Law Times

Law Times • November 11, 2013 J., File No. IMM-7176-12) 231 A.C.W.S. (3d) 212. Officer did own research which was not put to applicant Applicant sought judicial review of humanitarian and compassionate application, and pre-removal risk assessment decision. Applicant was male citizen of Burundi who arrived in Canada on October 21, 2000, and claimed refugee status. Claim was denied, but applicant was not deported because Canadian government had established moratorium on removals to Burundi until July 2009. Applicant had good job, sound pay, was bilingual and had been resident in Canada for 12 years. Immigration officer found applicant could apply for immigration from outside Canada and there was no evidence to support applicant's fear that he would be killed if returned to Burundi because he was member of opposition party. Application allowed. Officer did own research which was not put to applicant. Officer ignored recent evidence of attacks in Burundi on opposition party members. There was no real analysis of impact of separation on applicant, its economic impact, and consequences of removal to Burundi outside of risk. Decision was quashed and matter remitted back to new immigration officer for redetermination. Bizima v. Canada (Minister of Citizenship and Immigration) (Jul. 29, 2013, F.C., Michael L. Phelan J., File No. IMM-5955-12) 231 A.C.W.S. (3d) 213. ONTARIO CRIMINAL DECISIONS Appeal GROUNDS Even legal owner of property cannot recover possession of chattel by using force Accused appealed his conviction for assault, alleging reasons for conviction were insufficient. Accused submitted that trial judge's reasons indicated that he convicted accused either on basis of "deemed assault" provisions of s. 38(2) of Criminal Code or on basis of physical struggle for control of vehicle. Accused submitted that reasons were insufficient to understand on what basis trial judge reached his decision. Accused submitted that if trial judge based conviction on basis of s. 38(2) of Code, he made error of law, and if he convicted accused on basis of struggle for car, verdict was unreasonable because only reasonable conclusion on evidence was that struggle was consensual. Appeal dismissed. There was no issue that accused intentionally applied force to complainant while attempting to leave with motor vehicle. There was no need to revert to deemed assault provisions of s. 38(2) of Criminal Code. Evidence clearly supported finding that application of force was not with con- Page 19 CASELAW sent of complainant. Accused decided to enforce his mother's claim for disputed vehicle instead of choosing normal legal civil dispute resolution. Trial judge clearly rejected idea that what occurred was consensual fight: rather trial judge found father was simply taking steps to prevent accused from leaving with vehicle which was his right to do. Even legal owner of property cannot recover possession of chattel by using force. R. v. Poitras (Sep. 5, 2013, Ont. S.C.J., M.Z. Charbonneau J., File No. C2833-2009) 108 W.C.B. (2d) 730. DNA Identification GENERAL Blood rationally and logically linked to unlawful entry and theft Accused was charged with break, enter and theft of store which had glass pane broken and drops of blood outside of it. Blood was determined to be accused with minimal percentage chance it could belong to his fraternal twin brother. Twin brother testified who was significantly larger than accused and claimed to be driving in different area at time of offence. Accused guilty. Court found no rational or logical connection for blood of accused to be at store as there was no evidence that blood was there earlier. Court noted accused was not required to testify but found blood rationally and logically linked to unlawful entry and theft. R. v. Marini (Jun. 21, 2013, Ont. S.C.J., W.L. Whalen J., File No. Sault Ste. Marie C57413) 108 W.C.B. (2d) 750. ONTARIO CIVIL DECISIONS Civil Procedure DISCONTINUANCE No one prepared to assume role as representative plaintiff Plaintiff sought to discontinue action. This was proposed class proceeding on behalf of group of retirees. Claim related to early retirement program. Plaintiff alleged it was understood and agreed to by retirees that upon death of retiree, retiree's spouse would continue to receive 100% health coverage benefits until time of death of spouse. Defendant took position that benefits terminated upon earlier of spouse's remarriage or end of 12 months following death of retiree. Proposed class consisted of small group of employees who took early retirement. Plaintiff 's spouse predeceased him and he was no longer member of proposed class. Plaintiff was not successful in finding another member of class to replace him. Application granted. Leave of court was required for order granting discontinuance. Class was small. There was nothing to suggest that any claims were withheld in reliance on proceeding. Economics of litigation were marginal and it could not proceed without representative plaintiff. No one was prepared to assume role as representative plaintiff. In circumstances it was proper to grant leave to discontinue without prior notice to class, but class was to be given notice of discontinuance. Westland v. Ontario Hospital Assn. (Jul. 8, 2013, Ont. S.C.J., Lax J., File No. Toronto 06-CV312902CP) 231 A.C.W.S. (3d) 60. PLEADINGS Plaintiff 's position that the waived right to be recognized as person before law rejected by courts Defendants sought order striking out statement of claim. Plaintiff asserted that she waived her rights as person under law, and therefore Income Tax Act (Can.), did not apply to her. Plaintiff sought order requiring defendant CRA to pay back all taxes collected from her for ten years. Plaintiff also sought damages with respect to allegations of conspiracy, conversion, economic loss of profit and breach of fiduciary duties by two CRA employees. Plaintiff maintained that defendants should be noted in default because they failed to file statement of defence within time prescribed. Application granted. Defendants were not in default. Plaintiff 's position that she waived right to be recognized as person before law, and therefore Act did not apply to her had been extensively considered and rejected by Canadian courts. Plaintiff 's statement of claim disclosed no reasonable cause of action and had no prospect of success. Statement of claim did not disclose material facts