The premier weekly newspaper for the legal profession in Ontario
Issue link: https://digital.lawtimesnews.com/i/50580
Law Times • march 2, 2009 evidence and that applicant failed to establish his participation in rallies had come to attention of Myanmar authorities. Applica- tion granted; matter remitted for redetermination. PRRA Of- ficer erred in rejecting summons and in placing excessive burden on applicant with respect to his political activities in Canada. Summons was new evidence as it related to something that oc- curred after refugee claim was rejected. PRRA Officer was en- titled to accord whatever weight he believed to be appropriate to summons but he was not entitled to reject summons completely on basis that it was not new evidence. Further, applicant was not required to establish that his political activities in Canada had come to attention of Myanmar authorities but only that it was likely they would. Win v. Canada (Minister of Citi- zenship and Immigration) (Oct. 10, 2008, F.C., Martineau J., File No. IMM-1248-08) Order No. 008/315/128 (9 pp.). SELECTION AND ADMISSION Officer failed to consider humanitarian and compassionate grounds under Tsunami category Application for judicial review of decision refusing application for permanent residence. Ap- plicant was citizen of Sri Lanka with no high school diploma and limited work experience. Appli- cant applied for permanent resi- dence in Canada after tsunami affected her country. Applicant was found not to qualify under skilled worker category as she had less than one year of work experience. Applicant was found not to qualify under Tsunami category as she would not be able to support herself. Applica- tion granted; matter remitted for reconsideration. Nothing in immigration officer's notes and reasons indicated she considered humanitarian and compassion- ate grounds as required under Tsunami category. Additional reasons in affidavit filed by im- migration officer were not taken into account as this amounted to after-fact explanation. Immigra- tion officer conceded she made error with respect to availability of assistance to applicant in Can- ada. Material before immigration officer clearly indicated applicant would have family and financial support in Canada. Santhirasegaram v. Canada (Min- ister of Citizenship and Immigra- tion) (Oct. 23, 2008, F.C., Rus- sell J., File No. IMM-5293-07) Order No. 008/315/082 (24 pp.). Officer erred in rejecting verification of applicant's employment Application for judicial review of decision refusing application for permanent residence. Applicant was citizen of India who purport- edly had diploma in hospitality. Applicant applied for permanent residence in Canada under skilled worker category. Applicant claimed she was currently work- ing as cook and had arranged em- ployment in Canada. Applicant's diploma had spelling error and she was unable to establish at- tendance at hospitality institute. Applicant was not even able to provide details with respect to her current employment. Immi- gration officer contacted appli- cant's employer for verification but still did not believe applicant was employed there. Application granted; matter remitted for re- consideration. Standard of review was reasonableness in accordance with prior authority. Immigra- tion officer erred in rejecting em- ployer's verification of applicant's employment. Immigration offi- cer did not indicate employer was not credible. Immigration officer even relied upon something em- ployer said when it contradicted what applicant said. Failure to take into account evidence that confirmed applicant's story ren- dered decision unreasonable. Kaur v. Canada (Minister of Citi- zenship and Immigration) (Oct. 23, 2008, F.C., Russell J., File No. IMM-1165-08) Order No. 008/315/081 (24 pp.). VISITORS Denial of study permit upheld on review Applicant sought study permit. Officer was concerned with valid- ity of letters accompanying par- ents' employment. Officer sent letter to applicant indicating of- ficer believed applicant misrepre- sented parents' employment and gave opportunity for applicant to respond. Applicant responded and submitted letter from father. Applicant was denied study per- mit because of concerns applicant was not bona fide temporary resi- dent and would not leave Canada at end of authorized study. Appli- cation for judicial review was dis- missed. There was no evidence of procedural unfairness. Decision was reasonable on facts. Officer satisfied duty of fairness by giving applicant opportunity to answer concerns. Wang v. Canada (Minister of Citi- zenship and Immigration) (Oct. 15, 2008, F.C., Frenette J., File No. IMM-5287-07) Order