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Page 14 February 3, 2014 • Law Times www.lawtimesnews.com FEDERAL COURT Immigration REFUGEE STATUS Applicant's sworn evidence should have been presumed true Mother and child ("applicants") claimed refugee protection based on well-founded fear of persecution in Vietnam as Catholic Christians. Refugee Protection Division of Immigra- tion and refugee Board ("RPD") denied applicants' claims finding there was no credible basis for claims. RPD rejected applicants' identity documents on basis they were copies, had no security features other than stamps and were faxes without evidence as to when and how they were faxes. Applicants sought judicial re- view. Application allowed. RPD member was preoccupied with expectation that applicant for refugee protection had to pres- ent acceptable documentation to prove identity. Based on RPD's documentation expectations, applicant's sworn evidence was rejected as unbelievable. Appli- cant's sworn evidence was to be presumed true unless there were reasons to doubt its truthfulness in reaching conclusion on iden- tity. ere were no clear reasons provided for not accepting ap- plicant's sworn evidence in sup- port of claim. Fact RPD found applicant to be native speaker of Vietnamese was not taken into consideration in resolving ap- plicant's nationality. RPD's failure to reasonably consider this fact as critical in determining appli- cant's identity rendered decision unreasonable. Tran v. Canada (Minister of Citi- zenship and Immigration) (Oct. 28, 2013, F.C., Douglas R. Camp- bell J., File No. IMM-11045-12) 233 A.C.W.S. (3d) 972. ONTARIO CIVIL DECISIONS Civil Procedure CLASS ACTIONS Objections by potential class mem- bers did not affect fairness and reasonableness of settlement Investors were advised by finan- cial advisors to borrow money to invest. Investors commenced action against financial advi- sors and lender for damages for unspecified causes of action. Investors successfully brought motion certifying action as class proceeding. Parties reached settlement consisting of $8.2 million for claims, $1.5 million inclusive of HST for counsel fees, $100,000 for disbursements, and $200,000 for administration expenses. Any potential class member had opportunity to challenge ultimate amount that administrator determined was to be awarded to any potential class member. Investors brought motion for order approving settlement and additional $1.39 million for counsel fees plus dis- bursements and HST. Motion adjourned on terms. Settlement amounts and counsel fees were acceptable, but challenge process needed to be made more trans- parent. Net amount available for distribution to class was about $6.81 million plus accruing in- terest. About 756 eligible class members would receive net re- turn of about 21 per cent of their losses, though certain investors would receive somewhat more. Objections by 43 potential class members did not affect fairness and reasonableness of settlement for class as whole. Litigation risks had been high. Settlement had been reached by experienced class counsel through experi- enced mediators. French v. Investia Financial Ser- vices Inc. (Aug. 16, 2013, Ont. S.C.J., M.L. Edwards J., File No. Barrie 10-0690, 11-0234) 233 A.C.W.S. (3d) 792. COSTS Lawyer's conduct went beyond mere negligence Plaintiff retained lawyer to bring action for damages for personal injuries sustained in motor ve- hicle accident. Claims adjuster for defendants offered to settle for $10,000. Lawyer failed to communicate offer to plaintiff in timely fashion and offer expired. Adjuster reinstated offer, but lawyer again failed to respond. In subsequent telephone conver- sation, lawyer advised adjuster that plaintiff prepared to settle for all inclusive sum of $15,000. Adjuster offered $12,500. With- out obtaining instructions from plaintiff, lawyer accepted. Plain- tiff subsequently refused to ac- cept offer or sign release and re- tained new counsel. Defendants brought motion for judgment in accordance with settlement. Mo- tion denied and plaintiff sought costs of motion against lawyer personally. Costs awarded. Un- der Rule 57.07 of Rules of Civil Procedure (Ont.), costs could be awarded against lawyer person- ally where lawyer had caused costs to be incurred without rea- sonable cause or to be wasted by undue delay, negligence or other default. According to case law, discretion had to be exercised sparingly, but did not require more than negligence, mistake or error of judgment. However, lawyer's conduct in accepting offer without instructions went beyond mere negligence. Con- duct inexcusable and merited reproof. Lawyer should pay costs of both parties on substantial in- demnity basis. Srajeldin v. Ramsumeer (Oct. 2, 2013, Ont. S.C.J., Price J., File No. Brampton CV-11-1724-00) 233 A.C.W.S. (3d) 1012. Contracts DAMAGES Plaintiff 's business plan too general, didn't consider possibilities Plaintiff commenced purchase of minor league hockey team. League in which team played was independent league not sanctioned by governing body for organized hockey. Hockey arenas generally did not deal with independent league since it was frowned upon by sanctioned leagues. Defendant was hockey arena that agreed to rent ice time to plaintiff despite knowing her team was in independent league. Ice time was to be provided for three-day spring camp, summer camp, and regular winter league purposes. Plaintiff completed purchase of team. Defendant cancelled contracts aer being pressured by people involved with sanctioned leagues. Plaintiff sold team. Plaintiff brought ac- tion against defendant for dam- ages for breach of contract. Ac- tion allowed in part. Plaintiff was awarded $2,216.05 for special damages and $1,000 for nominal damages for future losses. Plain- tiff had