Law Times

Law Times • February 6, 2012 tary evidence. Furthermore, board found that principal applicant had failed to rebut presumption of existing adequate state protec- tion in Colombia. Judicial review was dismissed. Principal applicant could not consistently offer plau- sible reason why he was declared "military target" and continued to receive anonymous phone calls, or as to who was agent of perse- cution. More significantly, board found that credibility of principal applicant's claim was impugned by his failure to claim asylum in United States. Board's finding that principal applicant's re-availment to Colombia was inconsistent with conduct of someone whose life, for six years, was allegedly being threatened by unknown persons, perhaps even terrorist organiza- tion, was reasonable. Board con- sidered evidence and determined that adequate state protection existed. Here, principal applicant left Colombia two months after last threat, during which time he received no additional threats and before giving authorities chance to address statements made in his denunciation. For this reason, state protection findings were rea- sonable. Mejia v. Canada (Minister of Citizenship and Immigration) (Nov. 7, 2011, F.C., Rennie J., File No. IMM-1011-11) 208 A.C.W.S. (3d) 383 (8 pp.). Member's finding on state protection was unreasonable Principal applicant, citizen of Guatemala, sought judicial review of Immigration and Refugee Board's decision refusing her claim for refugee protection. Board mem- ber found that applicants did not have well-founded fear of perse- cution for convention reason and their removal to Guatemala would not subject them personally to risk to life, or risk of cruel and unusual treatment or punishment, or dan- ger of torture. Member's decision focused on its analysis of applicant's credibility and subjective fear as well as state protection. Judicial review was allowed. Member's decision on credibility was based on errone- ous findings of fact that it made in perverse or capricious manner without regard to material before it. Given failure of member to address contradictory documen- tary evidence, member's finding on state protection was unreasonable. Matter was to be remitted back to differently constituted panel for redetermination. Alvarez v. Canada (Minister of Citizenship and Immigration) (Nov. 9, 2011, F.C., Mandamin J., File No. IMM-2603-11) 208 A.C.W.S. (3d) 384 (24 pp.). SELECTION AND ADMISSION Onus on applicants to put best case forward at time of application Officer refused applicants' applica- tion for permanent resident visa. Principal applicant was citizen of United States and was originally from Pakistan. Principal appli- cant's wife and adopted daughter were both citizens of Pakistan. Principal applicant did not meet minimum requirement of 67 points. Judicial review was dis- missed. Applicants applied for per- manent residence under Federal Skilled Worker Class, but did not provide adequate documentary evidence to support claims made by principal applicant and they failed to explain in satisfactory manner certain obvious discrep- ancies in information provided. Officer's assessment of points was reasonable when evidence, or lack thereof, was taken into account. Officer did not breach her duty of procedural fairness owed to applicants. Applicants were pro- vided with ample opportunity to present their case. Applicants were able to submit all required documentation to support prin- cipal applicant's claimed educa- tion, work experience and English language proficiency with their initial application. They were also able to address concerns held by officer during interview. Officer was under no obligation to provide extra time for princi- pal applicant to "re-submit" docu- mentation that would have satis- fied any concerns that remained at conclusion of interview. Onus was on applicants to put their best case forward at time of applica- tion. Negative decision was result of their failure to submit required documentation with their applica- tion and principal applicant's fail- ure to provide adequate answers to concerns raised at interview. Ali v. Canada (Minister of Citizenship and Immigration) (Nov. 1, 2011, F.C., Russell J., File No. IMM-695-11) 208 A.C.W.S. (3d) 388 (33 pp.). FEDERAL COURT OF APPEAL Equity ESTOPPEL No grounds for relieving appel- lants from consequences of choice Minister issued reassessments against appellants totalling $702,646 in net tax and penal- ties. Basis of reassessments was that appellant improperly claimed input tax credits for specified period. Appellants were convicted of fraud in criminal proceeding