Law Times

Law Times • march 14, 2011 Weapons RESTRICTED WEAPONS Speculation that unknown person left gun in bedroom could not form basis for reasonable doubt Th ree accused were jointly charged with three possessory off ences related to loaded .357 handgun and with two possesso- ry off ences relating to 15 grams of cocaine. Gun and cocaine were seized by police upon entering into high rise apartment follow- ing call to police from building's security guard. Accused and four other individuals were on prem- ises at time of seizures. One of accused, acknowledged chronic crack addict, was sole lessee of apartment at relevant time and although she was not charged with weapons off ences, she was charged with cocaine off ences because Crown alleged she was clearly permitting her apartment to be used as "crack house". Oth- er two accused were found in bedroom where gun was found. One accused guilty of all three weapon's charges, all accused not guilty on cocaine related counts. Expert testifi ed about gunshot residue found on convicted ac- cused's gloves. Convicted ac- cused was found seated near to holster and loaded handgun in room he had no reason to be in with door closed with opportu- nity to have heard police enter apartment and attempt to hide fi rearm. Defence's speculation that some unknown person left gun in bedroom could not form basis for reasonable doubt. Sec- ond accused found in bedroom could have been present by in- nocent association and there was no evidence of any positive act of assistance or encouragement. Al- though suspicious of their role, there was little evidence that two accused charged with weapon off ences were linked to bag of cocaine found on coff ee table and there was real possibility that accused who was lessee for apartment was trying to dissoci- ate herself from activities in her apartment and may have even been trying to stop them. R. v. Besito (Dec. 3, 2010, Ont. S.C.J., Code J., File No. 0499/08) 92 W.C.B. (2d) 214 (17 pp.). ONTARIO CIVIL CASES Administrative Law BIAS Divisional Court correct to conclude that requisite high threshold to establish reasonable apprehension of bias was met Respondent CCBC was regis- tered under Private Career Col- leges Act (Ont.), to operate pri- vate career college in Ontario, providing vocational educational services to both domestic and international students. K. was president and sole shareholder of CCBC. Superintendent pro- posed to revoke CCBC's regis- tration under Act due to various concerns regarding CCBC's op- erations. After lengthy hearing before Licence Appeal Tribunal regarding superintendent's re- vocation proposal, tribunal di- rected superintendent to revoke CCBC's registration. On appeal to Divisional Court, tribunal's decision was set aside and re- hearing ordered on ground that original hearing before tribunal was tainted by reasonable ap- prehension of bias on part of presiding adjudicator. Divisional Court concluded that reasonable apprehension of bias arose from combined eff ect of adjudicator's comment to K. that he was "mis- leading the Tribunal" and her subsequent repeated questioning of him concerning his possible association or involvement with LTTE. Divisional Court was correct to conclude that requisite high threshold to establish rea- sonable apprehension of bias was met. Facts giving rise to potential bias claim emerged in fi nal days of tribunal hearing. Respondents advanced their bias argument as soon as they had retained coun- sel to conduct their appeal to Divisional Court. Appeal was undertaken on timely basis. No basis to interfere with Divisional Court's discretionary decision to require rehearing in this case. Rehearing to be conducted by diff erent tribunal adjudicator. Canadian College of Business and Computers Inc. v. Ontario (Pri- vate Career Colleges Act, Super- intendent) (Dec. 16, 2010, Ont. C.A., Rosenberg, Cronk and Epstein JJ.A., File No. C51474) Decision at 179 A.C.W.S. (3d) 610 was affi rmed. 196 A.C.W.S. (3d) 729 (27 pp.). Civil Procedure DEFAULT While delays were unexplained, they were not egregious Master dismissed motion to set aside administrative dismissal of action. Master did not err with respect to approach he took nor did he err in his weighing of delay and prejudice. However, he did make overriding error when he concluded that plaintiff did not establish inadvertence, having found that plaintiff 's counsel did not receive notice due to inadver- tence and that failure to receive notice led to dismissal of action. Plaintiff established inadvertence. While delays involved in this case were unexplained, they were not egregious. Examinations for dis- covery had been conducted. Only thing that remained to be done to ready case for trial was for plaintiff to answer four remaining under- takings. Th ere was no prejudice here and, in general, party should not lose his or her right to pro- ceed due to inadvertence of coun- sel. In considering circumstances and weighing various factors, just order was to set aside registrar's order dismissing action. Viola v. Tortorelli (Nov. 8, 2010, Ont. S.C.J. (Div. Ct.), Herman J., File No. 128/10) Decision at 184 A.C.W.S. (3d) 357 was re- versed. 