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PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Extradition And Fugitive Offenders EVIDENCE Sections 32(2) and 33(1) of Extradition Act (Can.), read together, provide for modified approach to hearsay rule unique to extradition context Committal and surrender orders is- sued for person sought. Majority of appeal court set aside orders, finding that Canadian-gathered evidence must comply with hearsay rule and that summary form of Canadian- gathered evidence contained in re- cord of case constituted inadmissible hearsay. Appeal allowed and orders restored. Sections 32(2) and 33(1) of Extradition Act (Can.), read togeth- er, provide for modified approach to hearsay rule unique to extradition context. Canadian-gathered evidence may be presented in summary form in record of case and can be relied on by extradition judge if, in substance, it would be admissible in Canadian court. Canadian-gathered evidence here would be admissible if actual re- cords were filed or evidence adduced by viva voce evidence, so extradition judge was correct to admit evidence in summary form. United States of America v. Anekwu (Sep. 24, 2009, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 32646) Appeal from 77 W.C.B. (2d) 813 al- lowed. Order No. 009/267/078 (28 pp.). FEDERAL COURT OF APPEAL Constitutional Law CHARTER OF RIGHTS Fact that appellants had resided in Canada at one time was insufficient to bring them within protection of s. 7 Application judge did not err in dismissing application for judicial review by appellants. Appellants had requested disclosure of records of interviews with them by Canadian officials in United States facility at Guantanamo Bay and of any mate- rial handed over to United States au- thorities as result of those interviews. Application judge correctly conclud- ed that s. 7 of Canadian Charter of Rights and Freedoms did not apply to appellants while detained by Unit- ed States authorities at Guantanamo Bay because they were not Cana- dian citizens. Fact that appellants had resided in Canada at one time was insufficient nexus to Canada to bring them within protection of s. 7. Further, there were no proceedings pending in Canada against appel- lants which might provide nexus to Canada. Slahi v. Canada (Minister of Justice) (Sep. 9, 2009, F.C.A., Sexton, Evans and Layden-Stevenson JJ.A., File No. A-78-09; A-79-09) Appeal from 175 A.C.W.S. (3d) 936 dismissed. Order No. 009/264/075 (9 pp.). FEDERAL COURT Civil Procedure COUNTERCLAIM Prothontary erred in declining to strike some paragraphs in counterclaim Prothonotary correctly declined to strike paragraphs from defendants' defence and counterclaim concerning commission of nominate economic torts in so far as those pleadings may serve as foundation for claim brought under ss. 45 and 36 of Competi- tion Act (Can.). These pleadings were adequate to permit plaintiffs to know how to plead to case advanced against them. Prothonotary erred in declining to strike paragraphs in de- fendants' counterclaim for damages for inducing breach of contract and tortious interference with economic relations. This was impermissible pleading because subject matter fell well outside jurisdiction of Federal Court. Prothonotary correctly found that defendants' pleadings against plaintiffs' corporate officers were sufficient to withstand motion to strike. Among other things, it was alleged that plaintiffs' corporate of- ficers embarked on campaign of anti-competitive behaviour and con- spired to violate s. 45 of Act. Pleaded particulars included alleged strategy of anti-competitive litigation, unlaw- ful acquisition of patents through assignments, and interference with supplier and customer relationships. Allegations were sufficiently particu- larized to support causes of action for personal liability under Act. Multiformulations Ltd. v. Allmax Nutrition Inc. (Sep. 11, 2009, F.C., Barnes J., File No. T-2191-07) Ap- peal from 176 A.C.W.S. (3d) 985 was allowed in part. Order No. 009/264/047 (13 pp.) ONTARIO CIVIL CASES Bankruptcy And Insolvency CREDITORS Benefit of trust not limited to operator resident in Ontario HOOPP argued receiver did not show receivables collected were segre- gated when received and kept in sepa- rate trust account for carriers and not co-mingled. HOOPP argued funds November 9, 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. were co-mingled with general corpo- rate or receivership funds and funds lost status as trust funds. HOOPP argued carriers could not claim ben- efit of special priority. HOOPP ar- gued funds should be distributed to secured creditors including HOOPP. Funds held in receiver's account were funds held in trust for creditors. Re- ceiver was following provisions of ap- pointment order. Third party carriers had claim to funds held by receiver. Section 191.0.1(3) of Highway Traf- fic Act (Ont.), trust applied to any operator where company operating from Ontario had arranged with op- erator to carry goods of another per- son. Benefit of trust was not limited to operator resident in Ontario. Canadian Imperial Bank of Com- merce v. Nadiscorp Logistics Group Inc. (Sep. 25, 2009, Ont. S.C.J. (Comm. List), Morawetz J., File No. 09-7980- 00CL) Order No. 009/272/006 (12 pp.). Civil Procedure DEFAULT Undefended trial not limited to assessment of damages Plaintiff purchased land from de- fendant. Plaintiff claimed defendant agreed to sell land free of encroach- ments. Portion of septic tank en- croached on plaintiff's land. Plain- tiff brought action for damages for breach of contract, misrepresenta- tion and loss of enjoyment of land. Plaintiff obtained default judgment. Plaintiff sought to assess damages at $250,000. Claim was dismissed. Undefended trial against defendant noted in default was not limited to assessment of damages. On un- defended trial against defendant noted in default it was for court to determine whether evidence was sufficient to entitle plaintiff to judg- ment. There was no encroachment. Defendant sold sand to plaintiff. Clean sand discovered on plaintiff's property was property of plaintiff. Nikore v. Jermaine Investment Man- agement Inc. (Sep. 9, 2009, Ont. S.C.J., Corkery J., File No. CV-06- 