Law Times

Law Times • aPril 27, 2015 Page 17 www.lawtimesnews.com of good conduct. Application dismissed. Standard of review of board's decision was reason- ableness. RJ claimed that his rights under s. 7 of Canadian Charter of Rights and Free- doms were engaged by board's decision to revoke pardon be- cause Crown could potentially use past convictions against him in pending trial. This sub- mission was rejected because RJ's s. 7 Charter rights were not yet engaged, since there was insufficient causal connection between state-caused effect and prejudice suffered by RJ. RJ also did not suffer any prejudice in defending charges against him. Even if s. 7 of Charter was in- fringed this would not make s. 7(b) unconstitutional. Process adopted and followed by board in making decision was fair. Even though board appeared to rely on unproven charges to re- voke pardon, it did not do so for it was not veracity of allegations that formed basis of charges which board found reliable and credible, but rather it was very fact of information itself that set out charges. Even if these allega- tions were subsequently proven to be unfounded, it was rea- sonable for board to determine that RJ was no longer of good conduct in face of charges as al- leged. Board could consider po- lice information about RJ's con- duct even if it did not result in charge or guilty verdict. Board's decision was reasonable. Jaser v. Canada (Attorney Gen- eral) (Jan. 5, 2015, F.C., Keith M. Boswell J., File No. T-1459- 13) 119 W.C.B. (2d) 506. Citizenship APPEAL Denial of citizenship application based on lack of adequate knowledge of one of official languages upheld on judicial review Foreign national was citizen of rural Tibet where he lived nomadic life and received no formal education. At age 38, foreign national f led to Canada where he was accepted as con- vention refugee in 2002, and in 2004 he became permanent resident. Foreign national had applied for citizenship on four occasions. On each occasion his application was refused because he was unable to pass required knowledge and language tests. When making his last appli- cation, which was subject of this judicial review, foreign na- tional sought waiver of those requirements pursuant to s. 5(3) and (4) of Citizenship Act (Can.), on basis of his inability to learn language and to retain knowledge. Foreign national submitted Request for Medical Opinion prepared by his fam- ily doctor and psychological as- sessment prepared by psycholo- gist (medical evidence). Foreign national, through interpreter, passed knowledge test, but demonstrated absolutely no command of English and he failed language requirement. Citizenship Judge declined to recommend requested s. 5(3) (a) waiver of s. 5(1)(d) language requirement, on compassionate grounds, or, on basis of special or unusual hardship s. 5(4). Cit- izenship Judge denied citizen- ship application on basis that foreign national did not have adequate knowledge of one of official languages of Canada as required by s. 5(1)(d) of Act. Foreign national appealed. Ap- plication denied. Citizenship Judge explained that she had considered medical and psy- chological evidence but found it to be unconvincing because foreign national's performance in passing knowledge test had contradicted conclusions of those reports that foreign na- tional was not able to learn and did not have mental capacity to retain information. Faced with clear medical opinion that for- eign national could neither pass knowledge or language tests and conf licting result that he did pass knowledge test, it was open to Citizenship Judge to reach conclusion that she did. Citizenship Judge's reasoning was intelligible and adequate. Gyatso v. Canada (Minister of Citizenship and Immigration) (Mar. 5, 2015, F.C., Cecily Y. Strickland J., File No. T-1279- 14) 250 A.C.W.S. (3d) 387. TAX COURT OF CANADA Taxation ESTATES Written separation agreement was required to permit principal residence designation Taxpayer passed away in 2005. Taxpayer purchased property in Whistler in 1976. Taxpayer transferred property to hus- band in 1991 for one dollar, but did not report disposition. Husband sold property in 2003 for $350,000. Gain of property was attributed to taxpayer. For 2003 tax return, taxpayer had not claimed property as her principal residence. Husband passed away in 2011, and had other property designated as principal residence from 1992 until his death. Assessment for 2003 was completed in 2013 and Minister refused to des- ignate Whistler property as taxpayer's principal residence for reason that another fam- ily member had made principal residence designation in respect of another property for same time period. Minister calcu- lated capital gain of $243,009 was made in disposition and was attributed to taxpayer pur- suant to s. 74.1(1) of Income Tax Act (Can.). Trustee testified that taxpayer and her husband sepa- rated in 1983, and son stated that taxpayer did not live at property and that property was family vacation property. No written separation agreement was found. Estate appealed. Ap- peal dismissed. Written separa- tion agreement was required by Act and was requirement in cir- cumstance. If taxpayer was still married only one of taxpayer and spouse could designate property as principal residence except if taxpayer and spouse were separated under written separation agreement pursuant to s. 54(c) of Act. Balanko Estate v. R. (Mar. 19, 2015, T.C.C. [Informal Proce- dure], Gerald J. Rip J., File No. 2014-3116(IT)I) 250 A.C.W.S. (3d) 526. ONTARIO CIVIL DECISIONS Arbitration AWARD Award should be recognized in Ontario pursuant to UNCITRAL Model Law on International Commercial Arbitration Applicant, Chinese company, constructed moulds and deliv- ered parts to respondent, On- tario company, in accordance with various agreements. Re- spondent failed or refused to pay for moulds and parts. Ap- plicant commenced arbitra- tion to recover unpaid amounts from respondent. Applicant succeeded in international ar- bitration against respondent heard before Shanghai Inter- national Arbitration Commis- sion. Commission found that respondent breached agree- ments by failing to make timely payments for goods and moulds that applicant produced and de- livered. Commission found that all agreements were valid and lawful and binding on parties. Commission found applicant performed its obligations in accordance with orders placed by respondent and quality of moulds delivered conformed to relevant quality standards. Commission ordered respon- dent to