Law Times

PAGE 14 CaseLawLaw FEDERAL COURT Aboriginal Peoples SELF-GOVERNMENT Vote was not in accordance with Land Code of Band Band took vote. Applicants claimed vote was unfair and con- ducted without jurisdiction being contrary to Land Code of Band. Motions approved negotiations of financing package for wellness centre, lease with TDL and mort- gage on leasehold interest. Vote was conducted by show of hands. Motions were defeated. New vote was conducted using different method of voting. Voters were re- quired to go behind curtain, face three people to indicate person's vote. Voters were required to ini- tial record of vote. Motions were approved. Applicants sought order that vote be quashed and declared improper. Vote approv- ing motions was not lawful and vote was quashed. Vote was not in accordance with Land Code, which required show of hands. Land Code was not amended to authorize voting method used in second vote. Lafond v. Ledoux (Sep. 16, 2009, F.C., Phelan J., File No. T-1516- 08) Order No. 009/274/076 (8 pp.). Crown ACTIONS AGAINST CROWN Inmate established misfeasance in public office on part of CSC Plaintiff was serving sentence of life imprisonment for second- degree murder. He requested replacement pair of running shoes, size 13-4 E from CSC. He received replacement pair nine months later. In interim, he in- curred knee injury while exercis- ing wearing his old running shoes. Prothonotary erred in law in de- ciding CSC was under statutory obligation to provide "inmates of federal institutions receive certain minimal allotments including one pair of shoes per annum". Correct statutory duty upon CSC was to provide inmates with adequate footwear and replace footwear when it was inadequate. Plaintiff presented sufficient evidence to establish misfeasance in public office on part of CSC. CSC's of- ficers were public officials. They were aware plaintiff was in need of replacement footwear and they had statutory duty to act. Unex- plained excessive delay supported inference that they were aware they were acting unlawfully in not complying with statutory ob- ligation. CSC officers knew harm could result and it did. McMaster v. Canada (Sep. 21, 2009, F.C., Mandamin J., File No. T-1761-05) Appeal from 172 A.C.W.S. (3d) 383 dismissed. Or- der No. 009/274/064 (24 pp.). Customs And Excise EXCISE TAX Minister's refusal to grant relief from interest and penalties upheld on judicial review Applicant applied for waiver of interest and penalties on GST payable for reporting period on basis of financial hardship and alleged faulty collection actions by CRA. Minister refused to grant applicant relief from inter- est and penalties on GST payable for reporting period. Application for judicial review was dismissed. Respondent's error in not send- ing by registered mail second requirement to pay was not de- terminative and did not impact penalties and interests imposed on applicant. Respondent did not err when it released liens on property to be sold. Respondent was not negligent. Applicant did not show assessment was in er- ror. Respondent considered all of applicant's arguments. There was no evidence penalties and interest were incurred primarily because of actions of CRA. Decision was not unreasonable. Knecht v. Canada (Attorney Gener- al) (Sep. 21, 2009, F.C., Beaudry J., File No. T-2069-07) Order No. 009/274/062 (32 pp.). ONTARIO CIVIL CASES Civil Procedure PARTIES Motions judge erred in refusing appellants leave to intervene Motions judge erred in refus- ing appellants leave to intervene as friend of court in application seeking declaration that certain sections of Criminal Code (Can.), criminalizing activities related to prostitution violated Canadian Charter of Rights and Freedoms. Basis for motion judge's decision was clearly flawed. Given issues at stake and position appellants pro- posed to take that constitution- ality of challenged laws can be supported on moral values of Ca- nadian society, appellants may be able to make useful contribution to application without causing injustice to immediate parties. Bedford v. Canada (Attorney Gen- eral) (Sep. 22, 2009, Ont. C.A., November 23, 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. 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 Single or multiple copies of the full text of any case digested in this issue can be obtained by calling CaseLaw's photocopy department at (905) 726-5419, or 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. Goudge, Cronk and Epstein JJ.A., File No. C50823) Appeal from 178 A.C.W.S. (3d) 569 al- lowed. Order No. 009/266/055 (5 pp.). Constitutional Law CHARTER OF RIGHTS No breach of defendants' rights to assistance of interpreter Motion for order that court pro- vide to defendants at no cost to them interpreter competent to translate proceedings and any document into Chon Qing lan- guage understood by these de- fendants. Notice of motion in- cluded Notice of Constitutional Question referencing s. 14 of Canadian Charter of Rights and Freedoms and seeking remedy pursuant to s. 24(1) of Charter. One of defendants, C., came to Canada in 1994, became licensed as real estate agent and married Canadian citizen in 1997. Other defendants were C.'s parents and interpreter had been provided to them on discovery. Defendants contended that they did not have funds to obtain assistance of interpreter because all available funds had been frozen by Mareva injunction obtained by plaintiff. Motion and Notice of Constitu- tional Question dismissed. While there was no doubt that right to assistance of interpreter applied to civil trial, defendants