Law Times

Page 14 June 9, 2014 • Law Times www.lawtimesnews.com FEDERAL COURT Customs and Excise DUTY Respondent not entitled to reassess applicant under second same condition ruling Applicant imported futon covers from China, which came with three closed sides and zipper. In Canada, applicant inserted mattress into cover, closed zip- per and punched plastic jiffies through (tufting) and then ex- ported packaged futon mattress- es and frames to United States. Applicant paid customs duty on cover and requested same condition ruling. Respondent found futon covers met "same condition status" under s. 303(6) North American Free Trade Agreement as re-packaging did not materially alter goods. As such, respondent found s. 113 of Customs Tariff (Can.), applied and applicant was entitled to full duty relief. Respondent partially paid drawbacks to applicant, but then initiated audit and found tufting did not qualify for same condition treatment because it changed goods from futon cover to completed mattress. In im- pugned decisions, respondent demanded return of drawback payments. Application for ju- dicial review of decisions de- manding return of drawback payments. Application granted. Section 114 of Tariff only applied to payments mistakenly made, whereas applicant was eligible at time of payment. Respondent entitled to review decision under s. 90. However, it was principle of statutory interpretation that, absent clear wording granting respondent power to retroac- tively vary certificate granting relief that was validly issued, respondent was not entitled to reassess applicant under second same condition ruling. Indeed, Tariff explicitly provided pos- sibility of retroactive orders in other places. First ruling was not product of misrepresentation or error, rather respondent simply decided on different interpreta- tion. Thus, decisions were un- reasonable and incorrect. Dorel Industries Inc. v. Canada (Border Services Agency) (Feb. 24, 2014, F.C., Yves de Montigny J., File No. T-1024-12) 237 A.C.W.S. (3d) 939. Immigration REFUGEE STATUS Board erred in credibility findings Applicant was citizen of Paki- stan who claimed refugee pro- tection on basis she refused to go through with arranged marriage and moved to United States to escape harassment, but contin- ued to be harassed by fiance's relatives there. Board found de- terminative issue was credibility and was not convinced fiancé actually existed. Application for judicial review of decision dismissing refugee claim. Ap- plication granted. By insisting applicant produce documentary evidence to support testimony in absence of any finding her evidence was contradictory, in- consistent or implausible, board breached principle claimants' evidence was presumed to be true unless there was valid rea- son to doubt it. Board erred in rejecting affidavits submitted by applicant merely because they came from her family and did not name her fiance, even though they fully supported ap- plicant's testimony. Thus, board erred in credibility findings. Durrani v. Canada (Minister of Citizenship and Immigration) (Feb. 21, 2014, F.C., Russel W. Zinn J., File No. IMM-1263-13) 237 A.C.W.S. (3d) 1002. Reliance on time taken to make ref- ugee claim rendered decision suspect Applicant lied to authorities about his circumstances. Refu- gee Protection Division of Im- migration and Refugee Board of Canada rejected applicant's claim for refugee protection. Board concluded applicant was not credible. Applicant sought judicial review. Application granted. Although there were significant issues with appli- cant's credibility, reasons given to reject claim were deficient. Board put significant weight on what it thought was 14-month gap between leaving country and fact that his homosexuality was revealed. It was two-month gap between revelation of appli- cant's homosexuality and his de- parture from country. Reliance placed on period of time taken to make refugee claim, and that period was not one that was ac- tually in play rendered decision suspect and unreliable. Salifu v. Canada (Minister of Citi- zenship and Immigration) (Feb. 27, 2014, F.C., Yvan Roy J., File No. IMM-3701-13) 237 A.C.W.S. (3d) 1001. ONTARIO CIVIL DECISIONS Appeal STAY PENDING APPEAL Trial judge did not fail to consider proper elements for adverse possession Parties were neighbours. Plain- tiffs offered to purchase por- tion of land from defendants, but offer was rejected. Plaintiffs claimed, by adverse possession, strip of land between proper- ties. Plaintiffs were awarded judgment. Defendants' title to disputed property was extin- guished and order vesting title to plaintiffs was granted. De- fendants appealed. Defendants brought motion for stay pend- ing appeal. Motion dismissed. If vesting order was not stayed, appeal would become moot, and there was irreparable harm. Given significant consequences to defendants, balance of conve- nience favoured stay. However, defendants had not established that there was serious issue to be tried on appeal. Bald assertions were not sufficient to establish there was reasonable prospect of success on appeal. Trial judge did not fail to consider proper elements for adverse possession. There was ample evidence be- fore trial judge allowing him to come to conclusions he did on facts. Trial judge did not fail to observe any principle of natu- ral justice. Defendants failed to establish that there was some reasonable chance of appeal suc- ceeding. Gray v. Guerard (Feb. 26, 2014, Ont. S.C.J., John M. Johnston J., File No. Perth 039/11) 237 A.C.W.S. (3d) 839. Arbitration AWARD Fact of unanticipated delay did not destroy arbitration agreement Arbitrator made final and sup- plementary awards governing custody and access arrange- ments for child, aged