Law Times

PAGE 16 CaseLawLaw FEDERAL COURT Aboriginal Peoples SELF-GOVERNMENT Tribal Police Service was "federal board, commission or other tribunal" Tribal Police Service determined applicant was guilty of discred- itable conduct. Tribal Police Service decided to dismiss ap- plicant from position as police offi cer. Application for judicial review was dismissed. Federal Court had jurisdiction over ap- plication. Tribal Police Service was "federal board, commis- sion or other tribunal" within meaning of Federal Courts Act (Can.). Th ere was existing body of federal law that was essential to disposition of case and which nourished statutory grant of ju- risdiction. Laws relating to ab- original police forces were laws of Canada. Decision as to when limitation period commenced was reasonable and justifi ed on basis of evidence before board. Reasons were adequate. Pitawanakwat v. Wikwemikong Tribal Police Services (Sep. 15, 2010, F.C., Zinn J., File No. T-1921-09) 193 A.C.W.S. (3d) 998 (26 pp.). Conflict Of Laws JURISDICTION Impact of foreign forum selection clause significantly reduced by s. 46 of Marine Liability Act (Can.) Admiralty action was instituted in Canada in personam by two foreign corporations against four foreign corporations for loss overboard of cargo shipped from one foreign port and intended for discharge and delivery in an- other foreign jurisdiction. De- fendants brought motion to stay action in favour of another ju- risdiction which was stipulated in bill of lading. Motion for stay was dismissed. Defendants did not make out there was more convenient forum. Choice of fo- rum rested with plaintiff . Court could decline to proceed with case on ground of forum non conveniens, but factors con- necting case to Hong Kong and New York were not clearly more signifi cant that those connecting it with Canada. Impact of for- eign forum selection clause was signifi cantly reduced by s. 46 of Marine Liability Act (Can.). Th ere was no allegation of pro- ceedings in any other court. Hitachi Maxco Ltd. v. Dolphin Logistics Co. (Aug. 27, 2010, F.C., Harrington J., File No. T-2152-09) 193 A.C.W.S. (3d) 692 (19 pp.). Immigration REFUGEE STATUS Immigration and Refugee Board improperly relied on country conditions in 2008 Application by refugee claim- ants for judicial review of de- cision that they were neither Convention Refugees nor per- sons in need of protection. Refugee claimants were siblings who were citizens of Haiti. Male refugee claimant had been in- volved with political group that opposed ruling regime. Male refugee claimant alleged he had been repeatedly attacked by members of another politi- cal group that supported ruling regime. Male refugee claimant went to United States in Octo- ber 2000 and married fi rst wife there in 2001. Female refugee claimant came to Canada under visitor's visa after allegedly be- ing attacked in her home during period of confl ict in neighbour- hood. Female refugee claimant went to United States illegally in October 2002. Male refugee claimant divorced fi rst wife in 2006 after his spousal sponsor- ship was denied. Male refugee claimant married second wife and came to Canada in October 2006. Female refugee claimant returned to Canada in April 2008. Refugee claimants un- successfully applied for refugee status. Application granted in part. Male refugee claimant's application was remitted for reconsideration while female refugee claimant's was not. Im- migration and Refugee Board improperly relied on country conditions in 2008 to conclude attack in 2000 was likely crimi- nal and not politically motivat- December 6, 2010 • Law Times Follow on www.twitter.com/lawtimes COURT DECISIONS Untitled-3 1 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. CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: 5/5/10 3:55:30 PM These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. ed. Evidence indicated there was signifi cant politically-motivated violence in 2000. Since board made negative credibility fi nd- ing against male refugee claim- ant based on cumulative weight of alleged inconsistencies in evidence, it was not possible to determine what eff ect this error had on board's determination. Some alleged inconsistencies on their own did not provide par- ticularly compelling grounds for adverse credibility fi nding. Ad- verse credibility fi ndings against female refugee claimant were not unreasonable. Nothing in- dicated gender-based violence was issue before board so board could not be faulted for failing to address gender-based perse- cution. Plaisimond v. Canada (Minister of Citizenship and Immigration) (Oct. 6, 2010, F.C., Russell J., File No. IMM-3335-09) 193 A.C.W.S. (3d) 954 (44 pp.). Injunctions INTERLOCUTORY RELIEF Grant