Law Times

Law Times • July 7, 2014 Page 19 www.lawtimesnews.com propriate steps under provincial legislation to secure payment out of those funds from sheriff. Banks were also to advise plain- tiffs of any other bank accounts belonging to Iran. Evidence also overwhelmingly permitted conclusion that both properties were beneficially owned by Iran and constituted non-diplomatic assets of Iran in Canada. Neither property had cultural or histori- cal value was therefore not im- mune from attachment or ex- ecution. Sheriff was directed to enforce writ of seizure and sale of properties. Tracy (Litigation guardian of) v. Iranian Ministry of Information and Security (Mar. 17, 2014, Ont. S.C.J. [Commercial List], D.M. Brown J., File No. CV-14- 10403-00CL) 238 A.C.W.S. (3d) 617. Constitutional Law CHARTER OF RIGHTS Length of time from laying of charges to end of trial could not be justified Applicant was charged with sev- en counts of fraud over $5,000. Six years and three months passed from date applicant was charged until date when he would have had trial. Applicant claimed delay was excessive, unreasonable and violated his right to be tried within reason- able time under s. 11(b) of Ca- nadian Charter of Rights and Freedoms. Applicant claimed to have been seriously prejudiced by delay and to stay charges to remedy violation. Application granted. Charges were stayed. Applicant's right to trial within reasonable time as guaranteed under Charter was breached. Length of time from laying of charges to end of trial could not be justified and could not pass constitutional muster. Prejudice was inferred and length of delay was cause of specific prejudice to applicant. Delay attributable to Crown and institutional factors totalled over three years, which exceeded amount of permitted Crown and institutional delay. There were no periods of time that could be deducted on ac- count of waiver by applicant. R. v. Gerstein (Mar. 13, 2014, Ont. S.C.J., Michael G. Quig- ley J., File No. Toronto 12- 70000842-0000) 238 A.C.W.S. (3d) 619. Contracts FORMATION Could not be both mutual agreement on start and right for plaintiffs to unilaterally dictate start Plaintiffs were builders and developers of residential con- dominiums. Defendant was concrete forming contractor. Plaintiffs claimed defendant breached contract by refusing to start work on two condominium projects as directed by plaintiffs. Defendant contended that de- lay increased its costs and it re- quired 10 per cent price increase. Plaintiffs refused to negotiate price increase and defendant refused to perform work with- out price increase. Defendant denied breach of contract assert- ing no binding contracts existed. Defendant asserted start date was essential term to be agreed on as part of fixed price agreed to by parties. Agreement was to be finalized by formal con- tracts, but no formal contracts were executed. Draft agree- ments did not incorporate start date. Plaintiffs claimed dam- ages for increase in price which plaintiffs were compelled to pay to new contractors as result of defendant's breach. Action dis- missed. Predetermined start dates were essential part of fixed price performance agreement negotiated and agreed upon by parties. Plaintiffs gave defen- dant predetermined start dates in negotiating and agreeing on fixed prices. Meeting notes and handwritten agreement made no reference to plaintiffs be- ing able to dictate start or start being contingent on site readi- ness. Start dates contemplated by parties were middle to end of October 2005 for two proj- ects. Defendant did not agree to waive condition for fixed start dates and accept that plaintiffs could dictate start based on site readiness. There was no meeting of minds on whether plaintiffs would have right to dictate start. There could not be both mutual agreement on start and right for plaintiffs to unilaterally dictate start period. Given such contra- diction in finalized terms in for- mal written contract, there was no agreement on defendant's part that plaintiffs could dictate start. Conduct of parties did not confirm starting dates of each project was f lexible. Holly Downs Developments Inc. v. 1428508 Ontario Ltd. (Mar. 13, 2014, Ont. S.C.J., DiToma- so J., File No. Newmarket CV- 086951-00) 238 A.C.W.S. (3d) 622. Crown ACTIONS AGAINST CROWN No clear judicial authority to find that notice had to be in writing Plaintiff was