Law Times

Page 17 Law Times • November 25, 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. FEDERAL COURT Immigration EXCLUSION AND EXPULSION Officer failed to consider relevant, current evidence Immigration Officer concluded that applicant's proof of membership in Mouvement pour la Solidarité et la Démocratie ("MSD") was not sufficient to establish that applicant would be perceived as enemy of Burundian government. Officer dismissed evidence from third party that applicant was on list of MSD members in exile. Officer considered it speculative that government even had such list. Officer ultimately concluded that, despite evidence of government sanctioned human rights abuses, self-imposed exile of MSD members and brief detentions for illegal political meetings, there was insufficient proof of Burundian government imprisoning and torturing members of MSD. Judicial review allowed. Officer failed to consider significant evidence which ran counter to officer›s determination. That evidence was more current and cogent than that relied on by officer. Given failure to consider relevant, current evidence in respect of PRRA application, it was unreasonable to dismiss PRRA application without regard for this evidence. Bizima v. Canada (Minister of Citizenship and Immigration) (Jul. 29, 2013, F.C., Michael L. Phelan J., File No. IMM-595212) 231 A.C.W.S. (3d) 775. SELECTION AND ADMISSION Officer should have put extrinsic evidence to applicants for their response Application for judicial review of decision of immigration officer refusing applicants' application for permanent residence based on humanitarian and compassionate ("H&C") grounds pursuant to s. 25(1) of Immigration and Refugee Protection Act (Can.). Applicants were citizens of Bangladesh. Principal applicant, aged 56, and son, minor applicant, aged 15. Applicants entered Canada in 1999 and claimed refugee protection on ground principal applicant feared domestic violence by her husband in Bangladesh. Claim was denied in 2000 and 2004, applicants requested that their application for permanent residence be considered on H&C grounds pursuant to s. 25(1) of Act as principal applicant feared vio- These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. lence by her husband should she return to Bangladesh. Officer attributed little weight to applicant's fear of domestic violence as country condition evidence established that much violence against women was predicated on wealth or poverty of women involved. Officer noted that principal applicant was well educated and described herself in her PIF as born and brought up in respectable family. Therefore, it was reasonable to presume that applicant was from wealthy family in Bangladesh and not similarly situated with impoverished and vulnerable women depicted in much of her supporting documentation. Officer concluded that evidence did not support that applicants would face risk or harm from principal applicant's husband. Applicants contended that officer's reliance on extrinsic evidence was breach of procedural fairness. Application granted. Officer relied on extrinsic evidence to reach conclusion as to principal applicant's family's wealth, and stated that applicant did not provide evidence to dispel that assumption. It was breach of procedural fairness to obtain and rely on extrinsic evidence for purpose of supporting inference that had not been put to applicants and then to fault them for not having responded to that inference. It was also unreasonable to expect principal applicant to anticipate that inferred wealth of her family twelve years ago would form basis of officer's finding that she would personally be unlikely to be at risk of hardship due to domestic violence if she returned to Bangladesh. Officer should have put extrinsic evidence used to reach inference that may have been material to outcome of H&C application, to applicants for their response. Failure to do so was breach of procedural fairness and for that reason decision must be quashed. Begum v. Canada (Minister of Citizenship and Immigration) (Jul. 29, 2013, F.C., Cecily Y. Strickland J., File No. IMM6506-12) 231 A.C.W.S. (3d) 783. ments being served on him, despite being instructed on multiple occasions to do so. Prisoner argued that there was distinction as to whether he was "directed" or "ordered" to attend office. Prisoner argued that he had right to evade service of legal documents. Application dismissed. Whether language constituted "order" was question of mixed fact and law. Words "order" and "direct" were synonyms and there was no merit in prisoner's attempt to distinguish between terms, particularly in context of daily administration of correctional institution. Court was being requested to reweigh evidence, which was not proper ground for judicial review. Prisoner misunderstood purpose of service of legal documents, as requirement to serve documents in legal proceeding was for purpose of upholding person's right to be advised of actions by state brought against him engaged at behest of legal party, and to be able to defend proceedings. Any person seeking to evade service would have been implicitly acknowledging legitimacy of proceedings being brought against him or her and thereby seeking to frustrate administration and proper course of justice. As prisoner was incarcerated in penal institution, authorities were required, both for purpose of protecting prisoner's rights to procedural fairness and for purpose of contributing to promotion of administration of justice, to permit and facilitate