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Page 14 June 23, 2014 • Law Times www.lawtimesnews.com were not with individual plain- tiffs. There were no interactions between parties that created special relationship sufficient to establish proximity. Finding that plaintiffs were owed duty of care to protect economic interests of plaintiffs would lead to exposure of indeterminate liability. Deci- sion not to grant import permits for packaged honeybees was true policy decision. Arguments on defendant's alleged bad faith were not convincing. Plaintiffs did not identify Crown servant and claim could not amount to claim of misfeasance in public office or abuse of public office. Absent such tort, claim does not disclose reasonable cause of ac- tion. Paradis Honey Ltd. v. Canada (Attorney General) (Mar. 5, 2014, F.C., Andre F.J. Scott J., File No. T-2293-12) 238 A.C.W.S. (3d) 326. Immigration INADMISSIBLE AND REMOVABLE CLASSES Light sentence does not detract from seriousness of crime Foreign national was citizen of Nigeria who had been living in United States for many years, where he had pled guilty to as- saulting his common law spouse, and another woman. Assault on spouse had resulted in serious facial and ocular injury. Tribu- nal found that foreign national had inf licted injuries upon his common law spouse that could seriously and permanently in- terfere with her health and com- fort, and that these were aggra- vating circumstances. Foreign national was sentenced to twelve months' probation for assault on wife and to nine months in pris- on and six months' probation, extended by three months for assault and battery on another woman. Refugee Protection Di- vision (RPD) found that foreign national was person described in Article 1F(b) of United Nations Convention Relating to Status of Refugees, and accordingly he was not eligible Convention Refugee or person otherwise in need of protection, as in s. 98 of Immigration and Refugee Pro- tection Act (Can.). Foreign na- tional, who was self-represented, applied for judicial review, con- tending that his crimes were not "serious" within meaning of s. 98 of Act and Article 1F of Ref- ugee Convention. Application dismissed. Had offence against common law spouse occurred in Canada, s. 266 of Criminal Code (Can.), provides that anyone who commits assault is guilty of indictable offence liable to imprisonment for term not ex- ceeding five years, or is guilty of offence punishable on summary conviction. If assault caused bodily harm, s. 267 of Code calls for indictable offence subject to imprisonment not exceeding ten years, or offence punish- able on summary conviction and liable to imprisonment not exceeding 18 months. Offence is aggravated, if abused was of- fender's spouse or common law partner. Domestic violence was serious, and is so considered in both Canada and United States. Sentence may have been light, but that does not detract from seriousness of crime. Unachukwu v. Canada (Minister of Citizenship and Immigration) (Feb. 28, 2014, F.C., Sean Har- rington J., File No. IMM-3747-13) 238 A.C.W.S. (3d) 427. ONTARIO CIVIL DECISIONS Appeal PROCEDURE Self-represented person entered into agreement without benefit of interpreter Action was brought in Small Claims Court. Appellant did not have representation and required interpreter. Appellant entered into settlement agreement. Ap- pellant wished to resile from set- tlement agreement and have it set aside on basis appellant did not understand what she was agree- ing to and she was tricked into signing agreement. Appellant was no longer represented. Ap- pellant was attempting to retain counsel, had personal health is- sues, and was primary caretaker of elderly mother. Appellant faced criminal trial matter and was still attempting to secure representation for it. Appellant brought motion for extension of time to serve, file and perfect ap- peal. Motion granted. Appellant's explanation for her portion of de- lay was reasonable and justified. Appellant's situation was unique especially given language bar- rier. Self-represented person who entered into agreement without benefit of interpreter, when one was needed was at least prima fa- cie serious consideration. Tran v. Schwartz (Mar. 17, 2014, Ont. S.C.J., K.P. Wright J., File No. DC 12/507) 238 A.C.W.S. (3d) 291. Bankruptcy and Insolvency PROPERTY Plaintiff not fraudulently induced to lend money to defendant Plaintiff loaned defendant mon- ey for defendant to purchase car, which defendant needed to com- plete studies as dental hygienist. Defendant represented to plain- tiff that defendant would make monthly interest payments and defendant would pay back prin- cipal once she was employed af- ter graduating school. Defendant made assignment in bankruptcy in July 2010. Plaintiff was listed as unsecured creditor in bank- ruptcy and claim was proven. Defendant was discharged from bankruptcy. Plaintiff asserted loan survived bankruptcy be- cause it was obtained by false pretenses of fraudulent misrepre- sentations. Plaintiff made admis- sion in documentary evidence that defendant was to make in- terest only payments. Claim dis- missed. Loan was not obtained by false pretenses or fraudulent misrepresentation. Loan was ex- tinguished by defendant's bank- ruptcy. Plaintiff was not fraudu- lently induced to lend money to defendant. When loan was made plaintiff knew that he would not be paid back principal until after defendant graduated from school and was employed. Defendant had reasonable prospect of pay- ing off loan after she graduated from school and did not con- template bankruptcy as option when she borrowed money from plaintiff. Fact defendant did not make interest payments was not evidence that representation was false or made recklessly. There was no fraud when defendant sold car because defendant made no representation to plaintiff that she would keep car and not sell it. Lebert v. Lippert (Feb. 23, 2014, Ont. S.C.J., Donald J. Lange D.J., File No. Bracebridge SC-10-1) 238 A.C.W.S. (3d) 372. Civil Procedure CLASS ACTIONS Settlement not substantively, circumstantially, or institutionally fair to class members Class action alleged defendant infringed copyright of class members by making available without permission and for fee copies of court documents au- thored by class members and their law firms on Litigator. Par- ties signed settlement subject to court approval. Defendant agreed to make changes to copy- right notices on Litigator and to terms of its contract with sub- scribers. Settlement agreement provided for cy-pres