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PAGE 14 CaseLawLaw FEDERAL COURT Civil Procedure EXCLUSION AND EXPULSION PLEADINGS Prothonotary did not err in striking out statement of claim as against all defendants Plaintiff s were self-represented. Statement of claim contained allegations related to wide- spread conspiracy, corruption, collusion and various torts and breaches of legal obligations by those in power including past, present and deceased member of both British Columbia and Fed- eral Government and judiciary, aimed at harming plaintiff s in order to protect alleged state and private secrets related to bulk water export policies of govern- ments of British Columbia and Canada. Prothonotary did not err in striking out statement of claim as against all defendants, without leave to amend and dismissing action. Th ere was no statutory grant of jurisdiction in respect of any non-Federal Crown defendants. Th us, it was clear and obvious that plaintiff s' claim failed against all these de- fendants for want of jurisdic- tion. With respect to judicial defendants, one cannot bypass principle that when one is not satisfi ed with judgment on ground that result or reasons are contrary to law, such decision can only be challenged by way of appeal, simply by stating that one has lost faith in whole pro- vincial judiciary system. Claims against all judicial defendants should also be dismissed as scandalous, frivolous or vexa- tious. Claims against all defen- dants (except British Columbia Crown and Federal Crown De- fendants) must be dismissed as scandalous, frivolous and vexa- tious. Insofar as British Colum- bia Crown Defendants were concerned, British Columbia Crown was still defendant in ac- tion of Sun Belt that had been stayed, court felt it was best not to comment on merits of claim per se for allegation of "fraud on the court" in that proceed- ing may still be relevant to such action. As for Federal Crown Defendants, allegations linking actions of other defendants to Federal Crown on basis of de facto agency were not supported by scintilla of evidence. As such, action must be dismissed against Federal Crown Defendants. Carten v. Canada (Aug. 27, 2010, F.C., Gauthier J., File No. T-95- 08) Decision at 183 A.C.W.S. (3d) 82 was affi rmed. 192 A.C.W.S. (3d) 1125 (34 pp.). Decision releasing respondent on terms and conditions not unreasonable Application to set aside deci- sion of Immigration Division of Immigration and Refugee Board ordering that respondent be released from detention on conditions. Respondent, aged 50, was citizen of Iran. Re- spondent came to Canada in 1989 and was granted refugee status. Respondent had been convicted of 23 criminal of- fences since 1992. Majority of convictions related to theft. Crimes were consequence of respondent's heroin addiction. Ongoing and continuing prob- lems arranging for respondent's removal to Iran. Respondent at fi rst was principal cause of de- lay in getting required travel document but Iranian authori- ties more recently were not ful- ly co-operating with attempts to return respondent to Iran. Board came to decision despite fi nding respondent remained danger to public and unlikely to appear for removal from Canada. Current proposal for release did not include posting of security deposit or guarantee by Canadian citizen or resident and does not include any third party alerting CBSA when re- spondent had breached any terms of release. Board found it was unable, unlike earlier de- cisions, to determine removal would be eff ected as soon as reasonably practicable. Appli- cation dismissed. Assessment that determination could not be made that removal would be eff ected as soon as reason- ably practicable reasonable, transparent and justifi ed. Fact that removal from Canada was not likely to happen within foreseeable future was signifi - cant change in circumstance and warranted board seriously examining new proposal for re- lease. Board clearly recognized that CBSA had to have some mechanism in place to allow it to become aware of breach of release order. Agreement from third party agency that would provide information to CBSA given consent of respondent on his compliance with case plan and with terms and conditions of two agencies when coupled with weekly reporting to CBSA provided supervision and mon- itoring that was required and reasonably available. Decision releasing respondent on terms and conditions not unreason- November 15, 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: Immigration 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. able. Board provided clear and compelling reasons to depart from previous detention orders. Canada (Minister of Public Safe- ty and Emergency Preparedness) v. Karimi-Arshad (Sep. 27, 2010, F.C., Zinn J., File No. IMM- 4875-10) 192 A.C.W.S. (3d) 1316 (26 pp.). Intellectual Property Industrial And PATENTS CEPLENE was not "innovative drug" Minister of Health did not err in determining that prod- uct CEPLENE was not "in- novative drug" pursuant to s. C.08.004.1(1) of Food and Drug Regulations (Can.). Me- dicinal ingredient in CEPLENE is histamine dihydrochloride. Histamine dihydrochloride is old ingredient and therefore CE- PLENE falls under defi nition of "new drug" in s. C.08.001(c), new use but not new substance or new chemical entity. Th ere are several products with this medicinal