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LAw times • August 22, 2011 linked accused to theft. Evidence did not support fi nding of pos- session of bag. Bag was found under microwave in apartment rented by someone else. Bag's contents did not link accused to bag. Accused's sentence reduced from three years to two years' im- prisonment, in addition to 108 days pretrial custody. R. v. Lamoureux (June 6, 2011, Ont. C.A., Laskin, Gillese and Karakatsanis JJ.A., File No. C53074) 94 W.C.B. (2d) 712 (2 pp.). ONTARIO CIVIL CASES Civil Procedure CHANGE OF SOLICITOR Solicitor's obligation to maintain confidentiality trumped good intention to represent wife on pro bono basis Motion by husband for order removing wife's solicitor as solici- tor of record. Parties were mar- ried for 16 years and had two children. Subsequent to divorce judgment, husband brought mo- tion to change. Wife retained so- licitor to act on her behalf. Solici- tor knew both parties personally. Solicitor met parties in 1994. For past 16 years, husband had acted as realtor for solicitor's law fi rm and for solicitor in his per- sonal capacity. Motion granted. Appearance of or actual confl ict of interest put administration of justice into disrepute. Solicitor's past gratuitous and paid advice, and his obligation to maintain confi dentiality trumped his good intention to represent wife on pro bono basis. Watt v. Nicholls (May 5, 2011, Ont. S.C.J., Olah J., File No. FC-07-261-02) 202 A.C.W.S. (3d) 18 (22 pp.). Conflict Of Laws JURISDICTION Discoveries and productions made in course of Ontario litigation could be used in context of British Columbia action Motion by defendants under s. 106 of Courts of Justice Act (Ont.), for stay of Ontario pro- ceedings. Plaintiff commenced action against personal and cor- porate defendant in Ontario in 2003. Examinations for discovery began in 2008. In 2010, without notice to defendants, plaintiff commenced virtually identical action against same defendants in British Columbia and obtained certifi cates of pending litigation with respect to defendant's land. Motion granted. British Colum- bia was clearly forum conveniens. Although defendants attorned to Ontario's jurisdiction, plain- tiff 's commencements of action in British Columbia signalled willingness and intention on be- half of plaintiff to litigate matter there. Neither party had been diligent about moving matter along. Discoveries and produc- tions made in course of Ontario litigation could be used in con- text of British Columbia action. Consbec Inc. v. Walker (May 12, 2011, Ont. S.C.J., Gordon J., File No. C9848-06; C-7383-03) 202 A.C.W.S. (3d) 61 (9 pp.). Family Law CHILD WELFARE Substantial public interest in disclosure of information sought by Children's Aid Society Motion by society for disclosure of contents of Crown brief pre- pared by city police for prosecu- tion of father, pursuant to s. 74 of Child and Family Services Act (Ont.), and Rule 19 of Family Law Rules (Ont.). Child experi- enced series of very signifi cant injuries, some of which were life- threatening. Police and society were contacted following child's hospitalization. Both agencies conducted investigations. Pur- suant to temporary care order, child was placed in care of soci- ety. Society sought disclosure of documents obtained in ordinary police investigation, documents containing analysis of material seized pursuant to search war- rant, and evidence that was prod- uct of wiretap authorization. Motion granted. Information was potentially relevant. Th ere was substantial public interest in disclosure. Children's Aid Society of the Dis- trict of Th under Bay v. D. (S.) (Feb. 23, 2011, Ont. C.J., Bode J., File No. FO-10-0111-00) 202 A.C.W.S. (3d) 94 (24 pp.). Insurance AUTOMOBILE INSURANCE Fund detrimentally relied on earlier jurisprudence when it conducted its investigation Appeal by respondent from de- cision by arbitrator holding that fund was not bound by notice provisions in Disputes Between Insurers, O. Reg. 283/95, when conducting investigation into alternate insurers under Insur- ance Act (Ont.). Driver of un- insured vehicle was involved in single vehicle accident. Fund began making payments. Fund began investigating respondent. Respondent was driver's em- ployer. Respondent had taken position that fund had failed to deliver notice of application within prescribed 90-day period and, therefore, could no longer dispute its obligation to pay driv- er's benefi ts. Party can be exempt from new law where it can show that it clearly and detriment- ally relied on previous authority. Fund detrimentally relied on ear- lier jurisprudence when it con- ducted its investigation. Ontario (Minister of Finance) v. Lombard General Insurance Co. of Canada (May 2, 2011, Ont. S.C.J., Kershman J., File No. 10- 49659) 202 A.C.W.S. (3d) 154 (11 pp.). Pensions GENERAL Because employee's employment ended when he was 52, he did not qualify to receive early retirement benefits Appeal by employee from deci- sion dismissing employee's mo- tion for summary dismissal of employer's claim. Employee's employment was terminated when he was 52 years old. At CASELAW time of termination, employee held position of Senior Vice President and Chief Financial Offi cer. While employed, em- ployee was part of pension plan. Plan was structured with normal retirement to take place at age 65. Employer commenced