pay to applicant CNY 53,403,56 on account of parts it received but did not pay for and CNY 3,404,909.25 on ac- count of moulds that applicant constructed at respondent's request that it did not pay for. Applicant sought to have award recognized in Ontario pursuant to UNCITRAL Model Law on International Commercial Ar- bitration. Application granted. International Commercial Ar- bitration Act (Ont.), provided that Model Law was in force in Ontario. There was no reason not to recognize and enforce award. Applicant filed certified copy of award, certified copy of arbitration agreement and cer- tified translations of each. Ap- plicant complied with its Model Law obligations. It could not be said that respondent was unable to present its case. Respondent had not met its onus to estab- lish that it was denied natural justice. Public policy defence had no application to facts here. Procedure commission fol- lowed did not offend principles of justice and fairness in fun- damental way. Dispute with re- spect to payment of moulds was properly within jurisdiction of commission and ought to be enforced. Respondent raised no issue of jurisdiction with com- mission. Dispute over payment of moulds was dispute arising from agreements and was sub- ject to arbitration agreement. Depo Traffic Facilities (Kun- shan) Co. v. Vikeda Interna- tional Logistics and Automotive Supply Ltd. (Feb. 18, 2015, Ont. S.C.J., Chiappetta J., File No. CV-13-483322) 250 A.C.W.S. (3d) 375. Civil Procedure DISCOVERY Request for access to plaintiff 's electronic documents was speculative fishing Plaintiff brought action for damages from trip and fall. Plaintiff claimed that injuries reduced enjoyment of life and incapacitated her from employ- ment. Defendant brought dis- covery motion seeking orders for plaintiff to provide various documents, including informa- tion on electronic devices from social media and on-line gam- bling accounts; border records; husband's border records; banking records; and to attend at examination for discovery to answer questions relating to production of information. Application granted in part. Plaintiff had no home computer since 2012. Facebook was only social media provider she used. Plaintiff denied online gam- bling or gambling anywhere but particular casino and there was no evidence to contrary. Plain- tiff was not required to produce content of private section of Facebook account. There was no reason to expect private page to contain documents that would tend to give more than content of public page to enable defendant to procure admis- sions to dispense with formal proof or destroy plaintiff 's case, know case it was to meet, elimi- nate or narrow issues or avoid surprise at trial. Defendant was not entitled to plaintiff 's elec- tronic documents stored on iPhone and iPad. Defendant's request for access to plaintiff 's electronic documents was spec- ulative fishing. No electronic document was identified that had bearing on work capacity or enjoyment of life issues. There was no evidence of failure to disclose. Particulars of Internet sites visited by plaintiff did not correlate with and was not mea- sure of how much time plaintiff could work on computer at desk or length of functional focus or assessment of reasoning capac- ity. Plaintiff was not required to produce computer devices, electronic documents, Inter- net site records or metadata to defendant for forensic analysis. There were significant privacy interests at stake in plaintiff 's electronic documents and search for metadata allowed ac- cess to everything in computer memory. Plaintiff was to autho- rize release of casino records. Plaintiff was regular patron at casino and distraction activ- ity might indicate workplace capacity in form of focus, con- centration, reason and ability to stay on task. Proportional- ity was not in issue and privacy interest was minimal. Plaintiff was to provide border records. Plaintiff implicitly accepted relevance of border crossing activity but husband's border crossing records were not rel- evant. Plaintiff was to produce copy vehicle loan application and purchase agreement. Bank records were not relevant to is- sues of plaintiff 's work capacity or enjoyment of life. Plaintiff was to attend examination for discovery. Merpaw v. Hyde (Feb. 20, 2015, Ont. S.C.J., Rick Leroy J., File No. CV-08-1473) 250 A.C.W.S. (3d) 403. Bishop of Diocese to be produced for examination for discovery in insurance action arising from sexual abuse claims against priests Main issue in action was whether defendant insurer was obligated to insure plaintiff Diocese and reimburse it for money paid out with respect to 16 sexual abuse claims against priests who worked through- out Diocese. Defendant main- tained that it was entitled to deny coverage on basis of mate- rial misrepresentation, material non-disclosure and bad faith. Monsignor was produced by plaintiff Diocese as representa- tive for discovery. Monsignor refused to answer certain ques- tions, in particular, questions relating to church Canon Law and Diocese's practices, policies and procedures that existed at time insurance was in place and renewed. Defendant brought motion for order that plaintiff produce for discovery Bishop of Diocese and that Bishop be instructed to answer questions put by defendant with respect to church Canon Law and practic- es, policies and procedures that were in place at relevant time. Motion granted. Rule 31.03(2) (b) of Rules of Civil Procedure (Ont.), provided court with ju- risdiction to order production of Bishop for discovery on be- half of Diocese if court consid- ered it appropriate. Bishop had relevant information to provide with respect to issues in litiga- tion that could not be provided by Monsignor. Central factual issue in action was whether plaintiff made material misrep- resentations or failed to disclose material facts at time of appli- cation for coverage and subse- quent renewal of coverage. Of legitimate concern in answer- ing question was whether Dio- cese knew that some of priests had committed sexual assaults and whether Diocese failed to disclose information to insurer when it applied for coverage or at time of renewal. Players involved at material time were deceased and unable to assist court in answering question, which made information con- cerning Diocese's practices and procedures as directed by Canon Law even more relevant and important in dealing with questions raised concerning non-disclosure and material CASELAW

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