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lAw times • July 27/August 3, 2009 J., File No. 07-CV-340639SR) Order No. 009/119/027 (9 pp.). Family Law ARBITRATION Family arbitration agreement must be in writing, signed by parties and witnessed Wife brought motion asking court to implement order requiring all aspects of matters in dispute be- tween parties to be resolved by means of binding mediation-ar- bitration. Husband sought stay of all proceedings in Ontario, includ- ing mediation-arbitration due to delays totally attributable to wife and her lawyer. He believed mat- ters would be resolved more expe- ditiously and effectively through proceedings wife had commenced in Mexico. Motions judge granted husband's motion and ordered stay of proceedings. He held there was no need to set aside order "since the application in which it was granted is stayed". Wife's ap- peal allowed and matter to pro- ceed to mediation-arbitration. Order binding unless set aside or lawfully quashed. Motions judge erred by failing to deal with that order before considering request for stay of proceedings in Ontario. Granting stay without first deter- mining whether order should be set aside amounted to impermis- sible collateral attack. Pursuant to Family Law Act (Ont.), and Arbi- tration Act, 1991 (Ont.), family arbitration agreement must now be in writing, signed by parties and witnessed, to be enforceable. Although settlement agreement executed by counsel for parties, rather than parties themselves, it was nevertheless enforceable. Owers v. Owers (Apr. 9, 2009, Ont. C.A., Feldman, Gillese and Rouleau JJ.A., File No. C49481) Order No. 009/103/090 (6 pp.). CUSTODY Needs and circumstances of children should have been considered before requiring participation in workshop Arbitrator found father alien- ated mother from two children. Older child was almost 18 years old. Arbitrator awarded mother sole custody and provided for participation in family workshop for alienated children at mother's discretion. Father's access was linked to children's participation in workshop. Father's application for judicial review was dismissed. Appeal was allowed. Entire award was set aside. It was error of law to conclude children should par- ticipate in workshop without first considering particular needs and circumstances of children. Or- der incorporating entire award of arbitrator was inconsistent with decision on appeal. Ordering as- sessment would likely lead to trial of what was in younger child's best interests. B. (S.G.) v. L. (S.J.) (May 14, 2009, Ont. S.C.J., Herman J., File No. FS-08-15602; FS-08- 15698) Order No. 009/139/009 (8 pp.). Professions BARRISTERS AND SOLICITORS Defendant's lawyer ordered to pay costs in personal capacity City brought motion for costs against defendant's lawyer in per- sonal capacity. Defendant's lawyer obtained charging order on mo- tion without notice for amount defendant's lawyer claimed city owed defendant. Defendant's lawyer was concerned about be- ing paid by defendant. Three days before hearing motion for costs, defendant's lawyer advised defen- dant's lawyer received payment in full for outstanding account with defendant and no longer required charging order. It was improper for defendant's lawyer to have made motion without notice to city and wording of order did not represent state of proceedings be- tween parties. Defendant's lawyer was to pay costs of $2,000 inclu- sive of disbursements and GST payable forthwith. Toronto (City) v. Bernardo (Mar. 13, 2009, Ont. S.C.J., Pitt J., File No. 03-CV-244675CM3) Order No. 009/139/004 (2 pp.). Torts NEGLIGENCE Defendant did not fail in duty to keep roadway in state of reasonable repair Plaintiff's shoe got caught in crack and wedged momentarily causing plaintiff to fall on left side. Plain- tiff suffered transverse fracture of base of left foot. It was dark out- side at time of accident. There was considerable pedestrian traffic. Plaintiff argued different standard of maintenance applied when de- fendant knew of increased volume of pedestrian traffic using road in random fashion. There were no complaints about cracks. Crack was there two years after accident with no further complaints or re- ported incidents. Action was dis- missed. Plaintiff did not establish defendant was negligent in failing to meet statutory duty to keep roadway in state of reasonable re- pair for purposes for which defen- dant knew it to be reasonably and normally used. Evidence did not support finding that higher stan- dard of care was required. Holmes v. Kingston (City) (May 6, 2009, Ont. S.C.J., Pedlar J., File No. 0092/06) Order No. 009/131/042 (9 pp.). FEDERAL COURT OF APPEAL Immigration EXCLUSION AND EXPULSION Immigration Division erred in grounding assessment of anticipated future length of detention on mere preliminary opinion Respondents, subject to arrest warrants issued by Chinese au- thorities for alleged fraud, entered Canada legally on temporary resi- dent visas but remained in Can- ada without authorization after expiry of visas and arrest warrants issued. Respondents declared in- admissible pursuant to Immigra- tion and Refugee Protection Act (Can.) ("IRPA"). They were ar- rested, placed in detention and ex- clusion order issued against them. Application for Pre-Removal Risk Assessment ("PRRA") made by respondents. Immigration Divi- sion determined that respondents unlikely to appear for removal if released and detention contin- ued. Detention reviewed every 30 CASELAW days and eventually respondents' release under electronic surveil- lance ordered due to number of outstanding steps required for complete processing of PRRA applications. Federal Court set aside release orders. Respondents were then served with preliminary PRRA opinion stating there was risk they would be tortured upon return to China. Immigration Di- vision once again ordered release under electronic surveillance with additional