Law Times

Law Times • July 8, 2013 tion in Toronto to enforce United States judgment. Respondent obtained default judgment. Writ of execution was filed with sheriff. Applicant was unable to complete sale of property because of writ of execution. Service was alternative to personal service. Applicant claimed writ of execution registered did not attach to lands and applicant. Respondent sought declaration that writs of seizure and sale encumbered all real property named in writs and specifically that of applicant. Applicant's application and motion were granted. Respondent's application was dismissed. Applicant was not served with statement of claim. Without service judgment was nullity and respondent could not rely on steps respondent took. Maillis v. Mirage Resorts Inc. (Mar. 13, 2013, Ont. S.C.J., D.J. Gordon J., File No. CV-11-851, CV-12-19) 226 A.C.W.S. (3d) 748. Injunctions INTERLOCUTORY RELIEF Plaintiff failed to provide full and frank disclosure of material facts to judge Defendant brought motion to set aside Mareva injunction. Parties had been in common law relationship. Plaintiff claimed that defendant failed to transfer shares of company to her as promised and that defendant held shares in trust for her. Plaintiff claimed that defendant transferred assets out of country to United States so she would be unable to realize any judgment obtained against him. Plaintiff obtained Mareva injunction on ex parte basis notice that effectively prevented defendant from disposing of any of his assets until further order. Motion granted. Plaintiff failed to disclose that defendant had sued plaintiff for defamation. Plaintiff failed to disclose that her employment with defendant was terminated allegedly for cause and that she owed defendant $129,000 in outstanding loans. Plaintiff failed to disclose settlement agreement parties had reached. Plaintiff clearly failed to provide full and frank disclosure of all material facts to judge. Judge was entitled to be made aware of withheld information to have complete picture before making decision. Mareva injunction was set aside. Court declined to exercise discretion to continue Mareva injunction. Plaintiff failed to establish she had prima facie case. Plaintiff failed to establish that defendant had been dissipating his assets. It was not clear what plaintiff 's financial position was and whether undertaking for damages would have any value. Elsley v. Bordynuik (Mar. 1, 2013, Ont. S.C.J., Robert Nightingale J., File No. 6312/12) 226 A.C.W.S. (3d) 832. International Law SOVEREIGN IMMUNITY Justice required that letter of request be enforced Atomic Energy of Canada Limited ("AECL") is federal Crown corporation and Crown agent. Lantheus, American pharmaceutical company, used medical isotopes produced by AECL's nuclear reactor in manufacturing process. As result of extended closure of Page 15 caselaw AECL's reactor, Lantheus suffered huge losses for which insurer denied coverage. Lantheus obtained letter of request ("LOR") from United States District Court seeking assistance of Ontario courts in securing documents and viva voce testimony from AECL. Lantheus applied to Ontario Superior Court of Justice, pursuant to s. 60 of Evidence Act ("EA"), which authorizes enforcement of LOR from foreign court, for order giving effect to LOR. Application judge dismissed application, finding court had no jurisdiction because AECL enjoyed Crown immunity. Lantheus' appeal allowed. Whether s. 60 of EA binds Crown turned on whether it is "rule of practice and procedure" within meaning of s. 27 of Crown Liability and Proceedings Act (Can.) ("CLPA"), or rule of evidence. Section 27 of CLPA provides that "rules of practice and procedure of the court in which proceedings are taken apply in those proceedings". Application judge erred in interpreting "rules of practice and procedure" as restricted, in Ontario, to Rules of Civil Procedure (Ont.). Phrase has broad meaning, not referring to particular source. Procedure for enforcing LORs in s. 60 of EA more akin to rules governing court practice and procedure, rather than rules of evidence. Section 27 of CLPA constitutes necessary federal authority pursuant to s. 17 of Interpretation Act (Ont.), which states that enactments not binding on Crown "except as mentioned or referred to in the enactment", to render Rules binding upon Crown and s. 27 "proceedings" include proceedings in which federal Crown not party. Crown bound by s. 60 of EA pursuant to s. 27 of CLPA. Application judge erred in declining to exercise discretion to enforce LOR. Justice required that LOR be enforced. Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd. (Apr. 29, 2013, Ont. C.A., E.A. Cronk J.A., H.S. LaForme J.A., and Alexandra Hoy J.A., File No. CA C55753) Decision at 217 A.C.W.S. (3d) 63 was reversed. 226 A.C.W.S. (3d) 697. Judgments and Orders AMDENDMENT Respondent had security for any sum he may legally be entitled to Applicants sought order permitting them to amend order. Applicants received loan from respondent secured by mortgage against property. Mortgage went into default and respondent took steps to enforce mortgage. Sheriff issued direction to evict applicants. Applicants sought to pay money into court in exchange for order discharging mortgage and preventing sheriff from evicting them. Judge made order that applicants were to pay $84,448 into court to credit of action. There was to be trial of issues to determine whether respondent was due any other money under mortgage. Application granted. Inclusion of word "other" was slip. Judge was aware that payment into court was not admission that applicants owed respondent $84,448. It was manifest intention of order that $84,448 be paid into court as security for respondent in case he won at trial. Respondent was not permitted to withdraw full amount deposited based on erroneous inclusion of word other. That outcome would offend duty to protect integrity of litigation process since respondent would come into possession of funds he was not yet entitled to since it had not been decided by court. Respondent indicated that $84,448 was sufficient to satisfy mortgage claim. Respondent had security for any sum he may legally be entitled to and suffered no prejudice. Dadd v. Kaur (Feb. 13, 2013, Ont. S.C.J., Varpio J., File No. CV-123694) 226 A.C.W.S. (3d) 836. FEDERAL COURT OF APPEAL DISCOVERY Not every comment uttered by lawyer to client was privileged This was appeal of Federal Court's decision ordering disclosure of protocol. R.C.M.P. and Department of Justice ("DOJ") received request under Access to Information Act (Can.), for protocol. Protocol set out procedures to be followed by DOJ and R.C.M.P. when R.C.M.P. documents were sought in civil litigation against federal Crown. R.C.M.P. and DOJ resisted disclosure based, in part, on solicitor-client privilege. Requester issued complaint to respondent Information Commissioner. Commissioner concluded that protocol did not fall within exemptions. Commissioner applied to Federal Court under s. 42 of Act seeking disclosure of protocol. Federal Court found that protocol did not fit within exemptions and granted application. Appeal allowed in part. Not every comment uttered by lawyer to client was privileged. Documents and actions shaped by legal advice were not necessarily themselves legal advice and did not necessarily form part of protected continuum of communication. Last fourteen paragraphs were negotiated and agreed upon operational policy formulated after any legal advice had been given and after any continuum of communication that was necessary to be protected. Disclosing last fourteen paragraphs did not disclose anything about content of any earlier legal advice or related communications and did not undercut purposes served by solicitor-client privilege. Last fourteen paragraphs were not privileged. First three paragraphs memorialized content of certain legal obligations of federal Crown for benefit of R.C.M.P. and DOJ and their personnel engaged in document management, which was legal advice that fell under exemption in s. 23 of Act. First three paragraphs of protocol were privileged. Canada (Information Commissioner) v. Canada (Minister of Public Safety and Emergency Preparedness) (Apr. 17, 2013, F.C.A., John M. Evans J.A., David Stratas J.A., and D.G. Near J.A., File No. A-375-12) Decision at 223 A.C.W.S. (3d) 556 was reversed in part. 226 A.C.W.S. (3d) 701. Human Rights Legislation APPEALS Tribunal considered material outside formal record on motion www.lawtimesnews.com This was appeal of Federal Court's decision setting aside decision of human rights tribunal. Respondents brought complaints under Canadian Human Rights Act, alleging that Canada had engaged in prohibited discrimination by under-funding child welfare services for on-reserve First Nations children and denied them services available to other Canadian children. Respondent commission referred complaint to tribunal. Appellant brought preliminary motion alleging that complaint could not succeed. Tribunal held that complaint could not succeed under s. 5(b) of Act and quashed complaint. Federal Court set aside tribunal's decision. Federal Court found that decision was substantively unreasonable and was procedurally unfair. Appeal dismissed. Federal Court appreciated test for reasonableness and applied it differentially. Federal Court found that tribunal's interpretation