Law Times

Law Times • November 30, 2009 should not be interpreted in manner that would make politi- cal issues justiciable. Applicants had not provided evidence that 2008 election was unfair. Prime Minister did not violate s. 56.1 in dissolving Parliament and set- ting election date. Conacher v. Canada (Prime Min- ister) (Sep. 17, 2009, F.C., Shore J., File No. T-1500-08) Order No. 009/274/075 (32 pp.). Immigration SELECTION AND ADMISSION Refusal of permanent residence upheld on judicial review Applicant was refused perma- nent residence based on hu- manitarian and compassion- ate grounds. Applicant did not work since arriving in Canada and received social assistance since 2006. Offi cer found appli- cant's establishment in Canada minimal. Offi cer found school system in country of origin was not signifi cantly diff erent from that in Canada and it was not disproportionate hardship for children to switch schools. Of- fi cer found insuffi cient evidence to establish applicant's removal would seriously impact level of care applicant's sister was receiv- ing who was diagnosed with cancer. Applicant claimed risk from abuse from ex-husband. Offi cer found there was insuf- fi cient evidence of current or future risk to applicant or chil- dren. Application for judicial review was dismissed. Offi cer's decision regarding best interests of children was not unreason- able. Offi cer did not breach pro- cedural fairness. Th ere was no requirement to conduct inter- view or oral hearing. Applicant had meaningful participation. Offi cer did not commit review- able error by failing to provide applicant opportunity to make additional submissions regard- ing lack of sponsorship. Offi cer's decision regarding hardship was not unreasonable. Offi cer was not wrong in stating applicable order against applicant was ex- clusion order. Offi cer did not err in failing to refer to evidence in decision. Bavili v. Canada (Minister of Citizenship and Immigration) (Oct. 2, 2009, F.C., Beaudry J., File No. IMM-555-09) Order No. 009/293/008 (28 pp.). ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Class counsel's appeal from order fixing fees was dismissed Appellant Class Counsel ap- pealed order fi xing fees at $6,300,000, arguing that amount approximately one-half of amount agreed upon in con- tingency fee agreements. Atlas Cold Storage was income trust. It was to pay trust unit holders regular income distributions and provide opportunity for capital appreciation as opera- tor of North America's second largest temperature-controlled distribution network. Atlas an- nounced it would be restating fi nancial statements for 2001 and 2002 after investigation de- termined its net earnings were overstated. Plaintiff s alleged Atlas made misrepresentations in prospectuses, fi nancial state- ments and press releases and sued company as well as several former offi cers and directors. Some defendants agreed to pay $40 million in fi nal settlement. Each class member will receive amount of actual net loss after payment of administrative costs, 10% levy to class proceedings fund and class counsel's fees. Motion judge asked to approve fee as required by Class Pro- ceedings Act, 1992 (Ont.). She found that result achieved prob- ably best that could be attained in circumstances but that 7,400 docketed hours for three-day pleadings motion, preparation for certifi cation motion never argued, which included 12 days of cross-examination and three- day mediation not justifi ed. She concluded base fee of $3.25 million not reasonable for work performed. Appeal dismissed. Motion of two class members to quash appeal dismissed. Class counsel had direct interest suffi cient to give them stand- ing to appeal; order approving fees not "costs" appeal requir- ing leave; and requirement for court approval resolves any concern for potential confl ict of interest between class coun- sel and some of members of class regarding fees. Lawrence v. Atlas Cold Storage Holdings Inc. (Oct. 1, 2009, Ont. C.A., Doherty, Rosen- berg and MacFarland JJ.A., File No. C50192) Order No. 009/278/028 (17 pp.). Counsel fee of $7 million was approved Action was certifi ed as class proceeding for settlement pur- poses. Parties reached partial settlement. Settlement was ap- proved. Motion was brought for approval of fee of class coun- sel. Defendant brought motion for standing on fee approval motion. Counsel fee claimed was between $12 and $13.5 million. Counsel fee sought ex- ceeded value of time expended by counsel. Counsel argued fee should be calculated by refer- ence to contingency fee agree- ment and not by reference to dockets. Counsel fee of $7 mil- lion was approved all inclusive of counsel fee, disbursements and GST. Defendant was re- sponsible to pay class counsel fee and such payment was mat- ter that aff ected defendant. As matter of fairness, defendant was to have full party standing to argue motion. Fantl v. Transamerica Life Canada (Oct. 15, 2009, Ont. S.C.J., Perell J., File No. 06-CV-306061-CP) Order No. 009/293/063 (20 pp.). Evidence ADMISSIBILITY Evidence was inadmissible as being contrary to parole evidence rule Plaintiff s and third party were partners CASELAW in PAGE 15 law fi rm. Th ird party left fi rm. Defendant was client of fi rm. Defendant's fi le was looked after by third party. Defendant requested transfer. Plaintiff s claim against defen- dant was for work in progress to point when defendant fol- lowed third party. Th ird party completed work on defendant's fi le. Legal account was paid to third party's new fi rm. Plaintiff and third party entered minutes of settlement