Law Times

Law Times • September 9, 2013 s. 21. Tribunal's reasons justified, transparent and intelligible, and decision within range of range of acceptable outcomes defensible in respect of facts and law. Singh v. Canada (Attorney General) (Apr. 26, 2013, F.C., Yves de Montigny J., File No. T-5-12) 228 A.C.W.S. (3d) 561. ONTARIO CIVIL CASES Bankruptcy and Insolvency COURTS AND PROCEDURE Individual was neither officer, director, shareholder nor employee of bankrupt Trustee in bankruptcy sought production of third party records under s. 164 of Bankruptcy and Insolvency Act (Can.). Trustee sought production from telecommunications service provider. Trustee sought: e-mails and attachments sent or received by individual between May and December 2012, containing certain addresses or names; and all records from June 2012 to August 2012 for two phone numbers. Individual was neither officer, director, shareholder nor employee of bankrupt. Trustee alleged individual was engaged in fraudulent scheme conducted by e-mail and phone. Scheme allegedly resulted in loan advances to bankrupt. Trustee scheduled pending examination of individual under s. 163(2). Production denied, except in part. As to individual's e-mail address, production denied. Evidence did not establish sufficient link between e-mail account and individual. Proper for trustee to ask individual at examination whether e-mail account was his. As to first telephone number, production denied as overly broad. Trustee free to renew more targeted request. As to second number, production order denied. Number appeared in e-mail without subscriber name. Court ordered telecommunications provider to identify name, address and contact information for subscriber. Telecommunications provider was ordered to preserve all information relating to e-mail and telephone accounts until further order. 2046272 Ontario Inc., Re (Apr. 15, 2013, Ont. S.C.J. [Commercial List], D.M. Brown J., File No. 31-OR-207924-T) 228 A.C.W.S. (3d) 328. Civil Procedure TRIAL Defendant effectively asking to scuttle any chance of meaningful justice Sale of restaurant by defendant to plaintiff did not close. Sale was subject to conditions of plaintiff being satisfied with terms of existing lease and defendant was to obtain written consent of landlord to assignment of lease. Plaintiff claimed refund of deposit paid to realtor's trust account. Defendant sought adjournment because of absence of defence counsel who was double Page 15 CASELAW booked. Defendant made statement of claim in Superior Court of Justice in Hamilton claiming damages of $1 million against plaintiff alleging breach of same agreement of purchase and sale. Defendant argued defendant's counsel intended to make oral motion requesting action to be consolidated with new action. Defendants' request for adjournment was denied. Defendant had no intention of proceeding with trial. Defendant was effectively asking to scuttle any chance of meaningful justice in proceeding. Plaintiff was granted judgment. Plaintiff was entitled to return of deposit. Condition of purchaser's satisfaction with content of lease was not satisfied or waived and plaintiff was entitled to declare transaction null and was entitled to return of deposit. Defendant was not ready, willing and able to close transaction as scheduled because defendant's lease was terminated prior to closing date. There was no basis for judgment against individual defendant and claim was dismissed as against individual defendant. 1604966 Ontario Ltd. v. Andsign International Management Inc. (May. 26, 2013, Ont. S.C.J., J. Sebastian Winny D.J., File No. Kitchener 1379/12) 228 A.C.W.S. (3d) 385. Corporations DIRECTORS Directors did not owe general fiduciary duty to shareholders Eleven cousins owned common shares of group of companies. Eight of cousins decided to monetize value of interests in two core assets, and entered into share redemption transaction with companies. To fund share redemptions, non-selling shareholders brought in equity investor who purchased 50% stake in key asset, shopping centre. Selling shareholders found out price paid by equity investor reflected much higher value then price on which share redemption transaction was negotiated. Six of selling shareholders sought damages of $11 million for their purported share of difference in value between amount attributed to asset in share redemption transaction and that in arm's length sale. These selling shareholders brought action against non-selling shareholders and against companies' lawyers and accountants. Action dismissed. Allegation of breach of fiduciary duty by non-selling shareholder when he was president of group of companies was not sustainable. President did not breach his duty as officer to disclose information to board by not mentioning $72 million trial balloon he had floated with equity investor (to gauge interest). There was difficulty in conceptualizing what duties director would owe to corporations in respect of transaction which, in its essence, involved one set of shareholders purchasing shares of other set. Share redemption transaction did not give rise to fiduciary duty of directors to corporations which owned core assets. Directors did not owe general fiduciary duty to shareholders. Harris v. Leikin Group Inc. (Mar. 12, 2013, Ont. S.C.J. [Commercial List], D.M. Brown J., File No. 08-CL-7482) 228 A.C.W.S. (3d) 409. Courts ABUSE OF PROCESS No foundation for argument defendants went beyond scope of discretionary powers Plaintiffs, medical doctors from Saudi Arabia, current or former medical residents at University of Ottawa for purpose of obtaining specialty. Plaintiffs required to sign letter of appointment agreeing to abide by university rules and regulations. Plaintiffs were subject to academic evaluations by respective programs, resulting in placement in remediation or probation or, in one case, termination of residency. Plaintiffs each proceeded through internal appeal process and brought Human Rights complaints alleging discrimination and harassment on basis of race, colour, ancestry, place of origin, citizenship and disability. Human Rights Tribunal concluded it did not have jurisdiction to hear complaints given that plaintiffs had concurrent action involving same alleged infringements and remedies. Plaintiffs' statement of claim alleging defamation, conspiracy to injure, misfeasance in public office, breach of fiduciary duty, negligence, breach of contract and violations of Canadian