of s. 5(b), which required complainants to point to similarly situated comparator group in order to succeed, was unreasonable. Federal Court did not err in finding that tribunal's decision was unreasonable. Federal Court found that it was unreasonable for tribunal not to consider s. 5(a) of Act and Federal Court's analysis was unimpeachable. Complaint referred globally to s. 5 and s. 5(a) was part of complaint. Tribunal considered material outside formal record on motion. Tribunal committed procedural unfairness in circumstances. Parties were entitled to know what tribunal was considering and to have opportunity to address it. Canada (Human Rights Commission) v. Canada (Attorney General) (Mar. 11, 2013, F.C.A., David Stratas J.A., J.D. Denis Pelletier J.A., and Wyman W. Webb J.A., File No. A-145-12) Decision at 215 A.C.W.S. (3d) 439 was affirmed. 226 A.C.W.S. (3d) 813. FEDERAL COURT Aboriginal Peoples SELF-GOVERNMENT No procedure governing recounts and no specific duty to post results Application by election candidate for judicial review of decisions not to post results of recount and not to recognize results of recount. First Nation conducted election for chief and council. Candidate unsuccessfully ran for councillor position. Recount was requested after deadline for appeals provided in Custom Election Code, 2003. Recount indicated candidate would have won councillor position. First Nation's electoral officer did not post results of recount, but did refer matter to chief and council. Chief and council did not accept results of recount due to expiration of deadline for appeals. Application dismissed. Standard of review was reasonableness and both decisions were reasonable. There was little in Code about recounts. There was no procedure governing recounts and no specific duty to post results. In absence of any specific guidance in Code, electoral officer had acted reasonably in merely referring matter to chief and council. Officer's decision was prudent and respectful of superior authority of chief and council. Chief and council reasonably concluded seven-day appeal period should apply to recounts. While grounds of appeal in Code did not specifically include recounts, applicable provision was clearly not exhaustive. Intent of Code was to deal with challenges to election results swiftly so that community's leadership was not put in doubt for extended period. Interpreting appeal provision as covering recounts was consistent with that intent. Absent specific rules for recounts, appropriate route for challenging election results was by way of appeal. D'Or v. St. Germain (Mar. 12, 2013, F.C., James W. O'Reilly J., File No. T-1099-11) 226 A.C.W.S. (3d) 614. Immigration INADMISSIBLE AND REMOVABLE CLASSES Officer's conclusion applicant misrepresented work history was unreasonable Applicant applied for permanent residence based on experience as chef in country of origin. Applicant was denied permanent residence. Officer found applicant misrepresented restaurant experience and found applicant inadmissible. Application for judicial review was allowed. Officer gave applicant fair opportunity to address concerns about employment history. Officer's treatment of response was unreasonable and conclusion applicant misrepresented work history was unreasonable. Officer's refusal to consider documents confirming employment record was based on assumption applicant obtained false documents by orchestrating elaborate fraud involving others on short notice. Yuan v. Canada (Minister of Citizenship and Immigration) (Mar. 12, 2013, F.C., James W. O'Reilly J., File No. IMM-4073-12) 226 A.C.W.S. (3d) 825. Issuance of new work permit cured previous breach Applicant was denied permanent residence under live-in caregiver class. Applicant met eligibility requirements. Officer found applicant was inadmissible because applicant undertook additional work without authorization. Applicant was refused exemption on humanitarian and compassionate grounds. Applicant received new work permit. Application for judicial review was allowed. Issuance of new work permit cured previous breach and applicant was admissible by date officer assessed application. Officer could have used previous unauthorized work to found conclusions about credibility but could not use it to find applicant inadmissible. Officer made unreasonable H&C decision. Officer made no attempt to appreciate difficulties applicant faced and drew unreasonable inferences about options that were open to applicant. Tiangha v. Canada (Minister of Citizenship and Immigration) (Feb. 28, 2013, F.C., Richard G. Mosley J., File No. IMM-4106-12) 226 A.C.W.S. (3d) 829. LT

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