Law Times

Page 14 August 5, 2013 Law Times • caselaw CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. FEDERAL COURT Customs and Excise DECLARATION Minister reasonably declined to exercise discretion to grant relief from forfeiture Applicant failed to report on arrival in Canada applicant had currency in excess of $10,000. Applicant was importing currency with value of $21,754. Undeclared currency was seized. Officer suspected currency was proceeds of crime. Manager determined applicant did not ask for interpreter and concluded that language was not contributing factor in applicant's failure to report currency. Appeals Division determined currency seized under Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Can.), were to be held as forfeited. Applicant argued there was failure of natural justice as interpreter was not provided to applicant when one was requested at port of entry. Applicant argued Minister failed to reasonably exercise discretion with respect to forfeiture. Application for judicial review was dismissed. Applicant had no basis to argue there was breach of procedural fairness. Applicant did not successfully impugn factual finding that applicant made no request for interpreter. Applicant failed to establish link between seized funds and legitimate source of seized funds. Minister reasonably declined to exercise discretion to grant relief from forfeiture given applicant did not provide sufficient evidence to satisfy Minister that seized funds were not proceeds of crime. Satheesan v. Canada (Minister of Public Safety and Emergency Preparedness) (Apr. 5, 2013, F.C., Cecily Y. Strickland J., File No. T-1405-12) 227 A.C.W.S. (3d) 106. Equity ESTOPPEL Nothing prevented minister from favouring one group of fishermen over another Applicant and those applicants represented were commercial fishermen. Minister changed allocation of total allowance catch ("TAC") for Pacific Halibut fishery. Minister departed from long-standing commitment to maintain 2003 Framework. Minister reduced applicant's share of TAC from 88% to 85%. There was corresponding reduction of applicant's individual transferable quota, affecting applicant's ability to earn livelihood from fishery. Application for judicial review was dismissed. There was no evidence decision was made in bad faith or pursuant to irrelevant purpose. Remedies for Minister's change in position were not judicial. There was nothing preventing Minister from favouring one group of fishermen over another. Minister could not be bound by past policy decisions. It was not for court to reweigh factors and come to own conclusion. There was no basis to interfere. Minister was not bound by advice from department and decision not to follow recommendations of Department was not reviewable error. Doctrine of legitimate expectations did not apply. There was no basis on which promissory estoppel could be invoked. Becoming bound to one policy choice would be in violation of Minister's duty. Malcolm v. Canada (Minister of Fisheries and Oceans) (Apr. 11, 2013, F.C., Donald J. Rennie J., File No. T-577-12) 227 A.C.W.S. (3d) 255. ONTARIO CIVIL CASES Arbitration AWARD Appeal really about whether arbitrator applied proper contractual legal principles Application for leave to appeal arbitration award and supplementary award. Section 45(1) of Arbitration Act, 1991 (Ont.), provides that if arbitration agreement did not deal with question of law, party may only appeal on question of law, with leave. Applicant claimed that arbitrator's errors arose as pure questions of law. Respondent characterized errors as questions of mixed fact and law, for which no appeal was permitted. Application allowed. Leave to appeal granted. Once all necessary factual findings were made, applying law to those facts became question of law. Appeal would really be about whether arbitrator applied proper contractual legal principles to facts as he found them in coming to his decision. Grounds of appeal reflected errors in law. Zafir Holdings Inc. v. Grassmere Construction Ltd. (Mar. 27, 2013, Ont. S.C.J., Mesbur J., File No. CV-12-469468) 227 A.C.W.S. (3d) 16. Bankruptcy and Insolvency PETITIONS Bankruptcy application brought to put wrench in position of husband in litigation Estranged spouses had operated several businesses together for 25 years. Parties executed separation agreement. Subsequently, These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-387-5164. husband claimed he noticed some irregularities in amounts being paid to creditors. Husband and companies commenced civil action against wife and others for payment of damages of $3 million and other relief on basis of alleged fraud. Husband also amended his divorce proceedings to claim separation agreement should be set aside and support payments provided for in agreement be set aside retroactively on grounds that wife had assisted in defrauding companies, which was unknown at time of execution of separation agreement. Wife commenced civil action against husband and companies, central issue being who was responsible for fraud on their businesses. Wife brought application for bankruptcy. Principal debt relied on by wife in support of her bankruptcy application was debt arising from separation agreement and family law proceedings. There was evidence that husband had been indebted to other creditors other than the FRO for spousal arrears. None of these were listed in application for bankruptcy order, nor were they subject of evidence in chief from wife. Application dismissed. There was no legitimate purpose in this bankruptcy application. It was not brought with a view to orderly and fair distribution of property of bankrupt among its creditors on pari passu