104 W.C.B. (2d) 1172. Jury DELIBERATIONS Trial judge should have confirmed with jury whether answer required before receiving verdict Jury convicting accused of offences arising from seizure of cash, drugs from envelope in vehicle. Police officer testifying cash, drugs seized after accused fled in course of traffic safety stop. Accused testifying cash came from participation in community pool, denying knowledge of drugs. Accused's wife confirming cash given to accused that day. Jury asking question about evidentiary value of no other member of community pool testifying. Trial judge receiving verdict of guilty before responding to question. Appeal allowed, new trial ordered. Trial judge should have confirmed with jury whether required answer to question before receiving verdict. Failure to answer question prior to verdict not fatal in all cases. Non-direction on issue of attaching evidentiary value to accused's failure to adduce evidence caused accused prejudice. R. v. Ellis (Jan. 11, 2013, Ont. C.A., Watt, MacPherson and Armstrong JJ.A., File No. CA C53276) 104 W.C.B. (2d) 1199. Sentence ASSAULT Important to keep accused employed and functional in their community Sentencing of two accused after they were convicted of aggravated assault. Victim was attacked on dance floor of nightclub by both accused and he sustained serious injuries, which included broken jaw. First accused, who was currently 27 and who was 24 at time of offence, did not have criminal record. He was steadily employed since he left school at age of 17. First accused was highly regarded employee who held supervisory position. Second accused was 26 at time of offence. He dropped out of school when he was 17 and he was also employed since that time. Second accused was employed as automobile mechanic and he was highly regarded. He had criminal record but no crimes of violence. Prior to sentencing he completed 40 hours of community service. There was no serious risk that accused would reoffend. Accused were each sentenced to 90 days' imprisonment, to be served intermittently. This would be followed by three years of probation. Court was aware of violent nature of their offence and of its impact on victim when it imposed sentence. It also recognized importance of denunciation and general deterrence but it was also mindful of important goal of rehabilitation, which would be thwarted if longer sentence was imposed. Specific deterrence did not require longer sentence for accused did not need year or more in jail to understand importance of never committing such act again. It was vitally important to keep accused employed and functional in their community. Accused were also subject to DNA order and to 10-year firearms prohibition. R. v. Smart (Feb. 5, 2013, Ont. S.C.J., Molloy J., File No. 7-729/11) 104 W.C.B. (2d) 1218. Theft and Possession POSSESSION OF STOLEN GOODS Accused at minimum willfully blind that property was stolen Trial of accused on three counts of possession of stolen property. Accused bought three commercial vehicles for cash from man known to him as "C". He did not know C's last name. Accused claimed that C told him he was going through divorce and he was closing down his business. He did not ask C for receipts because he wanted to help C hide assets from his wife and he received bargain in process. All three items turned out to be stolen at time that accused bought them. Accused convicted. He was unreliable and discreditable witness whose evidence was rife with inconsistencies and contradictions to point of being fatally flawed. Accused's actions were inconsistent with general reputation of integrity and honesty that he used to enjoy. He was prepared to help man he barely knew to defraud his wife, he knowingly made false representations to government authority when he obtained licence plates for vehicles and he was untruthful to police. Accused paid $5,500 for three major pieces of construction equipment which were in good working order and which he knew were worth substantially more. Accused's claim that he did not know that property was stolen was rejected and his evidence did not raise reasonable doubt. Evidence showed that accused was at minimum willfully blind that property was stolen, for he ignored numerous red flags of suspicion in his dealings with C. Accused was required to inquire about origin of each piece of equipment but he did not do so because he did not want to know truth that each item was stolen when he bought them. R. v. Camp (Jan. 29, 2013, Ont. C.J., Schwarzl J., File No. 12-1633) 104 W.C.B. (2d) 1236. LT

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