Law Times

Page 14 March 3, 2014 • Law TiMes www.lawtimesnews.com 2013, F.C., Michael L. Phelan J., File No. T-358-13) 234 A.C.W.S. (3d) 1057. Employment EMPLOYMENT STANDARDS Attempts to place time limits on applicant's right to be paid overtime were ultra vires and void Applicant was employee of re- spondent since 2001. In 2012, applicant made complaint to Human Resources and Skills De- velopment Canada ("HRSDC") claiming payment for unpaid overtime under Part III of Cana- da Labour Code. Inspector found that, based on evidence, appli- cant's request for wages and other amounts owing for 72-month pe- riod or 36-month period was not warranted. Inspector refused to extend investigation of complaint beyond 12 months. Decision was based on HRSDC policy. Appli- cant applied for judicial review of inspector's decision. Applica- tion granted. Applicant was not person affected by payment or- der or by notice of unfounded complaint. Applicant could not access appeal system under Code and did not have adequate alter- native remedy. Nothing in Code prevented applicant from exer- cising right to judicial review and nothing suggested that applicant had any other recourse available to him under Code. Policy was ultra vires and invalid insofar as it purported to abrogate or cur- tail substantive rights given to employees by Code. Parliament granted those substantive rights and they could only be taken away or modified to extent and in way that Parliament itself autho- rized. Code contained no limi- tation for claim of unpaid over- time. As substantive right created by Code, applicant was entitled to payment of amounts of over- time he worked at any time for any federally regulated employer. Nothing in Code granted powers to inspectors to limit amounts payable to employee who had otherwise shown entitlement. Attempts in policy to place time limits on applicant's right to be paid overtime were ultra vires and void. Inspector's decision was fundamentally flawed. Deci- sion was quashed and matter was returned for reconsideration by different inspector. Ridke v. Coulson Aircrane Ltd. (Nov. 25, 2013, F.C., James Rus- sell J., File No. T-1785-12) 234 A.C.W.S. (3d) 922. Evidence HEARSAY Lack of ability to cross-examine declarant did not affect admissibility of hearsay statements Applicant sought to expunge re- spondent's trademark, "Moroc- canoil". Moroccanoil was name under which respondent sold line of hair care products. In its expungement application, ap- plicant alleged Moroccanoil trademark was invalid because it was not registrable at date of registration and was not distinc- tive at time that proceedings bringing into question its validity were commenced. Respondent appealed from decision of pro- thonotary in which he dismissed respondent's motion to strike out 58 paragraphs of affidavit of individual, filed by applicant. Respondent claimed paragraphs were inadmissible hearsay, and therefore ought to have been or- dered struck out on interlocutory basis. Prothonotary determined that judge hearing expungement application on merits would be charged with determining whether impugned paragraphs in affidavit were admissible, and if so, how much weight they should be afforded. Prothonotary reasoned that, had he been called upon to make determination, he would have concluded that cri- teria of necessity and reliability were met in respect of impugned paragraphs in affidavit because there was no other reasonable way to get evidence before court as declarants were unwilling to sign affidavits. Appeal dismissed. Prothonotary could not be said to have applied incorrect prin- ciple in determining that it was incumbent on respondent to es- tablish presence of exceptional circumstances in order to have impugned evidence struck out. ere was reasonable basis for prothonotary's determination that impugned paragraphs met test for reliability. It was not un- fair to leave determination of ad- missibility to application judge. Lack of ability to cross-examine declarant did not affect admissi- bility of hearsay statements. Avon Products Inc. v. Moroccanoil Israel Ltd. (Nov. 8, 2013, F.C., Mary J.L. Gleason J., File No. T-1802-12) 234 A.C.W.S. (3d) 931. Immigration EXCLUSION AND EXPULSION Hospitalization of applicant occurred one hour before removal order hearings Application for stay of removal order. Application was submit- ted evening before removal order was to be effected. Two interim stays of removal order had been obtained. From outset of case of applicant, complete lack of cred- ibility was immediately apparent. Physician had provided opinion on July 22, 2013, that applicant was safe to travel by any mode of transportation and was safe to re- sume all baseline activities of dai- ly living. History of file indicated that hospitalization of applicant had occurred one hour before removal order hearings were to be conducted. Motion for stay of removal was not entertained. Stay of execution, injunction, as requested, is extraordinary mea- sure, or remedy in law which calls for applicants to come to court with "clean hands", meaning that credibility and respect of law of Canada be abided by rather than flaunted. at was not the case in this matter and careful reading of court record fully demonstrated this. Present third motion for stay of removal (in addition to the interim stay orders granted on motions previously) will not be heard, to ensure that mockery of immigration system does not ensue and abuse of process is not perpetuated, due to lack of "clean hands" by applicant. Awan v. Canada (Minister of Pub- lic Safety and Emergency Prepared- ness) (Aug. 21, 2013, F.C., Michel M.J. Shore J., File No. IMM-5501- 13) 234 A.C.W.S. (3d) 1005. JUDICIAL REVIEW Translation errors led to confusion in claimant's testimony Spanish-speaking claimant had refugee hearing before Immigra- tion and Refugee Board. During hearing interpreter was used to translate from English to Span- ish and from Spanish to English. Board found that claimant was not credible and denied claim for refugee protection. Claim- ant brought application for ju- dicial review of board's decision. Claimant took position that er- rors in translation led board to make material adverse credibil- ity findings. Application granted. Breach of procedural fairness oc- curred. When affidavit of review- ing interpreter was compared with transcript it was clear that translation errors led to confu- sion in claimant's testimony. Er- rors in translation were central to board's finding