Law Times

LAW TIMES / JUNE 16, 2008 that was not before Refugee Pro- tection Division or officer who determined applicant's first pre- removal risk assessment. Officer found applicant did not provide evidence countering finding of first pre-removal risk assessment. Application for judicial review was allowed. Officer could use Refugee Protection Division de- cision as starting point for analy- sis but had to pursue own analysis to find applicant was not at par- ticular risk for extortion. It was error not to consider possibility that persons who resided abroad and returned to country of ori- gin were considered wealthy and were subject to kidnappings. Narany v. Canada (Minister of Citizenship and Immigration) (Feb. 6, 2008, F.C., Frenette D.J., File No. IMM-1165-07) Order No. 008/063/119 (8 pp.). Decision of Pre-Removal Risk Assessment Officer patently unreasonable Applicant's refugee claim was de- clared abandoned. Applicant re- ceived negative Pre-Removal Risk Assessment. Applicant obtained order staying removal pending review. Application for judicial review was allowed. Decision of Pre-Removal Risk Assessment Officer was patently unreason- able. Decision failed to consider relevant evidence and to explain how it was dealt with in coming to decision. If Pre-Removal Risk Assessment Officer had done so, officer would not have come to same conclusion. Streanga v. Canada (Minister of Citizenship and Immigration) (Feb. 20, 2008, F.C., Hughes J., File No. IMM-2938-07) Order No. 008/063/085 (8 pp.). REFUGEE STATUS Board should have considered impact of applicant's medical condition before making credibility finding Applicant was denied refugee status. Board found applicant was not credible or trustworthy witness. Board based credibility findings on inconsistencies and implausibilities. Board found ap- plicant lacked subjective fear of persecution and applicant's ob- jective fear was not well-founded. Application for judicial review was allowed. Board's negative credibility finding was central to decision. Contents of psycholog- ical report were relevant to cred- ibility findings. Board should have considered how applicant's medical condition affected appli- cant's behaviour before making credibility finding. Atay v. Canada (Minister of Citi- zenship and Immigration) (Feb. 15, 2008, F.C., O'Keefe J., File No. IMM-1205-07) Order No. 008/063/097 (19 pp.). Behaviour of presiding member called into question Applicants were denied refugee status. Board concluded story was not credible and applicants failed to avail themselves of state protection. Presiding member made comments in French not- withstanding hearing was held in English with English-Spanish interpreter. Applicants did not speak French. There was no indi- cation in transcripts that presid- ing member repeated in English what was said in French. Coun- sel for applicants and Refugee Protection Officer intervened on numerous occasions to seek clarification or to raise objection to presiding member's attitude. Application for judicial review was allowed. Court found some comments by presiding member to be inappropriate. Applicant had right to hear what was lev- ied against applicant to be able to respond. There was reasonable question regarding behaviour of presiding member. Sandoval v. Canada (Minister of Citizenship and Immigration) (Feb. 19, 2008, F.C., Noel J., File No. IMM-3159-07) Order No. 008/063/095 (15 pp.). SELECTION AND ADMISSION Reasons for denial of permanent residence application were insufficient Father did not include applicant on application for permanent residence. Applicant was denied permanent residence under fam- ily class. Applicant was denied permanent residence on basis of humanitarian and compas- sionate grounds. Application for judicial review was allowed. Rea- sons given for decision were not drawn from evidence submitted and were not complete enough to understand rationale of why humanitarian and compassion- ate considerations presented were not sufficient. Lao v. Canada (Minister of Citi- zenship and Immigration) (Feb. 20, 2008, F.C., Frenette J., File No. IMM-1538-07) Order No. 008/063/094 (15 pp.). Judgments And Orders SETTING ASIDE Subsequent judgment did not permit re-opening of judgment in earlier proceeding Respondent brought motion to set aside earlier prohibition or- ders on ground subsequent order in another proceeding with re- spect to another patent required setting aside two earlier orders. Applicants argued orders were