had not satisfied court that they were un- able to access other assets to pay for cost of interpreter if one were required. Accordingly there was no breach of defendants' rights to assistance of interpreter as guar- anteed by s. 14 of Charter. Royal Bank of Canada v. Wel- ton (Oct. 9, 2009, Ont. S.C.J. (Comm. List), Spies J., File No. 06-CL-6797) Order No. 009/286/022 (3 pp.). Contempt Of Court GROUNDS Refusal to comply with order to execute undertaking constituted contempt Respondent's solicitor was re- moved as solicitor of record. Mas- ter ordered respondent to execute irrevocable undertaking to protect solicitor's account upon receipt of file. Solicitor alleged that respon- dent refused to execute undertak- ing and attended at law office and removed file over objections of legal assistant. Solicitor moved for finding of contempt against respondent. Motion allowed. Not established that respondent in contempt when she collected her file. However, respondent clearly had no intention of sign- ing undertaking ordered by mas- www.lawtimesnews.com ter. Refusal to comply with order constituted contempt. Respon- dent ordered to sign undertaking in words of order and deliver to solicitor by specified date, failing which she would be imprisoned for two days. Francis v. Leo A. Seydel Ltd. (Oct. 16, 2009, Ont. S.C.J., Pitt J., File No. 00-CV-195388) Order No. 009/293/059 (6 pp.). Family Law CUSTODY Trial judge erred in finding that child should not be returned to California Trial judge erred in finding that pursuant to article 13(b) of Con- vention on the Civil Aspects of International Child Abduction, child should not be returned to California. Once it was conceded that child was habitually resident in California and was wrongfully removed from California and re- tained in Ontario, mother had onus to establish that presump- tive order to return child to Cali- fornia should not be made. Trial judge identified and recognized that onus was on mother, but he erred in then ordering father to present his evidence first. Process lead to reasonable apprehension of unfairness. Decision could not be upheld. Expedited oral hear- ing before different judge was ordered, limited to issue of de- fence raised by mother pursuant to article 13(b) of Convention with mother's evidence being pre- sented first. Achakzad v. Zemaryalai (July 6, 2009, Ont. S.C.J., Czutrin J., File No. 07-FA-015104) Appeal from 178 A.C.W.S. (3d) 402 al- lowed. Order No. 009/266/033 (28 pp.). SUPPORT Income not imputed to father while in jail Parties separated in 2007 after nine years of marriage. Pursu- ant to consent order in 2007 father was ordered to pay $902 per month in child support for parties' two children based on imputed income of $60,000. Fa- ther's last support payment was made in March 2008. Father was incarcerated July 22, 2008. At time of this trial criminal matter had not been heard and father was being held in custody pend- ing trial. Parties agreed that as at trial in March 2009 child support would terminate without preju- dice to claim for arrears or claim for continuing support out of current resources of father if such assets existed. Mother contended that father was obliged to sup- port children notwithstanding imprisonment. Mother sought balance of moneys held in trust from sale of matrimonial home, together with children's educa- tion fund and any moneys father might be entitled to out of equal- ization of parties' assets to be paid to her as lump sum payment. Issue whether income should be imputed to father while in jail. Father contended that by paying all his assets to mother he would be adversely affected in trying to be self-sufficient on release from prison and as such this would negatively affect his ability to pay ongoing child support. Order for lump sum payment consisting of all father's assets denied. It was unrealistic to impute income to father while he was imprisoned. Court declined to find incarcera- tion as voluntarily reducing his income. Ilic v. Ilic (Oct. 9, 2009, Ont. S.C.J., Tucker J., File No. 39412- 06) Order No. 009/286/036 (13 pp.). Judgments And Orders SETTING ASIDE Plaintiffs' solicitors deliberately ignored deadline for setting down action Plaintiffs brought medical negli- gence action against defendants. Registrar's order required ex- aminations for discovery to be completed by October 30, 2008 and action set down by June 17, 2009 under pain of dismissal. Defendant hospital did not serve affidavit of documents until No- vember 27, 2008 and deliver ad- ditional documents until January 21, 2009. Despite enquiries from defendant hospital no discovery schedule was proposed by plain- tiffs until day before set down deadline. Registrar dismissed ac- tion for delay. Plaintiffs brought motion to set aside dismissal or- der. Motion dismissed. While plaintiffs provided no explana- tion for delay, same was not in- ordinate in context of medical negligence action. Plaintiffs also moved promptly to set aside dis- missal order. However there was no evidence that set down dead- line was missed due to inadver- tence. In fact plaintiffs' solicitors deliberately ignored deadline be- cause they were not ready to set action down. Defendants had also been prejudiced by delay. So- licitors failed to disclose in timely fashion death of one plaintiff and provide information on physical and mental competence of other plaintiff to be examined for dis- covery. Delay caused defendants to lose right to examine either plaintiff for discovery as to issues of liability and damages. Failure

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