that claimant's testimony was confusing and not credible. Board must make its de- cision on claimant's story prop- erly translated. Questions asked by board must also be properly translated so that claimant can answer them. Segovia Batres v. Canada (Minister of Citizenship and Immigration) (Sep. 25, 2013, F.C., Glennys L. McVeigh J., File No. IMM-11896- 12) 234 A.C.W.S. (3d) 1009. SELECTION AND ADMISSION Officer's rationale for discounting evidentiary value of reports was unsound Applicants were originally from El Salvador. Applicants claimed to fear criminals in El Salvador who had threatened them and killed cousin. Applicants ap- plied for permanent residence in Canada on humanitarian and compassionate grounds. Appli- cants had been diagnosed with post traumatic stress disorder and provided immigration of- ficer with psychologist's evalua- tion. Officer denied applications finding that applicants would not face unusual, undeserved or disproportionate hardship if they returned to El Salvador. Appli- cants applied for judicial review of decision. Application granted. Officer failed to give adequate consideration to psychological evidence presented by applicants. Reports provided psychologist's expert opinion regarding appli- cants' mental health. Reports did not constitute hearsay in respect of expert's opinion. Officer's ra- tionale for discounting evidentia- ry value of reports was unsound. Decision was unreasonable. Melgar Reyes v. Canada (Minister of Citizenship and Immigration) (Sep. 5, 2013, F.C., James W. O'Reilly J., File No. IMM-10821- 12) 234 A.C.W.S. (3d) 1021. ONTARIO CIVIL DECISIONS Civil Procedure DEFAULT Defendants actively tried to avoid being served with statement of claim Plaintiff picked worms which she sold to wholesalers, one of whom was defendant corporation. On June 1, 2012, plaintiff obtained default judgment against defen- dants for $280,786.28 represent- ing unpaid deliveries of worms. Defendants learned of judgment in July, 2012, and on August 30, 2012, issued notice of motion to set aside default judgment. De- fendants conceded that plaintiff was owed between $125,000 and $130,000. ey claimed they were lulled into false sense of se- curity aer service of statement of claim because parties were at- tempting to resolve amount ow- ing. Motion dismissed. ere was evidence that defendants had ac- tively tried to avoid being served with statement of claim. Defen- dants presented no evidence that amounts claimed by plaintiff were not accurate. Defendants were required to put forward something more than bald un- substantiated statement that amount owing to plaintiff must be reduced by certain unquanti- fied set off amounts. Defendants did not meet necessary burden to cause motion judge to exercise his discretion and set aside de- fault judgment. Tran v. Zaharis (Oct. 9, 2013, Ont. S.C.J., G.E. Taylor J., File No. C-976-11) 234 A.C.W.S. (3d) 873. SUMMARY JUDGMENT Adverse inference drawn from general contractor's failure to provide affidavit Subcontractor and general con- tractor entered into contract by way of purchase order. Purchase order provided that subcontrac- tor was to provide paving ser- vices. Purchase order called for payment of $121,166.18 by gen- eral contractor upon completion of work. Following completion of work general contractor refused to make payment. Subcontrac- tor brought motion for sum- mary judgment against general contractor. Motion granted. On motion for summary judgment responding party has obliga- tion to put its best foot forward in terms of affidavit evidence it wishes court to consider in op- position to motion. General contractor failed to provide affi- davit from employee with on-site knowledge with respect to alleg- edly unauthorized extras despite undertaking to do so. Adverse inference drawn from general contractor's failure to provide af- fidavit. Vaughan Paving Ltd. v. Unimac Group Ltd. (Sep. 6, 2013, Ont. S.C.J., M.L. Edwards J., File No. Newmarket CV-12-108418) 234 A.C.W.S. (3d) 900. Family Law CHILD WELFARE Parents lacked basic instrumental parenting skills Mother had two children, second of which was with second father. Mother and second father had such profound cognitive delays that they were unable to care for young children. Maternal grand- parents could not be counted on to be alternative caregivers. First and second children were made Crown wards without ac- cess. Mother became pregnant with third child by second father. ird child was apprehended two days aer his birth. Children's Aid Society ("CAS") commenced application for order of Crown wardship with no access for pur- pose of adoption. CAS brought motion for summary judgment. Motion granted. ere was no genuine issue for trial relating to access. Despite attending super- vised access regularly, mother and father appeared focussed on their own needs rather than needs of third child. Visits could not evolve because mother and father lacked basic instrumental parenting skills. ere was no evidence suggesting continued access, whether by mother and father or maternal grandparents, was "beneficial and meaning- ful" from third child's perspec- tive. Mother and father filed no evidence addressing issue of whether access order would im- pair third child's future ability to be adopted. Catholic Children's Aid Society of Hamilton v. B. (T.) (Oct. 8, 2013, Ont. S.C.J., A. Pazaratz J., File No. C-2068-07) 234 A.C.W.S. (3d) 937. Injunctions AVAILABILITY Injunction would essentially put defendant out of work for one year Plaintiff was placement agency which specialized in IT person- nel with expertise in enterprise resource planning soware. Individual defendant was com- missioned recruiting contractor for plaintiff. Corporate defen- dant was recruiting company. It competed with plaintiff on some levels of IT placement business. Employment relationship be- tween plaintiff and individual defendant came to end in March 2013. Individual defendant now worked for corporate defendant. Individual defendant did not take any client lists or other docu- ments from plaintiff 's databases. Individual defendant did contact some potential candidates, which plaintiff alleged were "its" candi- dates. It was not known if they were actual candidates and clients of plaintiff or potential candi- dates or clients. Plaintiff brought motion for interlocutory injunc- tion to restrain defendants from contacting its candidates. Motion dismissed. Individual defendant was not fiduciary of plaintiff. In- caselaw

• Cover