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CaseLawLaw PAGE 14 FEDERAL COURT OF APPEAL Appeal Application brought by respon- dent for order striking appellant's notice of appeal on ground that order appealed from interlocu- tory in nature and that notice of appeal filed beyond ten-day lim- it set out in s. 27(2)(a) of Fed- eral Courts Act (Can.). Decision sought to be appealed dismissed application to set aside order of prothonotary dismissing appel- lant's motion seeking leave to amend statement of opposition. Underlying proceeding was ap- peal from decision of Registrar of Trade-marks in trade-mark opposition proceeding. Motion allowed and notice of appeal struck. After conducting de novo review motions judge confirmed prothonotary's decision. Mo- tion judge's view that decision denying leave was vital to final resolution of matter relevant to his determination of standard to be applied in reviewing protho- notary's decision and nothing else. In particular, statement had no bearing on whether motion judge's own decision interlocu- tory or final in nature. Motion judge's decision refusing to grant leave to amend statement of op- position, like earlier decision of prothonotary, was interlocutory in nature, since it did not deter- mine substantive rights of any parties. Simpson Strong-Tie Co. v . Peak Innovations Inc. (July 10, 2008, F.C.A., Sharlow, Ryer and Noel JJ.A., File No. A-248-08) Order No. 008/204/035 (6 pp.). FINAL OR INTERLOCUTORY ORDER Decision refusing to grant leave to amend statement of opposition was interlocutory in nature Search And Seizure FORFEITURE Minister entitled to decline to grant relief from forfeiture if respondent's explanation not accepted money from sale of business. Judge ruled Minister imposed too high a burden requiring re- spondent to prove only his ex- planation was possible. Appeal allowed. Minister only required to invite respondent to provide evidence that "money was le- gitimately obtained". Minister entitled to decline granting relief from forfeiture if it did not ac- cept respondent's explanation. Judicial review dismissed, deci- sion of Federal Court set aside. Qasem v. M.N.R. (Oct. 6, 2008, F.C.A., Linden, Evans and Tru- del JJ.A., File No. A-63-08) Ap- peal from 77 W.C.B. (2d) 262 al- lowed. Order No. 008/315/210 (5 pp.). FEDERAL COURT Immigration Minister appealed the decision that granted judicial review of decision previously allowing Minister to maintain forfeiture of respondent's funds. Respon- dent was stopped at airport with over $100,000 of cash on his person. Respondent was asked if he had more than $10,000 on his person and responded he only had $5,000. Money seized on basis it represented crime proceeds. Minister not accept respondent's explanation that Application for judicial review of enforcement officer's decision not to defer applicant's removal from Canada until decision made on humanitarian and compas- sionate application. Applicant, citizen of Zimbabwe, convicted in United States in January 2001 of attempting to obtain property under false pretenses. Applicant incarcerated since February 1, 2007, serving sentence for three criminal convictions in Canada, and then on immigration hold. Applicant married since 1990 and had seven children. Appli- cant, wife and one child HIV- positive. Applicant's wife and children not being removed from Canada. Applicant's ini- tial humanitarian and compas- sionate application submitted in May 2005 but returned to him in September 2005 with request for separate application forms to be completed by applicant and wife. Applicant did not re-sub- mit forms until more than two years later in November 2007. Application for judicial review dismissed. Officer made no er- ror in holding that pending hu- manitarian and compassionate application that would continue to be processed in applicant's ab- sence did not warrant deferral. Officer considered applicant's HIV diagnosis. Fact that better care would be available in Cana- da not ground for deferral. Issue of discrimination or stigma that applicant might face due to HIV status in Zimbabwe also not ground for deferral and outside scope of enforcement officer. EXCLUSION AND EXPULSION Officer considered applicant's HIV diagnosis in deciding not to defer removal December 15, 2008 • Law Times COURT DECISIONS 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: ainmaker_LT_June2_08.indd 1 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. Officer made no error in con- cluding that immediate interests of children would continue to be looked after if applicant re- moved from Canada. Removal would essentially maintain sta- tus quo of children as children would continue to remain in Canada under care of mother. Officer's responsibility did not require him to undertake sub- stantive review of children's best interests as that was question for humanitarian and compassion- ate officer to decide. Late-filed humanitarian and compassion- ate application did not warrant deferral despite backlog in con- sidering those applications. Par- liament did not intend there to be statutory stay of removal for humanitarian and compassion- ate applicants. Applicant was essentially requesting officer to stay removal indefinitely to wait for process that could take year to complete, and in great part, due to applicant's late filing of application. Gumbura v. Canada (Minis- ter of Public Safety and Emer- gency Perparedness) (July 7, 2008, F.C., Lagace J., File No. IMM-5213-07) Order No. 008/204/006 (10 pp.). Application for judicial review of decision by pre-removal risk as- sessment officer concluding that applicant not be at risk of perse- cution if returned to Sri Lanka. In February 2003, removal order issued against applicant because she