Law Times

PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Constitutional Law DISTRIBUTION OF LEGISLATIVE AUTHORITY Civil Remedies Act, 2001 (Ont.) is not colourable criminal legislation While searching appellant's car, police found $29,020 in cash and other items, all of which police claimed smelled of marihuana, although no marihuana found. Appellant never charged with any offence in relation to money or items. However, Attorney Gen- eral of Ontario brought applica- tion under ss. 3 and 8 of Civil Remedies Act, 2001 (Ont.) for forfeiture of seized money as pro- ceeds of unlawful activity and of items as instruments of unlaw- ful activity. Appellant challenged Act's constitutionality. Question on appeal whether Act ultra vires Ontario because it encroaches on federal criminal law power. Appeal dismissed. Act enacted in relation to property and civil rights and may incidentally "affect" criminal law and procedure without doing violence to division of powers. No general bar to province's enacting civil consequences to criminal acts provided province does so for its own purposes in relation to pro- vincial heads of legislative power. Fact that Act aims to deter federal offences as well as provincial of- fences and indeed offences com- mitted outside Canada, is not fatal to its validity. Although forfeiture may have de facto punitive effects in some cases, its dominant pur- pose is to make crime in general unprofitable, to capture resources tainted by crime so as to make them unavailable to fund future crime and to help compensate private individuals and public in- stitutions for costs of past crime, which are valid provincial objects. It could not reasonably be said Act amounted to colourable criminal legislation. Ontario (Attorney General) v. Chatterjee (Apr. 17, 2009, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ., File No. 32204) Appeal from 159 A.C.W.S. (3d) 674, 282 D.L.R. (4th) 298, 221 C.C.C. (3d) 350, 74 W.C.B. (2d) 295 dismissed. Order No. 009/110/056 (38 pp.). FEDERAL COURT Crown PREROGATIVE Applicant entitled to know precisely what new clemency policy was before it was applied to his situation Applicant death-row inmate incar- cerated in Montana State Peniten- tiary, applied for order compelling respondent Ministers, on behalf of Government of Canada, to assist him in pursuing commutation of death penalty by way of anticipat- ed clemency petition. He alleged that respondents breached funda- mental principles of fairness by ar- bitrarily withdrawing diplomatic assistance without consultation or reasons. Application granted. Subject to Parliament and Con- stitution, open to Government of Canada in its assessment of public interest to freely change its policies from time to time. Exercise of pre- rogative to develop and implement diplomatic and foreign policy ini- tiatives generally beyond scope of judicial scrutiny. Decisions of administrative character which af- fect rights, privileges or interest of individual reviewable and subject to principles of procedural fair- ness. Even if there was discernable change in Government's clemency policy someone with authority to do so had to apply new policy to applicant to determine whether he fit within it. That is where ap- plicant's specific and considerable interests were at stake and where Government owed clear duty of fairness. Applicant entitled to know precisely what new clem- ency policy was before it was applied to his situation. Matter justiciable and attracts duty of fairness. Reversal of Government's position after more than 20 years of unqualified assistance gave rise to reasonable expectation that any decision to withdraw support would not be applied without full July 27/August 3, 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) 841-6472, (800) 263-326 or (800) 263-2037. 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. consultation followed by fair and objective consideration of appro- priateness of applying new policy to facts. Fairness requires there be clear articulation of new policy and clear and consistent articula- tion of reasons for Government's reversal. Government's failure to recognize any procedural rights represents fundamental breach of duty of fairness. Decision to with- draw support set aside. Smith v. Canada (Attorney Gener- al) (Mar. 4, 2009, F.C., Barnes J., File No. T-2067-07) Order No. 009/092/227 (34 pp.). ONTARIO CIVIL CASES Arbitration APPOINTMENT OF ARBITRATOR Jurisdiction to appoint arbitrator under separation agreement rested with Superior Court of Justice and not Family Court Motion by husband for order ap- pointing named arbitrator pursu- ant to s. 7 of Arbitration Act, 1991 (Ont.) ("AA"), or alternatively appointing arbitrator deemed ap- propriate by court in respect to dispute as to spousal support un- der separation agreement. Sepa- ration agreement provided for mediation/arbitration