Law Times

PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Courts STAY OF PROCEEDINGS Balance of convenience strongly against granting stay Officer alleged respondents while administering estates committed contraventions. Office instituted disciplinary proceedings against respondents. Superintendent of Bankruptcy found respondents not guilty of misconduct under 6 of 12 categories. Federal Court granted judicial review. Delegate intended to begin sanction hear- ing. Appellant brought motion for stay of administrative adju- dicator's hearing while appeal was pending in court. Motion was dismissed. Appellant did not show irreparable harm. Balance of convenience was strongly against granting relief. Delegate could proceed with sanction hearing. Canada (Office of the Superin- tendent of Bankruptcy, Senior Analyst-Professional Conduct) v. MacLeod (Mar. 24, 2010, F.C.A., Stratas J.A., File No. A-66-10) 186 A.C.W.S. (3d) 993 (12 pp.). Parole CALCULATION OF SENTENCE Parole could only be granted with respect to custodial portion of sentence Youth Adult accused sentenced under Youth Criminal Justice Act (Can.) to 22 months custo- dy and 36 months community supervision. Parole Board cal- culated parole eligibility on ba- sis of entire seven-year sentence. Application for judicial review allowed and Parole Board or- dered to calculate eligibility on basis only of custodial portion of sentence. Appeal from judi- cial review dismissed. Parole can only be granted with respect to custodial portion of sentence. Parole Board has no jurisdic- tion over young person once sentence no longer requires his incarceration. P. (J.) v. Canada (Attorney Gen- eral) (Apr. 7, 2010, F.C.A., Blais C.J., Nadon and Evans JJ.A., File No. A-202-09) Decision at 252 C.C.C. (3d) 127, 86 W.C.B. (2d) 775 affirmed. 87 W.C.B. (2d) 432 (39 pp.). Social Welfare CANADA PENSION PLAN Failure of board to address issue of 1997 application rendered decision unreasonable Applicant received Canada Pen- sion Plan ("CPP") disability benefits. Applicant applied for disability benefits for applicant's children. Minister granted chil- dren's benefits retroactive to 1998. Applicant claimed to have made prior applications. Ap- plicant disagreed with period of retroactivity. Board dismissed appeal from tribunal. Applica- tion for judicial review was al- lowed. Applicant's submissions on alleged 1997 application were unchallenged on record. Board ought to have addressed issue of 1997 application and failure to do so rendered decision un- reasonable. There was no breach of procedural fairness. Board afforded applicant full opportu- nity to present case. Board did not fail to consider relevant law. Board was correct in concluding s. 60(1) of Canada Pension Plan required application be made be- fore benefits could be paid and that s. 74 prescribed maximum retroactivity applicable to chil- dren of disabled contributors. Robbins v. Canada (Attorney General) (Mar. 29, 2010, F.C.A., Sharlow, Dawson and Layden- Stevenson JJ.A., File No. A-641- 08) 186 A.C.W.S. (3d) 1157 (15 pp.). FEDERAL COURT Conflict Of Laws JURISDICTION Fact that Internet publications were accessible to Canadians was not sufficient to confer jurisdiction Plaintiff commenced action seeking to expunge certain trade- mark registrations of defendants. Defendants filed statement of de- fence. Defendants brought mo- tion for leave to amend defence and add counterclaim. As basis for counterclaim defendants pointed to false and misleading statements made by plaintiff to customers and business partners of defendants regarding use of marks and quality of products associated with marks. As result of communications defendants claimed to have suffered dam- ages in Canada. Plaintiff con- tested portion of motion seeking to add counterclaim. Plaintiff argued lack of jurisdiction of court to entertain counterclaim as cause of action did not arise in Canada. Motion dismissed. For court to assume jurisdic- tion there needed to be real and substantial connection between court as forum and party against whom action was filed. Judge may 31, 2010 • Law Times COURT DECISIONS ainmaker_LT_June2_08.indd 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: 5/28/08 10:43:29 AM 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. was unable to find connection of alleged causes of action of defendants to confer jurisdic- tion upon court. Allegations in counterclaim were based on facts not occurring in or emanating from Canada. Some allegations referred to acts committed by United States company which was not party to action. Fact that internet publications of com- pany misrepresenting products of defendants were accessible to Canadians was not sufficient to confer jurisdiction. As well court was not proper forum to adjudi- cate defendants' counterclaim as statutory violations complained of did not appear to have been committed in Canada. Laboratoires Quinton Interna- tionale S.L. v. Biss (Apr. 1, 2010, F.C., de Montigny J., File No. T-1554-06) 186 A.C.W.S. (3d) 969 (8 pp.). Immigration PERSON IN NEED OF PROTECTION PRRA officer did not give proper regard to foreign national's concerns about mistreatment by authorities Application by foreign national for judicial review of negative pre-removal risk assessment ("PRRA"). Foreign national was citizen of Jamaica who was diagnosed with paranoid schizophrenia. Foreign national was convicted of two counts of sexual assault in Canada in 2004. Deportation