Law Times

www.lawtimesnews.com Law Times / January 28, 2008 Page 15 Factorcorp raised $50 million from 700 Ontario investors through sale of debentures. Investments were to be secured, but only $13 mil- lion of loans made were secured. Redemptions were suspended. Interest continued to be paid but cash flow forecast showed doubt on ability of Factorcorp to main- tain interest payments. Security in support of loans made by Factor- corp to customers was deficient or non-existent. Commission's motion to appoint KPMG as re- ceiver and manager of Factorcorp was allowed. Refinancing efforts by Factorcorp did not show tan- gible results. Factorcorp's creditors were at risk. Investments made by Factorcorp were in breach of representation made in Offering Memorandum. Receiver was in much better position to protect interests of receiver. Receiver was in position to protect interests of all stakeholders. Ontario (Securities Commission) v. Factorcorp Inc. (Oct. 26, 2007, Ont.S.C.J., Morawetz J., File No. 07-CL-7124) Order No. 007/326/031 (7 pp.). Employment LABOUR RELATIONS Court lacked jurisdiction where essential character of dispute in wrongful dismissal action related to rights under collective agreement Plaintiff was employee of defen- dant. Successor employer pur- chased plant and was bound by terms of collective agreement. Letter to plaintiff confirmed successor employer was con- tinuing plaintiff 's employment. Plaintiff was suffered workplace injury but was able to work with restrictions. Plaintiff did not re- turn to work. Plaintiff received notes from doctors confirming ability to return to work with restriction. Successor employer advised there were no available jobs within restrictions. Plaintiff was not considered employee of successor employer. Plaintiff brought action against defen- dant and successor employer for wrongful dismissal. Defendants sought order to dismiss claim on basis court had no jurisdiction. Motion was allowed. Essential character of dispute was related to plaintiff 's rights, employment opportunities, right or recall to or benefits under collective agreement. Court was with- out jurisdiction to hear action. Plaintiff 's recourse was to press claim though union. Morrell v. Foster Wheeler Ltd. (Nov. 20, 2007, Ont.S.C.J., Marshall J., File No. 03-009080) Order No. 007/326/037 (8 pp.). Expropriation PROCEDURE Applicant not required to make statutory application for information before seeking production from municipality Appellants were claimants under Expropriations Act (Ont.), as re- sult of temporary easement tak- en by city for purpose of road- widening project. Appellants claimed reduction in market val- ue of "remaining land." Ontario Municipal Board erred in refus- ing to order city to produce set- tlement agreements and reports requested by appellants on basis that no application had been made under Municipal Freedom of Information and Protection of Privacy Act (Ont.). Applica- tion under Municipal Freedom of Information and Protection of Privacy Act was not condition precedent. Documents were or- dered produced forthwith. Ap- peal allowed. Henery v. London (City) (Nov. 23, 2007, Ont. Div. Ct., As- ton, Howden and Lofchik JJ., File No. 1633) Order No. 007/333/061 (5 pp.). Family Law CUSTODY Children's Lawyer not obliged to give reasons for exercise of discretion Children's Lawyer prepared re- port on custody and access mat- ters. Year after report was filed with court, court referred matter to Children's Lawyer. Children's Lawyer declined to provide fur- ther report. Without notice to Children's Lawyer, order was made compelling Children's Lawyer to indicate if it would issue further report. Children's Lawyer was to attend court to state reasons why it would not and why Children's Lawyer should not be found in con- tempt of order. Appeal was al- lowed. Word "may" in ss. 89(3.1) and 112 of Courts of Justice Act (Ont.), was permissive not im- perative. Children's Lawyer had discretion to decide whether to cause investigation to be made and discretion whether to report and make recommendations to court on matters of custody and access. There was no obligation on Children's Lawyer to give reasons for exercise of discretion. It was error to order Children's Lawyer to provide reasons. Novoa v. Molero (Nov. 21, 2007, Ont. C.A., O'Connor A.C.J.O., Gillese and Watt JJ.A., File No. C47401) Order No. 007/331/021 (4 pp.). Human Rights Legislation HUMAN RIGHTS COMMISSION Decision not to refer race discrimination complaint not patently unreasonable Applicant filed complaint against board alleging board subjected applicant to differential treat- ment because of applicant's race and colour. Commission did not refer complaint to hearing before tribunal. Commission upheld earlier decision on reconsidera- tion. Application for judicial re- view was dismissed. Applicant was not denied procedural fair- ness. Alleged failures on part of investigator did not constitute bias and procedural unfairness. Commission's was not patently unreasonable. There was ample evidence to support commis- sion's findings and decision was not clearly irrational. Razack v. Ontario (Human Rights Commission) (Nov. 9, 2007, Ont. Div. Ct., Carnwath, Kiteley and Murray JJ., File No. 414/06) Order No. 007/318/094 (6 pp.). Injunctions INTERLOCUTORY RELIEF No change in circumstances since granting of injunction Plaintiff alleged