Law Times

PAGE 14 CASELAW CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. FEDERAL COURT Immigration SELECTION AND ADMISSION Citizenship judge did not apply qualitative assessment test This was appeal from citizen- ship judge's decision dismiss- ing applicant's application for Canadian citizenship. Applicant was citizen of United Kingdom. He was employed as offshore marine electrician. Applicant became landed immigrant in Canada in November 1999. Wife and daughter had been approved for Canadian citizenship. Family resided in Ontario in home appli- cant purchased in 2005. Applicant paid income tax only in Canada. There was no other country where applicant was regular resident. However, employment required him to leave Canada for six-week intervals to reside aboard ship. Due to applicant's work he was only present in Canada 675 days, not 1,095 days required by s. 5(1) (c) of Citizenship Act (Can.). Applicant unsuccessfully applied for Canadian citizenship. Appeal allowed. Citizenship judge applied only strict physical presence test for residence. Where citizenship applicant did not meet physical presence test, citizenship judge must proceed to qualitative assess- ment and apply test set out in Koo (Re) (1992), 37 A.C.W.S. (3d) 435 (F.C. T.D.), which asked whether Canada was place where applicant regularly, normally or customarily lived or whether it was country in which he had centralized mode of existence. Citizenship judge did not apply Koo test to determine whether applicant was resident in Canada even though he was not physically present and failure to do so was error of law. Burch v. Canada (Minister of Citizenship and Immigration) (Nov. 30, 2011, F.C., O'Keefe J., File No. T-1958-10) 210 A.C.W.S. (3d) 223 (12 pp.). ONTARIO CIVIL CASES Arbitration PROCEDURE Failure to have parties personally sign rules of arbitration did not render agreement null and void Application by plaintiff for judi- cial review, pursuant to s. 17(8) of Arbitration Act, 1991 (Ont.), decision of arbitrator determining that Arbitration Agreement was valid. Arbitrator determined that failure to have parties personally sign rules of arbitration did not render Agreement null and void. Application dismissed. Arbitrator's decision was correct. Articles 19 and 25 of Agreement when read in context of Agreement as whole, and Act, did not require parties to personally sign Arbitration Rules. To require parties personally to sign agreement to reflect each step in implementation of Agreement would produce cumbersome result at odds with authorization of legal representative to act on behalf of each of parties to arbitration proceedings and timely resolution of dispute as articulated in Act and Agreement. Malkin v. Bulman (Nov. 21, 2011, Ont. S.C.J., Thorburn J., File No. CV-11-428117) 210 A.C.W.S. (3d) 13 (6 pp.). Civil Procedure COSTS Father acted in bad faith in offering perjured testimony Ruling regarding costs. Father's motion under Hague Convention for order that his daughter be returned to California was dis- missed on finding that These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. on full indemnity basis fixed at $24,249.40. Father acted in bad faith in offering perjured testimo- ny and recruiting family members to back up his false story. Court had no discretion based on con- sideration of parties' financial situ- ation to eliminate or reduce what would otherwise be proper award of full recovery costs. It was appro- priate to order full recovery costs for whole hearing. Father's conduct considerably lengthened hearing. Given that father had modest income of $27,000, no assets, and significant debt, legal aid rate was employed to determine quantum of costs. Achakzad v. Zemaryalai (Nov. 14, 2011, Ont. C.J., Murray J., File No. DFO 09 10073 B2) 210 A.C.W.S. (3d) 49 (8 pp.). Injunctions INTERLOCUTORY RELIEF Injunction necessary to prevent significant irreparable harm to part-time employees Motion by union for interlocutory injunction prohibiting employ- ers from maintaining minimum scheduling requirements for part- time employees. Part-time employ- ees employed under conventional collective agreement had control over days, how many hours and which time periods that they were available to work. Employer supermarket was changing over to another sought, and obtained from union, agreement that supermarket. Employer required part- father's violence towards mother created grave risk that child's risk would expose child to physical or psy- chological harm or otherwise place child in intolerable situation. Hearing totalled nine and one- half days. Mother sought costs on full recovery basis of $128,931.25. Father was ordered to pay costs time employees to be available on Fridays, Saturdays, Sundays and one evening or one day dur- ing week. Parties agreed in 2003 to append to conventional collective agreement, letter of understand- ing that ensured existing part-time employees scheduling restrictions would be respected when employee transferred to other supermarket. Grievance and individual griev- ances over employer's actions were filed. Motion granted. Affidavit evidence filed by union supported conclusion that issue was not triv- ial and was serious issue requiring determination. Injunction was nec- essary to prevent future significant and predictable irreparable harm to affected part-time employees, based on harm that had already occurred to other employees to date. Balance of convenience favoured union position. Sawyer v. Loblaw Co. (Dec. 7, 2011, Ont. S.C.J., Johnston J., File No. CV-11-499-00) 210 A.C.W.S. (3d) 226 (15 pp.). Mortgages COLLATERAL SECURITY Mareva injunction did not create interest in land of affect plaintiff 's security Motion by bank for summary judgment on mortgage on basis defendant was in default of col- lateral mortgage terms because Mareva injunction was registered against his property. Defendant entered number of loan agree- ments with plaintiff. Loan agree- ments required defendant to pay $3,962 monthly, beginning in 2007, with 25-year amortiza- tion period. Loans were secured by collateral mortgage. Collateral mortgage contained provision in which defendant agreed not to do anything to interfere with plain- tiff 's charge on property without prior written consent. Mareva injunction was registered against defendant's property in March 2011. Plaintiff advised defendant he was in default by permitting encumbrance to be registered against property and demanded payment in full. Defendant was not in default of any obligations under loan agreements. Plaintiff argued collateral mortgage could be enforced in full on demand and that Mareva injunction constitut- ed an encumbrance and breach of agreement. Defendant argued plaintiff could not simply demand entire amount owing when he had not breached underlying loan obli- gations. Defendant further argued Mareva injunction was not an encumbrance, nor did he agree to it. Motion and action dismissed. Mortgage was a collateral mort- gage that secured obligations creat- ed by underlying loan documents. Collateral mortgage could not override loan agreements, which provided defendant could only be required to pay entire amount if in default of loan obligations, unless agreements made overrid- ing provisions crystal clear, which they did not. Only default claimed was registration of Mareva injunc- tion, so plaintiff was not entitled to make demand. Furthermore, effect of Mareva injunction was to freeze defendant's assets. Mareva injunction did not create interest in land or affect plaintiff 's secu- rity, so it was not an encumbrance. Defendant did not agree to Mareva injunction; it was obtained ex parte and registered without his knowl- edge or involvement. As plaintiff was presumed to have presented best case, there was little point in allowing matter to proceed to trial. Bank of Nova Scotia v. Suthakaran (Nov. 28, 2011, Ont. S.C.J., Gray J., File No. 3916/11) 210 A.C.W.S. (3d) 251 (9 pp.). FEDERAL COURT OF APPEAL Employment PUBLIC SERVICE Entitlement to per diem rate of remuneration sufficient to meet employment test Minister of National Revenue determined that two committee members engaged in pension- able employment under Canada Pension Plan while members of Ontario Judicial Appointments Committee established under Courts of Justice Act (Ont.). Ontario, responsible for remu- nerating members of committee, successfully appealed. Minister's appeal allowed. 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