Law Times

Law TiMes • May 25, 2009 FEDERAL COURT Parole POWERS OF PAROLE BOARD Permission to travel outside Canada is exception to general rule applicable to offenders on conditional release Accused sought judicial review of decision of Appeal Division of National Parole Board dis- missing appeal from National Parole Board refusing request to permanently remove regula- tory condition attached to his parole to remain at all times in Canada within territorial boundaries fixed by his parole supervisor. Accused was for- mer member of Law Society of Alberta who was removed due to his conviction for sec- ond degree murder of his wife. Accused was denied passport on grounds that he was forbidden to leave country. Application dismissed. Decision made by Board and Appeal Division was discretionary. Permission to travel outside Canada is an exception to the general rule applicable to offenders on con- ditional release. Decision based on discretion owed degree of deference. No evidence that this decision was necessary for him to plan future vacations as he was given permission by Parole Board to leave coun- try on a yearly basis for eight years. Board provided adequate reasons for decision including lack of supervision when out of jurisdiction and brutal nature of his crime. Legal standard for adequate reasons was met. Sychuk v. Canada (Attorney General) (Jan. 30, 2009, F.C., Lemieux J., File No. T-281- 08) Order No. 009/068/158 (29 pp.). ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Certification denied in challenge to constitutionality of oath for citizenship applicants Applicant challenged consti- tutionality of oath applicants for Canadian citizenship were required to swear or affirm. Applicant sought to represent individuals who refused to take oath because of strongly held republican values or took oath under duress. Motion was dismissed. Certification as class proceeding was de- nied. Constitutional exemp- tion would not be available to plaintiff and members of class. None of allegations of fact in statement of claim could sup- port inference Crown acted in bad faith in administration of oath or with wilful disregard of plaintiffs' rights. Pleadings was inadequate to support claim for damages as fair and ad- equate remedy under s. 24(1) of Canadian Charter of Rights and Freedoms. There was nothing to suggest class action was preferable to individual ac- tion. Access to justice, judicial economy or behavioural modi- fication would not be better served by class action than by individual proceedings. Roach v. Canada (Attorney General) (Feb. 23, 2009, Ont. S.C.J., Cullity J., File No. 05- CV-301832 CP) Order No. 009/056/026 (20 pp.). COSTS No order as to costs made on appeal Plaintiff, aged 78, found his motor vehicle blocked by seven persons allegedly part of picket line at adjoining build- ing. When he got out of his car, plaintiff struck on head with metal pipe. He sued de- fendants in personal capacity, alleging that as officers and ad- ministrative officials of union, they were vicariously liable for actions of union member- ship serving on picket line. Plaintiff brought motion for Representation Order after ex- piry of two-year limitation pe- riod. Motion judge found that special circumstances existed and exercised her discretion to add parties notwithstand- ing limitation period had run. While motion judge's deci- sion under reserve, Court of Appeal released two decision which effectively put an end to common law special circum- stances doctrine. Defendant successfully appealed rep- resentation order based on Court of Appeal decisions. No order as to costs made on appeal. Defendant succeeded solely because of two Court of Appeal decisions and had to bear greater responsibility for not having advised motions judge of them. Other relevant considerations were that point was novel and plaintiff aged and apparently unwell. Pal v. Powell (Jan. 22, 2009, Ont. S.C.J. (Div. Ct.), Jennings, Bellamy and Little JJ., File No. 426/08) Appeal from 170 A.C.W.S. (3d) 493 allowed. Order No. 009/054/029 (7 pp.). Contempt Of Court PUNISHMENT Fine imposed should have been made payable to Provincial Treasurer Appellants employed by prop- erty management company. Company sued appellants for $6 million, alleging that ap- pellants, together with their wholly owned businesses, defrauded company by bill- ing it for inflated or fictitious invoices. Company obtained Anton Pillar order and Mareva injunction. Appellants found in contempt of court for re- peated breaches of Mareva in- junction and fined $150,000 jointly, to be paid to company within 30 days. Costs award- ed to company on substan- tial indemnity scale, fixed at $57,000. Appellants appealed. Main issue on appeal whether motion judge erred in order- ing appellants to pay fine to company. Appeal allowed in part. Motion judge erred in CASELAW ordering appellants to pay fine to company. Any fine imposed should be payable to Provincial Treasurer. Contempt of court for breach of court order is of- fence against authority of court and administration of justice. It does not have function of civil action. Fine for contempt should not go to plaintiff. Person found in civil contempt may face any sanction avail- able for commission of crimi- nal offence. Consistency dic- tates that recipient of fine for civil