No. 008/315/092 (9 pp.). Intellectual Property Taxation Industrial And INCOME TAX Taxpayer's liability for interest and penalties was reduced Application for judicial review of decision denying relief from pen- alties and interest arising from tax reassessment. Taxpayer was cor- poration that declared no taxable income for 1988, 1989, 1990. Taxpayer was reassessed and found to have taxable income in those years. Taxpayer com- menced appeal but parties settled on basis that taxpayer would be reassessed after certain adjust- ments were made to its taxable income. Taxpayer subsequently claimed loss carry-backs that served to eliminate taxpayer's tax- able income from 1988 to 1990. In 2004, taxpayer requested relief from penalties and interest since 1988. Taxpayer was only granted relief since 1996 and ultimately paid $159,973.92. Application granted in part. Taxpayer's li- ability for interest and penal- ties was reduced to $71,195.44 based on amount accruing to 1996. Taxpayer was not entitled to total elimination of penalties and interest as loss carry-backs only took effect from time they were claimed. Taxpayer was con- sequently liable for penalties and interest arising from and accruing on tax owing prior to application CASELAW of loss carry-backs but amount was not calculated properly. Slau Ltd. v. Canada (Revenue Agency) (Oct. 8, 2008, F.C., Kel- en J., File No. T-2118-07) Order No. 008/315/105 (22 pp.). ONTARIO CIVIL CASES Assessment ALTERATION Judge had no jurisdiction to deal with classification Appeal from decision ordering respondent's taxes owing be re- duced to $3,000. Appeal allowed. Decision was set aside. Judge had no jurisdiction to deal with clas- sification. Section 46(7) of As- sessment Act (Ont.), prohibits court from altering assessment or classification so as to alter taxes for taxation year before year in which application was made. Assessment Act and Municipal Act, 2001 (Ont.), provides com- prehensive statutory mechanism with respect to assessment, calcu- lation and collection of munici- pal taxes. Goodfellow v. Lincoln (Town) (Oct. 31, 2008, Ont. S.C.J. (Div. Ct.), Marshman, Aitken and Swinton JJ., File No. DC-07- 428) Order No. 008/309/044 (2 pp.). Civil Procedure CHANGE OF SOLICITOR Motion for removal of solicitors dismissed Applicant sought order removing solicitors for R. trustee. Applicant claimed solicitors were in conflict of interest by acting concurrently for R. trustee and for L. in ca- pacity as inspector of I. estates. Applicant claimed solicitors dis- closed to R. trustee information confidential to S.J. securities that solicitors received in acting for L.. Motion was dismissed. No duty of loyalty arose in favour of S.J. Securities. Circumstances in which solicitors received infor- mation did not impose obliga- tion to return information to S.J. Securities and to refrain from dis- closing information to R. trustee. Insight Venture Associates III, LLC v. Rampart Securities Inc. (Trustee of) (Oct. 22, 2008, Ont. S.C.J., Wilton-Siegel J., File No. CV- 04-CL-005518-B) Order No. 008/297/005 (11 pp.). CLASS ACTIONS Action respecting vehicle repair charges was certified Motion to certify action as class proceeding. Claim alleged that defendant improperly charged consumers for work allegedly done prior to actual repairs done on transmissions. Plaintiff com- menced action for conspiracy and unjust enrichment. Motion granted. Statement of claim dis- closed cause of action. There was identifiable class. Class proceed- ing was preferable procedure. Dean v. Mister Transmission (International) Ltd. (Nov. 4, 2008, Ont. S.C.J., Gray J., File No. 1076/07) Order No. 008/315/014 (35 pp.). COSTS Costs against Family Responsibility Office not warranted Father's motion to terminate his child support obligation was www.lawtimesnews.com granted. Father sought costs against Family Responsibility Of- fice ("FRO"), and against mother on substantial indemnity basis at $9,723.27 or on partial indemni- ty basis at $6,482.18. Father was awarded costs fixed in amount of $1,200 inclusive, and was not entitled to costs against FRO. Award of costs against FRO was not warranted. Participation of FRO did not consume any sig- nificant time, nor did it have any meaningful impact on outcome. Father's delay of 15 years in ad- dressing effect of child support provision in order limited his costs recoverable. R. (M.M.M.) v. B. (D.H.) (Nov. 4, 2008, Ont. S.C.J., Gauthier J., File No. 2275/91) Order No. 008/316/101 (5 pp.). Contracts PERFORMANCE AND BREACH Not plain and obvious that obligations of defendant joint venture partner were terminated Motions for summary judgment to dismiss action. Plaintiff and