and full and fi nal release. Evidence of discussion purporting to carve out cat- egories of dispute to continue notwithstanding full and fi nal release was contradictory to un- ambiguous terms of documents signed by parties. Evidence was inadmissible as being contrary to parole evidence rule. Claim brought by plaintiff against de- fendant giving rise to claim for contribution against third party was in breach of terms of full and fi nal release. Main action against defendant and claim against third party were perma- nently stayed. Ferguson v. North (Oct. 16, 2009, Ont. S.C.J., Eberhard J., File No. 08-0006-A1SR) Order No. 009/293/061 (7 pp.). Professions BARRISTERS AND SOLICITORS Former lawyer to deliver file to new lawyer immediately after assessment Applicant brought motion against her former lawyer for order that lawyer release her fi le to her new lawyer. Applicant's request for fi le had as much to do with wanting to prepare for assessment of former lawyer's fees as it had to do with pending motion in action. Former law- yer was ordered to provide list of documents in fi le with suffi - cient description of each docu- ment to identify it and to make fi le available to new lawyer for inspection upon providing list of documents for photocopying of any documents requested. Former lawyer was to deliver fi le to new lawyer immediately after assessment. Applicant was ordered to preserve fi le in state it was delivered to her in order that it may be available to for- mer lawyer in event there was any appeal from assessment of- fi cer's decision. Ejsymont v. Ejsymont (Aug. 27, 2009, Ont. S.C.J., Hambly J., File No. 42305-08) Order No. 009/286/042 (6 pp.). Committee of Law Society did not deny applicant procedural fairness Application for judicial review of decision by Committee of Law Society of Upper Canada. Applicant had unsuccessfully attempted to pass Bar exami- nations on multiple occasions. Committee concluded that ac- commodations granted by reg- istrar to applicant for writing examinations for admission to Bar were more than adequate. Application dismissed. Appli- cant was not denied procedural fairness. Applicant had full op- portunity to make her submis- sions before committee. Akhtar v. Law Society of Up- www.lawtimesnews.com per Canada (Sep. 25, 2009, Ont. S.C.J. (Div. Ct.), Jen- nings, Wilson and Aston JJ., File No. 191/09) Order No. 009/278/034 (5 pp.). ONTARIO CRIMINAL CASES Charter Of Rights SEARCH AND SEIZURE Warrantless search for subscriber information violated s. 8 of Charter Police requested subscriber in- formation from Internet Ser- vice Provider ("ISP") for In- ternet Protocol ("IP") address linked to fi les containing child pornography. Subscriber for suspect IP address was accused. Search warrant executed on ac- cused's home revealed hundreds of images of child pornography. Accused applied to exclude evi- dence on grounds that warrant- less search of subscriber infor- mation violated s. 8 of Charter. Application dismissed. Warrant- less search for subscriber infor- mation violated s. 8 of Charter. Admission of evidence would not bring administration of justice into disrepute. Fact that police were aware of decisions holding that there was reason- able expectation of privacy in subscriber information did not amount to clear notice of un- constitutionality. Offi cer acted in good faith in face of uncer- tainty in law. Subscriber name and address did not have great deal of intrinsic privacy on its own. Since police request to ISP was limited to particular date and time, impact on accused's Charter protected interests was signifi cant but not overly intru- sive. Evidence was reliable and essential to prosecution. R. v. Cuttell (Oct. 2, 2009, Ont. C.J., Pringle J.) Order No. 009/278/015 (18 pp.). Disclosure DUTY ON CROWN Children's Aid Society records to be produced for review by court Accused charged with various sexual off ences against com- plainant. Defence applied for access to third party records, namely Children's Aid Society ("CAS") records. At time of off ences, accused was in a re- lationship with complainant's mother. Records sought related to allegations that complain- ant's sister was sexually touched by her paternal grandfather. No charges were ever laid against the grandfather and complain- ant had given a statement about her sister to the CAS that the CAS worker believed had been coached. Records to be pro- duced for a review by the Court. Th ere was a suffi cient nexus to overcome the likely relevance threshold. Potential relevance of the record lied not in the opinion of the CAS worker per se, but rather, in the likely exis- tence of material in support of the opinion. R. v. F. (W.) (Sep. 28, 2009, Ont. S.C.J., Pomerance J., File No. CR-08-1227) Order No. 009/286/007 (4 pp.). LT Starting from $62.50 per month More value for your money! Cases that you can't find anywhere else can be found in BestCase, a new web-based research service from Canada Law Book, containing: • Comprehensive collection of reported and unreported decisions dating back to 1898 and including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator eREPORTS included at no extra charge ... continuing legal education delivered to your desktop! BestCase subscribers can now receive our eREPORTS – electronic versions of "paper parts" of our law reports. Emailed to you, the eREPORTS link from the subject index to the full reported judgment (including headnote). No more photocopying required to get copies of decisions exactly as they appear in a law report! 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