two. Arbi- trator first conducted mediation with parties and then proceeded to arbitrate outstanding issues at parties' request. Arbitrator decided issues based on writ- ten submissions. Arbitrator became ill. First award was re- leased more than seven months after submissions were filed and second award came almost six months after first. Arbitrator awarded joint custody. Mother appealed from two arbitration awards and moved to set them aside. Father moved to incorpo- rate terms of awards into order. Mother's appeal and motion to set aside arbitration awards dis- missed. Father's motion granted. Parties' mediation/arbitration agreement remained in effect. Meaning of "parenting issues" in agreement encompassed all aspects of custody, and award providing for joint custody was authorized. Mother's objections to arbitration process did not amount to error in law, unequal or unfair treatment of mother, denial of opportunity to present her case or respond to father's case, or failure to comply with Arbitration Act, 1991 (Ont.). There was no inherent or practi- cal unfairness in process and it was not situation where mother was "never heard," nor was it one where her expectations about process were not met. Objec- tion to arbitrator's use of his own knowledge of what was benefi- cial for children of age of child in this case was not well founded. Fact of unanticipated delay did not destroy arbitration agree- ment or invalidate award. Delay in arbitration did not amount to error in law, invalidate arbi- tration agreement, or amount to unequal or unfair treatment of mother. Delay in release or implementation of award did not operate to her prejudice, but operated in her favour. Court declined to exercise parens pa- triae jurisdiction to set aside arbitration awards. Parties were to re-attend before arbitrator for determination of child support. Rosenberg v. Minster (Feb. 5, 2014, Ont. S.C.J., Perkins J., File No. FS-13-18881) 237 A.C.W.S. (3d) 977. Conflict of Laws JURISDICTION Ontario had presence-based jurisdiction so real and substantial connection not necessary Plaintiff was resident of Ontar- io. Plaintiff sued defendant as trustee for himself and his sib- lings, who were all immigrants to North America from Iran. Defendant was also resident of Ontario, but travelled back and forth from Iran for business. Plaintiff alleged that defendant did not pay for his purchase of plaintiff 's family home in Iran. Defendant brought motion to have plaintiff 's action stayed on grounds that Ontario did not have jurisdiction simpliciter or, in alternative, he submitted that Ontario was forum non conveniens. Motion dismissed. Defendant was not out-of-prov- ince defendant. Defendant was resident of Ontario, and he was being sued by another resident of Ontario. Ontario had pres- ence based jurisdiction over de- fendant. When there was pres- ence-based jurisdiction, it was not necessary to establish that Ontario court had real and sub- stantial connection with mat- ter. Conventional factors about convenient forum were neutral, favoured Ontario, or were not so strong that they got over high threshold for displacing plain- tiff 's choice of forum. Two of three main witnesses were resi- dents of Ontario and third was resident of State of Washing- ton. There was no competing litigation in Iran. Dispute itself may turn on interpretation and validity of November 15, 2009 agreement, which was docu- ment that was negotiated and signed in Ontario. Victory v. Sattar (Jan. 29, 2014, Ont. S.C.J., Perell J., File No. CV-13-472644) 237 A.C.W.S. (3d) 900. Contracts PERFORMANCE AND BREACH Onus on defendant to show loss not caused by negligence or improper conduct Parties were partners in business venture to manufacture and sell replica motor vehicle from fibre- glass using mould. Profits were to be shared equally after pay- ment of plaintiff 's costs of man- ufacture. Plaintiff was entitled to 100 per cent manufacturing and possessory rights over mould. Partnership terminated when defendant unlawfully broke into plaintiff 's premises and stole ar- ticles. Defendant and four other men were arrested. Moulds were damaged beyond repair by way in which defendant and other men stacked them in cube van after break in. There was video recording of break-in. Defen- dant pled guilty to charge of theft. Defendant defamed plain- tiff on Internet and plaintiff al- leged online sales of his products disappeared as result. Defen- dant sold motor vehicles that he stole from plaintiff 's prem- ises and used links to pictures on plaintiff 's web site without plaintiff 's consent. Defendant did not explain what happened to plaintiff 's vehicles stored at defendant's premises. Defen- dant passed away and plaintiff brought action for damages against estate. Claim allowed. Plaintiff was awarded damages for loss of mould set and loss of sales. Onus was on defendant to show that loss of property was not caused by negligence or im- proper conduct on defendant's part. Defendant tendered no evi- dence or explanation as to what happened to articles and defen- dant was liable for their value. Ironside v. Delazzari Estate (Feb. 19, 2014, Ont. S.C.J., D.J. Taliano J., File No. 49741/07) 237 A.C.W.S. (3d) 915. Family Law CHILD WELFARE Court concerned about repeated and escalating nature of violence Society sought order under s. 51 of Child and Family Services Act (Ont.), placing two chil- dren in its care on temporary basis pending completion of child protection proceedings. Children were born in October 2004 and March 2006. Children were apprehended without war- rant from their school on Dec. 5, 2013, and had been in care 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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