invited by friend to stay at cabin. Defendant em- ployed friend and owned prop- erty. Plaintiff alleged that during stay at cabin, he and friend were poisoned by propane gas emit- ted from cook stove or heater or by exhaust fumes from gasoline- powered generator. As result of propane poisoning plaintiff alleged he suffered pinched ra- dial nerve in his right arm, per- manent cognitive and memory impairment, liver damage and kidney failure. Defendant con- ducted investigation. Defendant received letter from lawyer act- ing for plaintiff that provided written notice of claim and date of loss. Letter was not delivered within ten-day time period re- quired by Proceedings Against the Crown Act (Ont.) (PCAC). Defendant asserted conversa- tions with plaintiff 's parents at hospital did not constitute no- tice because Act required writ- ten notice. Conversations were recorded in defendant's notes. Defendant brought motion for summary judgment. Motion dismissed. Issue of whether plaintiff met notice require- ment set out in s. 7(3) of Act re- quired trial. There was no clear judicial authority to find that notice required by s. 7(3) of Act had to be in writing. Court was to interpret notice provisions of Act generously, and was to con- sider application of common law fairness principle because no- tice provision imposed onerous requirement on injured claim- ant. Legislature failed to specify whether ten-day notice referred to in s. 7(3) had to be in writing. Coulter v. Ontario (Ministry of Natural Resources) (Mar. 11, 2014, Ont. S.C.J., E.J. Koke J., File No. 25730/12) 238 A.C.W.S. (3d) 642. Debtor and Creditor ENFORCEMENT Defendant not precluded from arguing seizure and sale of assets unlawful Company owned by defendant agreed to purchase plaintiffs' business. Purchase price was se- cured by promissory note. Plain- tiffs brought motion for summa- ry judgment. Motion judge con- cluded that defendant defaulted on promissory note and that plaintiffs had not agreed to for- bear from suing defendant as re- sult of default. Motion judge or- dered trial of issue to determine net amount owing under note because quantum was uncertain due to related injunction appli- cation brought by defendant's company against plaintiffs, which was based on allegation that seizure and sale of goods might have been improper or ir- regular. Motion judge struck out statement of defence. Defendant appealed. Appeal allowed in part. There was no dispute that defendant defaulted on promis- sory note. It was open to motion judge to find that plaintiffs did not agree to forbear from suing defendant and motion judge did not make any palpable and over- riding error. However, defendant was not precluded from arguing that seizure and sale of assets was unlawful on injunction applica- tion and at trial of issue. State- ment of defence ought not to have been struck out, as that was inconsistent with ordering trial of issue of amount outstanding on note. 1758704 Ontario Inc. v. Priest (Mar. 17, 2014, Ont. C.A., J. MacFarland J.A., Paul Rouleau J.A., and P. Lauwers J.A., File No. CA C57691) Decision at 232 A.C.W.S. (3d) 681 was varied. 238 A.C.W.S. (3d) 747. Evidence SPOLIATION No trier of fact could conclude that defendant intentionally destroyed video Plaintiff commenced action al- leging she was injured in fall on bus caused by defendant. Mo- tion judge dismissed plaintiff 's motion to strike out defendant's defence on basis that it had de- stroyed video evidence from bus. Judge held that issue of defen- dant's requisite intent to make out spoliation, and destruction of evidence, could be pursued at trial, but how jury was to be in- structed would be subject to fur- ther submissions. Following fur- ther submissions, judge ordered spoliation issue removed from jury. Pursuant to defendant's policy, new data overwrote old data on bus cameras after 15 hours, unless download was re- quested by authorized person. Police officer attended scene and informed defendant supervisor that he did not think plaintiff had fallen and he would not be filing report. No download of video was requested. Video foot- age was overwritten in accor- dance with defendant's policy. Defendant first received notice of litigation two months after incident. No reasonable trier of fact could conclude that defen- dant or supervisor intention- ally destroyed video relevant to contemplated litigation. At date of