order was issued against foreign national. Foreign national unsuccessfully applied for PRRA and consid- eration on humanitarian and compassionate grounds. For- eign national was particularly concerned about mistreatment of mentally ill individuals by authorities in Jamaica. Foreign national again unsuccessfully applied for PRRA. Applica- tion granted; matter remitted for reconsideration. PRRA of- ficer did not give proper regard to foreign national's concerns about mistreatment by authori- ties. Officer considered issue from perspective of whether foreign national would receive adequate health care for his ill- ness. Foreign national's concern was that he was vulnerable to mistreatment by authorities be- cause of his mental illness and that any deficiency in health care would exacerbate problem. By focussing on adequacy of health care in Jamaica, officer essentially disregarded evidence of mistreatment of mentally ill individuals by authorities. Of- ficer did not err in determining that pretrial custody was part of sentence when considering criminality. www.lawtimesnews.com Level v. Canada (Minister of Citi- zenship and Immigration) (Mar. 4, 2010, F.C., Russell J., File No. IMM-3079-09) 186 A.C.W.S. (3d) 1110 (28 pp.). ONTARIO CIVIL CASES Administrative Law FREEDOM OF INFORMATION Adjudicator misinterpreted plain meaning of words of s. 65(5.2) of Freedom of Information and Protection of Privacy Act (Ont.) Requestor sought access to records of communications among Minister and Ministry about highly publicized crimi- nal case and case's movement through justice system. Crimi- nal proceedings were still before courts. IPC's order required Ministry to produce records to IPC for IPC to conduct inquiry to determine whether records were excluded from disclosure. Issues raised on application could be determined on record without need to remit matter to IPC. Application for judicial re- view was allowed. Order was set aside. Request for records con- taining information about prog- ress of prosecution was request for records relating to outstand- ing criminal prosecution. Ad- judicator misinterpreted plain meaning of words of s. 65(5.2) of Freedom of Information and Protection of Privacy Act (Ont.) by reading in qualifications that had effect of misconstruing and subverting purpose of statutory exclusion. Adjudicator erred in interpretation and applica- tion of phrase "relating to" and incorrectly limited scope and application of s. 65(5.2). Adju- dicator erred in order by differ- entiating between records that were part of Crown Brief used in prosecution from those that were outside prosecution mate- rials. Conclusions were unrea- sonable. Ontario (Ministry of the Attorney General) v. Toronto Star (Mar. 26, 2010, Ont. S.C.J. (Div. Ct.), Wilson, Karakatsanis and Bryant JJ., File No. 34/09) 186 A.C.W.S. (3d) 878 (14 pp.). Evidence OPINION EVIDENCE None of physicians attempted to author reports containing requirements listed in rule 53.03(2.1) of Rules of Civil Procedure (Ont.) Application by defendant for order granting leave to call ex- pert, oral evidence and/or to file medical expert reports of three physicians at trial. Plaintiff ex- amined by series of assessors in December 2002 and early 2003. Physicians had not seen plain- tiff since they authored respec- tive reports over seven years ago. Physicians not retained by party to proceeding but by insurance company for purpose of process- ing accident benefits claim by insured. Reports not prepared in context of claim for damages suffered in motor vehicle ac- cident. Application dismissed. None of physicians attempted or managed to author reports containing requirements listed in rule 53.03(2.1) of Rules of Civil Procedure (Ont.). Assess- ments could be of little help to jury in assessing plaintiff's medi- cal and vocational progress over past seven years. Physicians re- tained by insurer that was not before court. Physicians were not treating physicians. Opin- ions addressed instructions that were not well described. Claim for accident benefits triggered contract and statutory provi- sions of automobile insurance policy, matters very different from rights and obligations of litigants. Purpose of reports not a purpose within meaning of rule 53.03(2.1). Circumstances did not support claim for relief from requirements of rule. Beasley v. Barrand (Apr. 9, 2010, Ont. S.C.J., Moore J., File No. 06-CV-324751) 186 A.C.W.S. (3d) 1018 (15 pp.). Family Law SUPPORT Father's lack of actively pursuing either employment or further training considered blameworthy behaviour Motion by father to change ret- roactively to 2005 final order of October 2004 that he pay monthly child support of $459 for two children and also 63% or $327 per month for daycare on basis of income of $31,200 and for order expunging arrears. Father not presently employed. Order that October 2004 order shall continue in full force and effect subject to following varia- tions that husband shall pay monthly child support of $460, father's obligation to pay $327 per months as his share of day- care expense shall be terminated as of October 15, 2004, and father shall pay lump sum of $8,806 being his 63% share of actual daycare and s. 7 expenses from October 15, 2004 to May 2009. Father provided no basis for delay in bringing motion. Father immediately aware that mother was not providing him with monthly daycare receipts

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