Law Times

Page 18 February 23, 2015 • Law Times www.lawtimesnews.com zations confirming targeting of claimant and attacks and prop- erty damage by Muslim extrem- ists. Refugee Protection Divi- sion (RPD) found that in ab- sence of corroborating evidence that was objective and probative claimant was not credible as witness and had not provided sufficient evidence that he was subject of serious discrimina- tion or attacks in Bangladesh for being Buddhist or for his activities there. RPD also found that claimant had not refuted presumption of state protection. Claimant applied for judicial re- view. Application allowed; mat- ter returned to RPD to be heard anew by differently constituted panel. RPD committed error in failing to consider evidentiary value of two letters supporting claim. Letters directly corrobo- rated determinative elements forming basis of claimant's sub- jective and objective fear of per- secution. RPD which had relied on fax-transmitted copies of let- ters instead of originals, rejected both letters based on finding that they lacked contact details although this information was found at bottom of original let- ters. Claimant's leadership in Buddhist community, to which two letters filed in support of his claim testified, should have been canvassed by RPD, as it was this very level of involve- ment by claimant in his com- munity which put him at risk. Documentary evidence relied upon by Board offered evidence of continuing violence against Buddhist minorities in Southern Bangladesh and demonstrated state's failure to protect religious minorities. Accordingly, RPD erred in its assessment of claim- ant's credibility and failed to ad- equately consider documentary evidence demonstrating the lack of state protection for Buddhist minorities in Bangladesh. Babla v. Canada (Minister of Citizenship and Immigration) (Nov. 24, 2014, F.C., Michel M.J. Shore J., File No. IMM- 1585-14) 246 A.C.W.S. (3d) 890. Taxation INCOME TAX Reasons did not allow determination of whether officer focused only on process requirements Applicants were married ac- countants, who obtained signed authorization forms from wife's taxpayer daughter and son-in- law in 2009. Applicants elec- tronically accessed taxpayers' information in 2013 for purpose of locating them after estrange- ment. Son-in-law's formal com- plaint to CRA led to suspension of applicants' electronic tax filing privileges. Applicants re- quested administrative review. On recommendation of appeals officer who conducted review, Minister's delegate upheld re- vocation of e-filing privileges. Applicants applied for judicial review. Application granted. Decision was not reasonable. Reasons and record did not al- low determination of whether appeals officer focused only on process requirements. There was lack of clarity regarding forms or authorizations at issue, as it was not clear whether issue was applicants' non-production of 2009 form, that taxpayers had revoked such form, or some new authorization form that taxpayers never signed. Evi- dence suggested that applicants would have had online access to taxpayers' information on basis of 2009 form and that taxpay- ers revoked authorization after incident. Appeals officer's rea- sons did not show any real as- sessment whether applicants' conduct was fraudulent. If ap- plicants had authorization, their conduct in accessing informa- tion for non-tax reasons seemed disreputable rather than fraudu- lent. Appeals officer seemed to have determined that conduct was fraudulent such that no other factor could mitigate se- riousness. Appeals officer failed to consider relevant factors of isolated nature of this conduct, applicants' long history of good compliance, and impact of loss of privileges on applicants. Saber & Sone Group v. Minis- ter of National Revenue (Nov. 24, 2014, F.C., Catherine M. Kane J., File No. T-608-14) 246 A.C.W.S. (3d) 923. ONTARIO CIVIL DECISIONS Admiralty SHIPS Defendant's actions in reselling vessel to third party was high-handed act Plaintiff wished to purchase boat from defendants. Offer to purchase was signed by plain- tiff and personal defendant who used his own initials without in- dicating he was acting on behalf of corporate defendant. Offer was conditional on plaintiff be- ing satisfied with inspection and sea trial. Personal defendant had same rights as regards plaintiff's trade-in vessel. Plaintiff com- pleted inspection and provided acknowledgement of accep- tance of vessel. Personal defen- dant did not conduct inspection or provide acknowledgement. Personal defendant indicated he did not wish to proceed with sale because he was unable to obtain necessary financing. Per- sonal defendant asserted value of trade-in vessel was far less than amount indicated in offer to purchase. Purchase did not close. Vessel was sold to another purchaser for better price two days prior to personal defendant signing rejection of trade-in ves- sel. Plaintiff sold his trade-in vessel and found comparable vessel to purchase that cost much more. Plaintiff asserted defendants breached contract by failing to conduct inspection and by failing to close purchase and sale due to financing dif- ficulties although such was not condition of contract. Plaintiff asserted that personal defendant signed contracts and not corpo- rate defendant and personal de- fendant was liable for damages. Personal defendant was owner of corporate defendant. Plain- tiff was entitled to damages of $212,536 and to punitive dam- ages of $25,000. There was bind- ing enforceable contract that was breached by defendants. Parties agreed to their bargain and there was offer, acceptance and consideration. Personal defendant did not satisfy condi- tion of inspecting trade-in ves- sel and to act in good faith in so doing. Contract was not subject to defendant's financing needs and such provision could not be now imported or implied into contract. Values of vessels were already agreed upon in written contract and only inspection remained. Defendants failed to act pursuant to contract, failed to satisfy condition and did not act reasonably or in good faith. Plaintiff took reasonable steps to mitigate damages. Defen- dants' actions in reselling vessel to third party prior to advising plaintiff that contract in defen- dants' mind was terminated was high-handed act. Proulx v. Canadian Cove Inc. (Nov. 3, 2014, Ont. S.C.J., Car- ole J. Brown J., File No. CV-11- 434847) 246 A.C.W.S. (3d) 740. Agency EXISTENCE OF RELATIONSHIP Parties intended for defendant to be personally liable for obligation Plaintiff hired defendant and agreed to