Law Times

Law TiMes • March 16, 2009 tion into allegations of conflict of interest. Interlocutory injunction reinstating applicants as councillors pending outcome of judicial review application granted. Second appli- cation brought for judicial review of Band Council's resolutions to remove applicants from their po- sitions. Applicants' motion for in- terlocutory injunction granted and applicants reinstated pending de- termination of application for judi- cial review. Applicants, members of Sucker Creek First Nation, elected as Councillors of respondent Band Council for terms of three years. Chief and Council of Band received complaint that applicants involved in conflict of interest with regard to one of Band's contractual arrange- ments. Band Council convened meeting to address allegations and applicants permitted to respond to allegations. Band Council con- vened second meeting from which applicants excluded. Two addition- al complaint letters never shown to applicants. Band Council con- vened secret meeting to debate al- legations and decided to suspend applicants with pay until indepen- dent investigation could be con- ducted. Applicants ignored letter and continued to perform duties as Councillors. Applicants obtained interlocutory injunction prohibit- ing Band from suspending them pending outcome of judicial review application. Motion brought after applicants prevented from con- tinuing with duties. Council made no decision regarding suspension but began proceedings to remove applicants. Applicants received copy of Band Council Resolution stating they had been removed. Applicants objected on basis of lack of petition seeking removal and fact that Special Meeting had not been convened by Council. Band refused to provide particulars of allegations. Next Council Meeting consumed by legal wrangling and parties agreed meeting would con- tinue once legal counsel provided direction. Further meeting con- vened, however, without appli- cants' concurrence. Band Council Resolutions removing applicants contained statement of appeal pro- cess provided in Band's Election Regulations. Applicants did not appeal decisions, arguing that only remedy available would be by-election which was inadequate. Applications for judicial review al- lowed. Election Regulations do not make provision for suspension of Councillors and only contain pro- vision for removal. Although Band Council has authority through customary practice to discipline or sanction Council members short of removal indefinite suspension of Councillors elected for three year terms was effective removal. Council required to follow removal procedure outlined in Election Regulations. Process used in sus- pending applicants lacking in pro- cedural fairness and could not be protected as customary practice. Meetings called without advance notice and held away from band of- fice did not conform to any notion of fairness. Applicants did not have opportunity to respond or be present at meeting where deci- sion to suspend taken. Applicants not validly suspended. No peti- tion received by Band Council seeking removal of applicants and Resolutions removing applicants voted on by less than quorum of four councillors as required by Election Regulations. Removal not valid. Prince v. Sucker Creek First Nation #150A (Nov. 14, 2008, F.C., Kelen J., File No. T-440- 08; T-1370-08) Order No. 008/338/074 (26 pp.). Immigration EXCLUSION AND EXPULSION Stay of applicant's deportation order granted CASELAW be considered de novo. Trade-mark holder established use of trade mark in connection with ladies' clothing in past three years except for vests and sweaters. Vetement Multi-Wear Inc. v. Riches, McKenzie & Herbert LLP (Nov. 5, 2008, F.C., Shore J., File No. T-1889-07) Order No. 008/338/073 (11 pp.). Motion for order staying appli- cant's deportation order. Applicant was citizen of Albania who claimed refugee status on basis of fear of persecution on political grounds and risk of prosecution as military draft evader. Board rejected refugee claim on ground of applicant's lack of credibility and lack of evidence that he would be persecuted for his political involvement. His applica- tion for residence based on human- itarian and compassionate grounds ("H&C") was rejected and he was ordered deported. Applicant filed pre-removal risk assessment ("PRRA") which was rejected. Applicant did not ask for review of PRRA decision but applied for re- view of H&C decision. Applicant had been in Canada for six years. He was regularly employed and volun- teered his services and had integrat- ed well into Canadian society. On H&C application officer consulted Refugee Protection Division's deci- sion and negative PRRA decision without subsequent application for judicial review and concluded that applicant's circumstances based on all information did not justify ex- emption based on H&C grounds. Applicant applied for judicial re- view on ground officer on H&C application did not discuss person- alized risks