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Page 14 was no specific dispute between applicant and any other party. Applicant did not establish reasonable apprehension of bias or any conflict of interest. Applicant did not show motions in any way benefitted or could be perceived to benefit chief and councillor. Sayers v. Batchewana First Nation (Jul. 29, 2013, F.C., Donald J. Rennie J., File No. T-1112-12, T-1120-12) 230 A.C.W.S. (3d) 622. Customs and Excise Offences FORFEITURE OF CHATTELS Forfeiture of seized legitimate funds was unreasonable exercise of discretion Applicant applied for judicial review of decision of respondent Minister that there had been contravention of s. 12(1) of Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Can.) and that all currency that had been seized from applicant would be held as forfeit. Applicant was scheduled to fly from Vancouver to Hong Kong. At airport applicant was approached by customs officer. Applicant admitted to carrying more than $10,000 in currency that he had not reported. Total of $15,760 was found in applicant's bag. Officer decided to hold seized currency as suspected proceeds of crime. Applicant had been previously convicted of drug smuggling, had been unemployed since 2007 and had no other source of income. Applicant contested seizure and provided explanation for seized funds in that they were made up of $6,700 from sale of car, $2,000 was lucky money mother had given him and balance was his personal savings. Adjudicator determined that $6,700 was accepted as legitimate but that applicant had not provided evidence to demonstrate identifiable link between savings and lucky money and legitimate origins. Adjudicator still suspected that $9,060 of seized money was proceeds of crime. Minister determined that all of seized funds would be held as forfeit. Application granted. It could not be case that because Act specified in s. 29(1)(b) that portion of penalty may be returned, it followed that portion of seized funds that were legitimate may not be returned under s. 29(1)(a) because that section did not refer to "portion". Confiscating legitimate funds did not further objectives of Act. Penalty for applicant's failure to report legitimate funds was $250 and confiscation of $6,700 imposed draconian remedy that was not mandated by Act. If Parliament intended to confiscate legitimate funds it would have stated so in unequivocal terms. Interpretation advanced by Minister could lead to absurd punitive results. Interpretation of s. 29(1)(a) of Act, which could determine fate of large sums of money, should not be based solely on language used on penalty provision. Decision that confirmed forfeiture November 4, 2013 Law Times • caselaw of seized funds, including legitimate funds, was unreasonable exercise of discretion. Huang v. Canada (Minister of Public Safety and Emergency Preparedness) (Jun. 28, 2013, F.C., Sandra J. Simpson J., File No. T-1219-12) 108 W.C.B. (2d) 638. Citizenship APPEAL Judge could not apply two distinct tests to determine whether applicant met residency requirement Appeal from decision of citizenship judge refusing applicant's citizenship application. Applicant was citizen of Lebanon who arrived in Canada on December 20, 2001, on student visa and was granted permanent residence on January 19, 2007. On April 20, 2009, he filed application for Canadian citizenship in which he declared being absent from Canada for 44 days since his entry into Canada, owing to trip to Lebanon from September 9th to October 23, 2008. This left him with 1,097 days of physical presence in Canada (out of 1,095 required), as calculated in manner set out under s. 5(1)(c)(i) and (ii) of Citizenship Act (Can.). Citizenship judge concluded that despite applicant's passport confirming his statement to effect that he had been absent from Canada for only 44 days during reference period, Canada was not country where applicant had established himself and had been regularly, normally and customarily living, nor was it place where he had centralized his mode of existence. Application granted. Court must intervene, as citizenship judge could not apply two distinct tests to determine whether applicant met residency requirement set out in s. 5(1)(c) of Act. If physical presence in Canada can be proved for prescribed minimum number of days during reference period, there is no need to present qualitative evidence to show applicant's degree of integration into Canadian society or to justify applicant's absences. Evidence considered by citizenship judge did not tend to contradict applicant's physical presence in Canada. Citizenship judge did not explain why applicant's passport was not persuasive evidence of his physical presence in Canada, and she could not use elements of one or more of other residency tests to reject that evidence, just as she could not submit evidence to two tests at same time. Saad c. Canada (Ministre de la Citoyenneté et de l›immigration) (May. 29, 2013, F.C., Jocelyne Gagné J., File No. T-896-12) 230 A.C.W.S. (3d) 642. ONTARIO CIVIL DECISIONS Associations RELIGIOUS ASSOCIATIONS Diocese retains control over all church property in perpetuity for benefit of members Due to theological differences, membership of St. Aldan's Anglican Church in Windsor voted to leave Anglican Diocese of Huron. Two churchwardens of St. Aldan's, commenced action seeking declaration that current members of church were beneficial owners of church property and of charitable foundation established and maintained by St. Aldan's members. Diocese and its bishop counter-sued two churchwardens and other members ("St. Aldan's Group") for declaratory relief relating to same property. Actions heard together. Canon 14 provides that Diocese holds all real property "in trust for the benefit of the Parish or congregation". St. Aldan's Group argued that parish is fluid concept that describes people who comprise congregation at any one time but trial judge preferred Diocese's interpretation, which was that parish is static concept that continues in perpetuity regardless of changes in membership. St. Aldan's Group's appeal dismissed. Diocese's application for leave to cross-appeal subsequent order that, in interests of harmony, each party bear own costs, allowed and appeal allowed in part. "Parish or congregation" must denote static entity that may not be severed from Diocese and not defined by any particular group of members at any particular time. Canon 14 provides that church property cannot be sold, mortgaged or otherwise disposed of without bishop's prior