Law Times

lAw Times • April 14, 2014 Page 17 www.lawtimesnews.com on face of birth certificate that it bore official emblem of Su- dan and official stamp, and of- ficial stamps are recognized as security features. Board did not explicitly rule on authenticity of claimant's birth certificate, but nevertheless found this docu- ment to have little probative val- ue. Document that is presented as authentic document cannot be given little probative value. If board believed birth certificate to be inauthentic, it should have been discarded entirely. It was unreasonable for board to ques- tion identity of claimant since authenticity of his birth certifi- cate was not impeached. Elhassan v. Canada (Minister of Citizenship and Immigra- tion) (Dec. 12, 2013, F.C., Yves de Montigny J., File No. IMM- 9787-12) 236 A.C.W.S. (3d) 459. SELECTION AND ADMISSION Officer well aware of distinction between risk and hardship Foreign nationals were hus- band and wife citizens of Alba- nia who had filed unsuccessful refugee claim based on risk they would face at hands of corrupt government officials, who op- posed their claim to recover family land seized by former Albanian communist regime in 1940s. Foreign nationals filed application for permanent residence from within Canada on humanitarian and compas- sionate (H&C) grounds, which was denied. Foreign nation- als applied for judicial review, contending as male foreign na- tional had suffered heart attack which required regular follow- up his health condition would be jeopardized if he were to re- turn to Albania and rely on that country's ineffective healthcare system. Foreign nationals also claimed they would face hard- ship resulting from land claim which was at core of their failed refugee claim. As for establish- ment factor, foreign nationals had both learned English, had made many friends in Canada, and were employed full-time. Officer concluded that, although positive consideration was given to male foreign national's health condition and establishment, ev- idence submitted did not dem- onstrate that foreign nationals would experience unusual and undeserved or disproportionate hardship if they were to return to Albania. Officer also found that foreign nationals had presented same risk that was presented in their refugee claim and their concurrent Pre-Removal Risk Assessment application (risk to their life or risk of harm related to land dispute) and risks that fell under ss. 96 or 97 of Immi- gration and Refugee Protection Act (Can.), were now excluded from H&C analysis pursuant to s. 25(1.3) of act, and no consid- eration was to be given to those risks. Foreign nationals applied for judicial review contending that officer applied wrong legal test and wrongly interpreted s. 25(1.3) by not considering hardship that foreign nationals might face on account of on- going property dispute and by concluding that it was improper to assess any hardship factors, which could also relate to analy- sis under ss. 96 or 97 of Act. Ap- plication dismissed. Officer had applied correct test. Officer had considered hardship elements associated with excluded risks and was well aware of distinc- tion between risk and hardship. Regarding any hardship arising from risk presented, foreign na- tionals only mentioned risk to their lives in their H&C submis- sions and in those circumstanc- es, officer had no obligation to infer hardship. In absence of sufficient evidence, it was open for officer to draw conclusions reached in this decision. Guxholli v. Canada (Minister of Citizenship and Immigration) (Dec. 19, 2013, F.C., Yves de Montigny J., File No. IMM- 2087-12) 236 A.C.W.S. (3d) 467. Labour Relations JUDICIAL REVIEW Fact adjudicator preferred one version of events did not give rise to inference of bias Employee got into heated tele- phone conversation with super- visor relating to cross-border trip he was assigned. By end of con- versation, employee no longer worked for employer. Employer claimed that employee quit while employee claimed he was fired. Employee filed complaint under Canada Labour Code, al- leging he had been unjustly dis- missed. Adjudicator found that there was misunderstanding be- tween employee and employer. Adjudicator found, on balance of probabilities, that employee did not resign, but was termi- nated. Adjudicator found that employee's behaviour warranted some discipline, but it could not be characterized as misconduct that justified dismissal. Employ- ee was awarded seven months' salary as compensation in lieu of notice. Employer applied for judicial review of adjudicator's decision. Application dismissed. Employer failed to establish that adjudicator was actually biased against employer or that there was reasonable apprehension of bias. Fact certain evidence was not specifically referred to did not suggest that adjudicator was biased. Fact adjudicator pre- ferred one version of events over another did not give rise to infer- ence of bias. Considering matter realistically and practically, in- formed person would not find bias. It was not unreasonable for adjudicator not to draw ad- verse inference from failure of employee's wife to testify, as she was not arm's length witness and she was not party to telephone conversation. Adjudicator's fail- ure to make express reference to evidence did not render her findings that employee was dis- missed and that employer did not have just cause to dismiss him unreasonable. Adjudicator did not err in treatment of other decisions. Adjudicator did not fail to properly address issue of mitigation. Decision was rea- sonable. Lobbe and Tippet Richardson Ltd., Re (Dec. 18, 2013, F.C., Anne L. Mactavish J., File No. T-2215-12) 236 A.C.W.S. (3d) 482. ONTARIO CIVIL DECISIONS Agency EXISTENCE OF RELATIONSHIP Remedy of non est factum not available to willfully blind Guarantees were provided by defendants for term loan made to defendant husband's com- pany, and defendants signed unlimited, continuing guaran- tee. Demand was made and then action commenced. Motion by plaintiff for summary judgment against defendants on guaran- tees. Defendant wife raised de- fences of non est factum and un- conscionability. Motion granted. Defendant's claim she spoke little English aer 40 years in Canada and five children and 15 grandchildren raised here was incredible. Defendant owned real estate and, while she was not shareholder, officer or director of debtor, she clearly benefitted from husband's financial deal- ings, so guarantee and enforce- ment