Law Times

Law Times • January 18, 2016 Page 15 www.lawtimesnews.com CASELAW tion act because panel found that foreign national was not Conven- tion refugee as contemplated in s. 95(1)(a) of act. Minister applied for judicial review on threshold jurisdiction issue of whether phrase "has been determined to be Convention refugee" in s. 95(1)(a) of act applied to foreign national as only then would RPD have jurisdiction to cessate her refugee status under s. 108(1) of act. Minister contended that for- eign national was deemed to have been so determined by virtue of her acceptance in Convention Refugee Abroad class. Applica- tion dismissed. Chapter 10.2 of Citizenship and Immigration Canada processing manual OP 5 states that family members ac- companying principal applicant who has been determined to be Convention refugee "derive their refugee status" from principal applicant. However, OP 5 does not have force of law and merely suggests that foreign national has refugee status, and does not say she "has been determined to be Convention refugee" as required by s. 95(1)(a) of act. It would be nonsensical to consider change to foreign national's status in Canada simply because she vis- ited a country in which her hus- band was found to be in danger, but in which she never claimed to be in danger. If foreign national's refugee status were cessated, she would face loss of her perma- nent resident status under s. 46(1) (c.1) of act with all of the conse- quences that could have on her and her family. Applicable statu- tory and regulatory provisions would have to be clearer in order for minister's position to prevail. Minister's position would work against clearly stated policy of family unity. Canada (Minister of Citi- zenship and Immigration) v. Es- fand (Oct. 21, 2015, F.C., George R. Locke J., File No. IMM-1133- 15) 259 A.C.W.S. (3d) 738. Ontario Civil cases Consumer Protection LIMITATION PERIOD Two-year limitation period for enforcement of civil debts under Limitations Act, 2002 has no appli- cation to Consumer Reporting Act Relying on Limitations Act, 2002, applicant sought order that consumer reporting agencies re- move debts over two years that were currently shown on appli- cant's credit report. Application dismissed. Two-year limitation period set out in limitations act could not be applied to deter- mine time frame for reporting consumer debts under Con- sumer Reporting Act. Nothing in limitations act extended its application to CRA and nothing in CRA contemplated applica- tion of provisions of LA. Acts had entirely different purposes. Two-year limitation period for enforcement of civil debts under LA had no application to CRA. Consumer reporting agencies acted in compliance with CRA. Grant v. Equifax Canada Co. (Nov. 2, 2015, Ont. S.C.J., Barnes J., File No. 57/15) 259 A.C.W.S. (3d) 673. Contracts PERFORMANCE AND BREACH Ample support for finding that township entitled to rely upon writ- ten waiver in full defence to claim Township made request for ten- der prices for construction of new runway, and rehabilitation of existing runway, at airport. Plaintiff T Ltd. entered into contract with township, which included waiver providing that T Ltd. would not seek any com- pensation for work identified but not completed. Township failed to proceed with contract. T Ltd. brought action for damages. Mo- tion judge granted township's motion for summary judgment dismissing action. T Ltd. ap- pealed. Appeal dismissed. There was ample support for motion judge's finding that township was entitled to rely upon written waiver in full defence to claim. T Ltd. did not identify any error of law, or palpable and overriding error of fact, in motion judge's application of waiver clause in granting summary judgment. Todd Brothers Contracting Ltd. v. Algonquin Highlands (Township) (Nov. 3, 2015, Ont. C.A., K. Feldman J.A., P. Lauwers J.A., and M.L. Benotto J.A., File No. CA C60276) Decision at 252 A.C.W.S. (3d) 64 was affirmed. 259 A.C.W.S. (3d) 677. Employment Wrongful dismissal There was unilateral and fun- damental change to terms of plaintiff 's employment On Dec. 19, 2014, plaintiff pro- vided defendants with medical note confirming that she was not able to work and would be on sick leave. Although plaintiff 's employment contract stated that there was no coverage while on sick leave, defendants supported plaintiff by paying her full sal- ary for several months. Unbe- knownst to plaintiff and less than five weeks after she went on sick leave, defendants hired plaintiff 's replacement on full-time basis and not subject to plaintiff 's re- turn to her position. Defendants claimed that plaintiff accepted to return to previous position with fewer responsibilities and at lower salary. Plaintiff denied any such agreement. Plaintiff commenced action against de- fendants for damages for con- structive dismissal, aggravated damages and damages for breach of Human Rights Code. Plaintiff brought motion for summary judgment. Motion granted in part. Under plaintiff 's employ- ment contract, she was employed as regional manager at salary of $75,000 per year. When plaintiff ended her sick leave, demotion was only option available to her if she wished to continue her em- ployment with defendants. There was unilateral and fundamental change to terms of plaintiff 's em- ployment. Elements of construc- tive dismissal were made out. Summary judgment was granted on issue of constructive dismissal and notice period was 15 months with damages set at $106,394. There were genuine issues to be tried on whether plaintiff was en- titled to aggravated damages or human rights damages. Plaintiff advised court that she would not be pursuing aggravated damages claim and had 35 days to advise if she wished to pursue human rights claim. Cloutier v. Q Residential LP Corp. (Jul. 8, 2015, Ont. S.C.J., Marc