Law Times

PAGE 14 CaseLawLaw FEDERAL COURT Prisons INMATES' RIGHTS Decision-maker failed to consider important evidence Application by prison inmate for judicial review. Accused was trans- ferred from one jail to another. Be- longings were packed for him by fellow inmates under supervision of Correctional Service of Canada staff and craft materials were seized. Warden agreed that policy had been violated but denied accused's claim for reimbursement. Accused appealed and was denied because he had not produced receipts for goods claimed. Accused re- appealed and was denied again, after which he applied for judi- cial review. Application granted. Decision-maker failed to consid- er important evidence to analyze issue of whether accused should be compensated. Accused's claim to be reconsidered by another decision-maker. Pomfret v. Canada (Attorney Gen- eral) (Nov. 3, 2008, F.C., O'Reilly J., File No. T-1215-07) Order No. 008/329/079 (8 pp.). Request to reconsider decision did not extend time for filing application for judicial review Application by prison inmate for judicial review. Accused was trans- ferred from one jail to another. Belongings were packed for him and videogame console was seized by Correctional Service of Canada staff. Accused signed seizure notice and was told that he had 30 days to provide proof of ownership of items. He failed to obtain proof but made claim for reimburse- ment. Warden denied claim due to absence of proof of ownership. Accused appealed decision and was denied again on appeal for same reason. After denial of recon- sideration, accused applied for ju- dicial review. Application denied. Accused failed to file application within 30 days. Request to recon- sider or reopen decision did not extend time for filing application for judicial review. Pomfret v. Canada (Attorney Gen- eral) (Nov. 3, 2008, F.C., O'Reilly J., File No. T-1173-07) Order No. 008/329/080 (5 pp.). ONTARIO CIVIL CASES Contracts PENALTY CLAUSES No reason to interfere with conclusion that provision in union's constitution was unconscionable and unenforceable penalty clause This was appeal of decision of application judge holding that provision in appellant union's constitution that authorized fines was unenforceable penalty clause. Respondents crossed picket line to attend work during legal strike. Re- spondents were members of union. Union fined respondents amount equivalent to total of each employ- ee's gross salary for three days they crossed picket line, pursuant to union's constitution. Respondents refused to pay fine and appellant brought enforcement proceed- ings. Application judge held that provision in union's constitution that authorized fines constituted penalty clause and it was uncon- scionable and unenforceable. Ap- peal dismissed. There was nothing in unique contractual relationship between union member and his or her union that suggested that court should refuse to apply doctrine of unscionscionability in appropri- ate circumstances. Determination of unsconscionability involved finding of inequality of bargain- ing power and finding that terms of agreement had high degree of unfairness. Application judge did not err in concluding that there was inequality of bargaining power between respondents and union. Application judge considered all relevant facts. Basing fine on value of work to employer did not make excessive fine justifiable. It was circumstances of employee that February 9/16, 2009 • Law Times COURT DECISIONS ainmaker_LT_June2_08.indd 1 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: 5/28/08 10:43:29 AM 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. determined whether fine was sub- stantially unfair. Fine that exceeded employee's take-home pay was very unfair. There was no basis upon which to interfere with ap- plication judge's conclusion that penalty clause was unconscio- nable and unenforceable. Birch v. Union of Taxation Employ- ees, Local 70030 (Dec. 3, 2008, Ont. C.A., Armstrong, Rouleau JJ.A. and dissenting - Juriansz J.A., File No. C48007) Appeal from 161 A.C.W.S. (3d) 175, 288 D.L.R. (4th) 424, 2007 C.L.L.C. ¶220-062 dismissed. Order No. 008/343/099 (26 pp.). Real Property CERTIFICATE OF PENDING LITIGATION If certificate was discharged, claim for specific performance would be lost Defendant applied to vacate certifi- cate of pending litigation. Parties entered into agreement of pur- chase and sale where plaintiff was to purchase land from defendant for $2,850,000. Plaintiff notified defendant of intention to assign agreement to 210, related company. Defendant requested 210 to sign restrictive covenant that ran with land, which contained develop- ment restriction. 