not unconscionable. It was incredible defendant did not ask any questions before sign- ing guarantees or that lawyer for debtor provided no explana- tion or information. Remedy of non est factum not available to wilfully blind, and plaintiff had opportunity to make inquiries. Defendant's husband was not agent of plaintiff so could not have made misrepresentations to bind plaintiff. While defen- dant trusted husband, there was no evidence he coerced, bullied or forced her to sign, or that she did not have operating mind. Guarantee valid and enforce- able against both defendants and plaintiff entitled to amount owing. Meridian Credit Union Ltd. v. Vrankovic (Dec. 6, 2013, Ont. S.C.J., C.A. Tucker J., File No. Welland 1039/10) 236 A.C.W.S. (3d) 447. Associations MEMBERS Payment form said nothing about membership and seniority being cancelled Applicant was member of re- spondent. Applicant renewed membership as full season ven- dor for 2013 market season. Full season stall fees were due by April 25, 2013 in form of three post-dated cheques. Applicant submitted full season applica- tion with cheque for one-third of amount of stall fees on April 5, 2013. Applicant did not retrieve registered letter reminding ap- plicant he was at risk of losing full season status and seniority if he failed to deliver cheques. Re- spondent rejected applicant's full season application and termi- nated his seniority. Applicant's stalls were reassigned to anoth- er member. Applicant sought declaration that respondent breached bylaws, rules and regu- lation and requested recognition of his seniority, and return of specified stalls. Other stalls were available for applicant's use pro- vided he supplied cheques. Ap- plicant's seniority was ordered reinstated. Applicant was to be offered first choice of any vacant stall for 2014 season. Respon- dent's removal of his senior- ity, and reallocation of his stalls was premature given confusion of bylaws, rules and regulation, stall payment form and mes- sages delivered by general man- ager and director, applicant's re- sponses to address default, and respondent's rejection of his full season application. Stall pay- ment form was silent as to reper- cussions of not delivering three post-dated cheques by April 25, 2013. Stall payment form said nothing about membership and seniority being cancelled. Mem- ber was entitled to 30 days' no- tice to address default. Lacroix v. 1723445 Ontario Inc. (Dec. 31, 2013, Ont. S.C.J., Belch J., File No. Ottawa 13-57709) 236 A.C.W.S. (3d) 291. Civil Procedure SETTLEMENT Respondents in breach of obligations under minutes of settlement Applicant brought action for wrongful dismissal. Parties con- cluded settlement and executed minutes of settlement. Parties were represented by legal coun- sel. Respondents agreed to pay applicant $18,500 and made initial payment of $5,000. Bal- ance of settlement payment was to be paid once applicant determined extent of employ- ment insurance overpayment as result of receiving settlement funds. Parties consented to or- der dismissing action. It was determined respondents were to pay $2,688 to Human Re- sources and Skills Development Canada ("HRSDC") as amount of employment insurance ap- plicant was required to repay and to pay applicant balance of $10,812. HRSDC began deduct- ing amounts from applicant's monthly employment insurance benefits. Respondents advised they would not comply with minutes of settlement. Appli- cant sought to enforce terms of settlement agreement. Applica- tion granted. Applicant entitled to judgment for $13,500 payable forthwith. Settlement clearly provided that respondents were to pay overpayment directly to HRSDC, then deduct same from amount owing to applicant. Re- spondents were in breach of ob- ligations under minutes of settle- ment. Parties reached agreement to settle as evidenced by signed minutes of settlement. Minutes of settlement were legally bind- ing and were to be enforced. McGee-Maguire v. Dr. Chris- topher Tsang Dentistry Profes- sional Corp. (Dec. 13, 2013, Ont. S.C.J., Carole J. Brown J., File No. CV-13-486274) 236 A.C.W.S. (3d) 351. TRIAL Venue proposed by defendants not substantially better Plaintiff owned airplane that defendants insured for property damage to its full value. Plaintiff had no experience flying air- plane and defendants required as pre-condition of insurance that plaintiff take additional training. Plaintiff retrained with pilot. When plaintiff and pi- lot completed four of five days of training, plaintiff requested pilot to fly airplane to pick up training manual. Airplane was flown by pilot alone and was de- stroyed in crash. Plaintiff 's claim for loss was denied because it fell outside coverage afforded by policy. Plaintiff brought ac- tion for damages. Statement of claim named Timmins as place of trial and plaintiff delivered timely jury notice. Defendants counterclaimed for declaration that coverage did not apply to loss of aircra and declaration that defendants were not liable to plaintiff for loss claimed un- der proof of loss. Defendants brought motion to change place of trial from Timmins to To- ronto. Insurance policies were issued in Toronto and defen- dants counsel practised in To- ronto. ree of four witnesses of defendants were from Toronto. Plaintiff and spouse had prin- ciple residence in Timmins, but also owned home in Toronto. Motion dismissed. To transfer action to Toronto was not desir- able in interests of justice. If ac- tion were transferred to Toronto it would fall into considerable backlog. Action had no particu- lar connection to Toronto apart from issues with respect to resi- dence of witnesses and defence counsel and place of insurance policies. Plaintiff would not be able to work out of main office for length of trial. Case would proceed to trial far more expe- ditiously in Timmins than in Toronto. Venue proposed by defendants was not substantially better. Girones v. Allianz Global Risks US Insurance Co. (Nov. 14, 2013, Ont. S.C.J., O'Neill J., File No. 18269/12) 236 A.C.W.S. (3d) 358. Contracts TERMINATION Agreement clearly provided for immediate termination for cause Defendant was investment advi- sor registered with Investment Industry Regulatory Organiza- tion of Canada ("IIROC"). De- fendant's association with in- vestment firm terminated aer clients complained defendant engaged in improper discretion- ary trading. Defendant's regis- tration with IIROC was termi- caselaw

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