Law Times

PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Indictment And Information JOINDER AND SEVERANCE Joint trial between young persons and adults inconsistent with principles of Youth Criminal Justice Act (Can.) Two young persons and several adults were charged follow- ing major police investigation into drug trafficking activities by criminal organization. Fol- lowing court's dismissal of the Crown's motion for prelimi- nary inquiry, Crown preferred direct indictment against all co-accused. Court granted ac- cused young persons' applica- tion to quash direct indict- ment and preliminary inquiry took place. Court of Appeal upheld Superior Court's deci- sion and concluded that adults and young persons could not be tried together. Crown ap- pealed. Appeal allowed on oth- er grounds. Joint trial of young persons with adults would be inconsistent with governing principles of Youth Criminal Justice Act, S.C. 2002, c. 1 ("YCJA"), which maintains justice system for young peo- ple that is separate from system for adults. Applying common law rule on joint trials would be inconsistent with spirit and objectives of YCJA (Abella J. dissenting on other grounds). LSJPA. 0745 (Re) (Mar. 27, 2009, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ., File No. 32309) Appeal from 75 W.C.B. (2d) 476 allowed. Order No. 009/089/062 (85 pp.). FEDERAL COURT OF APPEAL Constitutional Law CHARTER OF RIGHTS Difference in treatment resulting from s. 12.1 of Public Service Superannuation Regulations (Can.) not age discrimination Application judge did not err in dismissing action for dec- laration that s. 12.1 of Pub- lic Service Superannuation Regulations (Can.) ("PSSR"), violates s. 15(1) of Canadian Charter of Rights and Free- doms. Difference in treatment resulting from s. 12.1 of PSSR does not amount to age dis- crimination. Section 12.1 of PSSR neither causes nor per- petuates any adverse effect on persons over age of 71 on basis of any negative stereotyping of older people or, more impor- tantly, older workers. On con- trary, s. 12.1 of PSSR was put in place as one aspect of federal government's policy to con- form public service superannu- ation plan to other legislation governing Canada's income retirement system, especially provisions of Income Tax Act (Can.), and Income Tax Regu- lations (Can.), which set out requirements for registration of pension plans administered by employers other than federal government. Gill v. Canada (Feb. 26, 2009, F.C.A., Decary, Blais and Shar- low JJ.A., File No. A-100-08) Appeal from 165 A.C.W.S. (3d) 79, 167 C.R.R. (2d) 278, 323 F.T.R. 236 dismissed. Order No. 009/084/038 (7 pp.). FEDERAL COURT Immigration REFUGEE STATUS No error in Boardís finding that state protection available in Mexico Application for judicial review of Immigration Refugee Board ("IRB") ruling that applicant not a refugee. Applicant a Mexican woman who feared persecution by former violent and threatening boyfriend who was nephew of home state's governor. Ex-boyfriend able to track applicant in different city and renew threats. Police complaint ineffective. Applica- tion dismissed. Test for proving risk of persecution properly described and applied, i.e. that claimant bears burden to show reasonable chance that prose- cution will occur. IRB not im- posing more stringent test by asking what "would" happen. IRB reasonably found that un- cle's position did not eliminate availability of state protection or internal flight alternative, given absence of any persuasive evidence of close relationship between them or that he would assist his nephew. IRB did not err in finding that state protec- tion was available in Mexico City and Guadalajara. Morales v. Canada (Minister of June 15, 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. 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 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. Citizenship and Immigration) (Mar. 3, 2009, F.C., Zinn J., File No. IMM-3445-08) Or- der No. 009/084/002 (14 pp.). TAX COURT OF CANADA Taxation INCOME TAX "Transaction" in s. 152(4)(b) (iii) of Income Tax Act (Can.) did not include arrangement or series of transactions Bonus was paid by appellant's predecessor corporation to employee. Minister reassessed beyond three-year normal re- assessment period on basis that extension in s. 152(4)(b) (iii) of Income Tax Act (Can.), applied. Appeal was allowed. Definition of "transaction" in s. 247 did not apply to "trans- action" as it was used in s. 152. Word "transaction" as it was used in s. 152(4)(b)(iii) did not include arrangement or se- ries of transactions. Bonus paid related to investment services provided to appellant. Reassess- ment was made as consequence of payment of bonus by appel- lant to employee. Employee was arm's length employee of appellant and was resident of Canada. Section 152(4)(b)(iii) did not permit Minister