Law Times

Law Times • March 30, 2015 Page 25 www.lawtimesnews.com FEDERAL COURT Aboriginal Peoples SELF-GOVERNMENT Council failed to give applicants notice of intended vote In 1991, subject First Nation de- cided to become self-governing and established two governing bodies, one made up of elected chief and four councilors and another, respondent coun- cil, made up of representative from each family. In May 2014, council passed motion remov- ing applicants, chief and three of four councilors, from office. Applicants obtained injunc- tion and council rescinded mo- tion. Council then sent letters demanding applicants submit budget, with details of salaries and expenditures, for approval, and attend meeting. Applicants submitted lengthy informa- tion package. At meeting, even after receiving confirmation that injunction remained in ef- fect, council passed motion and resolution removing applicants from office. Council then issued notice of and proceeded with by-election. Applicants applied for judicial review, seeking or- der quashing decision to remove them and declaration by-elec- tion null and void. Application allowed. Evidence from those who attended meeting indi- cated that quorum of ten had not been present for removal vote. Fact that resolution signed by more members of council next day irrelevant. Evidence also indicated that council had failed to give applicants any no- tice of intended vote or specific allegations against them. That constituted breach of principles of natural justice. While s. 14 of First Nation's Election Act (Can.), provided authority to re- move elected chief and council- ors, it conferred that authority on all members of First Nation, not just council. Section 15 of Act required council to support chief and councilors in execu- tion of duties, but did not give power to remove them. Roseau River Anishinabe First Nation v. Roseau River Anishi- nabe First Nation Custom Coun- cil (Dec. 16, 2014, F.C., Sandra J. Simpson J., File No. T-1210-14) 248 A.C.W.S. (3d) 738. Immigration JUDICIAL REVIEW Decision refusing adjournment was breach of applicant's right to natural justice Applicant came to Canada with his parents when he was 12 years old. Applicant had daughter with common law partner. Ap- plicant was convicted and in- carcerated for sexual assault of daughter when she was minor. Admissibility hearing was held while applicant was incarcer- ated and he was issued removal order. Applicant appealed. Ap- plicant was not represented be- cause he had not been able to obtain lawyer and he asked for adjournment. Board member refused to grant adjournment on basis that applicant had not made reasonable efforts to re- tain counsel. Applicant applied to reopen appeal but panel dis- missed application. Applicant applied for judicial review. Ap- plication granted. Failure to consider all factors set out in R. 48(4) of Immigration Appeal Division Rules (Can.), consti- tuted error of procedural fair- ness. There was no evidence that board member gave any consideration to at least two mandatory factors in Rule 48(4), nature and complexity of matter and previous delays. It was open to board member to grant post- ponement to fixed date. Panel's decision to refuse to reopen ap- peal was unreasonable. Panel failed to consider Rule 48(4) or its jurisprudence and it failed to examine whether board mem- ber who refused adjournment had done so. Decision refusing adjournment was breach of ap- plicant's right to natural justice and fair hearing because board member failed to consider and weigh mandatory factors in Rule 48(4). S. (V.L.) v. Canada (Minister of Citizenship and Immigration) (Dec. 10, 2014, F.C., Russel W. Zinn J., File No. IMM-5114-13) 248 A.C.W.S. (3d) 918. ONTARIO CIVIL DECISIONS Civil Procedure SETTLEMENT Language of minutes of settlement not vague, contradictory or unclear Deceased had been in common law relationship with wife for 18 years when he died. Deceased and wife resided in home that was in name of company, whose shares were in deceased's name. Deceased had two children from prior union, son and daugh- ter. Deceased's will named wife executrix and trustee of estate. Will provided that residue of estate would be transferred in equal shares to wife, son and daughter. Wife filed application for certificate of appointment of estate trustee, which son object- ed to. Son raised issue of validity of will. Sister brought motion for directions. Court appointed B estate trustee during litigation. B tried to sell home but wife re- sisted his efforts, claiming she was owner of property. B sought advice and directions from court. Wife initiated lawsuits. Son brought motion to remove B as estate trustee and to have sister appointed estate trustee. Parties entered into minutes of settlement. Son brought motion for order nullifying settlement agreement. Motion dismissed. Minutes of settlement were binding contract between those who executed agreement. There was no issue of son's capacity or intention to enter into minutes of settlement. Mediation and re- sulting settlement addressed all outstanding issues. Language of minutes of settlement was not vague, contradictory or unclear. There was no basis in law to nul- lify minutes of settlement. Bryant v. Bryant Estate (Jan. 9, 2015, ont. s.C.j., Louise L. Gauthier J., File No. 2013-6967) 248 A.C.W.S. (3d) 804. Contracts BUILDING CONTRACTS Motion judge erred in ignoring uncontested sworn evidence Appellants purchased house from defendants and later dis- covered structural problems. Expert report identified prob- lems including load-bearing ability of roof and recommend- ed further investigation. Ap- pellants brought action against vendors, their realtor, two real estate agents and City. Second expert report identified further problems and raised safety con- cerns about roof. One of defen- dants testified that respondents designed house and prepared working drawings. Appellants moved to amend claim to add respondents as defendants for negligent design of house caus- ing it to be danger to safety. Re- spondents brought motion for summary judgment. Motion judge granted summary judg- ment dismissing claim on basis it was barred by limitation pe- riod. Plaintiffs appealed. Appeal allowed. Summary judgment was set aside. Motion judge erred in ignoring uncontested sworn evidence on central mat- ter in issue without giving any reasons for so doing. Motion judge did not refer to lawyer's affidavit that indicated second report was first information that house might be dangerous by design. O'Dowda v. Halpenny (Jan. 19, 2015, ont. C.a., K.M. Wei- ler J.A., K. Feldman J.A., and M.L. Benotto J.A., File No. CA C59091) 248 A.C.W.S. (3d) 816. PERFORMANCE AND BREACH Defendant did not disclose to plaintiff that he was acting in capacity other than his own Plaintiff claimed unpaid bal- ance of contract for installation of kitchen exhaust equipment and systems to defendants' res- taurant. Defendants denied owing any money and asserted plaintiff abandoned contract without completing work. In- dividual defendant asserted he was acting as representative of company and not in his per- sonal capacity. Plaintiff was awarded $5,200 against indi- vidual and corporate defen- dants jointly and severally. Only 70%of work was completed. Individual defendant did not disclose to plaintiff at time that he was acting in capacity other than his own or for his own in- terest. Individual defendant was directing mind in project. 1088812 Ontario Ltd. v. Carlo (Dec. 8, 2014, ont. s.C.j., J. Prattas D.J., File No. Toronto SC-10-95446-00) 248 A.C.W.S. (3d) 826. Elections PROCEDURE Examining electronic image was tantamount to examining ballot Bylaw was passed authorizing municipality to use vote tabu- lating machines for purpose of counting votes at municipal elections. Result of municipal election was that 10,659 votes 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. How the legal community in Ontario gets its NEWS To order your copy visit www.lawtimesnews.com or call 416.609.3800 or 1.800.387.5164 SUBSCRIBE TO LAW TIMES TODAY! Cutting-edge legal affairs, news and commentary for just 50 cents a day! Make time for Law Times and keep up with all the developments in Ontario's legal scene. 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