help him buy a house where he would be working. Plaintiff advanced funds. De- fendant signed agreement to be personally liable to repay majority of funds if he did not stay in plaintiff's employ for five years. Defendant left plaintiff before five years ended. Defen- dant gave plaintiff post-dated cheques to repay amount ad- vanced but bank returned one of cheques NSF. Plaintiff sued for balance owed. Defendant asserted he signed loan agree- ment as witness for his hold- ing company, shielding him from liability to repay money. Plaintiff brought motion for summary judgment. Motion granted. Nature and content of loan agreement and circum- stances in which it was signed established that defendant in signing below name of his cor- poration showed that parties intended for him to be person- ally liable for obligation agree- ment entailed. Where person's signature appeared immediately above or below name of his cor- poration without another signa- ture on document, and without clear indication that person was signing in representative capacity only, instrument was deemed to be ambiguous and court was to look to other evi- dence from nature and content of document and circumstances in which it was signed to deter- mine whether parties intended signer to have personal liability for obligations in it. Defendant additionally assumed personal liability by authorizing corpo- ration as his agent to enter into loan agreement on his behalf and to undertake that he would be personally liable to repay bal- ance of funds he received. De- fendant represented to plaintiff that corporation had authority to enter loan agreement on his behalf. Plaintiff was induced to advance funds to defendant by his representation that corpora- tion was authorized to enter into loan agreement on his behalf and his acknowledgement that he would be liable to repay bal- ance of funds advanced. Defen- dant was estopped from deny- ing his personal liability having regard to fact that plaintiff relied on his promise to its detriment and to his benefit by advancing funds to him. H.S.C. Aggregates Ltd. v. McCal- lum (Oct. 31, 2014, Ont. S.C.J., Price J., File No. Owen Sound CV-112-SR) 246 A.C.W.S. (3d) 819. Associations MEMBERS By-laws did not provide right to retain share if transfer approved Applicant, long-term member of respondent golf club, asked to transfer membership from "fully-privileged golfing" cat- egory, which required annual dues of $5,260, to "senior social" category, which required an- nual dues of only $526. Club's Board of Directors advised that new policy prohibited transfer from golfing to non-golfing cat- egories. In order to "transfer" membership, applicant would be required to resign current membership, at which time his voting share would be can- celled, and then apply to rejoin as member in new category. Club acknowledged that policy had been implemented to pre- vent increasing number of non- golfing members from having significant influence on affairs of club without being required to pay full membership dues. Applicant objected to giving up voting share and applied for order directing club to accept transfer, taking position Board not entitled to change rights at- tached to voting shares. Appli- cation dismissed. Club's bylaws permitted issuance of voting shares to only three categories of permanent golfing member- ship. They did not provide right to transfer from one category of membership to another but provided that all such requests were subject to Board's approv- al. They also did not provide right to retain share if transfer approved. Board had authority over operation, government and management of club, includ- ing over membership matters. Board entitled to implement policies over such matters in best interests of club, including policy at issue here which clearly addressed genuine concern. Pruner v. Ottawa Hunt and Golf Club Ltd. (Oct. 30, 2014, Ont. S.C.J., Robert N. Beau- doin J., File No. 14-61025) 246 A.C.W.S. (3d) 750. Civil Procedure DISCOVERY Information about jurors was entitled to highest degree of privacy Plaintiff alleged to have suffered personal injuries when enter- ing building owned by defen- dant. Building was being used to house extraordinarily large jury panel required for particular criminal case unrelated to this action. Plaintiff brought motion to compel production of panel list, indicating names, tele- phone numbers and addresses of approximately 800 people summoned. Motion dismissed. Plaintiff had not exhausted or even attempted to exhaust other conventional methods to obtain relevant information regard- ing weather conditions, main- tenance of building or possible witnesses. Information about jurors contained in jury panel was entitled to highest degree of privacy. Champagne v. Barrie (City) (Oct. 22, 2014, Ont. S.C.J., G.M. Mulligan J., File No. Barrie 12-1356) 246 A.C.W.S. (3d) 782. Contempt of Court GROUNDS No evidence that husband's behaviour changed after orders were breached Wife claimed that husband was in breach of court orders by failing to exercise his over- night access with children at his residence, failing to provide her with overview of children's ac- tivities, having children spend time in company of his girl- friend for extended periods, refusing to pay for babysitter, failing to provide greater detail of his plans with children dur- ing access visits and failing to spend 50 per cent of his access time alone with children. Wife brought motion for contempt against husband. Motion grant- ed. Case had been fraught with access issues. There were ongo- ing breaches of access orders. There was no evidence that hus- band's behaviour had changed after orders were breached. Husband had not apologized for breaches. Husband never provided wife with overview of what was to take place when he took children. Pursuant to order, husband was prohibited from allowing children to be with his girlfriend or her family except for afternoon or evening and he had obligation to return children to matrimonial home and stay overnight with them on access weekends. Husband continuously breached that pro- vision of order. Husband's con- duct had to be treated seriously. Orders were clear and unambig- uous. Evidence showed beyond reasonable doubt that husband knew what his limitations re- specting access to children were under orders. Husband intentionally breached orders. Husband continued to thwart court orders and ignored spirit of orders. It was beyond reason- able doubt that husband was in contempt of court orders. Hus- CASELAW

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