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Law Times • May 13, 2013 her family. Applicants submitted humanitarian and compassionate ("H&C") application alleging they would suffer unusual and undeserved hardship if ordered to leave Canada, given fact that all of PA's family lived in Canada, that it was in best interest of minor applicant to remain in Canada, and that applicants would suffer hardship by returning to Guyana. Officer acknowledged that children residing in Canada may enjoy better social and economic opportunities than they would in Guyana, but found no evidence to suggest the minor applicant could not attend school in Guyana. Officer found that it was reasonable to assume it would cause minor applicant some difficulties to leave behind his friends and family in Canada, but with help of his mother he could overcome these difficulties, and noted child was returning to culture he was familiar with. Application granted. Officer did not apply correct test in evaluating best interests of minor applicant. Officer applied wrong legal test, by requiring significant negative impact on child that would be unusual and undeserved or disproportionate, rather than evaluating what was actually in best interests of minor applicant and weighing that against other factors relevant to H&C application. He incorrectly elevated test for best interests, not only in form but also in substance. Officer's decision was incorrect because although officer labelled his analysis "best interests of the child" and stated he is "alive, alert and sensitive regarding the best interests of the child", question officer clearly posed himself in his analysis under this heading was whether removing child "would have a significant negative financial, emotional, social or physical impact on him that would be unusual and undeserved or disproportionate". Officer failed to adequately or reasonably consider impact of father's death on child, and hardship to be faced by child in being forced to return to Guyana. Interests of child were not well-identified or defined by officer and on that basis alone, application must be granted. Judnarine v. Canada (Minister of Citizenship and Immigration) (Jan. 25, 2013, F.C., Michael D. Manson J., File No. IMM-271912) 224 A.C.W.S. (3d) 760. Police DISCIPLINE Unreasonable to conclude constable's credibility would be unaffected by new evidence Applicant was member of R.C.M.P. After disciplinary hearing, board directed applicant resign or be dismissed. At Review Committee applicant submitted new evidence that constable who was applicant's ex-spouse had committed perjury before board. Constable testified she met fiancé after separating from applicant but another R.C.M.P. member stated he saw them together prior to separation. Page 15 CASELAW Board did not permit other witness to testify. Three allegations were sustained on testimony of constable. Review Committee recommended commissioner order new hearing in light of alleged perjury. Commissioner terminated applicant's employment for disgraceful conduct. Commissioner found perjury allegation would not have altered board's decision. Commissioner found constable was credible and that constable's testimony established allegations. Application for judicial review was allowed. In circumstances of conflicting evidence between estranged spouses in absence of corroborative evidence it was unreasonable to conclude that constable's credibility would be unaffected by new evidence. Decision could not be deemed reasonable. Elhatton v. Canada (Attorney General) (Jan. 25, 2013, F.C., Donald J. Rennie J., File No. T-889-11) 224 A.C.W.S. (3d) 800. TAX COURT OF CANADA Taxation GOODS AND SERVICES TAX Cancelled invoices were real sales that registrant did not report Appeal by registrant from reassessment by Minister under Excise Tax Act (Can.), and imposition of late remittance and gross negligence penalties. Registrant operated sushi restaurant and bar with liquor licence, using software designed by friend of registrant's shareholder to register sales orders. In audit, computer technician retrieved some 7,000 deleted invoices from registrant's electronic sales system, and recovered content for all but 444 invoices. Minister reassessed registrant on assumption that all recovered invoices related to taxable supplies that registrant did not report, and that 444 missing invoices related to unreported taxable supplies with average value of $136.83 each. Appeal dismissed. Considering all evidence, cancelled invoices were real sales that registrant made but did not report, and Minister met burden of proving there were circumstances justifying imposition of penalties. 9134-2485 Quebec Inc. v. R. (Nov. 14, 2012, T.C.C. [Informal Procedure], Robert J. Hogan J., File No. 2010-2867(GST) I) 224 A.C.W.S. (3d) 819. ONTARIO CIVIL CASES Bankruptcy and Insolvency ADMINISTRATION OF ESTATES New claim essentially same as three disallowed claims Motion by trustee in bankruptcy for orders expunging certain claims, declaring claimants not creditors and prohibiting claim- ants from filing further claims. Court approved settlement in bankrupt's receivership which resulted in transfer of $750,000 surplus to bankrupt's trustee in bankruptcy. Individual then filed proofs of claim on behalf of three companies totalling $1.989 million. Trustee, acting on behalf of inspector, disallowed all three claims for both technical and substantive reasons. On last day before disallowances became final and binding, counsel for trustee received motion record entitled "Appeal from Disallowance of Claim" which identified three companies as appellants and sought orders approving claims and expunging other claims. Counsel immediately attempted to contact lawyer identified as counsel for appellants to determine whether motion filed with court, whether other claimants served and whether trustee of bankrupt claimant had provided authority to act. Counsel received no satisfactory response. Individual who had filed three disallowed claims then filed new proof of claim on behalf of bankrupt claimant for $1.989 million. Counsel for trustee attempted to contact individual for further information about new claim, which appeared to advance same claims made in three disallowed claims, but received no satisfactory response. When trustee brought within motion, individual filed factum suggesting trustee failing to act