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Page 14 November 10, 2014 • Law Times www.lawtimesnews.com Appeal allowed. It was unclear what definition of hazardous re- cyclable material Chief Review Office applied in decision. Fact that intended use of substance was to be in one of forms of re- cycling contemplated by Export and Import Regulations did not mean it was recycled when it left respondent's facility as Chief Re- view Officer concluded. Chief Review Officer's failure to apply statutory definition of hazard- ous recyclable material led him to conclude erroneously that Ex- port and Import Regulations did not apply to product exported by respondent. Had Chief Review Officer correctly applied statuto- ry and regulatory definition, he would have found that product was hazardous recyclable mate- rial and upheld order. Atlantic Industrial Services v. R. (Aug. 5, 2014, F.C., Richard G. Mosley J., File No. T-1307-13) 244 A.C.W.S. (3d) 106. Immigration SELECTION AND ADMISSION Officer breached procedural fairness by failing to respond to request for interview Foreign national was allegedly born in Sierra Leone in 1971 and subjected to female genital muti- lation. Foreign national's family was killed by armed rebels who gang raped her. Foreign national came to Canada via Guinea and had only affidavit in lieu of birth certificate. Foreign national un- successfully applied for refugee status. Foreign national tried to make another refugee claim using fake Guinean birth cer- tificate but she was caught. For- eign national had two children while living in Canada. Foreign national was denied humanitar- ian and compassionate grounds exemption from requirement to apply for permanent residence from outside Canada. Foreign national brought application for judicial review. Application granted; matter remitted for re- determination. Immigration officer breached procedural fairness by failing to respond to request for interview and then totally disregarding sworn evi- dence about foreign national's nationality. Officer unreason- ably concluded foreign national could have taken certain steps to obtain documents confirming her identity. Officer then failed to consider hardship faced by foreign national if she was re- turned to Sierra Leone. Officer also failed to conduct mean- ingful analysis of best interests of children. Interview should have been granted if officer did not believe foreign national's evidence regarding father's lack of interest in children. Children would face grave hardships and risks, including female genital mutilation, if they accompanied foreign national back to Sierra Leone. Diaby v. Canada (Minister of Citizenship and Immigration) (Jul. 24, 2014, F.C., Russell J., File No. IMM-13236-12, IMM- 13237-12) 244 A.C.W.S. (3d) 178. TAX COURT OF CANADA Courts CONDUCT OF PROCEEDINGS Taxpayer could have advanced grounds of appeal without use of extreme statements Trial judge rendered judgment on merits of taxpayer's appeal, which was appealed. Judge re- mained seized with issue of costs and with deciding appro- priateness of parties' proposal for dealing with identification of confidential information. Taxpayer made statements in its appellate factum alleging that judge was untruthful in rea- sons, containing untruths about judge, and alleging impartial- ity on judge's part. On judge's own motion, judge considered whether he should recuse him- self from remaining issues. Mo- tion granted; judge recused him- self. Reasonable, fair-minded, fully informed Canadian would entertain doubt that judge could remain able to reach impartial decisions, and would be left with apprehension of bias. Taxpayer could have advanced grounds of appeal without use of unquali- fied extreme statements which attacked judge's integrity. Tax- payer wrongly accused judge of being untruthful in order to ad- vance argument that judge was doing something different in his reasons than he said he was do- ing. While taxpayer had right to challenge evidentiary founda- tion of judge's conclusions, tax- payer told clear untruths about judge when taxpayer stated that certain issues were not put to taxpayer during trial and were raised for first time in reasons, and that judge reframed case after trial. Taxpayer, in factum, wrote about judge's "palpable antipathy" towards taxpayer, and referred to his analysis as being "infected by his pejorative and unfair comments". Reason- able person reading only these phrases would believe that such complaints might give rise to serious doubt about judge's im- partiality. One error in reasons, appropriately identified in fac- tum, was acknowledged. McKesson Canada Corp. v. R. (Sep. 4, 2014, T.C.C. [General Procedure], Patrick Boyle J., File No. 2008-2949(IT)G, 2008- 3471(IT)G) 244 A.C.W.S. (3d) 234. ONTARIO CIVIL DECISIONS Civil Procedure JOINDER Affidavit did not support cause of action against employees as proposed defendants Plaintiff brought motion to add two lawyers and law firm as additional defendants and to add two employees of doctor as defendants. Plaintiff sought to add estate as additional plaintiff and to claim wrongful death of deceased. Plaintiff sought to convert action to class action. Plaintiff sought leave to increase amount of her claim from $1 million to $100 million. Plaintiff sought permanent injunction restraining doctor or his staff or any person at law firm from hav- ing contact with plaintiff. Plain- tiff sought order against doctor enjoining him from practising medicine. Plaintiff 's request for order that she be heard by tele- conferencing or Skype was con- sidered and order was made for all parties to appear in person when motion was heard. Plain- tiff did not appear in person. Plaintiff 's written request for adjournment was dismissed. Plaintiff was deemed to have abandoned motion. Parts of mo- tion would have been dismissed in any event for lack of evidence or for reasons that relief request- ed was contrary to law or Rules of Civil Procedure (Ont.). It was premature to seek leave with re- spect to testimony of experts for any reason in action. Plaintiff did not attach amended state- ment of claim to her materials containing precise allegations or showing how any claim could be made against proposed de- fendants. Affidavit material did not support any cause of action against employees as proposed defendants. There was no evi- dence that estate trustee con- sented to add estate as plaintiff. Plaintiff was sole plaintiff and Class Proceeding Act, 1992 (Ont.), did not apply. Plaintiff provided no evidence