final and there was no basis to reopen orders. Motion was dis- missed. Subsequent judgment in another proceeding was rarely circumstance that would permit re-opening of judgment in earlier proceeding. Respondent did not show product in subsequent pro- ceeding was same product as that considered in two earlier pro- ceedings. Respondent was trying to do what it did not do in first proceeding and could not do in second proceeding. Determina- tion in subsequent proceeding did not constitute new matter. AB Hassle v. Apotex Inc. (Feb. 13, 2008, F.C., Hughes J., File No. T-1747-00; T-1878-02) Order No. 008/063/140 (28 pp.). TAX COURT OF CANADA Taxation INCOME TAX Applicant unable to pay interest and penalties due to house fire Applicant failed to file tax re- turns and to include all income. Interest and penalties were as- sessed against applicant. Ap- plicant was denied relief. Fire CASELAW destroyed applicant's house. Ap- plicant claimed applicant could not afford to pay interest and penalties. Application for judi- cial review was allowed. It was almost impossible for applicant to submit repayment plan given applicant's financial situation. Consideration was not given to whether house fire prevented ap- plicant from exercising reason- able care in conducting affairs under self-assessment system. LaFramboise v. Canada (Revenue Agency) (Feb. 15, 2008, F.C., Snider J., File No. T-1311-07) Order No. 008/063/135 (9 pp.). Only reasonable conclusion was that appellant had undeclared revenues Appellant contested fiscal order requiring payment of additional tax. Respondent had taken note of various large advances made by appellant to two companies. As there was no source explain- ing how he had such funds at his disposal respondent treated these as undeclared income. Both com- panies benefiting from advances had appellant as sole shareholder. Appellant claimed not to know where the advances to his com- pany had come from and not to understand the proceedings. Lack of alternative evidence led to conclusion that funds came from appellant. No explanation of source of injections of capital into companies. Only reasonable conclusion is undeclared rev- enues. Appeal dismissed. Poulin v. Canada (Feb. 23, 2007, T.C.C., Angers J.T.C.C., File No. 2003-2189(IT)G) Reasons in French. Order No. 007/071/048 (11 pp.). ONTARIO CIVIL CASES Civil Procedure COMMENCEMENT OF PROCEEDINGS Action against one defendant struck out Plaintiff claimed he was tortured while unlawfully detained by Immigration Canada. Plaintiff claimed damages of $30 mil- lion. Defendants sought to strike statement of claim without leave to amend and for orders dismiss- ing action. Motions of College of Physicians, College of Nurses and technologists were allowed. Plaintiff did not show reasonable cause of action against College of Physicians and claim was struck out without leave to amend. Mo- tions of doctor and Crown were dismissed. It was not plain and obvious plaintiff had no tenable claim against doctor and Crown. Drougov v. Ontario (Ministry of Community Safety and Correc- tional Services) (Feb. 27, 2008, Ont. S.C.J., Perell J., File No. 07-CV-337209PD2) Order No. 008/059/021 (7 pp.). COSTS Discretion was exercised not to order costs Plaintiff subcontractor brought action against contractor and owners for payment for concrete work done. Trial was three-and- one-half days. Homeowners com- plained work was defective and dangerous. Homeowners coun- www.lawtimesnews.com No special circumstances warrant- ing extension of limitation period Plaintiff claimed payment on three loans secured by promis- sory note and guarantees. Plain- tiff claimed defendants defaulted on loans. Defendants' motion for summary judgment was al- lowed. Plaintiff corporation was dissolved. Plaintiff corporation was not in existence at time loans were made or at time action was commenced. Plaintiff corpora- tion was revived after limita- tion period elapsed in respect of each loan. Motion was allowed. Limitation period on guarantee lapsed when limitation period lapsed on principal obligations. It was not defendants' fault plaintiff took no steps to remedy defect for year. Delay was unex- plained. There were no special circumstances to extend limita- tion period. Rule providing for substitution of parties was inap- plicable. 