Law Times

Law Times • December 1, 2008 CaseLawLaw SUPREME COURT OF CANADA Bankruptcy And Insolvency PROPERTY Definition of "property" in Appellant financed his fishing business by signing General Se- curity Agreement ("GSA") with bank and guaranteeing debts of his company. Company entered into parallel GSA. Bank granted security interest in present and after-acquired personal property including intangibles. The year after appellant made assignment in bankruptcy receiver and trustee in bankruptcy signed agreement to sell S.'s four fishing licences and other assets to third party. When appellant refused to sign neces- sary documents, trustee and bank applied for declaratory relief. Ap- pellant claimed that licences not constituting "property" available to trustee under Bankruptcy and Insolvency Act (Can.) ("BIA"), or to creditor pursuant to GSA under Personal Property Security Act (N.S.). Trial judge and Court of Appeal rejected his argument. Further appeal to Supreme Court of Canada dismissed. Fishing li- cence more than mere licence as it is coupled with proprietary inter- est in harvest from fishing effort. It is unquestionably a major com- mercial asset. Terms of definition of "property" in BIA very wide. Parliament's intention to include assets of bankrupt not normally considered "property" at com- mon law should be respected in order to achieve purposes of BIA. Definition of property should be construed to include commercial fishing licence. Royal Bank of Canada v. Saulnier (Oct. 24, 2008, S.C.C., McLach- lin C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Bankruptcy and Insolvency Act (Can.) construed to include commercial fishing licence Charron and Rothstein JJ., File No. 31622) Appeal from 149 A.C.W.S. (3d) 951; 271 D.L.R. (4th) 34; 22 C.B.R. (5th) 38; 246 N.S.R. (2d) 239; 21 B.L.R. (4th) 1 dismissed. Order No. 008/301/121 (40 pp.). FEDERAL COURT Immigration INADMISSIBLE AND REMOVABLE CLASSES Immigration Appeal Division had duty to determine admissibility of applicant's youth criminal record An application pursuant to s. 72(1) of Immigration and Refu- gee Protection Act (Can.), for judicial review of the decision of a member of the Immigration Appeal Division ("IAD") of the Immigration and Refugee Board dismissing applicant's appeal of a deportation order made against him pursuant to s. 36(1)(a) of Act. Applicant was citizen of Iraq and entered into Canada as dependent child after his mother had been granted refugee status. Applicant married Canadian citizen and the couple had two daughters. Ap- plicant had a number of criminal convictions on of which was the basis for the removal order issued against him. IAD issued a depor- tation order against the applicant on basis of inadmissibility for seri- ous criminality under s. 36(1)(a) of Act because of his conviction for drug trafficking. Applicant ap- peal deportation order and sought special relief on humanitarian and compassionate grounds under the Act. IAD's decision was set aside. IAD had a duty to determine the admissibility of applicant's youth criminal record and failed to de- termine whether or not the record was releasable, which was a legal error. IAD relied on the report de- rived from applicant's youth record to support its finding, and failed to make necessary distinction that applicant had not been convicted of the offences. IAD's finding that PAGE 13 COURT DECISIONS ainmaker_LT_June2_08.indd 1 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: 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. applicant committed offences in report was unreasonable. Y. (Y.A.) v. Canada (Minister of Citizenship and Immigration) (Aug. 12, 2008, F.C., Russell J., File No. IMM-5455-07) Order No. 008/247/010 (25 pp.). CIVIL CASES Building Liens ONTARIO VALIDITY Appellant established that funds were impressed with trust This was appeal of trial judge's dis- missal of action against individual respondents pursuant to s. 8 of Construction Lien Act (Ont.). Ap- pellant sold patio doors to respon- dent A.D.. Respondents V.I.P. and V.O.P. were directors and officers of A.D. and respondent O.B. was V.I.P.'s sister and she worked for A.D. before it went out of busi- ness. A.D. failed to pay appellant for patio doors and it owed ap- pellant $87,030. Appellant suc- cessfully claimed against A.D. for price of goods sold and delivered. Trial judge dismissed appellant's claim against individual respon- dents after finding that appellant failed to demonstrate that it had intended that its materials were to be used for purpose of known and identified improvement. Appeal allowed. Based on