01887-00) Order No. 009/254/039 (14 pp.). SETTLEMENT Offer to settle was obvious unilateral mistake Plaintiffs were purchasers in failed real estate transaction. Defendants were vendors. Plaintiffs sought re- turn of deposit plus damages. Plain- tiffs brought motion for summary judgment. Defendants brought cross-motion to enforce settlement. Motion was allowed. Cross-motion was dismissed. Defendants breached agreement to sell property and wrongfully refused to return deposit. There was no excuse or justification for defendants' failure to return de- posit. Plaintiffs' offer to settle was never accepted and was revoked be- fore acceptance. Offer to settle was obvious unilateral mistake and was not capable of being accepted. Malekmohammadi v. Pirvali (Sep. 22, 2009, Ont. S.C.J., Perell J., File www.lawtimesnews.com No. CV-09-373088) Order No. 009/271/030 (6 pp.). Family Law CHILD WELFARE Order that child be returned to care and custody of mother under supervision of society upheld on appeal Trial judge ordered that child was in need of protection and ordered that she be returned to care and custody of her mother under supervision of society, subject to number of terms and conditions, for period of 12 months. Order had been stayed since August 2008 pending appeal and child had continued to live in foster home, where she had resided since September 2006. Child now aged seven. She was first apprehend- ed by society in November 2005. Trial judge observed that child's disorganized attachment and severe behaviours, which were noted in evidence of child's therapist and of parenting assessor, were not present when child was in care of mother, but only became present well after apprehension. Society was unable to point to any evidence that child suffered behavioural problems while she had been in care of her mother. Likewise, society was unable to point to any evidence either from assessor or therapist asserting that child was likely to suffer emotional harm from any actions, failure to act or pattern of neglect on part of parents. More- over, society failed to show that trial judge misapprehended evidence that it urged ought to have led trial judge to draw inference respecting risk of emotional harm caused by mother. Trial judge considered significance of R.D.'s past history, as well as mother's history of alcohol and drug use and her depression. No reason to interfere with trial judge's decision. Evidence showed that access to both parents was positive and had been beneficial for child. Mother continued to be in stable and positive relationship with R.D. and she had part-time employ- ment since October 2008. Order of trial judge was affirmed except for one paragraph, which had been sat- isfied. Children and Family Services for York Region v. C. (H.) (Aug. 21, 2009, Ont. S.C.J. (Div. Ct.), Carnwath, Swinton and Low JJ., File No. 139/09) Appeal from 173 A.C.W.S. (3d) 826 was allowed in part. Order No. 009/239/009 (4 pp.). COSTS Costs should not be awarded at this stage of proceedings Applicant filed domestic contract and sought arrears of child support. Respondent brought motion to change. Applicant requested costs covering period 2005 until February 2008. Applicant's request for costs was dismissed. Court was not pre- pared to award costs at this stage of proceedings. Wording in Rule 24(1) of Family Law Rules (Ont.), did not contemplate awarding costs for issue within argued motion. Question of child support and arrears was still outstanding. It was impossible to make determination of success or divided success until all argument or evidence was considered. There were many appearances and steps where no costs were sought or endorsement was silent as to costs. Argument, one-day hearing and settlement ne- gotiations that led to consent were not considered step in motion. Fenkanyn v. Girard (Sep. 1, 2009, Ont. C.J., Bondy J., File No. 301/04) Order No. 009/266/028 (11 pp.). CUSTODY In child's best interests to remain in sole custody of mother Parties had two children. Mother was home full-time to care for chil- dren. On day of separation father quit full-time job and moved with older child to new community. Mother did not consent to father's move. Mother did not respondent to father's court proceeding for sole custody of older child. Mother was emotionally and financially unable to defend court proceedings in new community. Father was granted sole custody of older child subject to ac- cess by mother. Father refused to allow mother access to older child. Mother suffered breakdown and was admitted to hospital. Father brought application for custody of younger child. Mother had interim custody of younger child. Both parties sought sole custody of younger child. Father was unemployed and did not con- tribute financially to younger child's care. Father would do everything possible to restrict mother's access. It was in younger child's best interests to remain in sole custody of mother. Father had reasonable access in dis- cretion of mother. Mother would promote reasonable access relation- ship between father and younger child. O'Brien v. Nisbet (July 28, 2009, Ont. C.J., Deluzio J., File No. 337/07) Order No. 009/268/003 (10 pp.). Order for joint custody difficult in extreme because of distance and conflict between parties Parties were married 19 years and had two children. Husband resided in Dubai in another country. Wife was homemaker and caregiver to children. Children resided with wife. It was 15 months since wife and chil- dren moved back to Canada. Chil- dren saw husband on few occasions. Wife was granted temporary custody. Order for joint custody was difficult in extreme because of distance and conflict between parties. Parties did not have co-operation required for joint custody. Husband was to have liberal and generous access. Hus- band's income was $450,000 per year and wife's was $22,000. Hus- band was to pay support of $10,000 per month. Payments were not al- located specifically between spousal and child support given tax concerns. Husband was to pay proportionate share of all special and extraordinary expenses for children. Karkar v. Karkar (Sep. 23, 2009, Ont. S.C.J., Stewart J., File No. FS-08-

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