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Page 22 March 24, 2014 • Law TiMes www.lawtimesnews.com FEDERAL COURT OF APPEAL Courts JUDGES Appellant could not benefit from subsequent changes in law having not appealed order Appellant brought motion for order requiring respondent to produce documents and to cross-examine respondent's offi- cials for pending judicial review. Motion was dismissed. Deputy judge was over age 75 at time of order. Appellant's motion for reconsideration of order was dismissed. As result of court's decision deputy judges over 75 years of age could no longer determine matters. Appellant resumed motion for reconsid- eration claiming deputy judge had no power to make order. Appellant never appealed order. Motion was dismissed because court did not have legal author- ity to grant relief sought under Rule 397 of Federal Court Rules (Can.), and order was to be tak- en as valid because it was never appealed. Appeal dismissed. Federal Court had no ability to set aside order using reconsid- eration power under Rule 397, which was limited to correction of small oversights and clerical mistakes. Matter became res ju- dicata on expiry of deadline for filing notice of appeal. Order was presumed to be valid absent proof of fraud. Appellant could not benefit from subsequent changes in law having not ap- pealed order. Yeager v. Canada (Minister of Public Safety and Emergency Pre- paredness) (Nov. 5, 2013, F.C.A., Blais C.J., Sharlow J.A., and Da- vid Stratas J.A., File No. A-435- 12) 235 A.C.W.S. (3d) 802. Customs and Excise DECLARATION Traveller did not have documentation that justified importation of fried chicken On entering Canada via air from El Salvador, traveller com- pleted Canada Border Services Agency ("CBSA") declaration card on which he indicated he was not importing food, plant, animal or plant products into country. Upon secondary in- spection, $18 worth of fried chicken was found in traveller's luggage. Traveller received $800 penalty with option of reduc- ing it to $400 by paying within 15 days. At hearing before Ca- nadian Agricultural Review Tribunal, traveller admitted he owned luggage, but denied knowing about chicken. Travel- ler claimed his mother packed it without his knowledge. Par- ties agreed CBSA officer was not satisfied on reasonable grounds that chicken was processed in way that would prevent disease from coming into Canada and that no exemptions from Part IV of Health of Animals Regu- lations (Can.), assisted traveller. However, tribunal found that since traveller had not been given opportunity to justify im- portation of chicken aer it had been discovered, he was not li- able for penalty. CBSA brought application for judicial review of tribunal's decision. Application granted. Clear intention of Par- liament in Regulations was to provide for absolute liability re- gime for violations. Traveller did not have documentation that justified importation of chicken pursuant to exemptions in Part IV of Regulations. erefore, decision by tribunal that travel- ler was to have been provided with reasonable opportunity to justify his importation of animal products beyond provisions of Part IV aer they were discov- ered was error of law. Matter was remitted to tribunal for fresh de- termination. Canada (Border Services Agen- cy) v. Castillo (Nov. 20, 2013, F.C.A., K. Sharlow J.A., Robert M. Mainville J.A., and David G. Near J.A., File No. A-55-13) 235 A.C.W.S. (3d) 696. FEDERAL COURT Citizenship APPEAL Rigorous physical presence test for determination of citizenship residency requirements Foreign national of Pakistan became permanent resident of Canada, spent four days in Canada, then returned to col- lege in California. ree years later, foreign national applied for citizenship. Foreign national had spent either 143 days or 159 days, as stated alternatively in her documents, being physically present in Canada in preceding four years. Citizenship judge granted citizenship on ground foreign national had central- ized her mode of residence in Canada, and met requirements of s. 5(1)(c) of Citizenship Act (Can.), even though she fell short of Act's requirement of 1,095 days of physical presence in Canada in four years preced- ing her application. Minister brought application to appeal and set aside decision of citizen- ship judge. Application granted. Decision of citizenship judge set aside, to be disposed of by differ- ent panel in accordance with di- rections concluding that foreign national had not met residency requirements of Act. Report of Standing Committee on Citi- zenship and Immigration made in 1994 considered s. 5(1)(c) of Act, and appropriateness of Federal Court's decisions trun- cating requirements of physical presence to establish residency committee concluded that defi- nition of residency in new Act should require significant de- gree of physical presence pre- ceding citizenship application. While its recommendations did not lead to legislation changing residency test, committee did unanimously endorse rigorous physical presence test for de- termination of citizenship resi- dency requirements. Extrinsic evidence endorsed continuing legislative purpose of s. 5(1)(c) that would impose either signifi- cant physical residency require- ment very nearly approaching three years, or, as exception to rule, some other truly analogous circumstance that can stand in for Canadianization. Canada (Minister of Citizen- ship and Immigration) v. Naveen (Oct. 18, 2013, F.C., Peter An- nis J., File No. T-1959-12) 235 A.C.W.S. (3d) 608. ONTARIO CIVIL DECISIONS Bankruptcy and Insolvency PETITIONS Creditors should not have to