concerning claims for input tax credits. Input tax credits found to be fraudulently claimed fell within period covered by reassessments. Tax Court concluded issue estop- pel applied to bar appellants from relitigating. Tax Court concluded it would not exercise discretion in favour of allowing appellants to relitigate. Appeal was dismissed. There were not grounds on which conclusions could be set aside. Tax Court's refusal to relitigate was amply supported by consid- erations. Appellant chose during sentencing phase of criminal pro- ceedings not to seriously contest quantum of tax said to have been evaded and appellants were rep- resented by counsel then. There were no grounds for relieving appellants from consequences of choice. There was no ground to interfere with conclusion circum- stances favouring relitigation did not outweigh important public policy issues. Dundurn Street Loffts Inc. v. Canada (Oct. 18, 2011, F.C.A., Evans, Layden-Stevenson and Stratas JJ.A., File No. A-420-10) 208 A.C.W.S. (3d) 326 (10 pp CASELAW ONTARIO CIVIL CASES Aboriginal Peoples REAL PROPERTY Court did not have jurisdiction to interfere with interests in land Application by husband for order for exclusive possession of matri- monial home. Parties were status Indians. During marriage, parties built home on land situated on reserve. Both parties had mod- est incomes, and neither party could afford to purchase interest of other. Application dismissed. Court did not have jurisdiction to interfere with interests in land on which matrimonial home was located. It appeared that band that ultimately decided who could be in possession of property. Band had not supported husband in his attempts to regain posses- sion of home. Court did not have assurance that band would hon- our order granting possession to either of parties. Syrette v. Syrette (Oct. 14, 2011, Ont. S.C.J., Koke J., File No. 168/05) 208 A.C.W.S. (3d) 361 (10 pp.) Animals LIABILITY OF OWNER No evidence risk created by number of dogs at property Infant plaintiff was attacked by dogs owned by defendant grand- mother. Defendant grandmother was dog breeder and had nine dogs. Township advised defen- dant grandmother that keeping nine dogs on property contra- vened by-law. Dogs were removed from premises and number of dogs were destroyed. Infant plaintiff brought action for com- pensation for damages suffered. Plaintiffs had judgment against defendant grandmother for amounts agreed upon less 25% for contributory negligence of infant plaintiff. Claim against town- ship was dismissed. Dog owner was strictly liable for actions of dogs. There was finding of liabil- ity against dog owner for attack. There was no reliance by infant plaintiff, mother or grandmoth- er on township to ensure infant plaintiff was safe in presence of dogs. Township would not have believed plaintiff was relying on township for protection from potential harm arising from pres- ence of dogs. Township had by- law as to number of dogs permit- ted on property but had no abil- ity to remove dogs or to impose other conditions on presence of dogs. There was no evidence risk was created by number of dogs at property. Fact there were mul- tiple dogs at property did not lead to conclusion attack was foresee- able. Relationship between infant plaintiff and township did not give rise to duty of care. Infant plaintiff disobeyed rules regarding dogs and was deemed 25% contribu- torliy negligent. Mother was not negligent in allowing children to spend weekend with grandmoth- er. Counterclaim against mother was dismissed. Dog owner's coun- terclaim was dismissed. Township and plaintiffs were not negligent or played role in seizure of dogs and dog owner led no evidence to www.lawtimesnews.com prove value of loss of dogs. Kent (Litigation Guardian Contracts of) v. Laverdiere (Sep. 16, 2011, Ont. S.C.J., Wilson J., File No. 03-CV-259012CM2) 208 A.C.W.S. (3d) 228 (34 pp.). Civil Procedure COSTS Counsel for plaintiff adopted team approach which led to duplication of efforts it was Court granted plaintiff 's sum- mary judgment motion and ordered defendant to pay plain- tiff $284,583. Present hearing was to determine costs owed by defendant. In March 2010, plain- tiff made offer to defendant for less than amount of final judg- ment which defendant refused to accept. Plaintiff entitled to costs on substantial indemnity scale from date of settlement offer onward. No reason to deviate from general rule of partial indemnity prior to settlement offer. Since counsel for plaintiff adopted team approach with five lawyers which led to duplication of efforts by counsel costs reduced to take unnecessary