Law Times

Page 14 March 31, 2014 • Law TiMes www.lawtimesnews.com FEDERAL COURT Aboriginal Peoples SELF-GOVERNMENT Minister had no authority to remove applicants from office Applicants were elected as chief and councillors of First Nation. Minister investigated allegations of corruption against applicants. Minister removed applicants from office and disqualified them from running again for two years. Applicants brought application for judicial review of Minister's decision. Application granted. Minister had no authority to re- move applicants from office and disqualify them from running in future elections because he did not make finding that anyone was guilty of corrupt practice. Decision was consistent with appearance of corrupt practice, which was not proper standard of proof under s. 78 of Indian Act (Can.). Ordinary civil standard of proof was most apt for s. 78 as it was not criminal provision, but more than mere appearance of impropriety was required. Woodhouse v. Canada (Attorney General) (Oct. 21, 2013, F.C., James W. O'Reilly J., File No. T-1351-13) 235 A.C.W.S. (3d) 863. Agency PARALEGALS Claimant waived his right to be heard since consultant was acting as his agent Refugee claimant was young male Tamil citizen of north- ern Sri Lanka who alleged fear of persecution by Sri Lankan Army and paramilitary group Eelam People's Democratic Par- ty. Claimant le Sri Lanka and came to United States where he was arrested and detained, and later released on bond. Claimant subsequently came to Canada where he claimed refugee status. At end of hearing on October 29, 2012, Refugee Protection Divi- sion ("RPD") granted claimant one month to obtain documents from American Immigration au- thorities. Hearing was adjourned before claimant's counsel, immi- gration consultant, could make his final submissions. On De- cember 7, 2012, claimant's im- migration consultant submitted to RPD documents he obtained from claimant's counsel in Unit- ed States, which did not include documents requested by RPD, along with letter stating that his client did not have means to ob- tain any other documents, but was willing to sign release to Ca- nadian Borders Services Agency, so that it might obtain informa- tion directly from United States government. RPD rendered its decision on February 21, 2013, without second hearing, finding that claimant lacked credibil- ity. Claimant applied for judicial review, contending that he had been denied procedural fairness as second hearing did not take place and his immigration con- sultant was incompetent. Appli- cation dismissed. Claimant had provided no evidence as to in- structions given to his immigra- tion consultant on basis of which court could determine whether consultant's conduct constituted incompetence. Nor had claimant established that he had suffered prejudice as result of consultant's conduct or that miscarriage of justice had occurred. Alleged incompetence of claimant's im- migration consultant did not amount to breach of procedural fairness. Aer adjournment of first hearing, there had been consistent exchange between RPD and consultant and at no time aer cancellation of second hearing did consultant object to cancellation because he wanted to make submissions. Claimant waived his right to be heard and to present submissions through his immigration consultant's ac- tions, since consultant was acting as agent of claimant. Accordingly, there had been no breach of pro- cedural fairness which would warrant court's intervention. Pathinathar v. Canada (Minister of Citizenship and Immigration) (Dec. 9, 2013, F.C., Simon Noël J., File No. IMM-2412-13) 235 A.C.W.S. (3d) 1040. Air Law LICENCES No indication that applicant's explanations were considered Applicant was flight crew mem- ber seen in presence of high- stakes gamblers who dealt with high amounts of cash that gave rise to money laundering suspi- cions. On arrival in Vancouver as passenger applicant misde- clared amount of cash and was in possession of credit car that had been reported stolen. Applicant's security clearance was revoked. Application for judicial review granted. Matter was referred back for reconsideration. ere was no evidence to contradict appli- cant's explanation that applicant found credit card in hotel room and never used it. ere was no evidence board considered ap- plicant's explanation of accompa- niment of high rollers at casinos. Board did not take applicant's in- vitation to investigate applicant's bank records. Board was obliged to consider whether it was usual for members of flight crews to carry mad money and if so what appropriate amount would be. ere was no indication that ap- plicant's explanations were con- sidered. Ho v. Canada (Attorney General) (Aug. 13, 2013, F.C., Sean Har- rington J., File No. T-371-13) 235 A.C.W.S. (3d) 868. ONTARIO CIVIL DECISIONS Agriculture GENERAL Respondent granted itself jurisdiction to consider criteria not found in legislation Respondent denied applicant accreditation as accredited farm organization. Respondent found applicant did not have standing to apply for accreditation. Re- spondent found applicant did not meet requirement of rep- resenting farmers in province. Respondent found applicant was shackled to its national or- ganization. At time of application applicant had 2,247 farm busi- ness registration members plus additional 58 direct members. Issue of applicant's standing was never issue on any of applicant's prior applications for accredita- tion. Applicant brought appli- cation for judicial review to set aside decision and order direct- ing respondent to accredit ap- plicant as accredited farm orga- nization. Application for judicial review granted. Respondent was directed to accredit applicant. Decisions on accreditation and standing were unreasonable. Respondent exercised discre- tion that