basis. Applicant did not refer to or rely on any creditors other than herself, and no other creditor was served with application. What wife may be owed was subject of dispute in family court proceedings and two civil proceedings. No thought was given to having orderly and fair distribution of property of bankrupt among husband's creditors. Wife did not bring bankruptcy application in order to have trustee sue her for fraud. Bankruptcy application had been brought for improper purpose of putting wrench in position of husband in litigation who asserted fraud on part of wife. Refusal of wife to assist with independent report was evidence of bad faith on her part in dealing with issue which was central to dispute and raised question as to whether their defence of fraud claim was bona fide defence. Claim of husband against wife was bona fide dispute so far as he was concerned. Gaal, Re (Mar. 6, 2013, Ont. S.C.J., Newbould J., File No. 31207823-T) 227 A.C.W.S. (3d) 20. Civil Procedure DISCOVERY Discovery in class proceeding generally limited to representative plaintiff www.lawtimesnews.com Motion by defendant in class action for order that plaintiffs comply with requests for information, documentation and further inquiries. Class action arose out of partial wind-up by defendant of retirement plan. At discovery, defendant asked representative plaintiff to provide information with respect to his current and future sources of income, as well as his 2005 to 2011 tax returns. Defendant then asked representative plaintiff to make similar inquiries of other class members who received lump sum of $200,000 or more on partial wind-up. Request was refused. Motion dismissed. It would be premature to order production of information that went to quantification of damages before trial judge made preliminary determinations on methodology to be used and information required to calculate damages. Discovery in class proceeding was generally limited to representative plaintiff. Answering questions would offer only modest probative return. Defendant was requesting class members to speculate about their future retirement income, for indefinite period of time. Caponi v. Canada Life Assurance Co. (Mar. 21, 2013, Ont. S.C.J., Conway J., File No. 07339254CP) 227 A.C.W.S. (3d) 56. Doctor entitled to qualify report as professional and legal ethics dictated Counsel for defendant requested that minor plaintiff attend upon paediatric neurologist, for purpose of neurological assessment. Counsel for plaintiffs consented. Defendant refused to produce written report from neurologist as result of comments provided by neurologist. Neurologist took position that because of nature and circumstances of assessment report would be incomplete and may present inaccurate findings. Doctor suggested that such report would be significantly compromised. Plaintiffs' motion to compel production of medical report from neurologist was granted. Examination of infant in presence of speech pathologist and interview of mother with her lawyer attending where known in advance and no objection taken. Further, doctor's detailed concerns were not expressed until after fact. Because examination was conducted report was mandated pursuant to Rule 33.06 of Rules of Civil Procedure (Ont.). Report was to set out neurologist's observations, results of any test made and her conclusions, diagnosis and prognosis. In producing report, neurolo- gist was entitled to qualify her report as her professional and legal ethics dictated. Nasir (Litigation guardian of) v. Kochmanski (Mar. 11, 2013, Ont. S.C.J., Thomas A. Bielby J., File No. CV-08-0512-00) 227 A.C.W.S. (3d) 60. Constitutional Law CANADIAN BILL OF RIGHTS Termination of employment and repatriation did not constitute deprivation of property Motion by employer, federal government, and non-profit agency for order striking out parts of statement of claim as disclosing no reasonable cause of action. Employees were agricultural workers from Mexico. Employees came to Canada to work for employer through Seasonal Agricultural Worker Program established by federal government. Program was administered by non-profit agency established by federal government. Employer consulted with agency before terminating employees prematurely. Agency arranged for employees to be returned to Mexico day after termination. Employees contended they should have been told reason for dismissal and repatriation and given opportunity to respond. Employees commenced action against employer, federal government, and agency for damages for, inter alia, violations of Canadian Bill of Rights. Motion granted in part. Employees had not pleaded viable cause of action under s. 1(a) of Bill of Rights and were denied leave to amend. Bill of Rights had not created right to due process or altered existing law on subject. Bill of Rights recognized and declared certain rights and freedoms as they existed in Canada immediately prior to its enactment and guaranteed their continued existence subject to limitation by "due process of law". There was no authority for proposition that individuals in position of employees had right at common law in 1960 to specific procedural safeguards that were being claimed in this case. Even today, employment law did not accord specific rights claimed in this case. In light of this, it could not be said that termination of employment and repatriation of employees constituted deprivation of property that was not in accordance with due process of law. No amendment could make this particular claim viable. Espinoza v. Canada (Attorney General) (Mar. 15, 2013, Ont. S.C.J., T. Ducharme J., File No. CV-11-439746) 227 A.C.W.S. (3d) 85.

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