as basis for increasing amount of dam- ages claimed. Supporting af- fidavit did not establish serious question to be tried in action that would support claim for injunctive relief. Court had no jurisdiction to make order for injunction prohibiting doctor from practising medicine. Miller v. Turliuk (Aug. 25, 2014, Ont. S.C.J., Emery J., File No. 2598/13) 244 A.C.W.S. (3d) 46. PLEADINGS Statement of claim implicitly included what amendment sought to make explicit Plaintiff was injured in mo- tor vehicle accident with de- fendants' vehicle. Defendant employer owned vehicle that defendant employee was driv- ing. Plaintiff commenced action against defendants for dam- ages for negligence. Matter was tried before judge after jury was struck. Plaintiff brought mo- tion during closing submissions for leave to amend statement of claim to clarify defendant em- ployer's ownership of vehicle and vicarious liability. Motion granted. There was no prejudice to defendants arising from pro- posed amendment. Defendant employer was aware of employ- ment relationship at date of collision. Defendant driver had given evidence about driving in course of his employment. Defendant employer was repre- sented by same counsel as defen- dant driver. There was nothing defendant employer could have done differently to defend claim arising from vicarious liability, which f lowed directly from em- ployment relationship. Amend- ment did not add unrelated stat- ute-barred claim. Amendment conformed to evidence both at discovery and at trial. Statement of claim had implicitly included what amendment sought to make explicit. Doxtater v. Farrish (Jul. 16, 2014, Ont. S.C.J., J.N. Morissette J., File No. 43250) 244 A.C.W.S. (3d) 244. TIME Defendant and counsel in counterclaim had obligation to move counterclaim forward In 2007, plaintiff municipality undertook road improvement project in area defendant owned property, including cleaning and rehabilitation of drainage ditches and replacement of some culverts. Defendant claimed that project caused f looding of his property and constructed dam, blocking run off from drainage ditches to what mu- nicipality claimed was natural drainage watercourse. Defen- dant subsequently replaced dam with more substantial berm and commenced proceedings in Small Claims Court seeking some $42,000 for damage to property and costs of construc- tion. In 2009, municipality com- menced within action for relief with respect to drainage issues. Defendant counterclaimed, seeking damages for $330,000 on basis of old and some new allegations. In March 2010, mu- nicipality obtained order con- solidating all claims and strik- ing certain paragraphs from de- fendant's pleadings. Defendant's amended counterclaim sought damages of $415,000. In Octo- ber 2011, defendant obtained leave to have separate repre- sentation for main action and counterclaim. Defendant's new counterclaim sought damages of $1.5 million. At status hear- ing requested by defendant's counsel in counterclaim in January 2012, parties consented to order establishing time table for proceeding, including for discovery. In March 2012, coun- sel for municipality forwarded discovery plan to both coun- sel for defendant for comment. Counsel in main action pro- vided substantive response but counsel in counterclaim never did so. Counsel in main action also provided affidavit of docu- ments while counsel in counter- claim did not. In August 2014, municipality applied for order dismissing counterclaim on basis of failure to comply with order made at status hearing and delay. Application allowed. Under R. 48.14(13) of Rules of Civil Procedure (Ont.), judge or master presiding at status hear- ing could dismiss action for de- lay if satisfied it should not pro- ceed. Same principle applied to counterclaims. No fundamental difference between resolving matter on within application or convening second status hear- ing. Failure to comply with order made at status hearing not excused by counsel for mu- nicipality's failure to press for compliance, nor by fact coun- sel in counterclaims attention diverted to settlement discus- sions. As plaintiff by counter- claim, defendant and counsel in counterclaim had obligation to move counterclaim forward. Defendant's delay and result- ing passage of time had resulted in prejudice to municipality by making merits of counterclaim more difficult, if not impossible, to investigate. Counterclaim should be dismissed for delay. Sioux Lookout (Municipality) v. Goodfellow (Aug. 22, 2014, Ont. S.C.J., J.S. Fregeau J., File No. Kenora CV-09-138) 244 A.C.W.S. (3d) 59. Damages PERSONAL INJURIES Plaintiff had lost ability to take on increased responsibili- ties with increased earnings Plaintiff was 35-year-old mar- ried woman with two children. Plaintiff was driving about 80km/hr towards intersection that only had stop signs on in- tersecting road. Defendants' vehicle had stopped at stop sign but proceeded into intersec- tion. Plaintiff 's vehicle struck passenger side of defendants' vehicle. Plaintiff required one month off work as payroll clerk and then experienced memory and cognitive impairments that required her employer to ac- commodate her. Plaintiff failed in her attempts to take on more duties. Plaintiff suffered from chronic pain syndrome. Plain- tiff brought action against de- fendants for damages for negli- gence. Action allowed. Plaintiff was awarded $50,000 for loss of competitive advantage. Plain- tiff had not established past or future loss of income since she always made same amount of money as she otherwise would have. Nonetheless, plaintiff had lost ability to take on increased responsibilities with increased earnings. Plaintiff was currently dependent on her employer's goodwill, which might not be duplicated if she were obliged to seek alternative employment. Doxtater v. Farrish (Jul. 16, 2014, Ont. S.C.J., J.N. Morissette J., File No. 43250) 244 A.C.W.S. (3d) 244. Employment DUTIES OF EMPLOYEE Prohibiting defendant from training for two years was reasonable and necessary Plaintiff safety consulting firm terminated its agreement with its associate, individual defen- dant. Defendant continued to give safety training, on his own account, to several of plaintiff 's customers or former customers. Plaintiff brought action against defendant to recover losses al- legedly sustained as result of his competition, which plaintiff claimed was in breach of associ- ate agreement. Action allowed in part. Defendant owed plain- CASELAW

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