Charter of Rights and Freedoms. Underlying complaint of each plaintiff is that they were not promoted in their programs or were dismissed from their programs. To be successful on claims would require different findings of fact from those determined at internal review process on very same evidence; current action constitutes abuse of process as re-litigation in different forum. Plaintiffs exhausted full academic appeal process. Divisional Court has twice dismissed judicial review applications, finding decisions of Senate Appeals Committee were within its powers, procedurally fair and reasonable. Abuse of process for court to revisit decisions. No foundation for argument defendants went beyond scope of discretionary powers. Aba-Alkhail v. University of Ottawa (Apr. 11, 2013, Ont. S.C.J., Timothy Minnema J., File No. CV-1253727) 228 A.C.W.S. (3d) 412. ONTARIO CRIMINAL CASES Charter of Rights SEARCH AND SEIZURE Search of vehicle valid incidental to lawful arrest Application by accused to exclude evidence because police had no reasonable and probable grounds to arrest him or to search vehicle. Accused and his cowww.lawtimesnews.com accused were charged with possession of cocaine for purpose of trafficking. Accused drove his sister's car and co-accused was in passenger seat. Police detained them when vehicle stopped at red light and shortly after they were removed 24 grams of cocaine was found in vehicle. Co-accused was main target of police investigation and search warrant was issued to search two addresses frequented by him. Information to obtain filed in support of warrant asserted that police believed, based on information received from two confidential sources and from police surveillance observations, that co-accused was involved in drug trafficking and he possessed firearm. There was also evidence that provided police with reasonable and probable grounds to arrest accused and to search vehicle. It was based on this information that accused and co-accused were stopped and arrested. Application dismissed. Police had right to detain occupants of vehicle to ask them questions. On balance of probabilities there were reasonable and probable grounds for police to believe that accused was party to offence of drug trafficking and he could be arrested. Since accused was lawfully arrested, search of vehicle was valid incidental to that arrest as search was conducted to seize cocaine that was in plain view on co-accused's seat and to search for other drugs that were found in crevice between driver's seat and front console. Accused's rights under Canadian Charter of Rights and Freedoms not to be unlawfully detained and searched were not violated. Even if there was violation evidence would not be excluded as its admission would not bring administration of justice into disrepute. R. v. Bhanji (Jun. 21, 2013, Ont. S.C.J., Thorburn J., File No. 1390000386-0000) 107 W.C.B. (2d) 354. Extradition and Fugitive Offenders COMMITTAL FOR SURRENDER OR RETURN IP subscriber information sufficient evidence indentifying fugitive as perpetrator United States sought extradition of fugitive, Ontario resident, for offence of child luring. Fugitive was alleged to have initiated internet chat with 17 year old female, in arrangement fugitive could see female but she could not see him. Fugitive allegedly increasingly coerced, threatened, extorted and otherwise manipulated this naive young woman in ways that, ultimately, caused her to expose her breasts to fugitive, and then engage in series of explicit sexual and sexually violent activities with her 13-year-old sister for fugitive's prurient, voyeuristic pleasure. Offence was quickly discovered by older sister; father reported it to police; I.P. address was traced and found to be assigned to fugitive. Order for committal made. There was sufficient admissible evidence that would justify committal of fugitive for trial if alleged offence of child luring had been committed in Canada. Evidence in Certified Record of Case permitted reasonable inference to be drawn that fugitive was perpetrator of offence. While IP subscriber information identifying fugitive was not conclusive evidence in that regard, it was sufficient evidence identifying fugitive as perpetrator to legally justify order committing him to extradition to United States. United States of America v. Viscomi (May. 24, 2013, Ont. S.C.J., Kenneth L. Campbell J., File No. Ex-146/12) 107 W.C.B. (2d) 377. FEDERAL COURT OF APPEAL Prisons INMATES' RIGHTS Minister paid lip service to reasoning of court Minister appealed court issued mandatory order requiring him within 45 days to accept prisoner's transfer request and confirm in writing to prisoner that all reasonable steps had been taken for his prompt transfer to correctional facility in Canada. Prisoner, Canadian serving sentence in United States, appealed decision of Minister refusing such transfer. Minister found risk of commission of "criminal organization offence" in future was present. All other factors raised by evidence were in favour of transfer. On appeal, decision was quashed on grounds decision lacked in reasoning, was not transparent, and was intelligible. Decision was remitted back to Minister who again refused transfer; on appeal of that decision court found Minister paid lip service to reasoning of court, basically reasserted his previous reasoning, showed closed mind and intransigency. Order in question was then made. Minister alleged court was constrained and could only send matter back for reconsideration by Minister. Appeal dismissed. Order altered to compel Minister to accept transfer forthwith (45 days had elapsed). Costs of $8,900 granted. Courts below had found there was no evidence prisoner was at risk to commit criminal organization offence in future. Minister conceded this; with that factor off table all other factors pointed to granting transfer. In circumstances it was open to court to conclude on this evidence that only lawful exercise of discretion was granting of transfer; mandamus was appropriate. In circumstances mandamus was also available to prevent further delay and harm that would be caused to prisoner if Minister were given third chance to decide matter. Lebon v. Canada (Minister of Public Safety and Emergency Preparedness) (Feb. 25, 2013, F.C.A., Sharlow J.A., David Stratas J.A., and Webb J.A., File No. A-39-13) Decision at 104 W.C.B. (2d) 769 was affirmed. 107 W.C.B. (2d) 396. LT

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