impartially. Motion granted. Trustee correct disallowances final and binding since appeal never filed with court within 30 days as required by s. 135(4) of Bankruptcy and Insolvency Act (Can.). Original three claims expunged. New claim nullity since not authorized by claimant's trustee in bankruptcy. New claim essentially same as three disallowed claims in any event. Permitting new claim to go forward would offend principles of res judicata and estoppel, and constitute abuse of process. New claim expunged. Three companies not creditors of estate and prohibited from filing any further proof of claim. IWHL Inc., Re (Jan. 21, 2013, Ont. S.C.J., Mesbur J., File No. 31-1362614) 224 A.C.W.S. (3d) 550. Real Property CONDOMINIUMS Corporation required to direct neighbours to install adequate floor covering Applicant owner of condominium unit complained of noise from dancing lessons from condominium unit above her. Corporation's rules included "no noise shall be permitted to be transmitted from one unit to another". Applicant frequently complained to management, security and police. Noise continued unabated from approximately Feb. 2010 through November 2011. Neither corporation nor property manager wrote to upstairs neighbour rewww.lawtimesnews.com quiring noise-making cease. Applicant alleged to have suffered: detrimental health effects from noise and stress; and subject to petty harassment. Applicant moved out of condominium in December 2011. Applicant sought order condominium corporation enforce own bylaws, and for special damages in compensation for moving costs. Application allowed. Newly commissioned sound transmission expert's report confirmed noise levels from dancing were excessive. Corporation breached duty under s. 17(3) of Condominium Act, 1998 (Ont.), to ensure compliance with own bylaws and rules. Corporation acted in way unfairly disregarding applicant's interests, contrary to s. 135. Applicant did not deserve absolute quiet, but corporation required to enforce rules in balanced way. Corporation required to take all reasonable steps, including directing neighbours to install adequate floor covering. Corporation was ordered to pay applicant's special costs of moving of $40,325. Claim for pain and suffering, mental anguish, loss of income, and loss of quiet enjoyment deferred to later hearing. Dyke v. Metropolitan Toronto Condominium Corp. No. 972 (Jan. 18, 2013, Ont. S.C.J., E.M. Morgan J., File No. CV-11443081) 224 A.C.W.S. (3d) 808. ONTARIO CRIMINAL CASES Appeal GROUNDS No indication that accused understood his rights Appeal against conviction and sentence. Accused provided roadside sample of his breath into Alcotest 7410 GLC, which registered fail. Accused subsequently taken to O.P.P. detachment, provided with opportunity to contact duty counsel, was transferred to qualified breath technician and subsequently provided breath samples into Intoxilyzer 8000C, registering readings of 106 mgs and 100 mgs of alcohol in 100 ml of blood. Accused charged and convicted of driving "over 80," and convicted and sentenced on Highway Traffic Act (Ont.) charges, for which he received minimum sentence of $1,000 fine and oneyear driving prohibition. When giving evidence about breath demand, arresting officer answered "To providing suitable samples of his breath back at station". There was no testimony, beyond that statement, as to what was actually said by arresting officer to accused or whether or not accused understood. Appeal granted, conviction and sentence set aside, acquittal entered. There was no direct evidence given by Crown witnesses that accused indicated that he understood demand. Nowhere in transcript or reasons was there any indication that arresting of- ficer gave evidence that he believed, or that accused indicated that, he understood demand or his rights. Lack of evidence prohibited introduction of breath sample evidence at trial. R. v. Brown (Jan. 21, 2013, Ont. S.C.J., D.S. Gunsolus J., File No. Peterborough 2466/11) 105 W.C.B. (2d) 223. Charter of Rights ARBITRARY DENTENTION OR IMPRISONMENT Unlawful and humiliating strip search in public place egregious violation of rights Application to exclude evidence. Accused was riding his bicycle when he was stopped and questioned by police anti-gang unit. There was physical altercation between accused and one officer. Accused arrested and handcuffed behind his back before being placed in rear of police cruiser. Officer claimed he subsequently found plastic bag containing cocaine in backseat of cruiser. Cocaine was shown to accused at scene; he immediately denied drugs were his and claimed they must have been planted. Officer said his intention initially was to caution accused about Highway Traffic Act (Ont.) infraction. Officer asked if he had anything on him, asked him to lift his shirt, then grabbed and pulled his shorts and underpants down to his ankles. He kept asking why he had been arrested and received no response. Ambulance was requested. Eventually accused advised that he was under arrest for assault police; officer also advised him of his right to counsel and cautioned him; later added possession of cocaine. Application allowed; cocaine excluded; charge dismissed. All three officers testified they did not learn identity of accused until sometime after ambulance arrived. However, well before arrival of ambulance there were searches made on police computer system on scene for accused's name with his date of birth, which he must have provided. Charges of assault peace officer and assault with intent to resist arrest were withdrawn at preliminary hearing. Accused was subjected to at least two pat searches after he was cuffed and before he was placed in cruiser. He was wearing shorts that had no pockets. No weapons or contraband were found on accused before he was placed in cruiser. Cruiser was in custody and control of two other officers. Officer untruthful and unreliable; evidence on cocaine not accepted. Highway Traffic Act infraction was illegitimate ruse to initiate detention and search of accused. Unlawful and humiliating strip search in public place in daylight constituted an egregious violation of ss. 8 and 9 Charter. Admission of evidence would bring administration of justice into disrepute. R. v. Darteh (Jan. 23, 2013, Ont. S.C.J., B.P. O'Marra J., File No. 1-617238) 105 W.C.B. (2d) 268. LT

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