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PAGE 14 CaseLawLaw FEDERAL COURT Citizenship LOSS OF CITIZENSHIP Delays were inordinate and unconscionable Minister brought action for declaration defendant obtained citizenship by false representa- tion or fraud or by knowingly concealing material circum- stances. Defendants did not dispute defendants lied to ob- tain citizenship. Plaintiff ar- gued defendants knowingly concealed extensive absences from Canada. Plaintiff argued delay in case did not consti- tute abuse of process. Defen- dants sought stay of proceed- ings because they were abuse of process. Defendants claimed defendants suff ered substan- tial prejudice as result of delay for which defendants were not responsible. Proceedings were stayed. Length of administra- tive proceedings was not nor- mal and was not due to any complexities of case. Minister alone was responsible for delay. Defendant's inability to apply for citizenship for next fi ve or more years would be prejudice directly resulting from Min- ister's delay. Delays were in- ordinate and unconscionable. Circumstances did not justify delays. Minister's conduct con- stituted abuse of process. Canada (Minister of Citizen- ship and Immigration) v. Parekh (June 24, 2010, F.C., Trem- blay-Lamer J., File No. T-827- 08) 190 A.C.W.S. (3d) 687 (29 pp.). Human Rights Legislation HUMAN RIGHTS COMMISSION Investigator's report was fatally flawed Applicant was terminated as employee of CN pursuant to provisions of Employment Security and Income Main- tenance Agreement entered between CN and union. Ap- plicant selected enhanced sup- plemental unemployment ben- efi ts package. Applicant became disabled while on benefi ts. CN rehired applicant to work at BC Rail. Applicant lost 23 years of seniority when applicant's em- ployment was terminated and had to start new pension plan. Applicant sought restoration of employment rights. Applicant fi led complaint with commis- sion. Commission decided not to deal with complaint be- cause applicant did not exhaust available grievance or review procedures. Applicant argued agreement was invalid because it systematically discriminated against disabled employees. Ap- plication for judicial review was allowed. Investigator's report was fatally fl awed. Investiga- tor did not examine or decide whether applicant discharged burden of establishing prima facie case of discrimination in respect of clause requiring em- ployee to have worked in order to stop clock from arriving at three-year cut-off date that enabled CN to terminate em- ployee who was unable to work on account of disability. Inves- tigator did not identify relevant time frames to fi x CN's knowl- edge of applicant's need for accommodation. Investigator misapprehended accommoda- tion applicant was seeking. Vos v. Canadian National Rail- way (June 30, 2010, F.C., Le- mieux J., File No. T-1088-08) 190 A.C.W.S. (3d) 895 (32 pp.). Privacy Legislation DAMAGES Gym's breach of Personal Information Protection and Electronic Documents Act (Can.) not malicious or egregious, so applicant not entitled to damages Application for damages for breach of Personal Informa- tion Protection and Electronic Documents Act (Can.). Ap- plicant was member of re- spondent gym and received discount through employer's corporate program. Applicant signed membership and pay- roll deduction form when he joined. Applicant's supervisor advised staff which employees, including applicant, had joined gym and how often they had attended. Applicant requested that respondent stop disclos- ing information about him to his employer. Respondent did not respond. Applicant un- comfortable about having gym visits monitored and claimed he was treated diff erently at work because he questioned policy. Applicant's employment terminated for unrelated rea- sons. Applicant cancelled but later reinstated gym member- ship and told respondent he had never consented to hav- ing his information disclosed to employer. Respondent told applicant disclosing frequency of visits was part of corporate membership policy. Applicant complained to Privacy Com- missioner, who found neither form completed by applicant requested consent to disclose September 20, 2010 • Law timeS Follow on www.twitter.com/lawtimes COURT DECISIONS Untitled-3 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: 5/5/10 3:55:30 PM 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. gym attendance to employer. Privacy Commissioner found respondent had breached Act and recommended it modify its forms. Respondent soon ad- vised Privacy Commissioner it had updated forms to request consent to disclose attendance to employers and had pro- vided them to all participants in corporate plan. Applicant now sought $85,000 in general and punitive damages. Appli- cation dismissed. Respondent disclosed applicant's personal information without his con- sent, which violated his privacy. However, respondent had ad- opted Privacy Commissioner's recommendations, so breach had been remedied. Evidence did not clearly establish that applicant's employer actually retaliated against him for his complaints to respondent and, in any event, this was not appli- cation against the employer for damages. Respondent's breach not malicious or egregious, so applicant not entitled to dam- ages. Randall v. Nubodys Fitness Cen- tres (June 23, 2010, F.C., Mos- ley J., File No. T-1100-09) 190 A.C.W.S. (3d) 938 (19 pp.). ONTARIO CRIMINAL CASES Appeal PLEA OF GUILTY Accused made decision to enter guilty pleas fully informed with benefit of experienced counsel Application to strike guilty pleas. Accused was charged with various sexual off ences in- volving boys. Accused pleaded guilty to two counts of sexual interference. When matter re- turned for sentencing accused wished to strike his guilty plea and to retain new counsel. Ac- cused claimed his plea was not voluntary and he was pressured into entering guilty pleas on day two of trial. Application dismissed. His former counsel was well-respected and experi- enced who essentially gave him no choice but to plead guilty. Prior to trial he had benefi t of attending preliminary hearing and hearing evidence of wit- nesses. He also attended fi rst day of trial where his videotaped statement to police was entered as exhibit. Evening of fi rst day of trial he was informed by former counsel that there was possible resolution if he plead- ed guilty to some charges. He discussed matter with counsel www.lawtimesnews.com and his parents. Th ese discus- sions continued next morning before trial. On day two of trial Crown counsel were prepared to call as witnesses complain- ants, who were young boys at time of off ences. Accused made tactical decision to enter pleas of guilty to two counts with other counts being withdrawn by Crown. Given circumstanc- es he had suffi cient time to consider resolution. He made decision fully informed with benefi t of experienced counsel. Pleas entered voluntary. R. v. Chisholm (July 9, 2010, Ont. S.C.J., Mulligan J., File No. 08-292) 89 W.C.B. (2d) 99 (6 pp.). Charter Of Rights RIGHT TO COUNSEL Officer believed accused had simply exercised own judgment and was satisfied with information received from lawyer's assistant Accused, charged with impaired driving and driving "over 80" applied for order to exclude evidence including statements, utterances and results of breath analysis on basis that her right to counsel was infringed. Ac- cused was driving when she struck commercial vehicle that was making turn in front of her. Offi cer arrived on scene and af- ter making certain observations placed accused under arrest for impaired driving. Offi cer made demand for accused to accom- pany her and provide samples of her breath for analysis and informed her that she had right to counsel. Accused responded in affi rmative that she wished to speak with lawyer. Accused was able to make contact with her second lawyer of choice's offi ce and spoke to that lawyer's assistant but was mistaken in believing assistant was lawyer when she was not. While num- ber of offi cers testifi ed that they believed accused had spoken to lawyer, one of them testifi ed that he knew assistant accused spoke to was not lawyer. Ap- plication to exclude evidence dismissed. Accused should have been informed that person she spoke to was not lawyer. Court found it reasonable and ap- propriate to expect that when police have reasonable grounds to believe that detainee has re- ceived advice from someone who is not lawyer after clearly expressing desire to speak with lawyer and detainee has not waived her right to speak with lawyer, then there is duty upon police to inform detainee ac- cordingly so that she may make informed decision to either call another lawyer or waive her right to speak to counsel. Court found circumstances to be product of inadvertence. It was reasonable to conclude that offi cer held opinion that ac- cused simply exercised her own judgment and was satisfi ed with information she received from lawyer's assistant. Th ere was no wilful failure to do that which ought to have been done or any recklessness in facilitat- ing rights that would cause particular concern for repute of administration of justice. R. v. Imlay (June 23, 2010, Ont. C.J., Campbell J., File No. 09 898) 89 W.C.B. (2d) 116 (9 pp.). Prisons INMATES' RIGHTS Inmate's security level not changed based on mere allegations, anonymous tips and speculation Inmate applied for habeas cor- pus with certiorari in aid asking court to exercise its discretion to quash decision of Correc- tional Service Canada ("CSC") to house him in medium secu- rity penitentiary and to order his immediate transfer to mini- mum security penitentiary. Inmate had been convicted of second degree murder because in fi t of anger and under infl u- ence of alcohol, he had brutally and senselessly beat mentally disabled man to death. Inmate was reclassifi ed after becoming suspect in tobacco smuggling ring in penitentiary and testing positive for THC. Application dismissed. CSC provided full disclosure to inmate regarding disciplinary off ences. It was in- accurate to suggest that CSC changed inmate's security level and caused his transfer based on mere allegations, anonymous tips and speculation, rather than evidence. Process and de- cision making that led inmate's security level being increased to "medium" and to his transfer to medium security penitentiary were fair. Oliver v. Canada (Attorney General) (July 13, 2010, Ont. S.C.J., Graham J., File No. CV-09-18-MO) 89 W.C.B. (2d) 162 (26 pp.). Sentence PREVENTIVE DETENTION There was extremely high risk that accused would re-offend Application by Crown to declare accused to be dangerous off end- er after he was convicted of sex- ual assault causing bodily harm. Accused also pleaded guilty to two counts of failing to comply