defendant corporations were joint venture partners in mining project. Parties signed agreement providing right of first refusal in favour of participants. Corpora- tion offered to purchase all defen- dant companies' interests. Parties began negotiations for purchase price. Before execution of defini- tive agreement, defendants with- drew from negotiations. Plaintiffs commenced action for specific performance of agreement and compensation for losses. Motion granted with respect to defendant U., and motion dismissed with respect to defendant C.. It was not plain and obvious that ob- ligations of C. terminated when U. exercised its right to termina- tion. Post transaction actions of defendants did not prevent U.'s exercise of termination right un- der agreement. ArcelorMittal Dofasco Inc. v. U.S. Steel Canada Inc. (Nov. 5, 2008, Ont. S.C.J., Wilton-Siegel J., File No. CV-08-00007542- 00CL) Order No. 008/315/010 (23 pp.). TERMINATION Franchisee awarded damages for franchisor's early termination of licence Action for breach of contract. Franchisor issued notices of de- fault on several occasions. Fran- chisor offered financial assistance, but franchisee failed to meet con- ditions. Franchisor terminated agreement. Franchisee claimed franchisor breached its duty of good faith and dealing with fran- chisee, which lead to franchisor terminating licence agreements. Action allowed in part. Franchi- see was granted judgment for $20,480 for franchisor's termi- nation of licence prior to end of term of licence. Franchisor did not act in bad faith in failing to properly investigate suitability of site, in improperly projecting sales and in failing to properly train. Franchisor had no duty to provide financial assistance. 1117304 Ontario Inc. v. Cara Operations Ltd. (Nov. 3, 2008, Ont. S.C.J., Kershman J., File No. 02-CV-21983) Order No. 008/315/020 (42 pp.). Corporations PAGE 17 OPPRESSION Minority shareholder entitled to remedy for oppression Application for remedy for op- pression. Applicant was minority shareholder in respondent corpo- ration. Application granted. Evi- dence justified invoking s. 248 of Ontario Business Corporations Act. Applicant was denied finan- cial information related to signif- icant decisions that affected her interests. Applicant was denied opportunity to participate in de- cisions at shareholders' meeting. Applicant suffered detriment, which could not be remedied by court order. Chevalier v. Bluffers Park Ma- rina Ltd. (Nov. 4, 2008, Ont. S.C.J., Ferguson J., File No. CV-07-082757-00) Order No. 008/315/016 (6 pp.). Criminal Law YOUNG OFFENDERS Application by Ontario Human Rights Commission for access to youth records was dismissed Application by Ontario Hu- man Rights Commission and complainant for access to youth records kept by police service. Complaint was young black per- son who was suspected of being in possession of stolen vehicle. Police officer detained and hand- cuffed complainant at his school and searched his backpack and locker. Complainant was released and not charged with offence. Complainant filed complaint with commission alleging po- lice had engaged in racial profil- ing. Police service acknowledged youth records were necessary for determination of complaint but insisted access could only be obtained by court order. Appli- cation dismissed. No applicable access provision existed in Youth Criminal Justice Act (Can.). Re- cords sought related to extraju- dicial measure as defined by ss. 2 and 6 of Act since no judicial proceeding had arisen due to de- cision of police officer. Records were therefore protected by s. 119(4) of Act, which did not per- mit disclosure to complainant. Fact that officer's decision not to take action was apparently related to lack of evidence did not take situation out of meaning of s. 6 of Act. Ascertaining reason for no charge being laid would often amount to guesswork. Of great- er relevance was purpose of s. 119(4) of Act, which was to pre- vent release of information about young person where no action had been taken. Section 124 of Act could not be used to fashion remedy that would circumvent s. 119(4) of Act. Even if com- plainant had access to records, he would be prohibited by s. 118(1) of Act from disclosing protected information. Complainant was not precluded from applying for relief under Canadian Charter of Rights and Freedoms. Ontario (Human Rights Com- mission) v. Toronto Police Ser- vices Board (Nov. 6, 2008, Ont. C.J., Weagant J.) Order No. 008/323/301 (32 pp.). Debtor And Creditor GARNISHMENT Costs assessed in garnishment proceedings Creditor tried to collect amount owing by debtor from two gar- nishees. Garnishee D.W. denied