upon which pleadings were based. Statement of claim was frivolous, vexatious and abuse of process of court. Sinclair-McDonald v. R. (Jul. 22, 2013, Ont. S.C.J., Barnes J., File No. CV-13-1859-00) 231 A.C.W.S. (3d) 83. Contracts TERMS Responsibility for ineffective communication lay with sender Plaintiff brought claim for unpaid bonus earned for 2011, prior to his resignation from employment effective February 3, 2012. Defendant said bonus for 2011 was not payable under terms of written policy providing that there was no entitlement if employee was not active employee as at date bonus was due for payment, which was March 15, 2012. Claim allowed. Defendant attempted to communicate limiting terms of bonus policy to plaintiff 's attention by means of two e-mails. Neither e-mail contained actual message. Each contained attachment which, if opened, displayed overview and summary of incentive plan. Plaintiff conceded that e-mails were sent to his e-mail account, but denied seeing attachment until it was brought to his attention after Marcy 15, 2012. During his employment, plaintiff received 75 to 100 e-mails per www.lawtimesnews.com day. Court concluded that more was required than two seemingly unimportant e-mails which were devoid of any message at all. In absence of contractual terms providing otherwise, responsibility for such ineffective communication lay with sender. Defendant was not entitled to rely on limiting terms and accordingly, plaintiff was entitled to payment of bonus in amount of $24,732. Patterson v. Hanson Hardscape Products Inc. (Aug. 18, 2013, Ont. S.C.J., J. Sebastian Winny D.J., File No. Kitchener 1753/12) 231 A.C.W.S. (3d) 130. separate entities of corporations, so corporations were a sham. Individual plaintiff was wilfully blind to frauds worked through accounts, caused accounts to incur debts and used funds to purchase his home. Allied and individual plaintiff jointly and severally liable for $135,215 and company and individual plaintiff for $559,370 plus $11,901. Rehman International Ltd. v. Royal Bank of Canada (Jul. 4, 2013, Ont. S.C.J., M.J. Donohue J., File No. CV-09-4775-00) 231 A.C.W.S. (3d) 194. Corporations CUSTODY Passage of time could amount to material change in circumstances in access cases This was application to vary access set out in 2009 order. Parties lived together briefly. Parties had two children. Children resided with mother. Parties had appeared in family court 65 times. Father claimed that mother made it impossible for him to develop relationship with children. Mother claimed that father had not attempted to visit children. Mother felt that father had serious issues that could harm children. Mother expressed concern that father should not be provided with access to children and Office of Children's Lawyer became involved. Father was marijuana advocate and openly used marijuana. In 2009, final order was made on consent where father was granted access, including overnight access. Mother claimed that she had not done anything recently to discourage children from seeing father. Children had now expressed views that they preferred to arrange access directly with father and did not want to have overnight access. Children preferred flexibility with scheduling of access. Application granted. When 2009 order was made, older child was almost 10 years old and younger child was almost 8 years old. Older child was now 13.5 years old and younger child was 12 years old. Passage of time alone could amount to material change in circumstances in access cases. Passage of time together with credible evidence that children desired voice and more flexibility in access with father amounted to material change in circumstances. Nothing pre-dating 2009 order was relevant to ascertaining what was in best interests of children. Predominant consideration in this case were children's views and preferences, which were ascertainable. Wishes of children and what was in their best interests were same in this case. Father was to have reasonable access to children upon reasonable notice as agreed to and arranged between father and children. Father was to have access every Wednesday unless children otherwise indicated. Stirling v. Blake (Aug. 12, 2013, Ont. S.C.J., J.W. Quinn J., File No. St. Catharines 1068/00) 231 A.C.W.S. (3d) 165. LT CORPORATE IDENTITY Plaintiff wilfully blind to frauds worked through accounts Action by corporations and their owner against bank for breach of contract. Counterclaim by bank for overdraft, guarantees and outstanding balance owing. Plaintiffs were in business of cheque cashing and currency services. In four-week period, plaintiffs cashed cheques totalling over $800,000 that were part of fraudulent scheme. There was no dispute about scheme or accuracy of defendant's banking records. Individual plaintiff and wife executed personal guarantees limited to $30,000, which were valid and binding and on which demand had been paid but no payment received. Plaintiffs claimed to have been innocent victims of fraud and argued defendant created overdraft by debiting their accounts when fraudulent funds failed to clear. Defendant sought to pierce corporate veil and hold individual plaintiff personally liable. Action dismissed; counterclaim allowed. Defendant fully complied with terms of financial services agreement and there was no breach of contract. No reason not to issue judgment to defendant for overdraft against companies and $30,000 guarantee against individual plaintiff. Individual plaintiff was controlling mind and principal of plaintiff companies, did not produce any documentation to demonstrate they were carried out as separate entities in accordance with corporate law, and evidence demonstrated separation between individual plaintiff and plaintiff companies was not respected. Individual plaintiff was experienced and knew how to verify cheques, yet disregarded inconsistencies in names and signatures of persons presenting cheques and engaged in suspicious activity of endorsing cheques on behalf of clients and depositing cheques from same transaction in different accounts at different locations on same night. During period of fraudulent cheques, individual plaintiff purchased house, using funds from plaintiff companies. Evidence raised serious concerns about individual plaintiff 's participation in fraud and demonstrated he disregarded Family Law

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