where par- ties unable to agree on variation. Separation agreement called for binding arbitration as last resort. No provision made in separation agreement about how to select arbitrator. Motion dismissed on basis that jurisdiction to appoint arbitrator under separation agree- ment rests with Superior Court of Justice and not Family Court. AA not one of listed statutes in schedule to s. 21.8 of Courts of Justice Act (Ont.), where Fam- ily Court has jurisdiction. Where proceeding referred to in sched- ule commenced in Family Court and combined with related matter that is in judge's jurisdiction but not referred to in schedule, court may, with leave of judge, hear and determine combined matters. No general juridical authority to ap- point arbitrator. Power to make appointment limited to court as defined in AA namely, Superior Court of Justice. Request for ap- pointment of arbitrator not com- bined with schedule proceeding. Kolupanowicz v. Cunnison (Apr. 14, 2009, Ont. S.C.J. (Fam. Ct.), Quinn J., File No. 133/01) Order No. 009/119/019 (30 pp.). Civil Procedure WANT OF PROSECUTION Presumption that defendants would be prejudiced by elimination of limitation defence was not rebutted Plaintiff brought action to recover debt on purported demand loan. Defence was filed pleading limita- tion defence. Action was dismissed as abandoned. Plaintiff brought motion to set aside order. Plaintiff argued amendment to Limitation Act, 2002 (Ont.), was retroactive and had effect of eliminating limi- tation defence. Plaintiff argued it would not have abandoned case if amendment were in place at time of order. Motion was dismissed. Evidence was plaintiff had no in- tention to prosecute case when default occurred or when plaintiff learned of default. It was question- able whether subsequent change in law was adequate explanation for delay. Plaintiff did not move forthwith to set aside order, but waited four months. Plaintiff could not rebut presumption de- fendants would be prejudiced by elimination of limitation defence. Walchuk Estate v. Hykawy (May 14, 2009, Ont. S.C.J., Arrell J., File No. CV-08-28-SR) Order No. 009/139/002 (6 pp.). Conflict Of Laws JURISDICTION Plaintiffs' choice of jurisdiction was not displaced Parties were involved in motor vehicle accident in Michigan. Defendants claimed accident was caused by unidentified driver. De- fendants brought motion to stay action. Liability was serious issue. Six witnesses resided in Michigan. Motion judge granted stay. Mo- tion judge held Ontario was not forum with closest connection to action. Motion judge ordered ac- tion in Ontario to be stayed in favour of Michigan. Appeal was allowed. Motion judge gave no weight to plaintiffs' choice of fo- rum and did not consider hard- ship to plaintiffs. Motion judge did not consider claim as whole. There was possibility of conflicting decisions. Action against plaintiff's insurer could be maintained only in Ontario. Plaintiffs' choice of Ontario as jurisdiction was not displaced. Balance favoured On- tario. Michigan was natural forum and Michigan law would have to be proved but trying action in Ontario would avoid possibility of conflicting decisions. Silvestri v. Hardy (May 14, 2009, Ont. C.A., Weiler, Gillese and Ep- stein JJ.A., File No. C49736) Or- der No. 009/139/088 (5 pp.). Debtor And Creditor ENFORCEMENT Loan agreement was clear and unambiguous Motion by plaintiff for summary judgment against defendant, its former employee, for $32,500 out- standing loan, plus interest. De- fendant argued moneys advanced were bonus or forgivable loan and counterclaimed $60,000 for con- structive dismissal. Plaintiff hired defendant as investment advisor in 2003. With employment offer, plaintiff also offered $60,000 loan, to be set up so that taxes would be amortized over three years. Plain- tiff submitted into evidence the signed loan documents that stated loan was repayable in 48 equal monthly installments, beginning on defendant's one-year anniver- sary with interest calculated us- ing the Canada Revenue Agency's prescribed rate. After anniversary date, plaintiff began deducting $1,250 per month from plaintiff's paycheques. $32,500 was out- standing when plaintiff resigned. Motion allowed. Plaintiff awarded $37,949.14 for outstanding loan plus interest calculated according to loan documents. Loan agree- ment was clear and unambiguous. Defendant's claim that loan was not repayable was contradicted by fact she allowed plaintiff to make monthly deductions from her pay. No genuine issue for trial. Defen- dant had no claim for legal set-off as there were no mutual debts and there was no connection between the loan and constructive dismiss- al claim. CIBC World Markets Inc. v. Burgess (Apr. 28, 2009, Ont. S.C.J., Brown StewartMck_LT_Mar2_09.indd 1 www.lawtimesnews.com 2/24/09 11:18:24 AM

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