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PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Civil Procedure COSTS No special reasons in case justifying award of costs Appellant was successful in ap- pealing judgment dismissing application for judicial review of decision under Immigra- tion and Refugee Protection Act (Can.). No submissions on costs appeared in memorandum of fact and law. No submissions on costs were made at hearing. Judgment on appeal and rea- sons for judgment were silent on costs. Appellant brought motion for order granting costs on so- licitor-and-client basis. Motion was dismissed. Motion for costs was subject to Rule 22 of Federal Court Immigration and Refugee Protection Rules (Can.), which precluded award of costs in ab- sence of special reasons. Th ere were no special reasons in case justifying award of costs in fa- vour of appellant. Ndungu v. Canada (Minister of Citizenship and Immigration) (June 21, 2011, F.C.A., Sharlow, Dawson and Layden-Stevenson JJ.A., File No. A-501-09) 204 A.C.W.S. (3d) 31 (11 pp.). Crown PRIVILEGE Informer privilege did not apply to Canadian Security Intelligence Service human sources Th is was appeal from Federal Court Judge's decision order- ing disclosure of documents that were allegedly sensitive and potentially injurious. Appeal allowed. Th ree-prong test to be applied was set out in R. v. Ribic (2003), 185 C.C.C. (3d) 129 (F.C.A.). Judge must fi rst determine whether information sought to be disclosed was rel- evant to proceedings in which it was intended to be used. If information met relevancy test judge must determine whether disclosure of information would be injurious to international relations, national defence or national security. If judge was satisfi ed that disclosure of sen- sitive information would result in injury judge must deter- mine whether public interest in disclosure outweighed public interest in non-disclosure. In- former privilege did not apply to Canadian Security Intelli- gence Service human sources, as that would be contrary to s. 38 of Canada Evidence Act and express will of Parliament. However, in applying Ribic test judge either discounted evidence of injury or did not give it weight it deserved. Judge committed palpable and over- riding error and disclosure or- der was set aside. Canada (Attorney General) v. Kalifah (June 13, 2011, F.C.A., Blais C.J., Letourneau and Tru- del JJ.A., File No. A-428-10) 203 A.C.W.S. (3d) 771 (32 pp.). ONTARIO CIVIL CASES Contracts MISREPRESENTATION No active concealment of material facts Action by plaintiff for damages for fraudulent misrepresenta- tion, breach of fi duciary duty, insider trading, and oppression. Plaintiff was experienced busi- nessman who hired defendant as executive assistant. Plaintiff and defendant became unequal part- ners in company that defendant was permitted to operate. Subsid- iary of company acquired small brewery with $3.3 million from plaintiff . Defendant successfully operated brewery. Plaintiff even- tually wanted to be bought out for $9 million. Creditor agreed to refi nancing subject to prepara- tion of valuation report. Valuator prepared report using informa- tion and projections provided by defendant. Refi nancing resulted in defendant being sole owner of brewery after plaintiff was paid $9.3 million in full satisfaction of his interest in brewery. Brewery ended up performing better than expected. Plaintiff felt cheated OctOber 17, 2011 • 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. when large brewery off ered to buy defendant's brewery. Action dismissed. Brewery's unexpected success was not product of deceit or fraud. Further, there was no misrepresentation of fact made by defendant to valuator or to plaintiff . Th ere was no active con- cealment of material facts or any conduct preventing or discourag- ing discovery of true state of af- fairs. Defendant had not taken advantage of plaintiff in any way. Forecasts were intrinsically uncer- tain and inaccurate. Plaintiff had not been induced to act as result of any false statement in valua- tion report. Plaintiff had named his price prior to valuation and was indiff erent to valuation in re- port. Plaintiff had acknowledged valuation report was prepared for creditor rather than him. Neither creditor nor valuator alleged they had been misled. Plaintiff had in- dependent legal representation. Plaintiff would not have expected to pay refund if brewery had not performed as well as expected. Plaintiff had not suff ered any damages since no superior trans- action had materialized before he sold his interest. Fracassi v. Cascioli (May 30, 2011, Ont. S.C.J. (Comm. List), Pepall J., File No. CV-08- 