Central Supply Co. (1972) Ltd. v. Modern Tile Supply Co. (2001), 107 A.C.W.S. (3d) 946 (Ont. C.A.), supplier must intend that material sold be used for purpose of known and identified improvement before trust arose. However, rationale set out in Central Supply did not ap- ply. Trial judge was not bound by principle that seller must intend that its materials be used for pur- poses of known and identified im- provement. Appellant established all elements of trust and that funds were impressed with trust. Trial judge erred in dismissing claim. Pursuant to s. 13(1) of Act, as directors of corporation V.I.P. and V.O.P. were liable since they conceded that they could not ful- fill burden on them to show that they had complied with obliga- tions as trustees. O.B. was actively involved in A.D.. She had effective control of accounting activities of A.D. and she knew or reasonably ought to have known that she was in breach of trust. Sunview Doors Ltd. v. Academy Doors & Windows Ltd. (Sep. 26, 2008, Ont. S.C.J. (Div. Ct.), Jen- nings, Kiteley and Low JJ., File No. 97/08) Order No. 008/280/264 (18 pp.). Civil Procedure COSTS No basis to interfere with award made in accordance with normal rule that costs follow result Hurst v. Societe Nationale de l'Amiante (Aug. 1, 2008, Ont. C.A., Feldman, Cronk and Blair JJ.A., File No. C46150) Appeal from 151 A.C.W.S. (3d) 1075; 23 B.L.R. (4th) 214 dismissed. Or- der No. 008/266/067 (24 pp.). Conflict Of Laws JURISDICTION Ontario did not have closest connection to action and parties Quebec gained control of ACL after purchasing majority inter- est held by GDC. Appellant mi- nority shareholders brought six proceedings in attempt to obtain compensation for decline in value of their shares. Present oppres- sion action commenced in 1987 but not pursued until 2003 after other five proceedings wholly ex- hausted. Respondents successfully applied to dismiss action, relying on issue estoppel, no cause of ac- tion for oppression, forum non conveniens, delay and abuse of process. Motion judge found real and substantial connection be- tween subject matter of action and Ontario but concluded that Quebec was most convenient fo- rum for hearing of issues. Motion judge declined to order no costs and ordered costs against appel- lants on partial indemnity scale. Appeal to Ontario Court of Ap- peal dismissed. No basis to inter- fere with motion judge's decision to make normal award that costs follow result. Amount awarded was fair to appellants. Motion judge took into account finding of unfair treatment by refusing to award substantial indemnity costs in favour of GDC which had requested costs on higher scale because of forum shopping and fact that allegations had been litigated elsewhere. Defendant applied for order stay- ing proceeding pursuant on basis that Ontario was forum non con- veniens. Plaintiff and defendant became engaged in Florida. De- fendant gave plaintiff engagement ring that was purchased in Ontario. Parties purchased house in Michi- gan, where they planned to marry. Defendant resided and worked in Ontario. Parties broke up. Plaintiff and mother commenced action in Michigan related to real property and defendant filed counterclaim claiming entitlement to engage- ment ring. Plaintiff commenced this action in Ontario seeking declaration that she was lawful owner of engagement ring. Appli- cation granted. In motions to stay proceeding based on forum non conveniens domestic court must initially determine whether it had jurisdiction to hear proceeding using real and substantial connec- tion test. If domestic court had jurisdiction then court had discre- tion to accept or decline jurisdic- tion because another forum was more appropriate. Ontario court had jurisdiction as of right over claim. Issue was whether Ontario should assume jurisdiction based on principle of forum non con- veniens. Factors considered were: location where contract in dispute was signed; applicable law of con- tract; location in which majority of witnesses resided; location of witnesses; location where bulk of evidence would come from; juris- diction in which factual matters arose; residence or place of busi- ness of parties; and loss of juridi- cal advantage. Having considered relevant factors, Ontario clearly not appropriate forum for was When the entire firm has the same goal, success comes naturally. Une équipe avec un objectif commun : le succès dans la poche! SMSS.COM CHARLOTTETOWN FREDERICTON HALIFAX MONCTON SAINT JOHN ST. JOHN'S Untitled-10 1 www.lawtimesnews.com 11/6/07 3:56:47 PM

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