duplication into account. Royal Group, Inc. v. Core Precision Technologies Ltd. (Oct. 3, 2011, Ont. S.C.J., Campbell J., File No. CV-09-370676) 208 A.C.W.S. (3d) 268 (4 pp.). PARTIES Plaintiffs had always intended to include manufacturer of vehicle as defendant Master permitted plaintiffs to add manufacturing company as addi- tional party defendant in their ongoing action, notwithstand- ing fact that limitation period in relation to plaintiffs' claim against manufacturing company had expired. Plaintiffs had mistakenly believed that corporation had manufactured motor vehicle that they asserted malfunctioned and caused accident that led to their damages. In fact, corporation was only distributor of vehicle. Vehicle was manufactured by manufac- turing company. By time plaintiffs discovered their mistake, limita- tion period against manufactur- ing company had expired. Appeal was dismissed. While limitation period in respect of plaintiffs' claim against manufacturing company had expired, s. 21(2) of Limitations Act, 2002 (Ont.), permitted plaintiffs to correct their "misnomer" with respect to manufacturer of their vehicle and add manufacturing company as defendant to litigation. Plaintiffs had always intended to include manufacturer of vehicle as defen- dant in their action. Indeed, plain- tiff 's claim against manufacturer of vehicle appeared to be centre- piece of action. Equally impor- tantly, manufacturing company knew that plaintiffs were pointing their "litigation finger" at manu- facturer of vehicle, even though they had misnamed manufactur- er. In these circumstances, master was quite correct in permitting proposed amendment. Stekel v. Toyota Canada Inc. (Nov. 1, 2011, Ont. S.C.J., Campbell J., File No. 06-CV-309553PD1) Decision at 200 A.C.W.S. (3d) 673 was affirmed. 208 A.C.W.S. (3d) 281 (12 pp.). PERFORMANCE AND BREACH Defendants acted in concert when planning departures Defendants worked for plain- tiff. Defendants resigned with no notice and went to work with competitor. Most of customers fol- lowed defendants. Plaintiff 's alle- gations of breach of contract were founded on draft unsigned docu- ments. There were no written con- tracts between plaintiff and defen- dants. Only arrangement to which first defendant agreed was 50/50 commission split and there was no arrangement with respect to book of business. Second defendant agreed book of business would be owned 50/50 as between plaintiff and second defendant. Second defendant breached contract in departing and taking book of busi- ness without paying for or offering to purchase plaintiff 's 50% interest. It was plain defendants acted in concert when defendants planned departures. Elements of tort of civil conspiracy were made out. Both defendants were liable to plaintiff for tort of civil conspiracy. Plaintiff was entitled to damages equal to amount plaintiff should have been paid for 50% interest with value of $209,590 which second defendant was ordered to pay. Defendants were jointly and severally liable for damages as co-conspirators which were fixed at $209,590. Facts of case did not warrant punitive damages. Gentech Insurance Ltd. v. Martina (Oct. 6, 2011, Ont. S.C.J., Stinson J., File No. CV-09-373301) 208 A.C.W.S. (3d) 227 (16 pp.). Damages PERSONAL INJURIES Damages awarded where pedestrian struck by cyclist Wife was walking in a park when she was struck by cyclist at full speed from behind. Wife suf- fered serious injuries requiring hospitalization in intensive care. While wife had previously been independent lasting physical and mental damage from collision caused her to become completely dependent on husband and son. Wife, husband and son brought action for damages against cyclist. Action allowed. Wife awarded $6,400 in pecuniary damages for cost of dental work required to fix teeth broken in collision. Wife also awarded $60,000 in non- pecuniary damages. Amount of non-pecuniary damages reflected fact that wife was already 79 years old on day of collision such that life expectancy was reduced and some changes were possibly due to aging process rather than result of accident. As for husband he lost the care, guidance and com- panionship he would reasonably have expected from his wife. In the absence of demonstration of actual value of services provided by husband to wife and consider- ing wife's age $10,000 awarded to husband. Son awarded $15,000 for loss of income and $2,000 for loss of companionship of his mother. Tubis v. Zochowski (Oct. 7, 2011, Ont. S.C.J., Lederer J., File No. 07-CV-335215PD1) 208 A.C.W.S. (3d) 320 (9 pp.). LT PAGE 15

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