Law Times

Page 13 Law Times • November 18, 2013 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. SUPREME COURT OF CANADA Charter of Rights MOBILITY RIGHTS No automatic rights to serve foreign sentence in Canada Applicant sentenced to 90 months' imprisonment in United States for trafficking large amounts of cocaine. Application for transfer of his sentence to Canada approved by American authorities but refused by Minister of Public Safety and Emergency Preparedness Provisions of International Transfer of Offenders Act permitting Minister to refuse application for transfer did not infringe applicant's mobility rights. Applicant appealed dismissal of his application for judicial review from Minister's decision. Appeal dismissed. Section 6 of Charter does not provide automatic right to serve foreign sentence in Canada. Divito v. Canada (Minister of Public Safety and Emergency Preparedness) (Sep. 19, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34128) 109 W.C.B. (2d) 37. FEDERAL COURT Administrative Law NATURAL JUSTICE No doubt that DVD recording was electronic document Applicant served in Canada Forces. Board confirmed decision to grant applicant twofifths award for adjustment disorder with mixed mood from aggravated pre-existing medical condition. Application for judicial review was allowed. Rules of procedural fairness were not followed. Board misinter- preted its rules by refusing to allow applicant opportunity to present DVD recording of alleged harassment. There was no doubt that DVD recording was electronic document. Applicant was denied fair opportunity to make arguments. Viewing of video recording could have had impact on awarding of disability pension. Doctor's report was not on record on which board based decision and report was key element with respect to statutory presumptions concerning applicant. Grenier c. Canada (Procureur général) (Feb. 28, 2013, F.C., Sean Harrington J., File No. T-196111) 231 A.C.W.S. (3d) 399. Air Law LICENCES Test articulated by panel provided no insight into what a segment of the public was Application for judicial review of panel's decision upholding agency's decision to issue administrative penalty against applicant for contravening s. 57(a) of Canada Transportation Act by operating air service without license. Applicant was hotel casino and spa in New Jersey. Between July 2008 and March 2009, two aircraft owned and operated by applicant made ten flights between Atlantic City and Toronto or Montreal to transport some of applicant's Canadian customers. Agency issued notice of violation and $25,000 penalty. Applicant filed request for review and argued flights were only offered to high-level customers and entirely at applicant's discretion, so were not publicly available. Agency argued guests were simply subset of public. Member found applicant had not contravened s. 57(a) because it did not publicize flights and members of public could not inquire about them or book them, and no customer had reasonable expecta- These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. tion of receiving flight. Agency appealed and panel found nature of service determined whether flights were publicly available, and customers who received free flights and continued spending at high level would likely receive more free flights, so member's finding premium clients did not have reasonable expectation of free flights was incorrect. Panel found applicant was operating publicly available service, but reduced penalty to $12,500 as it was first offence. Applicant argued decision was unreasonable as panel failed to articulate intelligible standard. Application allowed. Test articulated by panel, that service available to only segment of public was publicly available, bordered on tautological as it provided no insight into what a segment of the public was. Member's test, on the other hand, provided useful tool for analyzing whether users were segment of public. While panel provided cogent reason for rejecting member's test, same could not be said for test it substituted. Panel gave no explanation for preferring vague test and its decision was unreasonable. Not appropriate for court to articulate test given expertise of tribunal, so matter returned to Transportation Appeal Tribunal for redetermination. Marina District Development Co. v. Canada (Attorney General) (Jul. 18, 2013, F.C., John A. O'Keefe J., File No. T-324-12) 231 A.C.W.S. (3d) 295. Social Welfare OLD AGE SECURITY Not clearly established that applicant informed of change in scope of investigation Applicant was given old age security pension based on 40 years of residence in Canada. Investigation was commenced to determine applicant's eligibility for guaranteed income supplement. Officer found applicant did not reside in Canada and only came back to obtain guaranteed income supplement. Department informed appellant that appellant was no longer eligible to receive old age security benefits. Payments were interrupted and appellant was asked to pay back overpayment. Review Tribunal upheld decision to vacate applicant's entitlement to pension and required applicant to pay back overpayment. Application for judicial review was allowed. Tribunal's failure to limit scope of investigation to period preceding applicant's 65th birthday was fatal reviewable error. Failure to limit assessment to relevant period was reviewable error. Original investigation centred on applicant's eligibility for guaranteed income supplement. Request for investigation had nothing to do with applicant's eligibility for old age security pension. Investigating officer exceeded original scope of investigation by determining applicant's eligibility for old age security pension. It was not clearly established that applicant was informed of change in scope of investigation. Daoud c. Canada (Procureur général) (Mar. 11, 2013, F.C., Sean Harrington J., File No. T-24712) 231 A.C.W.S. (3d) 546. ONTARIO CIVIL DECISIONS Civil Procedure DISCOVERY Master recognized balance between settlement privilege and need to ensure fairness Appeal by plaintiffs from master's order requiring immediate disclosure of Mary Carter Agreement ("MCA"), partially redacted, to non-settling defendant. Plaintiff was passenger seriously injured in single vehicle accident and sued driver, Durham region, insurer and Ontario. Claim against Ontario was dismissed and plaintiff and driver entered MCA, which partially settled action as against driver and insurer, leaving only Durham as defendant, and provided crossclaim by driver against Durham continued. Partial judgment was rendered on this basis, specifying settlement amounts and terms and conditions regarding structuring of settlement. Plaintiffs served all defendants with partial judgment and Durham moved for disclosure of MCA. Master found MCA was exception to settlement privilege, partial judgment did not adequately disclose adversarial orientation or change of litigation landscape resulting from settlement, there was no specific evidence supporting plaintiffs' position they would not have entered MCA had they known disclosure ramifications and there was no merit to argument master lacked jurisdiction. Plaintiffs argued master erred in law, order would have chilling effect on settlement efforts, and Durham's motion was attempt to set aside partial settlement, so master lacked jurisdiction. Appeal dismissed. MCA significantly altered relationship among parties to litigation. Master properly recognized balance between settlement privilege and need to ensure fairness, integrity and justice of the court process. Master did not misapprehend facts or law and properly analyzed effects of settlement and partial judgment in changing adversarial orientation. Having read MCA, master ordered further disclosure to permit Durham to fairly understand changed adversarial alliances and litigation landscape. Decision was consistent with case law and Durham's motion for disclosure was not collateral attack on partial judgment, which ORDER YOUR COPY TODAY AND ENTER TO WIN AN iPAD MINI** MORE DETAIL AND A WIDER SCOPE OF LEGAL CONTACT INFORMATION FOR ONTARIO THAN ANY OTHER SOURCE: Perfectbound • December 2013 SPECIAL PRICE $74 (Regular $77) L88804-626 • More than 27,000 lawyers • More than 9,000 law firms and corporate offices • Fax and telephone numbers, e-mail addresses, office locations and postal codes EARLY BIRD ORDERS MUST BE ACCOMPANIED BY CREDIT CARD PAYMENT EARLY BIRD MULTIPLE COPY DISCOUNTS 1-9 copies …………………………………………$74 10-49 copies ………………………………………$70.15 50-99 copies ……………………………………$67.84 100 or more copies ………………………$64.76 Multiple copy discounts available Shipping & handling plus applicable taxes are extra Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation * Offer expires December 15, 2013 • price is based on orders of 100 copies or more **available to new purchasers only Untitled-3 1 www.lawtimesnews.com 13-09-20 10:25 AM

• Cover