trust fund. Individual class members, who might opt-out, received no mon- etary award under settlement agreement, and signed release and granted non-exclusive li- cense of their copyrights in court documents to defendant. Seven class members opposed settle- ment agreement. Class counsel brought motion for approval of contingency fee agreement and for court approval of counsel fees of $825,000 all-inclusive. Class counsel's fee was paid as term of proposed settlement agreement. Under settlement agreement, defendant made no admission of liability and continued to deny claims advanced. Motion dis- missed. Settlement was not fair, reasonable and in best interests of class members. Settlement was procedurally fair, but not substantively, circumstantially, or institutionally fair to class members. Settlement agreement brought administration of justice and class actions into disrepute because it was more beneficial to class counsel than to class members and it expropriate class members' property rights in ex- change for charitable donation from defendant. There was no access to substantive justice for claims of class members and no meaningful behaviour modifica- tion for defendant. Because set- tlement was not approved ques- tion of class counsel fee approval was moot. It was wrong to make payment of class counsel's fee, in effect, pre-condition to approval of settlement agreement. Waldman v. Thomson Reuters Canada Ltd. (Mar. 4, 2014, Ont. S.C.J., Perell J., File No. 10-CV- 403667CP) 238 A.C.W.S. (3d) 303. FEDERAL COURT OF APPEAL Professions BARRISTERS AND SOLICITORS No evidence confidential information actually used in preparation of notice of allegation When appellant received notice of allegation, it was alarmed to see law firm of its predecessor, which had represented it in five proceedings respecting same medicinal ingredient, was rep- resenting respondent. As soon as appellant registered objection, firm resigned. However, appel- lant was still concerned about misuse of confidential informa- tion so applied for further relief. Federal Court granted order dis- qualifying respondent's in-house counsel, who had previously been employed by firm in ques- tion, but found it did not have jurisdiction to declare respon- dent's notice of allegation invalid. Cross-appeals by parties from Federal Court decision. Cross- appeals dismissed. Federal Court did not properly apply Martin test in relying on inference rather than actual evidence lawyer had received confidential informa- tion about medicinal ingredient in course of his previous employ- ment. However, result was same, as this rendered lawyer's dis- qualification automatic. Court could always consider conf licts of interest; however, there was no evidence appellant's confi- dential information was actually used in preparation of notice of allegation, which consisted of objectively known facts and mat- ters of law, so declaring it invalid could overshoot mark. Tests for disqualification did not even hint at this type of remedy so, while it was open that it may be appropri- ate in exceptional circumstances, evidence did not support it in this case. Valeant Canada LP v. Canada (Minister of Health) (Feb. 24, 2014, F.C.A., John M. Evans J.A., Johanne Gauthier J.A., and Da- vid Stratas J.A., File No. A-221-13) 238 A.C.W.S. (3d) 495. Admiralty GENERAL Information leading to suspension of security clearances could come from any source Minister upheld cancellation of security clearance granted to individual under Marine Trans- portation Security Regulations (Can.). Individual was worker at port. On application for judicial review Federal Court quashed Minister's decision finding it to be unreasonable. Federal Court concluded that evidence was not strong enough to warrant can- cellation of security clearance. Federal Court also found Min- ister failed to give to individual procedures that he legitimately expected would be followed and found Minister's reasons to be in- adequate. Minister appealed. Ap- peal allowed. Federal Court erred in its interpretation of s. 509 of Regulations. Minister's decision fell within ambit of s. 509 proper- ly interpreted. Information lead- ing to suspension of previously- granted security clearances could come from any source, not just from information supplied by ap- plicant or from checks and verifi- cations. Regulations did not say that requirements of verifiability and reliability applied to this sort of evidence. Reasonable grounds to suspect provided meaningful standard against arbitrary can- cellation of security certificate. Requirements and verifiability and reliability applied only to this sort of evidence supplied during initial granting process. Federal Court erred and decision was re- viewable on basis of reasonable- ness, not correctness. Decision was reasonable. Fact set out sup- ported Minister's conclusion that there were reasonable grounds to suspect that individual engaged in conducted described, and thus posed risk to security of marine transportation. Minister's rea- sons were adequate. Ground of legitimate expectation that in- dividual asserted did not arise in case. There was no breach of procedural fairness warranting quashing of Minister's decision. Minister provided individual with opportunity to make case. Minister gave individual suf- ficient access to information to know case against him and to make meaningful response to it. Process was fair overall. Canada (Minister of Transport, Infrastructure and Communities) v. Farwaha (Mar. 3, 2014, F.C.A., Johanne Trudel J.A., David Stra- tas J.A., and Robert M. Main- ville J.A., File No. A-431-12) 238 A.C.W.S. (3d) 282. ONTARIO CRIMINAL DECISIONS Appeal GROUNDS Reasons did not articulate any connection between evidence and law and verdicts Accused appealed his conviction for impaired driving. Impugned decision also acquitted accused on charge of driving over .08. Of- ficers saw truck on shoulder of highway, and saw that male was standing outside vehicle urinat- ing. Officers stopped to make sure that everything was okay. As officers approached truck, they noticed that its headlights were still on. Female officer assumed from this that keys were still in ignition, but she could not recall ever actually seeing keys in igni- tion. Keys were not subsequently found on accused's person. Of- ficers testified accused exhibited indicia of impairment and there was strong odour of alcohol com- ing from him. Accused struggled with finding documentation and was not registered owner CASELAW

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