contempt should be same as recipient of fine for com- mission of criminal offence. Proceeds of fine imposed be- long to Her Majesty in Right of Ontario and should be paid to Provincial Treasurer. Fine should be reduced to $10,000. Motion judge did not identify any public interest in imposing large fine. SNC-Lavalin Profac, Inc. v. Sankar (Jan. 30, 2009, Ont. C.A., Laskin, MacPherson and Armstrong JJ.A., File No. C48850; C48811) Decision from 166 A.C.W.S. (3d) 371, 77 W.C.B. (2d) 689 was var- ied. Order No. 009/035/050 (5 pp.). Damages PERSONAL INJURIES Social security benefits not to be deducted from income loss award Motion by plaintiff for judg- ment in accordance with ver- dict in action for damages for personal injuries received in motor vehicle accident in 1999. Plaintiff was awarded $120,000 for past loss income. Third party requested certain amounts be deducted from award by reason of s. 267.5(1) of Insurance Act (Ont.). Third party contended that employ- ment insurance, income tax, and Canada Pension Plan ("CPP") deductions should all be taken from award and plaintiff should receive 80 per cent of that figure. Third party further argued that United States social security benefits should be treated like CPP payments which it contended were properly deductible un- der such awards and that de- duction for CPP-like benefits should be read into legisla- tion. CPP was not deductible prior to amendment to legis- lation which applied only to claims for injuries from mo- tor vehicle accident occurring after October 1, 2003. Here, accident occurred in 1999. CPP disability benefits do not constitute payments for loss of income as entitlement is not dependent on income or pecuniary loss. Legislative amendment did not provide for retrospective application. Moreover court did not have enough information about social security benefits to de- prive plaintiff of award given by jury. Accordingly social se- curity benefits would not be deducted from income loss award. Sonnenberger v. Creamer (Feb. 24, 2009, Ont. S.C.J., Tucker J., File No. 43281/01) Order No. 009/057/136 (10 pp.). www.lawtimesnews.com Family Law CUSTODY Arbitrator erred in deciding not to order assessment Parties had two children. Arbitrator found father alien- ated mother from children. Arbitrator awarded mother sole custody. Arbitrator determined it was in children's best interests to participate in Family Workshop for Alienated Children. Father sought judicial review and ap- peal. Application for judicial re- view was dismissed. Arbitrator's statement did not indicate arbi- trator formed final opinion on application of theory to facts or on appropriateness of Workshop as remedy. Arbitrator's findings were not unsupported by evi- dence so as to give reasonable ap- prehension of bias. Arbitrator's decision to refuse assessment did not give rise to reasonable appre- hension of bias. Arbitrator was not unfair to children. Arbitrator did not lack jurisdiction. Appeal was allowed. It was fundamen- tal error for arbitrator to rely on doctor's evidence in reaching conclusion Workshop was in best interests of children when doctor explicitly declined to make recommendations with re- spect to children because doctor never met or observed children. Arbitrator erred in deciding not to order assessment. Arbitrator wrongly considered two factors and did not consider particular circumstances of case. B. (S.G.) v. L. (S.J.) (Feb. 6, 2009, Ont. S.C.J., Herman J., File No. FS-08-15602; FS-08-15698) Order No. 009/041/280 (21 pp.). PAGE 15 Real Property OPTIONS Option to purchase property null and void Application for declaration that respondent's right to exercise option to purchase applicant's property had been forfeited and that respondent had no further interest in premises. Applicant and respondent entered into lease option agreement. Lease included option for respondent to purchase premises at any time during term of lease. During term of lease, respondent breached lease option agree- ment by falling into arrears of rent and by cutting hole in roof of premises to install stove pipe and homemade stove such that premises rendered uninsurable. Applicant terminated lease op- tion agreement and demanded vacant possession. Respondent purported to exercise option to purchase property. Declaration that option to purchase property null and void and that respon- dent had no further interest in property. Order that respondent in arrears of rent and order that applicant entitled to possession of premises. Payment of rent and preservation of premises were conditions precedent to right to purchase property. Substantial compliance with terms of lease option agreement not a factor where contract between parties requires full performance as con- dition precedent to exercise of option. Novotny v. Fowler (Mar. 9, 2009, Ont. S.C.J., Jenkins J., File No. 08-1913) Order No. 009/071/031 (3 pp.). LT Obtain Copies of Judgments from CaseLaw on Call Rates Single or multiple copies of the full text of any case digested in this issue can be supplied at the rates shown. Via Mail Cost per page $0.60* Minimum charge $10* Plus postage Order form Attention: Photocopy Service: CaseLaw, 240 Edward St., Aurora, ON L4G 3S9 Please send the full text of the following judgments. 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