Law Times

Law Times • October 7, 2013 tion progressed favourably since her treatments began, medical evidence in record indicated that applicant's condition required close monitoring and two treating physicians recommended that applicant remain in Canada for appropriate follow-up. Officer dealing with applicant's application for stay of removal order sent her counsel e-mail from physician of Health Management Branch, Citizenship and Immigration Canada, which stated that applicant was fit to fly and there were medical services in Guatemala, including oncology services that could provide her with follow up for her condition. Applicant sent officer letter from deputy medical director of cancer institute in Guatemala stating that tests requested by her treating physician were not available in their institution and it was preferable that tests be conducted in Canada where applicant's treatment began. Second letter from Health Management Branch physician was sent to applicant stating that specialized follow-up care was available in Guatemala. Application for stay of removal was denied. Applicant contended that officer did not consider harm that her immediate removal to Guatemala would cause given her medical condition. Application granted. Officer's discretion to defer enforcement of removal required him to be satisfied that applicant's medical condition would not be jeopardized if she returned to Guatemala. Court was not convinced that officer considered and reasonably assessed all medical evidence to ensure that immediate removal would not expose applicant to significant and imminent risks that her treating physicians attested to. Officer completely underestimated this risk, which went to applicant's health and life, by relying only on Health Management Branch physician's e-mails. It was obvious that officer was not sensitive to seriousness of applicant's unique and personal circumstances and did not reasonably exercise discretion he had under s. 48(2) of Immigration and Refugee Protection Act (Can.). De Roman c. Canada (Ministre de la Sécurité Publique) (May. 7, 2013, F.C., Michel M.J. Shore J., File No. IMM-9467-12) 229 A.C.W.S. (3d) 1108. INADMISSIBILE AND REMOVABLE CLASSES Member fulfilled obligation even without reference to leading authority Application for judicial review of decision by member that applicant was inadmissible because he committed serious non-political crime outside Canada as outlined in Article 1F(b) of Convention. Applicant was born in Kyrgyzstan. Applicant arrived in United States in 2000, and lived there without status until 2006 when he came to Canada and made his refugee claim in 2009. While in United States, applicant was convicted of drunk driving causing victim bodily harm and was sen- Page 15 CASELAW tenced to one year of incarceration and 36 months' probation. Applicant's probation included alcohol rehabilitation program at residential facility, which he left without permission. Applicant was arrested, found in violation of his probation and sentenced to further two years' incarceration on August 30, 2005. Applicant was released in 2006 on condition that he report regularly to his parole officer. Applicant left for Canada in violation of his probation. Member found that Canadian equivalent of American offences was s. 255(2.1) of Criminal Code (Can.), and punishment for that indictable offence was imprisonment for not more than ten years. Member observed that parole is considered part of sentence and sentences are not served where individual has fled prior to completion of their sentence. Applicant contended member erred in conclusion on Article 1F(b), in failing to provide adequate reasons, in failure to follow test in Jayasekara v. Canada (Minister of Citizenship and Immigration) (2008), 305 D.L.R. (4th) 630, 174 A.C.W.S. (3d) 234 (F.C.A.), as case was not mentioned in decision despite being argued before member, and in considering post conviction conduct of probation and parole violations. Application dismissed. Member had touched on all critical factors, including gravity of crime, sentence imposed, facts underlying conviction, and violation of probation. While it may be helpful and "best practice" to refer to leading authority, what is important and what applicant was entitled to was analysis of those factors set forth in Jayasekara. In that regard, member fulfilled that obligation even without reference to leading authority. Post-conviction comments were made in context of overall purpose of Article 1F(b) and post-conviction conduct may be relevant to whether person has been convicted of serious crime in context of purpose of Article 1F. Chernikov v. Canada (Minister of Citizenship and Immigration) (Jun. 13, 2013, F.C., Michael L. Phelan J., File No. IMM-9989-12) 229 A.C.W.S. (3d) 1110. REFUGEE STATUS No internal flight alternatives for former police officers in Colombia Application for judicial review of negative pre-removal risk assessment. Principal applicant was citizen of Colombia who was detective in Administrative Department of Security, intelligence agency in Colombia. Applicant investigated bombing of nightclub in Bogata in 2003, and concluded that Revolutionary Armed Forces of Colombia ("FARC") was responsible for bombing. FARC vowed to kill principal applicant and he became military target. Principal applicant and his family fled Colombia in August 2003, making unsuccessful asylum claim in United States. Applicants came to Canada and made unsuccessful refugee claim. PRRA applica- tion was rejected, judicial review of that decision was granted and applicants made further submissions updating material in application. Officer rejected application after considering UNCHR report, which stated that persons involved in administration of justice in Colombia may be at risk. Officer acknowledged that principal applicant was involved in administration of justice as police officer, but noted RPD's finding that principal applicant had not been targeted by FARC and would not be upon return. Applicants contended that officer's conclusion that there was no documentary evidence showing FARC would target principal applicant was clear misreading of UNCHR report, which clearly stated that previous status as police officer could be source of persecution. Application allowed. New evidence indicated that similarly situated individuals such as principal applicant, former police officer, were targeted by FARC and there was no internal flight alternatives for these types of individuals in Colombia. Officer merely stated that RPD determined that principal applicant would not be targeted by FARC and not subject to risk or serious harm as