service of documents on prisoner when requested to do so by persons engaged in lawful legal proceedings. There was no right for prisoner in institution to evade service of legal documents and therefore no justification to disobey order by prison authorities to attend for that purpose. Johnson v. Warkworth Institution Disciplinary Court (Aug. 27, 2013, F.C., Peter Annis J., File No. T-1127-12) 109 W.C.B. (2d) 214. Prisons Contracts INMATES' RIGHTS No right for prisoner in institution to evade service of legal documents Prisoner applied for review of disciplinary decision fining him $20, suspended for 21 days, after finding him guilty of disobeying order. Prisoner refused to attend office for purpose of accepting legal docu- FRANCHISE AGREEMENTS Plaintiff 's refusal to complete agreement confirmed failure to mitigate damages Plaintiff franchisee claimed defendant franchisor failed to adequately disclose in writing details of franchisor's plans and proposed renovation costs at time of renewal. Plaintiff ONTARIO CIVIL DECISIONS www.lawtimesnews.com refused to return to carry on business in usual fashion. Plaintiff claimed it suffered significant damages when defendant attempted to go ahead with renovations and allegedly terminated agreement before completion date. Defendant argued Arthur Wishart Act (Franchise Disclosure), 2000 (Ont.), had no application to renewal of franchise agreement. Defendant claimed original and renewal agreements set out plaintiff 's obligation to conduct extensive renovations at own cost when required by franchisor. Action was dismissed. Plaintiff understood with benefit of independent legal advice all of terms of original franchise agreement. There was no interruption of operation of franchisee's business. Plaintiff was fully informed prior to entering original franchise agreement that franchise was in process of being renovated and cost was to be borne by franchisee under terms of agreement. There were no material changes that were to take place in renewal agreement as intention to proceed with renovations to plaintiff 's store and cost was already disclosed to plaintiff and included in original franchise agreement. Plaintiff led no evidence that defendant acted in bad faith towards plaintiff. Plaintiff 's refusal to return without any basis to complete agreement confirmed failure to mitigate damages. 1201059 Ontario Inc. v. Pizza Pizza Ltd. (Aug. 14, 2013, Ont. S.C.J., R.J. Nightingale J., File No. 11-24641) 231 A.C.W.S. (3d) 663. Damages NUISANCE Noise and odour not tangible objects in context of law respecting trespass Appellant owned quarry. Respondents were residents who lived in vicinity of quarry. Residents brought action complaining of noise and odour alleged to be caused by production of asphalt. Judgment was granted in favour of respondents totaling $14,700 as damages for nuisance, trespass and negligence. Appeal was dismissed in relation to nuisance claim and allowed in relation to claims in trespass and negligence. Judge did not misapprehend character of neighbourhood. Trial judge did not make palpable and overriding error in assessing severity of interference. Trial judge did not make reviewable error in not finding that respondents were predisposed to be hypersensitive to noise and odour emanating from asphalt plant. There was no reviewable error in assessment of utility of appellant's conduct. Trial judge did not make reviewable error in permitting individual to provide opinion evidence. Finding of liability in trespass was set aside. Nature of intrusion was indirect because noise and odours were emitted from plant rather than being placed on neighbouring land by appellant. Noise and odour were not tangible objects in context of law respecting trespass. Finding of liability in negligence was set aside. There was no suggestion in evidence that respondents suffered personal injuries or property damage to extent that justified compensation under law of negligence. Appeal as it related to damages was dismissed. No adjustments were made to amounts awarded by trial judge. Moore v. Smith Construction Co. (Jan. 21, 2013, Ont. S.C.J., Martin James J., File No. DC10-0102) 231 A.C.W.S. (3d) 836. Family Law COSTS Father's willingness to spend money on legal fees so out of proportion to benefit it defied logic Mother sought costs. Father brought motion to terminate child support. Hearing was adjourned. Father's application to terminate support for any period prior to May 1, 2013 was dismissed. Amount owed by father to mother was fixed at $33,654. Father had spent about $400,000 in legal and expert fees. Mother appeared without counsel at trial, but she had engaged counsel from time to time. Mother claimed that trial forced her to give up her employment. Application granted. Mother was successful party and she was entitled to costs. Amount spent by father was significantly disproportionate to any amount he advanced as his best financial outcome. His willingness to spend money on legal and expert fees so out of proportion to any economic benefit defied logic. Reasonable conclusion was father was prepared to cause financial harm to mother and son even at incredible expense to himself. Father never expected to recover costs. Mother had limited financial resources. Father was entitled to costs thrown away as result of adjourned trial. Mother did not need to give up her employment. Court had no fair, reasonable and reliable method of quantifying work mother did instead of what lawyer

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