was not conferred on it by Farm Registration and Farm Organization Funding Act, 1993 (Ont.). By elevating purpose of s. 4 of Act, respondent undermined purpose of legislation and pur- pose of hearing process. In rais- ing issue of standing respondent allowed itself to bypass s. 5 of Act. Tribunal had no discretion and if criteria were satisfied accredita- tion was to be given. By expand- ing meaning of "represent" in s. 4(1) of Act, respondent granted itself jurisdiction to consider cri- teria that were not found in Act. Respondent's approach was not reasonable given affiliations with national organization were not precluded by Act. Respondent focused on organizational struc- ture rather than on determin- ing whether interests of Ontario farmers were being served. National Farmers Union - Ontario v. Ontario (Agriculture, Food and Rural Affairs Appeal Tribunal) (Oct. 16, 2013, Ont. S.C.J., Rob- ert N. Beaudoin J., File No. Ot- tawa 13-1934) 235 A.C.W.S. (3d) 867. Civil Procedure CLASS ACTIONS CRTC did not provide viable procedure for resolution of issues Service agreement for pre-paid phone card typically provided that phone card would expire if it was not used or topped up within specified time. Unused balance on phone card would be forfeited to service provider aer card expired. ere was practice of phone card suppliers seizing any unused balance on prepaid phone cards one day sooner than expected. Proposed class action targeted consumer complaints about expiry of cell phone credits and loss of prepaid credits. Plain- tiff brought action against phone company for breach of contract, unjust enrichment, and breach of unfair practice provisions of Consumer Protection Act, 2002 (Ont.). Plaintiff brought motion to certify action as class action. Motion granted. Plaintiff 's pro- posal was revised. Five of seven common issues were certified. Subclass of "consumers" was added because subclass raised common issues that could be determined in class proceeding, but were not shared by other members of class. It could not be said that breach of contract and unjust enrichment claims had no chance of success or that they were plainly and obviously bound to fail. Issues of "unfair practices" and "what remedies" were not certified. Claim based on unfair practice provisions of Act on facts as pleaded had no chance of success because s. 18 of Act did not apply on facts. Im- pugned notifications did not in- duce plaintiff to enter agreement and were not unfair practices that triggered s. 18 remedies because no agreement was made aer or while defendant engaged in unfair practice. Given that there were over one million class mem- bers, class proceeding was prefer- able procedure. Access to justice and judicial economy justified aggregation of potential claims into class proceeding. Canadian Radio-television and Telecom- munications Commission did not provide viable procedure for resolution of issues. Sankar v. Bell Mobility Inc. (Oct. 4, 2013, Ont. S.C.J., Edward Be- lobaba J., File No. CV-12-452867- CP) 235 A.C.W.S. (3d) 889. COSTS Applicant entitled to costs thrown away as result of change in government policy Applicant challenged regulation terminating OHIP funding for sex reassignment surgery. Sub- stantial costs were incurred in litigation. Ontario repealed im- pugned regulation and funding for surgery was reinstated. Appli- cation was adjourned on consent and was not argued on merits. Applicant brought motion for costs. Motion granted. Applicant entitled to costs thrown away as result of change in government policy. Costs were to be on partial indemnity scale fixed at $200,000 inclusive. ere were no issues of substance remaining. Proceed- ings were complex and of public importance. Proceedings were complementary, not derivative, of proceedings before Human Rights Commission regarding challenge to same regulation on different legal basis. Bill of costs of $261,000 seemed high but was actually modest for case of this importance and significance. Josef v. Ontario (Minister of Health) (Sep. 27, 2013, Ont. S.C.J., D.L. Corbett J., File No. 99-CV-166969) 235 A.C.W.S. (3d) 893. Contracts PERFORMANCE AND BREACH Witness' evidence replete with inconsistencies and outright lies Plaintiff 's claim for breach of contract on booking of plain- tiff 's facility was dismissed. Trial judge found there was tentative booking, which was cancelled by agreement with plaintiff 's repre- sentative. Plaintiff appealed. Ap- peal dismissed. Trial judge did not err in law by reversing burden of proof with respect to agree- ment to cancel contract. Clear from trial judge's reasons that decision was based on evidence presented by defendant concern- ing contract and on contract document itself. Lines drawn through contract by plaintiff 's representative were persuasive evidence of agreement to can- cel. Trial judge entitled to draw adverse inference from failure of plaintiff to call representative as witness. Trial judge correctly determined that plaintiff 's wit- ness lacked credibility. Witness' evidence was replete with in- consistencies and outright lies. Trial judge correctly found that plaintiff 's purported loss was un- reasonable and was not genuine pre-estimate of plaintiff 's alleged damages. Trial judge did not err in finding cancellation clause was more in nature of penalty clause and therefore unenforceable. 2074874 Ontario Inc. v. Kaur (Oct. 18, 2013, Ont. S.C.J., Sep- pi J., File No. DC-12-0000042- 0000) 235 A.C.W.S. (3d) 948. Family Law CHILD WELFARE Judge erred in law by admitting and relying on hearsay evidence Mother had history of cocaine use and admitted to using drugs while pregnant. Following child's birth mother entered into six- month voluntary service agree- 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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