big plans but evidence indicated her profit expectations were not realistic. Only four out of desired 40 players had showed up at spring camp. No commit- ments had been made for sum- mer camp and plaintiff 's plans had been too ambitious. Noth- ing indicated plaintiff would have earned profit. Profits for winter league were speculative. Plaintiff had no scout for locat- ing players. Plaintiff 's business plan was so general that realities had not been considered. Plain- tiff was not experienced business person. ere was no evidence of how profitable other teams had been. Park v. Wave Hockey Inc. (Sep. 25, 2013, Ont. S.C.J., M.J. Dono- hue J., File No. CV-11-2356-00) 233 A.C.W.S. (3d) 832. Corporations OFFICERS Officer failed to establish investiga- tion was related to mandate of law firms Officer of corporation faced legal charges in United States and ex- tradition proceedings in Canada. Charges were apparently related to acts performed while officer of corporation. Officer successfully brought application for order re- quiring corporation to advance funds for legal fees pursuant to s. 124(2) of Canada Business Cor- porations Act. Order included requirement that legal fees be reasonably incurred. Corpora- tion took exception to certain le- gal fees charged by two law firms and fees charged by investigation firm. Officer brought motion for directions. Motion granted in part. Officer was entitled to ad- vance for most legal fees claimed, but not fees charged by investiga- tion firm. Officer was entitled to advancement of all expenses for which he could demonstrate that services rendered were thought prudent and appropriate in good faith judgment of his counsel. Counsel, in turn, were required to consider appropriateness of actions taken by third parties who provided services. Officer established reasonableness of expenses incurred at law firms except for some duplication aris- ing from second law firm getting up to speed. Officer failed to es- tablish investigation was related to mandate of law firms. Costs of motion were not considered ad- vance subject to potential repay- ment under s. 124(3) of Act. Bennett v. Bennett Environmental Inc. (Sep. 24, 2013, Ont. S.C.J., Wilton-Siegel J., File No. CV-10- 8563-00CL) 233 A.C.W.S. (3d) 840. Courts ABUSE OF PROCESS Father had to be prevented from subjecting mother to defending meritless claims Mother and father married in 1998, when father was 44 years old and mother was 20 years old. Parties had first child in 2001. Parties separated three days af- ter birth of second child in 2006. Parties consented to mother hav- ing custody and father having specified access. Several months later, father commenced applica- tion for joint custody. Status quo was ultimately upheld and fa- ther was ordered to obtain anger management counselling. Father never voluntarily paid any child support or $13,307.72 in costs awards. Father unsuccessfully brought motion for variation of custody. Mother brought cross- motion for order prohibiting husband from commencing any proceedings against her without leave of court. Cross-motion granted. Father's motion for variation of custody was attempt to relitigate prior motion. Injus- tice of this was apparent. Father had not paid prior costs awards. Father's belief that mother was responsible for everything made it unlikely that he would attempt to pay prior costs awards. Father also seemed incapable of earning sufficient income to pay. Father had to be prevented from sub- jecting mother to expense, time, and effort of defending meritless claims. Dumais v. Dumais (Sep. 24, 2013, Ont. S.C.J., P.B. Hambly J., File No. 40859-07) 233 A.C.W.S. (3d) 864. Equity ESTOPPEL Would be unjust to permit appli- cant to resile from shared assump- tion after five years Respondent was pedestrian who was struck by motor vehicle on highway. Respondent suf- fered catastrophic injuries and claimed statutory accident ben- efits ("SABS") from applicant which was mother's insurer on basis respondent was depen- dent of mother's at time of ac- cident. Applicant paid respon- dent's SABS claim for five years and accepted that respondent's injuries were catastrophic for purpose of SABS benefits. Ap- plicant brought motion for order that respondent was not insured under mother's policy because he was not dependent within meaning of policy. Applicant sought to terminate payment of benefits. Application dismissed. Applicant was estopped from contesting issue now. Applicant paid benefits for five years and respondent was not out of time to pursue SBAS claim against driver of vehicle that hit respon- dent. Respondent would be bad- ly prejudiced if applicant were permitted to deny liability now. Shared assumption manifest by applicant payment of benefits for years was that applicant would not take position against respon- dent on dependence issue out- side priority dispute with MPIC. Respondent changed position by not pursuing claim against MPIC for SABS in reliance on shared assumption. It would be unjust to permit applicant to resile from shared assumption now. State Farm Insurance Co. v. Bun- yan (Nov. 5, 2013, Ont. S.C.J., D.L. Corbett J., File No. CV-12- 470391) 233 A.C.W.S. (3d) 982. Family Law CUSTODY Best interests of children not served by deciding issues of custody on interim application Parties had two children, aged 13 and 12. Father sought sole custody. Father sought tempo- rary order permitting father to move children to new city. Father worked in new city and com- muted to new city during mar- riage. Central to father's case was mother's alleged mental health issues and wishes of children as confirmed by Officer of Chil- 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. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164.

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