failed to comply with terms of application for permanent residence, i.e., she did not marry her sponsor. Officer's analysis began with recognition that hu- man rights situation in Sri Lanka becoming strained by worsening relations between government and Liberation Tigers of Tamil Eelam ("LTTE") and relied heavily on operational guidance note issued by U.K. home office three days prior to officer's deci- sion. As to applicant's particu- lar circumstances, officer found little if any evidence to indicate she would be targeted by LTTE and that, since applicant provid- ed little detail of scars she might possess, she did not fit profile of individual identified in guidance note who would be targeted by Sri Lankan authorities for more rigorous questioning and ill treat- ment upon return to Sri Lanka. Application for judicial review allowed and matter remitted for redetermination after applicant filed updated submissions. Guid- ance note not available when applicant filed submissions and officer's consideration of guid- ance note not communicated Officer's consideration of guidance note not communicated to applicant prior to decision www.lawtimesnews.com to applicant prior to decision. Where information not normal- ly available at time of applicant's submissions indicates change in general country conditions that may affect disposition of case, fairness dictates such informa- tion be made available to ap- plicant for comment. Guidance note rejected UNHCR position dated December 2006 and was significant and prejudicial de- velopment affecting applicant's case. Officer had duty to provide applicant opportunity to com- ment on guidance note before rendering decision. Officer also relied on out-dated UNHCR position paper dated January 1, 2005 referenced in guidance note and stated that Tamils with scars at risk if deported. Officer erred in ignoring or failing to realize position paper was out- dated and superseded by more recent UNHCR position dated December 2006 stating that no Tamils, regardless of scars, should be deported to Sri Lanka under current conditions. Of- ficer also unreasonably failed to consider UNHCR position that no Tamils from north or east should be returned forcibly un- til security situation significantly improved. This position applied to applicant regardless of any past persecution. Ramanathan v. Canada (Minis- ter of Citizenship and Immigra- tion) (July 8, 2008, F.C., Kelen J., File No. IMM-10-08) Order No. 008/204/001 (14 pp.). ONTARIO CIVIL CASES Civil Procedure COSTS Maximum allowable rate of $350 per hour for senior counsel was for cases of extreme difficulty and complexity Plaintiff largely succeeded in de- fence of motion for summary judgment. However, motion not total failure in that one major claim for malicious prosecution struck. Costs for fees and dis- bursements in amount of $18,803 awarded to plaintiff. Costs claim proposed by plaintiff in amount of $47,123 was excessive upon any measurement. Costs pro- posed for many items including amendments to statement of claim, extensive correspondence and legal research more appropri- ate for assessment at conclusion of trial when success or failure has been determined and court may consider complexity of issues measured by success achieved. Al- though court required to consider amended statement of claim, pre- pared following service of defen- dant's motion for dismissal, this did not justify that time spent on amendment should be subject of costs attributed to motion rather than at conclusion of trial as usu- al. Maximum allowable rate of $350 per hour for senior counsel on partial indemnity scale not appropriate as rate fixed for those cases that fall into category of ex- treme difficulty and complexity. Rate of $300 per hour appropri- ate for even most experienced of counsel. Court designated lump sum based on generally appro- priate award for costs on such motion that did not fall into most complex category of cases. As to research of law, court al- lowed one-half time spent as incidental to motion, with bal- ance to be recoverable after trial. Nothing allowed for preparation of statement of claim or amend- ed statement of claim given that those costs assessable at conclu- sion of trial. Pouget v. Hynes (July 11, 2008, Ont. S.C.J., Cusinato J., File No. 07-CV-9402CM) Order No. 008/205/055 (9 pp.). DISCOVERY Leave to appeal granted on solicitor-client privilege issue Action arose from motor ve- hicle accident that occurred on September 23, 2005. Plaintiff began keeping diary of accident on advice of her brother, po- lice officer. In November 2005, plaintiff retained counsel who advised her both verbally and in writing to keep record with as much information as possible about accident, her feelings and record of her treatment, medi- cal appointments, activities and limitations. Plaintiff claimed solicitor-client privilege for all parts of diary from date she re- tained counsel and thereafter. Motion judge found that plain- tiff failed to satisfy court that diary in its entirety contained privileged communications, that majority of notes in diary did not consist of confidential information for purposes of communicating with her law- yer and providing lawyer with instructions and ordered diary produced to defendant after any reference to communications with her lawyers were deleted. Conflicting decisions existed on matters involved in pro- posed appeal. Issues surround- ing claims to solicitor-client privilege were of fundamental importance. Leave to appeal granted. Benincasa v. Agostino (Oct. 2, 2008, Ont. S.C.J., Warkentin J., File No. CV-06-0331) Leave to appeal from 168 A.C.W.S. (3d) 751 was granted. Order No. 008/301/099 (8 pp.).

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