he was former police officer. This was not what new documentary evidence stated. Officer did not consider RPD findings in light of this new evidence. There was no analysis of how new evidence would impact or change RPD decision. Failure of officer to carry out this analysis made decision unreasonable. Morales v. Canada (Minister of Citizenship and Immigration) (May. 28, 2013, F.C., John A. O'Keefe J., File No. IMM-346012) 229 A.C.W.S. (3d) 1138. ONTARIO CIVIL DECISIONS Arbitration STAY OF PROCEEDINGS Parties should be governed by language of contract Motion by plaintiff for stay of proceedings pending arbitration. Plaintiff was general contractor who entered into building contract with defendant for renovation and expansion of its headquarters. Work commenced when agreement was signed in November 2007, but there were delays because of layout and asbestos problems that added 17 weeks to project. After problems were discovered, plaintiff retained counsel to advance its damages claim under dispute resolution provisions of contract. Steps were taken under process, but time passed. To prompt more efficient responses from defendant, plaintiff commenced action on July 29, 2011. Defendant claimed action was out of time and brought motion for partial summary judgment to dismiss delay claim. Plaintiff brought motion to compel defendant's return to arbitral process to resolve delay claim. Motion granted. Pursuant www.lawtimesnews.com to contract, disputes were to be resolved by binding arbitration. Court had discretion to stay proceedings under s. 106 of Courts of Justice Act (Ont.). Defendant's complaints of delay and noncompliance with time-limits set out contract were at best mixed questions of fact and law which were matters for arbitrator. Parties should be governed by language of contract and their submission to dispute resolution process which included arbitration. Action was stayed. Bondfield Construction Co. v. London Police Services (Jul. 12, 2013, Ont. S.C.J., P.B. Hockin J., File No. 4804-11A1) 229 A.C.W.S. (3d) 938. Bankruptcy and Insolvency COURTS AND PROCEDURE Owners ought to be placed in position to prove entitlement to insurance Motion by property owners for order lifting stay of proceedings flowing from bankrupt's bankruptcy. Bankrupt was land use consulting company. Owners engaged bankrupt to provide services concerning proposed redevelopment. Owners contended bankrupt provided negligent advice that caused them losses. Owners commenced action against bankrupt in May 2010 for damages for negligence. Successful claim would be covered by insurance policy held by bankrupt. Bankrupt assigned itself into bankruptcy in July 2012. Owners' action was consequently stayed pursuant to s. 69.3 of Bankruptcy and Insolvency Act (Can.). Motion granted on terms. Stay of proceedings was lifted with expectation that owners would amend statement of claim to change claim from one of damages to one of declaration that bankrupt was trustee of chose in action represented by insurance policy for benefit of owners. Unless good reason was established to contrary, rights of bankrupt under insurance policy were to be assigned to owners by trustee in bankruptcy on notice to other creditors, and only owners could pursue those rights. Owners ought to be placed in position to endeavour to prove their entitlement to insurance that was purchased by bankrupt specifically to provide recovery in event of proven negligent act. This approach was in keeping with expectation of parties prior to bankruptcy. This approach was also consistent with approach taken in other provinces. Commercial reality and justice dictated that refusing to lift stay would be contrary to principles of equity. Iplan Corp., Re (Jun. 28, 2013, Ont. S.C.J., Reg. D.E. Short, File No. Newmarket 31-1643308) 229 A.C.W.S. (3d) 942. Civil Procedure GENERAL No evidence to support allegation that television editing was done maliciously or recklessly Defendant brought motion for summary judgment to dismiss plaintiff 's claims on basis of consent and release signed by plaintiffs. Plaintiffs participated in recording of defendant's program "Dragon's Den" to present business proposal and for chance to receive investment financing for board game. Plaintiffs claimed that short segment of original recording that was broadcast was complete misrepresentation of original recording and that defendant's conduct amounted to gross and reckless negligence, intentional misconduct, malice and bad faith. Plaintiffs' action was based on breach of contract, defamation, breach of duty of care and injurious falsehood. Motion granted; Action dismissed. Evidence presented on motion afforded court full appreciation required to make dispositive findings. Consent and release, by its express and unambiguous terms, released defendant from every claim identified in statement of claim. As consent and release was complete bar to claims, action should only proceed if it would be unconscionable or contrary to public policy to enforce contract or if defendant itself breached contract. There was no evidence supporting allegation of public harm. Evidence failed to establish breach of contract by defendant. There was no evidence to support allegation that editing was done maliciously or recklessly. MHR Board Game Design Inc. v. Canadian Broadcasting Corp. (Jun. 28, 2013, Ont. S.C.J., Aston J., File No. CV-12-452064) 229 A.C.W.S. (3d) 994. Courts JURISDICTION Deputy judge erred by making procedural final order for relief neither sought nor argued Appeal from decision of deputy judge transferring action from Small Claims Court to Family Court. In so doing, deputy judge also ordered that writ of seizure and sale issued on June 29, 2011 be stayed until final resolution. Deputy judge found that Small Claims Court did not have jurisdiction in cohabitation family law matter. Motion before deputy judge had nothing to do with either transfer of proceeding or appropriate court for it. Appeal allowed. Motion was limited to relief sought in notice of motion. Deputy judge erred by making procedural final order for relief which was neither sought nor argued. Deputy judge also erred in characterizing claim as cohabitation family law matter. Claim was for repayment of debt with interest. Appellant did not claim for resulting trust, constructive trust or allege unjust enrichment. Finally, deputy judge erred by exercising her discretion and jurisdiction of court in unreasonable manner. Her order would compel appellant to begin proceedings anew. Order was set aside. Armellini v. Crook (Jul. 11, 2013, Ont. S.C.J., McCarthy J., File No. 13-0163) 229 A.C.W.S. (3d) 1035. LT

• Cover