incident, there was no ongo- ing or contemplated litigation, nor any reason to retain footage. Mere fact that plaintiff said she was injured from alleged fall on bus was insufficient on its own to give rise to apprehension of intended litigation or to found intention to destroy records in face of contemplated litigation. Leon v. Toronto Transit Commis- sion (Mar. 13, 2014, Ont. S.C.J., Penny J., File No. CV-10-411636) 238 A.C.W.S. (3d) 659 FEDERAL COURT Courts ABUSE OF PROCESS Unreasonable for tribunal to find applicant's complaints raised essentially same issues Applicant was black African Ca- nadian who worked at Immigra- tion and Refugee Board. In 2004, applicant filed complaint with Canadian Human Rights Com- mission. Core of complaint re- lated to incident that occurred in April 2003, during which racist comments were allegedly made. Complaint also included allega- tions of systemic discrimination, poisoned work environment and harassment. In 2007, appli- cant filed two complaints before Public Service Staffing Tribunal alleging that board's decision to use non-advertised appointment process to staff new tribunal of- ficers discriminated against him on basis of race. Applicant al- leged that decision to use non- advertised process was tainted by systemic discrimination and constituted abuse of authority. Tribunal dismissed applicant's complaints on grounds that he had not established prima facie case of discrimination. Com- mission forwarded applicant's human rights complaint to tri- bunal for inquiry. Board brought motion to dismiss complaint. Tribunal found that subject matter of complaint had been previously adjudicated by tribu- nal, and that adjudicating com- plaint would amount to abuse of process. Applicant applied for judicial review. Application granted. Tribunal's decision did not fall within acceptable out- comes. It was unreasonable for tribunal to conclude that tribu- nal had decided essentially same issues as those raised in human rights complaint. Having re- gard to both proceedings, issues raised in complaints could not be found to be essentially same. Fact that in both complaints applicant based allegations on systemic discrimination was insufficient to conclude that tribunal had already dealt with core of applicant's allegations in human rights complaint. Allega- tions of systemic discrimination at board for period 2003-2004 were not central to issues raised in tribunal complaints related to choice of non-advertised ap- pointment process in 2007. It was unreasonable for tribunal to find that applicant's complaints before tribunal and tribunal raised essentially same issues. If tribunal's finding that pre-con- ditions for applying doctrines of issue estoppel and abuse of pro- cess were met then it erred by not asking whether it would be fair to apply doctrines in specific cir- cumstances of case and prevent applicant from having human rights complaint investigated. Murray v. Immigration and Refu- gee Board (Feb. 11, 2014, F.C., Marie-Josee Bedard J., File No. T-229-13) 238 A.C.W.S. (3d) 709. Immigration REFUGEE STATUS No evidence board would have proceeded with hearing two hours late Applicant made refugee claim that was to be heard on merits at 1:00 p.m. on October 10, 2012. Applicant's car broke down that day at 11:15 a.m.. Applicant's counsel appeared and explained that applicant was not able to attend. Second hearing was or- dered where applicant explained earlier absence and provided service station repair invoice. Applicant testified by time he had vehicle towed to garage it was 2:00 p.m. and he would not have made it to board's office un- til 3:00 p.m. using public transit. Board concluded that applicant had not been diligent in pursu- ing claim because he did not take public transit and arrive two hours late for first hearing. Board decided that refugee claim had been abandoned and it was dismissed. Applicant sought ju- dicial review of board's decision. Application granted. Board's de- cision was unreasonable. There was no evidence that applicant or counsel had any reason to believe that board would have proceeded with first hearing at 3:00 p.m. when it was scheduled to start at 1:00 p.m. Gromer v. Canada (Minister of Citizenship and Immigration) (Mar. 4, 2014, F.C., Sandra J. Simpson J., File No. IMM-12831- 12) 238 A.C.W.S. (3d) 713. LT CASELAW

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