conditions. Stay of re- lease orders granted by Federal Court pending hearing of Minis- ter's application for judicial review. In meantime, respondents ob- tained order to prohibit Minister's delegate from considering PRRA applications pending disposition of leave applications challeng- ing delegate's authority to make such decision. Minister's applica- tion for judicial review of second release order dismissed. Federal Court certified following ques- tion: Does lengthy detention be- come "indefinite" detention, and consequently a breach of s. 7 of the Charter, where the tribunal es- timates future length of detention based on a detainee's anticipated pursuit of all available processes under IRPA and the Regulations including Federal Court proceed- ings?". Minister appealed Federal Court's decision. Appeal allowed. Not appropriate for Immigration Division to ground assessment of anticipated future length of deten- tion on mere preliminary opinion when final PRRA decision would come only month later and review of detention held every month. Assumption that judicial review proceedings would be authorized by Federal Court and that appeal would necessarily be heard by Court of Appeal based on specula- tion as to eventual PRRA decision. Given that another review had to be held a month later, it was nei- ther necessary nor reasonable at that time to engage in this kind of speculation or to make this kind of assumption. Immigration Divi- sion recognized it was resorting to alternative to detention that was inefficient to secure appearance for removal and yet felt compelled to intervene to prevent breach of Canadian Charter of Rights and Freedoms. This approach was in error. Immigration Division erred in failing to consider expediting proceedings. Canada (Minister of Citizenship and Immigration) v. Li (Mar. 17, 2009, F.C.A., Desjardins, Letourneau and Trudel JJ.A., File No. A-642-08) Order No. 009/092/244 (32 pp.). ONTARIO CRIMINAL CASES Sentence PREVENTIVE DETENTION Accused was declared long-term offender Application by the Crown to declare accused a dangerous of- fender. Proceeding was brought after the accused was convicted of sexual assault, unlawful confine- ment, theft and breach of proba- tion. Offences occurred in Sep- tember 2006 when the accused, who was 18 at the time, met the www.lawtimesnews.com Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 6/10/09 10:43:52 AM complainant in a bar. She was very intoxicated and when she took a cab home, the accused took the same cab and directed it to his home. He forced the complain- ant into his basement apartment where he sexually assaulted her. He then took her out to the street, attempted to prevent her from knowing his address and took her health card to know who she was. Accused committed his first sexual assault in July 2005 when he was 17. He was arrested in November 2006 and had been in custody since that time. Application al- lowed in part. Court was not pre- pared to find the accused to be a dangerous offender. There was evidence that there was a reason- able possibility of eventual control of the risk in the community. Ac- cused was declared to be a long- term offender and was sentenced to a 10-year long-term supervision order. He received 23 months for the sexual assault, 23 months con- current for the unlawful confine- ment, one day concurrent for the theft and one day concurrent for the breach of probation. Accused would also be subject to a 10-year weapons' prohibition, a DNA or- der and would be on the Sex Of- fender Registry for 20 years. R. v. Yogaratnam (Mar. 20, 2009, Ont. C.J., Hawke J., File No. 06-15761-00) Order No. 009/085/001 (24 pp.). Charter Of Rights ARBITRARY DETENTION OR IMPRISONMENT Officer had reasonable and probable grounds for arrest Accused appealed convictions of possession of cocaine for purpose PAGE 15 of trafficking, possession of mari- juana, and possession of cannabis resin. Police intercepted package that had three bricks of cocaine and replaced cocaine with flour. Police arranged for controlled de- livery to address which was under surveillance. Recipient of package and another person left separately in vehicles shortly before delivery. Police delivered package and ac- cused took receipt and signed own name. Police observed accused leave residence with gym bag ten minutes later. Police were aware that warrant to search residence had been issued but had not yet received it. Police arrested accused in his vehicle and found gym bag with cocaine bricks still sealed and unopened. Trial judge dismissed motions by accused which alleged violations of his s. 8 and s. 9 Char- ter rights. Accused argued police did not have reasonable and prob- able grounds to arrest him. Appeal dismissed. Officer who arrested ac- cused subjectively believed he had reasonable grounds to arrest him. Circumstances met objective stan- dard required. Accused was only person in house at time of delivery and left shortly afterward with bag capable of carrying what had been delivered. No infringement of ac- cused's s. 8 or s. 9 Charter rights. Even if there was breach, evidence would not have been excluded. Conviction of simple possession of marijuana quashed on basis that summary conviction offence should not have been tried togeth- er with other offences charged, which were exclusively indictable. R. v. Murtezovski (May 21, 2009, Ont. C.A., Lang, Juriansz and Watt JJ.A., File No. C49540) Order No. 009/145/047 (4 pp.). LT Find the best in… eREPORTS included for no extra charge CANADA LAW BOOK's law reports and case summaries are no longer available on Quicklaw LexisNexis. Find them, instead, in BestCase, a web-based research service containing Canada's leading law reports and renowned case summary services as well as a comprehensive collection of unreported decisions dating back to 1977, and a case citator feature. 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