consent, reinforcing conclusion that bishop, and by extension Diocese, retains control over all church property in perpetuity for benefit of members of Diocese. Similar language found in Anglican Church of Canada Act (Ont.). Canon 18 describes composition of vestry in given congregation as all baptized members of congregation 16 years of age or older who have been regularly worshipping with congregation for at least three months. Aldan Group's interpretation would mean that any group of worshippers meeting minimum requirements could constitute parish and could, by majority vote, leave Diocese and take church property with them. Clearly, this was not what canons intended. Congregants who contributed money or labour to maintaining church property knew they were doing so for benefit of St. Aldan's Parish of Diocese of Huron which was not, therefore, unjustly enriched by those contributions. Trial judge correctly held it was breach of trust for officers to use foundation funds to help pay legal bills. Object of foundation was to advance teachings of "parish of St. Aldan's Anglican Church of Windsor", not synonymous with current membership of St. Aldan's church. Incorporated Synod of the Diocese of Huron v. Delicata (Sep. 4, 2013, Ont. C.A., M. Rosenberg J.A., Paul Rouleau J.A., and Sarah E. Pepall J.A., File No. CA C54245) Decision at 206 A.C.W.S. (3d) www.lawtimesnews.com 835 was affirmed. 230 A.C.W.S. (3d) 652. Contracts BUILDING CONTRACTS Expectation that cost of renovation limited to fixed price contract was not realistic Plaintiff sought balance owing for extras it performed in excess of base contract. Plaintiff was general contractor on renovation to commercial property owned by defendant. Plaintiff claimed that principals of defendant or its authorized agents expressly or impliedly authorized numerous extras to contract for which it was entitled to payment on quantum meruit basis. Defendant claimed there was oral term of contract that no extras would be charged unless authorized in writing by it and that plaintiff agreed to perform some of claimed extras without compensation due to defendant's complaints about quality of work. Judgment for plaintiff. Agreement was fixed price contract. Scope of work called for in fixed price contract comprised work listed on two-page schedule attached to plaintiff 's quotation. Defendant's expectation that cost of renovation would be limited to fixed price contract set forth in quotation, regardless of actual extent of work performed at its discretion, was not realistic. There was no term of contract that required extras to be authorized in writing on behalf of defendant. Defendant, by conduct of principals and authorized representatives in directing extra work be performed, waived any requirement for written authorization of extras. In any event, plaintiff did provide written notice of various extras that had been performed and requested and for which it would be looking for payment. In respect of many extras claimed by plaintiff, express authorization or instruction was given on behalf of defendant to complete work. Plaintiff established it was entitled to $86,829 for extras. Defendant had not established its claim for set-off. 2016637 Ontario Inc. v. Catan Canada Inc. (Jul. 12, 2013, Ont. S.C.J., D.A. Broad J., File No. C-858-06) 230 A.C.W.S. (3d) 710. INTERPRETATION Trial judge erred in basing interpretation of amending agreement on extraneous documents Appellant appealed interpretation of amending agreement. Appellant purchaser and respondent vendor entered into agreement for purchase and sale of land and for quantity of structural steel. Agreement was subsequently amended. Land was described as residential housing development that included strip plaza. Vendor had already purchased structural steel for plaza and as part of amending agreement required steel to also be purchased by purchaser. On date scheduled for closing land transaction was completed but structural steel component was not. Amending agreement provided that structural steel component of deal be verified and verification had not taken place. Verification term was in dispute. Trial judge concluded that open web steel joists were not part of structural steel that was part of amending agreement. Trial judge held that purchaser had not acted reasonably and in good faith to verify that steel met requirements. Money in trust was to be paid to vendor. Appeal allowed. Trial judge erred in basing interpretation of amending agreement on documents that were extraneous to it in circumstances where it was unnecessary to do so. Properly interpreted, using language of amending agreement and documents specifically referred to in it, open web steel joists were part of structural steel that purchaser contracted to buy and vendor contracted to sell. Vendor breached amending agreement and purchaser was entitled to money held in trust. 1724684 Ontario Ltd. v. Leafwood Investment Inc. (Aug. 8, 2013, Ont. C.A., J. MacFarland J.A., David Watt J.A., and Gloria Epstein J.A., File No. CA C55893) Decision at 220 A.C.W.S. (3d) 643 was reversed. 230 A.C.W.S. (3d) 715. Courts ABUSE OF PROCESS Applicant continued to demonstrate behaviour that resulted in orders declaring him vexatious litigant Applicant sought order under s. 140(3) of Courts of Justice Act (Ont.), granting him leave to proceed so that he could appeal jury verdict in negligence action against him. That action was brought by applicant against respondents for damages arising from investigation of fire that occurred on October 30, 1997 at applicant's residence. Applicant had brought numerous other legal proceedings. On October 16, 2007, he had been declared vexatious litigant. He was prohibited from instituting any further court proceedings without leave of court. Application dismissed. There were no grounds to grant application. Applicant appealed jury verdict, but did not perfect appeal. His application to extend time to appeal had been dismissed. Applicant was trying to re-litigate issues, which had already been determined in another proceeding. There was no basis to set aside s. 140 orders against applicant. He continued to demonstrate exact behaviour that resulted in orders declaring him vexatious litigant. Mohammed v. Goodship (Jul. 25, 2013, Ont. S.C.J., Darla A. Wilson J., File No. CV-12- 452291) 230 A.C.W.S. (3d) 719. Damages LIBEL AND SLANDER Defendant relied upon article published by other newspapers without doing any investigations Plaintiff commenced action for

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