and hardships he would face in Albania and had not consid- ered undue hardship caused by risk of persecution and imprisonment under harsh conditions if found guilty of evading military service. Motion granted. It was error for officer to conclude that he was not required to deal with risk factors in assessment of humanitarian and compassionate application. Analysis of all evidence indicated that if removed applicant would suffer irreparable harm. Balance of convenience also favoured ap- plicant. Accordingly stay should be granted. Alliu v. Canada (Minister of Citizenship and Immigration) (Nov. 12, 2008, F.C., Frenette D.J., File No. IMM-4161-08) Order No. 008/329/052 (10 pp.). Intellectual Property Industrial And TRADE-MARKS Trade-mark to be maintained in connection with ladies Application by trade mark holder for order setting aside decision of Registrar of Trade-Marks expung- ing trade-mark from register. Trade- mark holder was granted trade- mark in connection with ladies' clothing. Registrar notified trade- mark holder that trade-mark would be expunged unless evidence of use was provided. Trade-mark holder neglected to provide evidence of use by stipulated deadline. Application granted in part. Trade-mark was to be maintained in connection with ladies' clothing except for vests and sweaters. Federal Court was permit- ted to consider new evidence pur- suant to s. 56 of Trade-marks Act (Can.). As no evidence had been filed with registrar, matter was to except for vests and sweaters ' clothing CIVIL CASES Arbitration ONTARIO Motion by commissioner to stay disciplinary proceeding, and for order prohibiting adjudicator from continuing proceeding pending application for judicial review and motion by respondents to quash re- quest for stay. Disciplinary proceed- ings were commenced against re- spondent officers. Commissioner's motion was dismissed and respon- dents' motion was granted. There was no basis to conclude that adju- dicator was biased. Ontario Provincial Police (Commissioner) v. MacDonald (Nov. 24, 2008, Ont. S.C.J. (Div. Ct.), Wilson J., File No. 564/08) Order No. 008/340/012 (13 pp.). MISCONDUCT OF ARBITRATOR No basis to conclude adjudicator biased Associations RELIGIOUS ASSOCIATIONS Former pastor of church found in civil contempt for breach of court order Church v. Davis (Nov. 27, 2008, Ont. S.C.J., MacKenzie J., File No. 758/08) Order No. 008/350/027 (16 pp.). Civil Procedure At issue was validity of transfer deed made from trustees of Guelph Church to respondent. Applicant argued that by virtue of British Methodist Episcopal Church Act, 1913 (Ont.), title to real property incidental to use of several congre- gations of applicant vested in ap- plicant and not open to trustees of several congregations to transfer or otherwise deal with. Respondent claimed Guelph Church failed to pay her agreed-upon compensation when she became Pastor and trans- fer deed issued to discharge unpaid remuneration. Following respon- dent' dered to deliver vacant possession of property and return church records and keys. Applicant obtained court order and eventually changed locks. Respondent attended on prem- ises and removed changed locks in- stalled by applicant and installed her own locks. She informed applicant of her conduct in letter that was un- equivocally defiant and dismissive of court' s removal as Pastor, she was or- its jurisdiction to grant relief stipu- lated in earlier order. Respondent found in civil contempt. Whether respondent' s authority in exercise of for unpaid remuneration had any merit, there was no basis in law for her claim to valid transfer. Nothing in language of order breached that was vague or could be subject of misapprehension by respondent. Respondent demonstrated deliber- ate and wilful acts contrary to letter and spirit of operative provisions of order. Deliberate and wilful nature of respondent' s claim against trustees yond reasonable doubt. Respondent granted grace period of 10 days be- fore penalty of incarceration results in loss of liberty. In default of com- pliance, she will be sentenced to 14 days in jail. British Methodist Episcopal s conduct proven be- www.lawtimesnews.com Determination of costs following dismissal of plaintiff's action for failure to complete undertakings and failure to comply with orders that plaintiff answer his refusals to questions. Plaintiff had positive ob- ligation to complete undertakings given on examination for discovery and obligation to send copies of let- ters sent to third parties to counsel for defendant to allow defendant's counsel to be aware of efforts be- ing made to fulfill undertakings. In many cases efforts of plaintiff's lawyer to complete undertakings was dilatory. Plaintiff's lawyer did not complete, serve and file un- dertakings chart as required by rule 37.10(10)(b) of Rules of Civil Procedure (Ont.), until ordered to by court. Plaintiff ordered to pay defendant costs of motion assessed at $10,000. Motion was necessary because