7730-00CL) 204 A.C.W.S. (3d) 65 (100 pp.). Landlord And Tenant RESIDENTIAL TENANCIES Rental application did not address issue of deposit in satisfactory manner Th is was appeal from divisional court's decision refusing to return rental deposit to appellant. Ap- pellant submitted application to rent apartment for one-year pe- riod and she provided respondent with deposit equal to one month of rent. Respondent accepted ap- plication. Six weeks before appel- lant was to take possession she told respondent that she would not proceed with rental. Respon- dent would not return deposit. Appellant unsuccessfully applied for return of deposit pursuant to s. 135(1) of Residential Tenan- cies Act, 2006 (Ont.), based on s. 107(1) of Act. Appeal allowed. Section 107(1) of Act did not authorize tenant to automatic 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. return of rent deposit where landlord had done everything necessary to give possession and tenant had unilaterally repudi- ated rental agreement. It was not clear here that agreement formed by respondent's acceptance of ap- pellant's rental application autho- rized respondent to use deposit as security against payment of rent. As appellant breached agreement to rent, parties did not enter into tenancy agreement. Rental ap- plication did not address issue of deposit in satisfactory manner, as provision was illegal and confus- ing. In eff ect respondent treated deposit as forfeiture penalty, which was not permitted under Act. In circumstances respondent could not retain deposit. Musilla v. Avcan Management Inc. (July 12, 2011, Ont. C.A., O'Connor A.C.J.O., Cronk and Rouleau JJ.A., File No. C53166) Decision at 196 A.C.W.S. (3d) 554 was reversed. 204 A.C.W.S. (3d) 173 (7 pp.). Motor Vehicles VICARIOUS LIABILITY Driver took vehicle from secure area for evening joy ride Motion by owner of vehicle for order dismissing action against him. Action was brought against owner of vehicle on the basis of vicarious liability. Driver of ve- hicle had no relation to owner. Driver was employed by shop that was repairing owner's ve- hicle. Shop had express permis- sion to be in possession of ve- hicle. Owner knew employees may have to drive vehicle for purpose of identifying problems. However, accident occurred af- ter repairs had been completed. Motion allowed. Once repairs were completed, shop was only storing vehicle until owner picked it up. Neither owner nor shop gave driver permission to use vehicle at time of accident. In fact, driver took vehicle from secure area for evening joy ride with friend, so he was not using vehicle in course of his employ- ment. Owner was not vicari- ously liable. McLay v. Dee (May 3, 2011, Ont. S.C.J., Grace J., File No. CV-09-37397) Handwritten Endorsement. 204 A.C.W.S. (3d) 211 (11 pp.). FEEDS LEGAL LegalFeeds_Cl_Jan_11.indd 1 A daily blog of visit www.lawtimesnews.com SUPREME COURT OF CANADA Appeal GROUNDS Court of Appeal erred by applying authorities concerning unreasonable verdict rather than misapprehension of evidence Accused charged with man- slaughter and aggravated assault. Victim was beaten by three men and left unconscious in the road where he was fatally run over by a passing car. Trial judge concluded that accused had participated in beating and convicted him of manslaughter. Court of Appeal set aside conviction and ordered new trial. Court of Appeal found that trial judge had erroneously believed there was evidence that before the fatal attack the accused had made plans to commit a rob- bery with his co-accused. Appeal allowed and conviction restored. Verdict was not unreasonable and Court of Appeal erred by applying authorities concerning unreasonable verdict rather than misapprehension of the evidence. Trial judge's reasons demonstrate no misapprehension of the evi- dence. Trial judge concluded that accused took part in attack on victim based on circumstantial evidence unrelated to any plan to commit a robbery. R. v. Sinclair (July 28, 2011, S.C.C., McLachlin C.J.C., Bin- nie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33359) Decision at 84 W.C.B. (2d) 349 reversed. 95 W.C.B. (2d) 552 (51 pp.). NO SUBSTANTIAL WRONG Admission of accused's criminal history was harmless error Accused charged with robbery and related off ences arising from knife-point robbery of variety store carried out by robber wear- ing a blue Halloween mask. Knife and blue mask with accused's DNA found near the store. Police offi cer at accused's trial testifi ed that accused had lengthy crimi- nal history. Trial judge did not Canadian Legal News 1/6/11 11:44:49 AM canadianlaw yermag.com/ legalfeeds

• Cover
• Access Denied
• Costs Award
• Focus On Insurance Law