210 insisted that transaction close without restrictive covenant. Defendant terminated agreement and 210 registered cer- tificate of pending litigation against property. Motion dismissed. 210 had reasonable claim to interest in land. Land was unique. 210 had very specific use in mind for prop- erty. Location was pivotal. Size of land was important, as was zon- ing. Advantages for 210 associated with property satisfied uniqueness test. As land was unique 210 had reasonable claim to interest in land and potential claim for specific per- formance. If certificate of pending litigation was discharged property would be sold and 210 would lose claim for specific performance. Outcome would be prejudicial for 210. If 210 had remedy in damages it might be difficult to calculate and it might not be adequate remedy for 210 who wanted land to develop and not money for damages. De- velopment restriction in agree- ment did not meet requirements of enforceable restrictive cove- nant. Covenant contained posi- tive obligation and 210 did not agree to terms. 210 was granted partial summary judgment on issue of liability. 2039903 Ontario Inc. v. Park- trail Estates Inc. (Nov. 24, 2008, Ont. S.C.J., Gilmore J., File No. CV-06-08138900) Order No. 008/332/075 (12 pp.). ONTARIO CRIMINAL CASES Appeal PLEA OF GUILTY Paralegal misunderstood instructions to plead not guilty Accused alleged that his guilty plea was entered by a paralegal who went to court and pleaded him guilty to a driving offence without him ever having given any instruc- tions to plead guilty either to the owner of the paralegal company or to the paralegal. Accused, whose most important concern was any driving conviction, was sentenced to six months driving suspension and an $800 fine. Appeal allowed, conviction overturned and new trial ordered. Paralegal had mis- understood paralegal company's owners instructions which were to plead accused not guilty and pleaded accused guilty without ever having spoken to accused. R. v. Fuentes (Oct. 7, 2008, Ont. C.J., Bovard J.) Order No. 008/329/061 (26 pp.). Assault ASSAULTING PEACE OFFICER Trial judge should have explained evidentiary conflict Appeal by the accused from his conviction for assaulting a police officer. Accused and his brother became involved in a confronta- tion with an individual named B. Trial judge found that the brothers, who were intoxicated, assaulted B out of anger over an incident that occurred years ago. B reported the incident to the police and two of- ficers attended. Officer who was assaulted claimed that the broth- ers assaulted him when he came to arrest them. Second officer tes- tified that he was questioning the accused. Accused got angry when the first officer pepper sprayed his brother and that officer then came over and sprayed him. Accused claimed that the first officer assault- ed him initially and also put him on the ground and pepper-sprayed him. Appeal allowed. It was up to the Crown whether it wanted to proceed with a new trial. Trial judge should have explained why she rejected the evidence of the second officer. It was not apparent why she rejected that evidence. She should also have given reasons that explained the evidentiary conflict. Her failure to do so amounted to an error in law that justified the Court's intervention. Judge also did not explain why the conflict- ing Crown evidence did not raise a reasonable doubt about the guilt of the accused. Due to the conflicting evidence this was not an appropriate case to invoke the curative provision of s. 686(1)(b) (iii) of the Criminal Code. R. v. Poile (Nov. 27, 2008, Ont. S.C.J., Shaw J., File No. CR-07-0031-AP) Order No. 008/351/024 (11 pp.). COMMON ASSAULT Accused gave plausible explanation Trial of the accused for assault- ing his wife. His wife asked him where her iPod was and he would not tell her so she hid his keys, cell phone and wallet and would not tell him where they were. They argued about this and the Crown alleged that during the argument the accused assaulted the com- plainant. Accused denied that he assaulted her and claimed he put his hand over her mouth to pre- vent her from spitting on him. Issue in this case was credibility. When the entire firm has the same goal, success comes naturally. Une équipe avec un objectif commun : le succès dans la poche! SMSS.COM CHARLOTTETOWN FREDERICTON HALIFAX MONCTON SAINT JOHN ST. JOHN'S StewartMcK_LT_Jan26_09.indd 1 www.lawtimesnews.com 1/20/09 11:42:32 AM

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