rely on fraudulent conveyance claim Judgment creditors obtained $317,731.17 judgment plus $20,000 costs and $5,000 ap- peal costs against debtor and were only able to recover $3,700 through garnishment. Debtor and wife lived luxurious life- style, but debtor claimed he lost everything in stock market, had no income, was supported by wife and owed money on credit cards and car leases, which were being paid by wife. At time of judgment, debtor was registered owner of 1% of matrimonial home, which he then transferred to wife. Application by judg- ment creditors for bankruptcy order against debtor. Applica- tion allowed. Judgment was con- tinuing demand for payment and debtor conceded he had not met liabilities on it. Under plain meaning of Bankruptcy and In- solvency Act (Can.), debtor had also ceased to meet liabilities on other debts. at wife was vol- untarily making payments on debtor's leases and credit cards did not change fact that he was unable to do so. Even if judg- ment was only debt to be con- sidered, it so was so large in pro- portion to assets and income of debtor, had been outstanding for two years with collection efforts unsuccessful, so it alone justified bankruptcy order. ere were also suspicious circumstances surrounding funding for mat- rimonial home and debtor's ac- tions in trading in car for lower lease payments aer judgment had been entered. Creditors should not have to rely on their fraudulent conveyance claim and bankruptcy would allow trustee to exercise buy-out rights on leased vehicles and investi- gate debtor's property in Nigeria. Debtor adjudged bankrupt. Okoakih, Re (Dec. 9, 2013, Ont. S.C.J., Newbould J., File No. 31-OR-207983-T) 235 A.C.W.S. (3d) 604. Civil Procedure LANGUAGE OF PROCEEDINGS Mother aware of process to request bilingual hearing and did not pursue matter Mother and father separated in 2010, and entered two agree- ments which provided for joint custody of two children, born 2004 and 2007, equal residen- tial time and no child support. Unfortunately, relations soon deteriorated. By January 2012, mother had not seen children for over one year and father granted interim custody. In March 2012, parties agreed mother should have supervised access up to two hours per week. In May 2012, mother ordered to pay child support of $1,098 per month on income of $74,484 per year. In July 2012, court or- dered custody and access assess- ment, but assessment did not proceed because mother failed to provide one-half of retainer. In January 2013, trial fixed for November 2013 with bilingual judge, reporter and interpreter to accommodate francophone mother. However, shortly be- fore trial, mother applied for adjournment to arrange for as- sessment or appointment of lawyer to represent children and unsupervised access in interim. Mother also applied to have all previous orders set aside on ground they had been made in violation of her right to bilingual hearing. Applications dismissed. Under ss. 125 and 126 of Courts of Justice Act (Ont.), party could request bilingual proceeding. Pleadings and documents could be in French as of right in speci- fied areas and with consent in others. However, in Family Court of Superior Court of Jus- tice, originating process could be written in French and docu- ments could be filed in French. No question mother could file any future documents in French. However, that did not mean that previous orders should be set aside. Mother aware of process to request bilingual hearing, at least since December 2011, and did not pursue matter. Apparent that mother relatively proficient in English. Situation that led to father`s application for interim custody had nothing to do with language and warranted change whether hearing conducted bi- lingually or not. Mother would be able to have court consider all evidence afresh in upcoming bilingual trial. Sera v. Amboise (Nov. 14, 2013, Ont. S.C.J., C.A. Gilmore J., File No. Newmarket FC-10-035725- 00) 235 A.C.W.S. (3d) 746. SET-OFF Motion was backdoor attempt to deal with financial obligation imposed by court Defendants brought motion for equitable set-off of two in- terim costs orders owed by five plaintiffs in matter ("first costs award"). First costs award arose from present action, which was shareholder dispute. Defendants sought for first costs award to be set off against series of interim costs orders owed by one of five plaintiffs ("second costs award") in separate matrimonial mat- ter. Motion dismissed. Motion was without merit. Parties who were indebted to each other in regard to respective costs awards were different. Matters in which costs awards arose were differ- ent. ere was no close con- nection between costs award at issue. Motion was kind of end run appeal or backdoor attempt to deal with financial obligation imposed by court following mo- tion or series of motions. ere was no equitable basis for re- lief among all parties involved. ere was no procedural au- thority to grant relief requested by way of interim motion. Curle v. Gustafson (Dec. 2, 2013, Ont. S.C.J., F.B. Fitzpatrick J., File No. under Bay CV-12- 0438) 235 A.C.W.S. (3d) 654. Family Law CUSTODY Physical access not appropriate while father confined in mental health facility Mother and father married in 1998, and had two children. Fa- ther was diagnosed with mental disorder in 2004, but apparently never obtained treatment. Par- ties separated in 2008, aer fa- ther assaulted mother. Mother had custody of children. Father was convicted of assault. Father was later convicted of other of- 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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