Law Times

Law Times • JuLy 21, 2014 Page 13 www.lawtimesnews.com FEDERAL COURT Administrative Law FREEDOM OF INFORMATION Claimed extension of time did not constitute deemed refusal of access Department of National De- fence (DND) had unspecified involvement in contract with company and sale of surplus military assets to Uruguay. Re- quester filed request under Ac- cess to Information Act (Can.), to obtain information from DND relating to these matters. In March 2011, DND informed requester that 30-day period in s. 7 of Act was being extended by 1,110 days pursuant to s. 9 of Act. Information Commis- sioner of Canada conducted in- vestigation into length of exten- sion and concluded in October 2012 that extension was invalid. DND provided requested re- cords with some redactions in September 2013. Commissioner brought application for decla- ration that DND was deemed to have refused request by not responding within 30-day pe- riod in s. 7 of Act. Application dismissed. Commissioner's authority to pursue judicial re- view was limited to refusals to disclose or to provide access to requested record. Court had to respect language of Act and could not redraft or reinterpret provisions to reach its own view of how its purpose could be bet- ter served. Claimed extension of time did not constitute deemed refusal of access even though commissioner had found it to be unreasonable. Prior authori- ties clearly stated there could be no deemed refusal under Act until time period had expired. Parliament's clear intention was that requesters could complain about claimed extensions and commissioner could investigate, but that was extent of recourse. Since court had no jurisdic- tion to consider application pursuant to ss. 41 or 42 of Act, court did not need to consider whether extension claimed was reasonable. Canada (Information Commis- sioner) v. Canada (Minister of National Defence) (Mar. 3, 2014, F.C., Catherine M. Kane J., File No. T-92-13) 238 A.C.W.S. (3d) 789. Crown ACTIONS AGAINST CROWN Precondition to passport revocation that holder be convicted of indictable offence Applicant and daughter at- tempted to check-in for f light from Lima to Toronto. Appli- cant and daughter's passports had substituted bio-data page that had deficiencies compared to legitimate bio-data page. Passports were seized. Daughter stated that she altered passports one day before f light because she did not want to return to Canada. Respondent decided to revoke applicant's passport and impose period of refusal of passport services for four years. Respondent determined ap- plicant was aware of damage to passports yet attempted to travel with them away. Applicant sought judicial review. Applica- tion granted. It was precondition to passport revocation under s. 10(2)(b) of Canadian Passport Order, that passport holder be convicted of indictable offence. Applicant was never charged or convicted of indictable offence and decision to revoke her pass- port was made without author- ity. Revocation was invalid be- cause passport expired by time it was purportedly revoked and Minister could only revoke un- expired passport. Siska v. Passport Canada (Mar. 28, 2014, F.C., Russel W. Zinn J., File No. T-1180-13) 238 A.C.W.S. (3d) 878. Employment PUBLIC SERVICE Assessment panel did not have to give reasons why someone was screened out Applicant applied for positions with Department of Citizenship and Immigration Canada (CIC). Applicant was informed that as- sessment panel had eliminated her from appointment process by failing to meet essential ex- perience criteria. Applicant complained that conduct of CIC during hiring process amount- ed to abuse of authority under s. 77(1)(a) of Public Service Em- ployment Act (Can.). Tribunal dismissed complaint. Applicant applied for judicial review. Ap- plication dismissed. Standard of review was reasonableness. Establishment for qualifications for appointments within Public Service and assessment panels' evaluation of candidates were sole responsibility of employer. Duty of employer to justify such discretionary decisions was at low end of spectrum and as- sessment panel did not have to give reasons why someone was screened out. Fact that assess- ment panel would meet with failed candidates for informal discussion met requirements of duty of fairness. Tribunal's conclusion that applicant's alle- gations of abuse of process were not substantiated with evidence was reasonable. Tribunal ap- plied correct test, considered all evidence and submissions of ap- plicant and decision was within range of possible, acceptable outcomes defensible in respect of facts and law. Baragar v. Canada (Deputy Minister of Citizenship and Im- migration) (Mar. 27, 2014, F.C., Glennys L. McVeigh J., File No. T-1907-12) 238 A.C.W.S. (3d) 895. ONTARIO CIVIL DECISIONS Bankruptcy and Insolvency BANKRUPTS Bankrupt not aware of friend's misrepresentations or mortgage fraud Bankrupt was employee of bank and was asked by friend if he would be willing to co-sign mortgage application to assist new immigrant who lacked suf- ficient credit history in Canada to obtain mortgage. Bankrupt and friend signed separate mortgage applications at dif- ferent times in different places. Bankrupt provided accurate in- formation about his income and employer while friend misrep- resented income and employ- ment and submitted inf lated property valuation. Bankrupt was not aware of misrepresenta- tions. Bank investigated what it believed to be fraud. Mortgage went into default. Bank sued and obtained default judgment against bankrupt and friend and judgment was assigned to Canada Mortgage and Hous- ing Corporation (CMHC). Bankrupt made assignment in bankruptcy. CMHC applied for declaration that outstand- ing amount of bankrupt's debt would not be released under s. 178(1)(e) of Bankruptcy and In- solvency Act (Can.). Judge de- termined that bankrupt's debt would not survive his discharge from bankruptcy. CMHC ap- pealed. Appeal dismissed. Sec- tion 178(1)(e) required finding that bankrupt obtained prop- erty by fraudulent misrepresen- tation or false pretences. Causal connection was required be- tween bankrupt's wrongdoing and creation of debt. Mortgage was obtained by friend's fraudu- lent misrepresentations and not as result of anything bankrupt said or failed to disclose. Bank- rupt was not aware of friend's misrepresentations or mortgage fraud. Trial judge did not err in failing to find that bankrupt was not wilfully blind. Decision did not condone straw man debtor scenario. Canada Mortgage and Hous- ing Corp. v. Gray (Mar. 28, 2014, Ont. C.A., John Laskin J.A., K. van Rensburg J.A., and C.W. Hourigan J.A., File No. CA C57109) Decision at 229 A.C.W.S. (3d) 333 was affirmed. 238 A.C.W.S. (3d) 807. Civil Procedure PLEADINGS Amendments proposed new cause of action based on new set of facts Plaintiffs' business was de- stroyed by fire. Plaintiffs claimed they were insured under policy with defendant. Plaintiffs claimed they were not adequately indemnified under insurance policy for losses they sustained. Plaintiffs brought motion for leave to amend state- ment of claim to add paragraph setting out particulars of neg- ligence, breach of contract and breach of fiduciary duty. De- fendant brought cross-motion for summary dismissal of claim based on admissions plaintiffs made during examinations for discovery. Motion dismissed. Cross-motion granted. Claim was dismissed. Amendments proposed new cause of action based on new set of facts and were barred by expiry of limi- tation period. Claim related to adequacy of limits of coverage placed and all of facts pleaded in support of claim related to failures alleged to have occurred before loss and not after. Pro- posed amendment would create cause of action in negligence for failing to properly assess plain- tiffs' loss under policy after fire occurred, and not for failing to put in place proper policy of insurance beforehand. Plain- tiffs conceded that if plaintiffs' 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. CANADA'S ANTI-SPAM LEGISLATION CASL - THE TOUGHEST LAW OF ITS KIND IN THE WORLD. IN FORCE JULY 1, 2014. ARE YOU READY? 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