to re- assess appellant within extend- ed reassessment period. Blackburn Radio Inc. v. Can- ada (Feb. 27, 2009, T.C.C., Miller J.T.C.C., File No. 2007-1971(IT)G) Order No. 009/064/129 (16 pp.). ONTARIO CIVIL CASES Agency ATTORNEYS Office of Public Guardian and Trustee appointed to act as guardian of property Parties were brother and sis- ter. Applicant brought motion for order appointing Office of Public Guardian and Trustee to act as guardian of property of mother. Applicant sought accounting of financial trans- actions for which respondent was responsible under power of attorney. Motion was allowed. Office of Public Guardian was appointed. Respondent was removed as power of attorney. Matter of passing of accounts was for day to be fixed. There were some concerns about va- www.lawtimesnews.com lidity of power of attorney but no medical evidence was called. No finding could be made of mother's mental condition at time of signing power of attor- ney. There were serious reasons to believe respondent did not properly deal with mother's fi- nances. Campbell v. Evert (Mar. 20, 2009, Ont. S.C.J., Matheson J., File No. 8366-08) Order No. 009/085/005 (12 pp.). Bankruptcy And Insolvency ARRANGEMENTS Chapter 11 proceedings recognized as foreign proceeding Applicant sought stay of pro- ceedings against applicant. Applicant sought declaration applicant was entitled to avail itself of provisions in Compa- nies' Creditors Arrangement Act (Can.), for recognition of proceeding commenced by applicant and indirect parent under Chapter 11 of United States Bankruptcy Code as foreign proceeding. There were three construction lien claimants. Applicant recog- nized unique nature of claims of construction lien claimants. Parties to construction lien ac- tions recognized priority issues had to be addressed. Requested relief was granted recogniz- ing Chapter 11 proceedings as foreign proceeding and United States had jurisdiction over principal administration. Stay of proceedings was granted for 60 days subject to further extensions with leave of court. Construction lien dispute was discrete from overall Chapter 11 proceedings. Sagecrest Dixon Inc. (Re) (Mar. 18, 2009, Ont. S.C.J. (Comm. List), Morawetz J., File No. 08-CL-7859) Order No. 009/082/072 (6 pp.). Building Liens DISCHARGE Plaintiff failed to establish entitlement to moneys claimed Plaintiff claimed payment for labour and material supplied for plumbing work done in defendant's home. Defendants claimed plaintiff was paid in full. Defendants counter- claimed for damages for poor workmanship. Plaintiff's claim for $1,752 for extras was dis- missed. Written estimate did not indicate any work not specified was to be extra. There was no evidence plaintiff was told work would be extra be- fore work was done. Plaintiff did not show it was entitled to moneys claimed either as mat- ter of contract or on quantum meruit basis. Plaintiff breached implied warranty of good workmanship. Plaintiff's lien was discharged and registration of lien vacated. Otto v. Stokes-Law (Feb. 9, 2009, Ont. S.C.J., Shaw J., File No. CV-08-0332) Order No. 009/068/034 (13 pp.). Civil Procedure CLASS ACTIONS Action against registered mutual fund dealer was certified Defendant was registered mu- tual fund dealer. Defendant advised plaintiff to purchase debenture from company. Plaintiff purchased $50,000 debenture. Defendant sold de- bentures to 680 individuals. Defendant advised individuals to request repayment of de- bentures. Company went into bankruptcy. Plaintiff claimed defendant negligently sold de- bentures knowing individuals did not qualify as accredited investors and negligently ad- vised redemption without re- gard to consequences of mass redemption. Plaintiff brought motion for certification. Mo- tion was allowed. Pleadings disclosed cause of action. There was identifiable class. Claims raised common issue. Class procedure was preferable pro- cedure. Plaintiff was suitable representative plaintiff. Zopf v. Farm Mutual Services Inc. (Mar. 16, 2009, Ont. S.C.J., Perell J., File No. CV- 08-357565 CP) Order No. 009/079/445 (5 pp.). Contracts FORMATION There was no acceptance of offers on terms made by either party O. claimed S. was to do required work under fixed price con- tract which started at $25,000 but was increased to $50,000. Neither contract was signed. S. claimed there was agreement S. was doing work for hourly rate based on rates for equipment and labour. S. billed $128,761. O. paid $45,422. S. claimed for difference. O. claimed S. failed to excavate pond in cor- rect location. O. claimed S. damaged equipment owned by O.'s company and repairs cost $11,500. Offer of S. to work at hourly rate was not accepted by O.. O. did not acquiesce. O.'s conduct was consistent with in- sistence of fixed price contract. Contracts were offers for fixed

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