Law Times

PAGE 14 CaseLawLaw FEDERAL COURT Citizenship QUALIFICATIONS Approval of citizenship application was unreasonable Respondent's application for citi- zenship was approved. Citizenship judge found residency require- ment was met. Respondent was physically present in Canada for 567 and absent for 893 days of rel- evant 1,460-day period. Minister's appeal was allowed. Decision was unreasonable. It was unclear what test judge applied in concluding respondent maintained residence in Canada. Judge did not clearly determine whether respondent centralized ordinary mode of liv- ing in Canada. Canada (Minister of Citizenship and Immigration) v. Zhou (Aug. 11, 2008, F.C., Martineau J., File No. T-2333-07) Order No. 008/247/014 (12 pp.). Civil Procedure DISCOVERY Dismissal of motion for further production not clearly wrong Applicant sought order prohibit- ing Minister from issuing notice of compliance to respondent un- til after expiry of patent. Respon- dent brought motion to dismiss application on basis patent was not infringed. Applicant sought production of documents related to respondent's drug submission. Prothonotary dismissed appli- cants' motion for further produc- tion of documents on basis infor- mation sought was not relevant. Motion was dismissed. Protho- notary was correct in asserting notice of allegation defined issues to be determined. Question de- termined by Prothonotary was not vital to final issue in case and order was not clearly wrong. Pfizer Canada Inc. v. Pharmasci- ence Inc. (Aug. 15, 2008, F.C., Zinn J., File No. T-575-08) Or- der No. 008/247/007 (11 pp.). Human Rights Legislation HUMAN RIGHTS COMMISSION Commission's investigation of complaint denied applicant procedural fairness Commission dismissed appli- cant's complaint. Applicant ar- gued report on which decision was based resulted from inves- tigation that was not thorough. Application to set aside decision was allowed. Application was al- lowed. Investigation and report were flawed to extent applicant was denied procedural fairness. Allegation of systemic discrimi- nation required more than cur- sory dismissal investigator gave it. Failure of investigator to re- view two complaints and status resulted in investigation that was not thorough. Commission did not have all of relevant informa- tion when it made decision to dismiss complaint. Investigator made significant errors in facts recited in report. Commission ought to have referred matter back to investigator for further investigation and preparation of new report. Herbert v. Canada (Attorney General) (Aug. 28, 2008, F.C., Zinn J., File No. T-154-08) Or- der No. 008/253/006 (18 pp.). SUPREME COURT OF CANADA Evidence CORROBORATION No legal requirement that plain- tiff in sexual assault action had to provide corroborative evidence Appellant, a resident of Indian Residential School from 1966 to 1974, claimed to have been sexually assaulted by respondent M. when he was approximately November 17, 2008 • 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. ten years old. Appellant did not tell anyone about assaults until 2000. He commenced action against M. and other respon- dents, who operated and funded institution. Trial judge found, despite inconsistencies as to frequency and gravity of sexual assaults, that appellant cred- ible and concluded he had been raped and physically assaulted by M.. Court of Appeal allowed M.'s appeal, finding that trial judge failed to consider serious inconsistencies in appellant's tes- timony in determining whether alleged assaults proven to stan- dard of proof that was "com- mensurate with the allegation". Appellant's appeal allowed. Al- though corroborative evidence always helpful and strengthens evidence of party relying on it, it is not legal requirement and may not be available especially where alleged incidents took place decades earlier. Requir- ing corroboration would elevate evidentiary requirements in civil case above that in criminal case. C. (R.) v. McDougall (Oct. 2, 2008, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ., File No. 32085) Appeal from 156 A.C.W.S. (3d) 1208; 396 W.A.C. 222; 41 C.P.C. (6th) 213; [2007] 9 W.W.R. 256; 68 B.C.L.R. (4th) 203 allowed. Order No. 008/280/315 (58 pp.). FEDERAL COURT OF APPEAL Administrative Law JUDICIAL REVIEW Employee failed to provide reasonable explanation for delay Motion for extension of time to bring application for judicial review. Employee was found to have received employment in- surance overpayment, amount of which was based on alloca- tion of her earnings. Employee unsuccessfully appealed to um- pire, who found no reason to interfere with allocation made by Employment Insurance Commission. Employee unsuc- cessfully applied for reconsid- eration and then tried to resolve dispute informally through various government agencies and her Member of Parliament. Employee sought to commence application for judicial review some 15 months after umpire's decision was rendered. Motion dismissed. Employee failed to provide reasonable explanation for delay. Employee had been notified on three separate occa- sions that proper avenue was to seek judicial review. Employee's own correspondence some five months prior to motion showed awareness that judicial proceed- ings were required. Delay was not reasonable in these circum- stances. Employee also failed to establish merit as she presented no evidence suggesting review- able error on part of umpire. Muckenheim v. Canada (Em- ployment Insurance Commission) (Aug. 27, 2008, F.C.A., Sexton J.A., File No. 08-A-58) Order No. 008/259/012 (6 pp.). ONTARIO CIVIL CASES Appeal PROCEDURE Extension of time to appeal not justified Motion was adjourned to permit unrepresented appellant to file evidence showing date on which appellant first indicated to de- fendants intention to appeal. Defendants were at liberty to file evidence on issues as well. Pro- posed appeals of orders was with respect to costs only. Motion for extension of time was dismissed. Appellant did not provide rea- sonable explanation for delay and did not establish firm in- tention to appeal. Justice of case did not require extension. Costs awarded were nominal. Persaud v. Scarborough Shop- ping Centre Holding Ltd. (Aug. 13, 2008, Ont. Div. Ct., Low J., File No. 187/08) Handwrit- ten endorsement. Order No. 008/261/060 (4 pp.). Assessment VALUATION Determination of fact was within Board's jurisdiction Motion for leave to appeal amended decision of board. Property owners did renovations on house. Property owners re- ceived assessment for 2004 and 2005 stating that their property value had increased $87,000. Property owners received as- sessment for 2006, which was 26% higher than previous as- sessment. Property owners reconsideration request was denied. Property owners were is- sued omitted assessment claims for 2004, 2005, and 2006 in amounts of $45,000, $45,000, and $53,000. Board determined that omitted assessments were properly returned. Motion dis- missed. Conclusion of board was determination of fact that was within jurisdiction of board. Sokol v. Ontario (Assess- ment Review Board) (July 14, 2008, Ont. Div. Ct., Kite- ley J., File No. 520/073) Order No. 008/199/066 (9 pp.). Bankruptcy And Insolvency COURTS AND PROCEDURE Adjournment of bankruptcy petition granted on terms Secured creditor petitioned for bankruptcy of bankrupt. Bank- rupt sought adjournment to allow completion of report by representative of BDO Dun- woody and to permit bankrupt to provide satisfaction to credi- tor. Secured creditor opposed adjournment. Adjournment was granted on terms. There was 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 Untitled-10 1 www.lawtimesnews.com 11/6/07 3:56:47 PM

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