196 A.C.W.S. (3d) 656 (10 pp.). Family Law PROPERTY Mother was not entitled to unequal division Parties were married 33 years CASELAW and had four children. Mother sought unequal division of net family property. Mother based claim on reckless investment and loss by father of R.R.S.P. and children's educational savings. Father invested amounts from R.R.S.P. and educational savings into Nortel. Father lost $40,000 from children's educational sav- ings and $120,000 to $150,000 of R.R.S.P.. Mother claimed mother was not aware father was investing in Nortel and would not have approved it. Father was not irresponsible or careless in investing in Nortel. Father was not intentionally rash in con- duct. Mother was not entitled to unequal division. Mother was to pay father equalization payment of $31,368. Joint bank account was to be transferred to father and factored as credit to mother in equalization payment. Parties were to retain chattels in their possession. Mother was to return two pieces of furniture to father. Townshend v. Townshend (Dec. 2, 2010, Ont. S.C.J., Kruzick J., File No. FS-06-055642-00) 196 A.C.W.S. (3d) 774 (25 pp.). Planning ZONING Repairs undertaken did not revoke trailer's legal non-conforming status Motion by defendant property owner for summary judgment dismissing municipal plaintiff 's statement of claim relating to zoning non-compliance and violation of Building Code Act, 1992 (Ont.), a declaration by- law is void as it related to plain- tiff 's property and permission to proceed to trial with counter- claim. Defendant had been reg- istered owner of property since it was transferred to her in 2005. Property had trailer on it since 1970s and enjoyed legal non- conforming status. Defendant and her husband constructed new roof and walls for trailer because of damage. Property was zoned for open space pursuant to by-law enacted in 2006. Plaintiff sought removal of trailer on ba- sis it violated by-law and argued repairs done required a build- ing permit. Motion allowed in part. Trailer still enjoyed legal non-conforming status. Repairs undertaken were within original footprint of structure so did not revoke status. Chief Building Offi cial advised defendant she did not need building permit. Plaintiff 's claim for zoning non- compliance and Act violations, as they related to repairs, dismissed. Defendant had removed another structure she built and plaintiff complained about and insisted be demolished. Defendant as- serted she could prove compli- ance with Act. If she did not, plaintiff could take steps neces- sary to ensure compliance. Trial required to determine whether by-law was passed in good faith and with proper notice, so mat- ter could not be determined on summary judgment. Parties could pursue balance of relief sought at trial. Havelock-Belmont-Methuen (Township) v. McGinn (Jan. 11, 2011, Ont. S.C.J., Gunsolus J., File No. 304/06) 196 A.C.W.S. (3d) 686 (6 pp.). www.lawtimesnews.com FEDERAL COURT Immigration INADMISSIBLE AND REMOVABLE CLASSES Decision that applicant should leave Canada because he constituted danger to Canadian public upheld on review Application for judicial review of opinion of Minister issued under s. 115(2)(a) of Immigra- tion and Refugee Protection Act (Can.), that applicant should leave Canada because he consti- tuted danger to Canadian pub- lic on grounds of serious crimi- nality. Applicant was citizen of Sri Lanka, and of Tamil origin. Applicant arrived in Canada in 1998 at age of 16. Applicant obtained permanent residence status. In 2003, applicant was convicted of several counts of assault. In 2006, applicant was convicted of uttering threats and fraudulent possession of credit card, and assault causing bodily harm. In 2009, applicant was convicted of robbery, forg- ing or falsifying credit cards, possession of weapons for dan- gerous purpose, and disguise with criminal intent. Applica- tion dismissed. Minister's dele- gate performed detailed analysis of applicant's personalized fear. Delegate reached reasonable fi nding that risk applicant could face if he were to return was no more than mere possibility. Jeyamohan v. Canada (Minister of Citizenship and Immigration) PAGE 15 (Nov. 3, 2010, F.C., Tremblay- Lamer J., File No. IMM-1487- 10) 196 A.C.W.S. (3d) 810 (13 pp.). SELECTION AND ADMISSION IAD did not understand meaning of legal opinions presented Applicant was denied perma- nent residence under family class for three adoptive chil- dren. IAD held applicant did not establish adoption was le- gally valid. IAD held adoption did not comply with Camer- oonian Civil Code and did not sever pre-existing legal parent- child relationship with biologi- cal parents. Application for ju- dicial review was allowed. No unfairness resulted from IAD's decision to proceed in writ- ing. Applicant knew issue and was given opportunity to fi le evidence and argument. Ap- plicant never requested hear- ing. IAD erred in assessment of evidence. IAD based conclu- sions on its own interpretation of Civil Code provisions and rejected documentary evidence based on opposing interpreta- tion. IAD did not understand meaning of legal opinions pre- sented. IAD erred in holding judge did not apply exception in Civil Code in pronouncing adoption and that adoption did not have eff ect of severing children's pre-existing parent- child relationship. Kenne v. Canada (Minister of Cit- izenship and Immigration) (Nov. 3, 2010, F.C., Bedard J., File No. IMM-1251-10) 196 A.C.W.S. (3d) 837 (23 pp.). When More is Too Much Starting from $62.50 per month Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. BestCase not only has a comprehensive collection of unreported decisions, but our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. BestCase is the only online source for Canada's leading law reports including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator It also contains case law you won't find anywhere else. You can print or download PDFs of both reported and unreported decisions – no photocopying required. BestCase allows you to track research, generate reports and manage your passwords using the Disbursement Manager. Contact your Account Manager to compare BestCase to your current research services! www.canadalawbook.ca a Thomson Reuters business

• Cover
• Settlement Ruling
• Shared Assets
• Focus On Litigation