R. Labrosse J., File No. Otta- wa 13-58818) 259 A.C.W.S. (3d) 697. Ontario criminal cases Appeal SENTENCE APPEAL Summary conviction appeal judge made clear error of law Accused appealed decision of summary conviction appeal judge, who found that sentenc- ing judge erred in law when, as part of his reasons for sentence for two offences under Customs Act, he stated that accused did not deliberately fail to pay duty owed. Leave to appeal granted; decision of summary convic- tion appeal judge set aside and sentence of trial judge restored. Sentencing judge made no le- gal error but was responding to submissions of Crown counsel and response of defence coun- sel to issue of whether accused had planned and deliberated her conduct and whether to treat that as aggravating factor on sen- tence. Summary conviction ap- peal judge misapprehended this finding by sentencing judge by treating it as misunderstanding by him of mens rea requirement of offences. Summary convic- tion appeal judge made clear er- ror of law, which ref lected failure to give deference to trial judges' knowledge of law. Accused also asked court to stay one of con- victions on Kienapple principle. This was not done at trial. Crown opposed this submission. In those circumstances and as sen- tence imposed was conditional discharge, court declined to give effect to that submission. R. v. Du (Oct. 26, 2015, Ont. C.A., K. Feldman J.A., M.L. Ben- otto J.A., and L.B. Roberts J.A., File No. CA C59981) Leave to appeal from 118 W.C.B. (2d) 537 was allowed. 125 W.C.B. (2d) 352. Charter of Rights RIGHT TO COUNSEL Prosper warning did not have to be given in mechanical fashion Accused appealed her convic- tion for over 80 on grounds she was denied her Charter right to counsel. Officer testified that accused was initially wavering about wanting counsel, decided to contact duty counsel and then accused told him that she just wanted to get on with it. Officer told accused they could wait longer and could speak to counsel "right now" but did not advise accused that police had responsibility to wait. Appeal dismissed. Prosper warning did not have to be given in mechani- cal fashion. While officer did not say explicitly that police were under obligation to delay taking of breath samples, it was mani- fest that they would do so if she wished to exercise her right to counsel. It was implicit in what officer said that accused's right to speak to duty counsel would take precedence over breath test- ing process which was substan- tially what Prosper required po- lice to convey to accused. R. v. Lobo (Oct. 30, 2015, Ont. S.C.J., MacDonnell J., File No. CR-14-10000139-00AP) 125 W.C.B. (2d) 365. SEARCH AND SEIZURE Evidence of second officer on scene confirmed much of arresting officer's testimony Accused appealed his convic- tions for possession of marijuana for purposes of trafficking and two counts of possession of pro- ceeds of crime. Accused's arrest arose out of routine traffic stop, after he was observed running red light. Officer who stopped accused's car smelled fresh mari- juana and discovered over three kilograms in back seat and trunk, along with bundles of thousand dollar bills. Trial judge expressed concerns regarding evidence of arresting officer, who was found guilty of discreditable conduct in 2009 for calling in sick on behalf of another officer. In particu- lar, trial judge found that officer was not forthright in his testi- mony about 2009 incident and expressed "serious doubt" about his testimony concerning traf- fic stop. However, trial judge ac- cepted evidence of second officer who arrived on scene, which he considered added weight to ar- resting officer's evidence, and on this basis concluded that there were reasonable and probable grounds for traffic stop. Accused argued that trial judge erred in concluding that arresting offi- cer's testimony was confirmed by other officer and that he mis- apprehended evidence of con- firmatory witness in any event. Appeal dismissed. It was open to trial judge to accept or reject evi- dence of arresting officer, with or without confirmatory evidence. Arrest arose out of routine traf- fic stop and evidence of second officer on scene confirmed much of testimony of arresting officer. Second officer was not present when accused was said to have ran red light, but his testimony as to experience at intersection where stop occurred confirmed visibility issues and he confirmed other aspects of arresting officer's account as well. R. v. Rompre (Oct. 21, 2015, Ont. C.A., David Watt J.A., C.W. Hourigan J.A., and Grant Hu- scroft J.A., File No. CA C59904) Decision at 116 W.C.B. (2d) 358 was affirmed. 125 W.C.B. (2d) 369. Prostitution AIDING, ABETTING AND COMPELLING PROSTITU- TION Trial judge erred in overempha- sizing complainant's subjective belief she was not exploited Accused charged with traffick- ing complainant into prosti- tution and living on avails of prostitution. Accused involved in romantic relationship with 16-year-old complainant. Com- plainant danced in strip clubs and gave money to accused. Trial judge acquitted accused on basis that Crown had not es- tablished that accused exploited complainant. On one occasion complainant had intercourse with strip club patron for $100 and gave money to accused. Trial judge acquitted accused of living on avails. Trial judge found that single act of prostitution was in- sufficient to make out offence. Crown appeal from acquittal allowed. Trial judge erred in overemphasizing complainant's subjective belief that she was not exploited. Crown was only re- quired to prove intent to exploit or facilitate exploitation. Single act of prostitution could establish offence under s. 212(2). R. v. A. (A.) (Jul. 29, 2015, Ont. C.A., David Watt J.A., K. van Rensburg J.A., and G. Pardu J.A., File No. C57716, C58117) 125 W.C.B. (2d) 414.

• Cover