ingredient, or varia- tion thereof, which have been approved for sale in Canada under either DIN process or Natural Health Products Regu- lations (Can.) ("NHPR"). Drug that has been approved by DIN process or process under NHPR cannot be said to be "new chem- ical entity" that has not been ap- proved. Epicept Corp. v. Canada (Min- ister of Health) (Sep. 24, 2010, F.C., Near J., File No. T-2009- 09) 192 A.C.W.S. (3d) 1331 (38 pp.). TAX COURT OF CANADA Taxation INCOME TAX Minister had not satisfied obligation to make full and frank disclosure when seeking jeopardy order Motion by taxpayer for review of jeopardy order. Taxpayer was reassessed for 2005, 2006, and 2008, and found to be owing $1,265,953.57. Minister of National Revenue successfully applied for jeopardy order per- mitting collection actions prior to end of 90-day statutory stay period. Minister seized or froze all of taxpayer's fi nancial assets. Motion granted on terms. Jeop- ardy order was set aside and col- lection actions were lifted but taxpayer was expected to fulfi l undertakings regarding con- servation of his assets. Minister had not satisfi ed obligation to www.lawtimesnews.com make full and frank disclosure when seeking jeopardy order. Minister had referred to signifi - cant withdrawal of funds but failed to mention funds had subsequently been redeposited. Minister also failed to provide fair summary of authority that was relied upon. Taxpayer pro- vided cogent evidence raising reasonable doubt as to whether delay would jeopardize collec- tion of tax debt. Minister failed to show jeopardy order and sub- sequent collections actions were justifi ed. Th ere was no reason to maintain seizures and freezes if taxpayer fulfi lled undertakings. M.N.R. v. Robarts (Sep. 3, 2010, F.C., Martineau J., File No. T-510-10) 192 A.C.W.S. (3d) 1391 (30 pp.). ONTARIO CIVIL CASES Arbitration AWARD Arbitrator erred in finding fraudulent misrepresentation Appellant was vendor of shares in company. Arbitrator dealt with contested valuation of loan note and held it was to be valued at $0. Arbitrator made fi nding of fraudulent misrep- resentation against appellant. Appeal was allowed. Arbitrator should have restricted himself to determining any necessary adjustment to loan note once extent of reduction of actual net working capital was determined in arbitration. It was violation of parole evidence rule to have reduced loan note other than by way of price adjustment clause in share purchase agreement. Arbitrator exceeded jurisdic- tion and erred in law in fi nding fraudulent misrepresentation on part of appellant. Demers v. Desrochers (Sep. 15, 2010, Ont. S.C.J., Hackland R.S.J., File No. 09-46349) 192 A.C.W.S. (3d) 1062 (15 pp.). Civil Procedure COSTS There should be no absolute rule that representative plaintiff always entitled to costs of successful certification motion Motion by plaintiff for costs of certifi cation motion. Divisional Court remitted costs of certifi - cation motion and motions that preceded certifi cation motion to be fi xed on partial-indemnity scale. Order that some costs and disbursements payable forth- with and some costs and dis- bursements payable in the cause. Nothing in Divisional Court's reasons or general practice that impeded discretion about costs. Absolute rule that representative plaintiff always entitled to costs of successful certifi cation mo- tion payable forthwith would sterilize court's discretion, negate some of functions performed by costs orders and further reduce any restraint on class counsel from overworking fi le or using certifi cation motion as indirect means to fi nance balance of litigation on back of opponent who had yet to have been found liable. 2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp. (Oct. 1, 2010, Ont. S.C.J., Perell J., File No. 06-CV-311330CP) 192 A.C.W.S. (3d) 1099 (15 pp.). Conflict Of Laws JURISDICTION British Columbia was more appropriate forum Action arose out of motor vehi- cle accident which occurred in province of British Columbia. Defendants brought motion to stay plaintiff 's claim. Defen- dants argued Ontario court did not have jurisdiction. Motion was allowed. Plaintiff s did not meet burden of showing real and substantial connection with Ontario. Court declined to ex- ercise jurisdiction. Th ere was no connection between Ontario and defendants. Sustaining pain and suff ering in Ontario was only connection between forum, plaintiff 's claim and defendants. Th ere was unfairness to defen- dants in assuming jurisdiction. Assuming jurisdiction did not accord with principles of order and fairness. British Columbia was more appropriate forum. Lintner (Litigation Guardian of) v. Saunders (Sep. 9, 2010, Ont. S.C.J., Quinlan J., File No. 48465/07) 192 A.C.W.S. (3d) 1155 (15 pp.). Family Law CUSTODY Grandparents granted access on alternate weekends and Wednesday evenings Motion by paternal grandpar- ents for access to their three- year-old granddaughter. Father lived with grandparents and supported their request. Mother opposed access until criminal proceedings against father were concluded. Grandparents had very meaningful involvement with their granddaughter since her birth. All parties had previ- ously lived together and grand- parents were often responsible for child's care. Father had been charged with assaulting mother

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