he had taken $600,000US to a foreign ex- change office to convert to Ca- nadian funds and that moneys disappeared. Defendants were restrained through injunction from removing or dissipating any of their assets including properties. Defendant became estate trustee and entered into agreement of purchase and sale of property that was subject to injunction. Defendant brought motion as estate trustee to vary terms of injunction to permit him to proceed with sale on ground that he had no interest in property. Motion dismissed. Facts and circumstances had not changed since time when in- junction was granted, there was no evidence of irreparable harm being caused to defendant, and balance of convenience still fa- vored plaintiff. Jack Digital Productions Inc. v. Comex Foreign Exchange Inc. (Oct. 19, 2007, Ont.S.C.J., Himel J., File No. 02-CV- 230928CM2) Order No. 007/295/021 (6 pp.). Taxation SALES TAX Judge correct in finding appli- cant exempt under s. 7(1)41 of Retail Sales Tax Act (Ont.) Application judge correctly de- clared that Proctor & Gamble was exempt, under s. 7(1)41 of Retail Sales Tax Act (Ont.), from paying retail sales tax on wooden pallets it rents from CHEP and then employs in shipment of its commercial goods to large-scale retailers. Application judge was entitled to conclude that transfer of pal- lets from Proctor & Gamble to its customers constituted "sale" under Retail Sales Tax Act. While pallets were being recy- cled and re-leased by their own- er CHEP, they did not qualify as "returnable containers" un- der Retail Sales Tax Act and therefore, were not captured by returnable container exception to s. 7(1)41 exemption. Proctor & Gamble v. Ontario (Minister of Finance) (Nov. 16, 2007, Ont. C.A., Laskin, Mol- daver and LaForme JJ.A., File No. C46030) Appeal from 150 A.C.W.S. (3d) 960 dismissed. Order No. 007/323/159 (8 pp.). ONTARIO CRIMINAL CASES Evidence CONFESSIONS AND ADMISSIONS No misdirection by trial judge Appellant was convicted of vari- ous assault and firearms-related offences by jury. Appellant al- leged trial judge erred by in- structing jury that it could not compare statements of S and D with appellant's statement to police on arrest and his trial tes- timony. Trial judge did not mis- direct himself given how trial unfolded. Position advanced on appeal was completely at odds with position taken at trial. There was no suggestion by de- fence that S's statement could be used to assess appellant's credibility. Defence counsel expressly conceded limited per- missible uses of S's statement. Appeal was dismissed. R. v. Chandrakumar (Nov. 22, 2007, Ont. C.A., O'Connor, A.C.J.O., MacPherson and Cronk JJ.A., File No. C43883) Order No. 007/330/059 (16 pp.). EXHIBITS Seizure of materials necessary for investigation of tax offences Applicant Crown sought cer- tiorari quashing decisions of justice of peace. Justice declined to continue to permit seizure of respondents' items which were subject of search warrant. Respondents were subjects of criminal investigation respect- ing suspected fraudulent eva- sion of taxes. Evidence con- sisted of roughly fifty boxes of materials which Crown sus- pected documents understated tax was in order of $15 million. Matter was ongoing investiga- tion with significant resources already spent. Seized materials were necessary for continuing investigation. Application was granted. R. v. Tennina (Nov. 29, 2007, Ont. S.C.J., Corbett J., File No. 1849/07) Order No. 007/339/055 (12 pp.). Motor Vehicles FAILING TO STOP Accused may not have heard or seen officer signalling him to stop Accused was charged with fail to stop after his taxicab alleg- edly failed to stop after being requested or signaled by police officer. Accused may not have heard or seen officer signal him. There was no objective evi- dence proving such claim. Ac- cused was acquitted. However, there was sufficient evidence to convict on the careless driv- ing charge as accused drove his taxicab at high rate of speed weaving through two vehicles in which he nearly collided with one of them and driving through red light. R. v. Talyanleh (Nov. 22, 2007, Ont. C.J., Quon J.P.) Order No. 007/331/035 (28 pp.). Release From Custody PROMISE TO APPEAR Proof of giving of undertaking to officer in charge not essential element of s. 145(5.1) Criminal Code offence Respondent was charged with breaching condition of under- taking given to police officer. Respondent was acquitted but Crown appealed. Respondent alleged it was essential element of offence that officer in charge who released respondent testify. Proof of giving of undertaking to officer in charge is not es- sential element of s. 145(5.1) offence. Certified copy of un- dertaking with signature of in- dividual is prima facie evidence peace officer took undertaking. Appeal was allowed and new trial was ordered with different- ly constituted summary convic- tion trial court. R. v. Djambazov (Nov. 23, 2007, Ont. S.C.J., Hill J., File No. 2810/07) Appeal from 75 W.C.B. (2d) 539 allowed. Order No. 007/344/019 (20 pp.). Your 24/7 connection to copies of original decisions caseimage.ca is an online database of both unreported and reported court and tribunal decisions — www.caseimage.ca $12.50* per case Single or multiple copies of the full text of any case digested in this issue can be supplied at the rates shown. 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