ac- tion for declaration that employ- ee was not entitled to unreduced pension at age 62 under plan or agreement. Motion judge con- cluded that employee was not entitled to unreduced pension at age 62. Appeal dismissed. Be- cause employee's employment ended when he was 52 years old, he did not qualify to receive early retirement benefi ts. Revios Canada Ltd. v. Creber (May 3, 2011, Ont. C.A., Goudge, Gillese and Watt JJ.A., File No. C52842) 202 A.C.W.S. (3d) 171 (14 pp.). FEDERAL COURT Citizenship QUALIFICATIONS Citizenship judge's decision reasonable in view of failure of applicant to provide sufficient evidence to establish continued presence in Canada Applicant was citizen of India. Applicant arrived in Canada in 2000 and became permanent resident in 2006. In 2008, appli- cant applied for Canadian citizen- ship. Applicant declared 1,143 days of physical residence and no absences from Canada dur- ing applicable citizenship period. Citizenship judge rejected appli- cation. Judge was unable to deter- mine on basis of documents and information on record whether applicant had resided in Canada for three of four years preceding application. Applicant brought appeal of decision. Applicant argued that judge improperly concluded that applicant had not satisfi ed burden of proof of required physical presence in Canada. Appeal dismissed. Cit- izenship judge's decision was reasonable in view of failure of applicant to provide suffi cient evidence to establish continued physical presence in Canada. In examining fi le, judge noticed several problematic areas such as applicant's travel and domicile histories. When confronted with inconsistencies applicant was un- able to give adequate explanation or provide additional informa- tion. Applicant also failed to fi le agreed documentation despite being granted extensions to do so. Lakhvir v. Canada (Minister of Citizenship and Immigration) (Apr. 26, 2011, F.C., Scott J., File No. T-1423-10) 202 A.C.W.S. (3d) 17 (15 pp.). Immigration PERSON IN NEED OF PROTECTION Officer's treatment of new evidence submitted for Pre-Removal Risk Assessment was unreasonable Offi cer rejected applicants' ap- plication for Pre-Removal Risk Assessment ("PRRA"). Offi cer denied applicants' request to www.lawtimesnews.com have application for perma- nent residence processed from within Canada on humanitarian and compassionate ("H&C") grounds. Applications for judi- cial review were allowed. Offi - cer's treatment of new evidence submitted for PRRA was un- reasonable. Offi cer's decision to assign little probative value to letters from applicants' family member was not reasonable. Of- fi cer's decision to award low pro- bative value to letters from judge and lawyers was unreasonable in that it failed to consider context of letters. H&C decision was un- reasonable. Ugalde v. Canada (Minister of Public Safety and Emergency Pre- paredness) (Apr. 13, 2011, F.C., de Montigny J., File No. IMM- 3774-10; IMM-3775-10) 202 A.C.W.S. (3d) 144 (17 pp.). SELECTION AND ADMISSION No evidence to support theory there was connecting factor between respondent and Canadian employer Application for judicial review of decision of Immigration Appeal Division of Immigration and Refugee Board allowing respond- ent's appeal on basis she had met residency obligation imposed on permanent residents under s. 28 of Immigration and Refu- gee Protection Act (Can.). Board found that respondent through her employment with Inves- tissement Quebec in China was "assigned full-time as a term of one's employment to a position outside Canada" within mean- ing of s. 61(3) of Immigration and Refugee Protection Regula- PAGE 15 tions (Can.). Board determined that being hired locally outside Canada met requirements of Act and Regulations. Application granted. Evidence clearly showed that competition that respond- ent entered was exclusively for local employees. Concept of as- signment absent from defi nition of local employee. No evidence to support theory there was con- necting factor between respond- ent and Investissement Quebec despite fact that respondent had been hired locally. No com- mitment on part of employer to promote respondent within specifi ed timeframe to position at Investissement Quebec in Montreal following temporary stay in China. Word assignment in context of permanent resident status interpreted in light of Act and Regulations necessarily im- plies connecting factor to em- ployer located in Canada. Word assigned in s. 61(3) of Regula- tions means that individual who is assigned to position outside Canada on temporary basis and who maintains connection to a Canadian business or to the public service of Canada or of a province may therefore return to Canada. Board's fi nding that permanent residents holding full-time positions outside Can- ada with an eligible Canadian company can accumulate days that would enable them to com- ply with residency obligation set out in s. 28 of Act unreasonable. Canada (Minister of Citizen- ship and Immigration) v. Jiang (Mar. 22, 2011, F.C., Boivin J., File No. IMM-4451-10) 202 A.C.W.S. (3d) 150 (23 pp.). When More is Too Much Starting from $62.50 per month Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. BestCase not only has a comprehensive collection of unreported decisions, but our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. 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