plaintiff did not complete large number of undertakings and refusals in timely manner. Matter was complex and undertakings were clearly important to defen- dant's ability to prepare for trial and assess exposure to finding of damages. There was no reason why plaintiff should not be required to pay costs of defendant for proceed- ings. If plaintiff had attended to matters in timely and transparent manner, motion would not have been required. Chioreanu v. Campbell (Nov. 19, 2008, Ont. S.C.J., Turnbull J., File No. C-97-05) Order No. 008/329/101 (7 pp.). COSTS Plaintiff ordered to pay costs of $10,000 after dismissal of action for failure to comply with disclosure orders Conflict Of Laws JURISDICTION No juridical advantage existed in Ontario Motion for stay of application on basis of forum non conveniens. Applicant was successor to United States company that manufactured particular product. Respondent was successor to related Nova Scotia company that was formed to man- ufacture product in Canada under license. License agreement stipu- lated disputes were to be resolved in United States courts. Second agreement provided respondent's predecessor with right to be regis- tered trade mark holder in Canada subject to compliance with terms of agreement. Nova Scotia compa- ny had some operations in Ontario but its core operations were in Nova Scotia. Applicant purported to terminate license agreement and wished to market its product in Canada. Respondent brought ac- tion in Nova Scotia concerning all dealings with applicant. Applicant brought present application in Ontario relating only to trade mark agreement. Applicant also brought action against respondent in United States. Motion granted on terms. Application was stayed but mat- ter was to be revisited if Supreme Court of Nova Scotia declined ju- risdiction. No juridical advantage existed in Ontario as rules of pro- cedure were similar and respondent could seek to convert application into action. Applicant would be able to seek partial summary judg- PAGE 17 ment in Nova Scotia if interpreta- tion of trade mark agreement was as straightforward as it suggested. Ontario was not natural forum as most of respondent's operations were in Nova Scotia. Location of customers was not significant factor. Determination was only intended to apply as between Nova Scotia and Ontario and not between Ontario and United States. Huhtamaki Co. Manufacturing v. CKF Inc. (Nov. 28, 2008, Ont. S.C.J., Master MacLeod, File No. 08-CV-042295) Order No. 008/339/092 (9 pp.). Contracts RECTIFICATION To allow defendant to take advantage of mistake would be unfair and satisfied "equivalent of fraud" requirement for rectification Defendant J.'s Board of Directors sold division of company, B.G.. President A. and V.P., Human Resources K. began negotiating agreement with the plaintiff presi- dent of B.G.. Agreement contained termination upon sale of business clause which provided for health benefits to continue and pension benefits to accrue for additional 36-months regardless of whether new employment obtained. Parties disagreed whether there was specific assurance to plaintiff that 36-month credit payable in any event. After sale of B.G. closed, plaintiff took up employment with purchaser H.. J.'s pension actuary prepared illustrations setting out plaintiff's pension entitlements consistent with plaintiff receiving 36-month credit. J. subsequently acquired by appellant M.. J. paid money into trust for expected eventual pay- out to plaintiff. M. amalgamated into new company appellant V.. V. took position plaintiff not en- titled to 36-month credit. Plaintiff obtained declaration regarding his entitlement to 36-month credit. Trial judge held that V. should not be allowed to take back money J. had put in place to fund plaintiff's entitlement to 36-month credit. Defendants' appeal dismissed. Ample evidence to support trial judge's conclusion. Clear inten- tion of parties that plaintiff would receive additional 36-month credit toward pensionable earnings ir- respective of whether he took up position with purchasing company. Wording of agreement did not give effect to parties' mutual intention but to allow V. to take advantage of mistake would be unfair and satis- fied "equivalent of fraud" require- ment for rectification. Hepburn v. Jannock Ltd. (Dec. 16, 2008, Ont. C.A., Weiler, Juriansz and MacFarland JJ.A., File No. C48346) Appeal from 163 A.C.W.S. (3d) 567, 40 B.L.R. (4th) 165, 63 C.C.E.L. (3d) 101, 65 C.C.P.B. 45 dismissed. Order No. 008/352/164 (5 pp.). Elections RECOUNT Validity of disputed ballots determined in accordance with Difference between numbers of votes for two candidates in gen- eral election was 48 votes, less than 1/1000ths of total votes cast. Pursuant to s. 300 of Canada Elections Act recount was auto- matic. Reporters with local news- paper and CTV Television granted jurisprudence directing inquiry as to voter intention before rejection

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