of stay of proceedings before Trademark Opposition Board pending disposition of action not in interests of justice Plaintiff s carried on business in United States selling farm sup- plies and equipment. Plaintiff s expanded business into Canada through wholly-owned subsid- iary. Shares of subsidiary were sold to defendant. Defendant applied to register trade-marks in Canada. Plaintiff s com- menced action seeking declara- tion that plaintiff s were owners of trademarks among other re- lief. Defendant fi led statement of defence claiming to be owner of trademarks. Plaintiff s com- menced opposition proceedings before Trademarks Opposition Board in relation to defendant's application to register. Plain- tiff s brought motion for order staying opposition proceedings pending fi nal disposition of ac- tion. Motion dismissed. Plain- tiff s failed to demonstrate that stay of proceedings before board was in interests of justice. Th ere was no signifi cant risk of in- consistent fi ndings in proceed- ings and action. While there was commonality of parties and overlap between issues raised, relief sought in two proceedings was diff erent. In opposition pro- ceedings plaintiff s were seeking dismissal of defendant's appli- cation for registration of trade- marks. In contrast plaintiff s were seeking declaration that plaintiff s were owners of trade- marks. Should plaintiff s lose be- fore board plaintiff s were open to amend statement of claim in action to seek expungement of registration of trademarks. Judge was also satisfi ed delay in proceedings before board was prejudicial to defendant since defendant would be denied po- tential statutory advantages of having registered trademarks. Stay refused. Tractor Supply Co. of Texas, LP v. TSC Stores L.P. (Sep. 8, 2010, F.C., Mactavish J., File No. T-1804-07) 193 A.C.W.S. (3d) 962 (17 pp.). ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Evidentiary record in support of allegation sufficient to meet low threshold required at certification stage Motion for order certifying ac- tion as class action. Plaintiff had sought certifi cation on earlier occasion. Claim originally al- leged defendant had negligently designed, manufactured and sold solarium which did not meet structural capacity or integrity of Ontario Building Code to support snow loads in winter. Certifi cation refused because class defi nition overly broad as it included individuals who had obtained permits from their mu- nicipalities and were perfectly happy with their solarium and therefore did not have interest in resolution of common issues. Divisional Court on appeal con- cluded plaintiff needed to amend pleading and granted leave to amend. Motion granted. Claim no more based on fundamental issue that product failed to meet structural standards of Ontario Building Code. Rather claim alleged that solariums designed in such a way that they might collapse under weight of snow in winter. All of purchasers had common interest in determina- tion whether design posed real and substantial risk of collapse. Evidentiary record in support of allegation not the strongest but did exist and suffi cient to meet low evidentiary threshold re- quired at certifi cation stage. Ducharme v. Solarium de Paris Inc. (Oct. 18, 2010, Ont. S.C.J., Charbonneau J., File No. 06- CV-35171) 193 A.C.W.S. (3d) 725 (9 pp.). Plaintiff 's proposal not fair and workable solution Plaintiff complained 55 Max- million draws were supposed to have taken place on June 25th draw but only 49 sets of numbers were drawn. Plaintiff brought motion for order compelling defendants to draw six more sets of numbers for June 25th draw. Motion was dismissed. It was not fair and workable solution. 95% of ticket holders would have thrown away tickets. OLG proposed solution. Fact all members of class could not be identifi ed was not insurmount- able problem in class actions. Court had tools to make fair, rational and principled distribu- tion of any award. Fradenburgh v. Ontario Lottery and Gaming Corp. (Sep. 30, 2010, Ont. S.C.J., Strathy J., File No. CV-10-40822100CP) 193 A.C.W.S. (3d) 988 (5 pp.). COSTS Defendants entitled to substantial indemnity costs because of unfounded allegations of fraud and deceit Motion by defendants for costs of motion for summary judg- ment to dismiss action against three defendants M.M. and S.H. in amount of $24,045. Plain- tiff s consented to dismissal of action against M.M., S.H. and G.H.. Class action alleged that information about monthly as- sessments and maintenance fees contained in marketing docu- ments for condominium project were inaccurate, false, deceptive and misleading. Serious acts of www.lawtimesnews.com

• Cover
• Wireless Evidence
• Aggressive Bureaucrats
• Focus On ADR / Mediation