2015673 Ontario Inc. v. Chorny (Feb. 29, 2008, Ont. S.C.J., Low J., File No. 06-CV-318975PD2) Order No. 008/063/191 (7 pp.). Family Law CUSTODY Father entitled to access Child expressed fear of father, but also expressed love for father. Mother made unfounded allega- tions about father's behaviour. Father exercised access regularly for last five years without seri- ous threat to child. Father was entitled to access. Health and safety of child was in immediate danger. Wilkinson-Hughes v. Hughes (Feb. 28, 2008, Ont. S.C.J., Hender- son J., File No. 12159/01) Or- der No. 008/063/207 (4 pp.). terclaim against contractor and cross-claimed against contractor. No one was very successful. Mat- ter should have been brought in Small Claims Court and plaintiff was deprived of costs because of error. Homeowners were not suc- cessful in relation to amount orig- inally claimed and discretion was exercised not to order costs. Con- tractor was not entitled to costs and did not have to pay costs. Lore v. Tortola (Feb. 29, 2008, Ont. S.C.J., Nolan J., File No. 05-CV-5377) Order No. 008/063/189 (7 pp.). SUMMARY JUDGMENT It could not be said that defendants owed plaintiffs no duty of care Defendant teenager had party with parents' consent. Parents told teenager not to have ex- cessive numbers and not to serve alcohol. Party got out of hand. Plaintiffs attended party and left. Guest at party struck plaintiffs with vehicles at side of rode in front of defendants' resi- dence. Plaintiffs were injured by defendants' motor vehicle. Defendant's motion for sum- mary judgment was dismissed. Fact teenager did not serve alco- hol was not sufficient to negate potential liability by parents. It could not be said defendants had no duty of care to plain- tiffs. There was genuine issue for trial. Hamilton v. Kember (Feb. 27, 2008, Ont. S.C.J., McGarry J., File No. 49198; 550444A) Or- der No. 008/063/205 (6 pp.). Injunctions INTERLOCUTORY RELIEF Motion adjourned on terms Property of church was regis- tered in name of incumbent and churchwardens. Plaintiff claimed property was held in trust. Plain- tiffs brought motion for interim orders declaring plaintiff's des- ignates to be lawful trustees of two parishes. Plaintiffs brought motion to enjoin defendants from prevent plaintiff's desig- nates from taking possession of parish property. Parties agreed to adjournment on terms. Issue was whether Diocese was to be able to conduct warship services in interim. No irrevocable harm would be done to plaintiff. Bal- ance of convenience favoured defendants. Plaintiff had serious claim to property but defendants had serious defences. Motion was adjourned on consent on terms agreed to by parties. Diocese was not directed to be allowed to conduct worship services in two properties. Status quo ante was to be restored in interim. Synod of the Diocese of Niagara v. Bales (Feb. 29, 2008, Ont. S.C.J., Ramsay J., File No. 08- 01105) Order No. 008/063/190 (5 pp.). Insurance MARINE INSURANCE Marine policy did not afford coverage to third party Defendant operated motor boat with deceased on board. Hook attaching tow rope to tube failed and fatally injured deceased. Deceased's husband and chil- dren brought action. Defendant brought third party action against third party who sold boat to de- fendant. Third party brought forth party action against insur- ers. Insurers brought motions for declaration concerning coverage of third party and insurers' obli- gation to defend third party. Ac- cident occurred within period of marine policy. Boat was sold two months before accident. Marine insurer was not notified of sale. Marine insurer did not agree to continue coverage. Motion by insurer of homeowner's policy was dismissed. Motion by insur- er of marine policy was allowed. Fourth party action against ma- rine insurer was dismissed. Un- derlying elements of negligence in claims against third party were sufficiently disparate from claims of negligence in ownership, use or operation of boat as to be un- related. Watercraft exclusion in homeowner's policy did not re- lieve insurer from obligation to defend third party. Marine policy did not afford coverage to third party. Coverage ceased when third party sold boat. Arand v. Baynham (Feb. 25, 2008, Ont. S.C.J., Jenkins J., File No. 44569 B1) Order No. 008/057/027 (5 pp.). Judgments And Orders RES JUDICATA Previous order in construction lien action not bar to current proceedings Plaintiff offered to purchase residential property. Defendant owned abutting property. It was necessary to obtain severance. Plaintiff was given access to resi- PAGE 21

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