Law Times

Law TiMes • May 14, 2012 for these conclusions. R. v. Ladouceur (Dec. 7, 2011, Ont. S.C.J., Edwards J., File No. 10-239 AP) Decision at 91 W.C.B. (2d) 384 affirmed. 99 W.C.B. (2d) 469 (6 pp.). Sentence Accused sentenced to six years' imprisonment Accused carrying out importing operation for profit DRUG OFFENCES cocaine. Search of accused's lug- for importing gage at airport upon her return from Trinidad revealed 2.963 kilograms of cocaine valued in range of $100,000. Accused was 64 years old and had no crimi- nal record. Accused continued to maintain her innocence. Accused was raised in finan- cially secure and stable fam- ily environment, and had sup- portive family network. Since entering Canada accused had obtained several certificates in computer business skills train- ing and had been employed for most of her adult life. Accused did not have any current or pre- vious addictions. Accused was carrying out importing opera- tion for profit and there was no evidence that she herself was addicted to drugs. Objectives of denunciation and deterrence were primary goals and sentence of five years' imprisonment, as suggested by defence, would fail to send important message that importing drugs was very seri- ous offence. DNA order, fire- arms prohibition. R. v. Terrill (Jan. 27, 2012, Ont. S.C.J., Koke J., File No. CR11- 871) 99 W.C.B. (2d) 496 (10 pp.). FEDERAL COURT Aboriginal Peoples At meeting committee pur- portedly removed applicants from office of chief and coun- cil. Applicants brought motion for interim injunction staying effect of meeting of commit- tee and prohibiting holding of elections for chief and coun- cillors pending final deter- mination of application for judicial SELF-GOVERNMENT Public interest considerations favoured status quo pending hearing was allowed on terms set out. There was serious issue to be tried. Applicants would suffer irreparable harm if relief sought were not granted. Removal of applicants from office jeopar- dized exercise of responsibil- ity for governance. Balance of convenience favoured appli- cants. Applicants were elected for two-year term. Applicants continuing in office pending judicial review maintained sta- tus quo. Public interest consid- erations favoured status quo pending hearing. Respondents' request review. Application refused. Applicants' request for expedited hearing of notice of for adjournment was motion was twice refused to provide respondents with full notice period and opportu- nity to respond. Respondents were fully acquainted with facts. Respondents' request for adjournment was previously heard and refused by case man- agement judge. Respondents were on notice to be ready to proceed. Napaokesik v. Shamattawa First Nation Membership Committee (Feb. 3, 2012, F.C., Mandamin J., File No. T-73-12) 211 A.C.W.S. (3d) 744 (15 pp.). Administrative Law BIAS Adjudicator revoked applicant's been mistaken or misled but was not biased Adjudicator may have passport and passport services for applicant were to be withheld for five years. Order issued on consent. Decision was set aside and sent back for further con- sideration based on additional submissions from parties. Order did not require different per- son to consider matter. Matter was reconsidered by same adju- dicator. Application for judicial review was dismissed. Simple fact that same adjudicator dealt with matter for second time did not in and of itself give rise to reasonable apprehension of bias. There was no basis for find- ing decision-maker was biased. Adjudicator may have been mis- taken or misled by applicant but was not biased. Argument as to mistake in fact and law was rejected as being raised too late. Adewole v. Canada (Attorney General) (Jan. 12, 2012, F.C., Hughes J., File No. T-82-11) 211 A.C.W.S. (3d) 746 (10 pp.). Immigration PERSON IN NEED OF PROTECTION Immigration Refugee Board of Canada found applicant to be neither Convention Refugee nor person in need of protec- tion. Applicant was born in Uganda to Rwandan parents. His mother filed complaint before gacaca courts in respect of persons who allegedly com- mitted crimes during Rwandan genocide. Applicant claimed that he and his family received threats in effort to intimidate them from pursuing this com- plaint. Thus, applicant moved to Uganda and obtained stu- dent visa to enter United States. Upon arrival in United States, applicant neither pursued stud- ies nor made Applicant's claimed basis for persecution had evaporated He made his way to Canada approximately one month later where he made claim for refugee protection based on his Tutsi identity and his membership in social group of "gacaca wit- nesses". Application for judicial review was dismissed. Applicant failed to demonstrate how evi- dence which was before board was not considered, or given unreasonable weight. Gacaca asylum claim. CASELAW court procedure had ended and complaints now may be made before regular courts of Rwanda. Applicant' persecution had therefore evap- orated. In addition to being cor- rect in law, decision fells within range of possible, acceptable outcomes defensible in light of facts and law and was therefore reasonable. Shaka v. Canada (Minister of Citizenship and Immigration) (Feb. 21, 2012, F.C., Rennie J., File No. IMM-4141-11) 211 A.C.W.S. (3d) 944 (11 pp.). s claimed basis for ONTARIO CIVIL CASES Plaintiff was granted interim injunction restraining defen- dants from diverting business from plaintiff or soliciting plain- tiff ' would have effect of allowing defendants to split case To permit filing of affidavits Civil Procedure AFFIDAVITS was ordered to remain in effect pending cross-examinations on affidavits by both parties and return of hearing of motion for s clients. Interim injunction Defendants brought motion for leave to deliver and file three additional affidavits after completion of cross-examina- tions. Motion was dismissed. Evidence in affidavits did not meet requirement of relevancy because they did not advance matters at issue specifically with respect interlocutory injunction. injunction motion. Only some of evidence in supplementary affidavits actually responded to matters raised on cross-exam- inations and that evidence was irrelevant to issue of whether interlocutory injunction should issue or be continued. Plaintiff would suffer non-compensable prejudice if further affidavit evi- dence was admitted. To permit filing of affidavits would have effect of allowing defendants to split case. Defendants failed to provide reasonable explanation as to why new affidavit evidence could not have been delivered prior to cross-examinations. Sure Track Courier Ltd. v. Kaisersingh (Dec. 14, 2011, Ont. S.C.J., Goodman J., File No. CV-11-2817-SR) 211 A.C.W.S. (3d) 782 (15 pp.). to interlocutory Equity Previous owner instructed defendant to prepare reference plan to sever land into three parcels with access provided by right-of-way. Defendant acknowledged they failed to follow instructions provid- ed at time plan was prepared. Application was brought for declaration that mistake was made in description of right-of- way. Applicant sought rectifica- tion of reference plan to have To permit rectification of mistake would undermine foundation on which land title system based REMEDIES www.lawtimesnews.com plan amended to accord with actual location of right-of-way, which existed for many years. Application for rectification was dismissed. There was nothing to suggest new owner was anything other than bona fide purchaser for value. To permit rectification of mistake, which did not even involve parties to action, would seriously undermine foundation on which land title system was based. Spencer v. Salo (Jan. 20, 2012, Ont. S.C.J., Cornell J., File No. C-10; 512-07) 211 A.C.W.S. (3d) 993 (7 pp.). Family Law Documents should be disclosed as important and relevant to litigation Motion by mother for order for disclosure of all records relat- ing to child from society, child' CHILD WELFARE psychiatrist, counseling agency and family doctor. Society had been involved with mother and child on voluntary basis since 2003 as result of mother' s culty in managing child's behav- s diffi- iour and conflict between child and his mother. In 2011, child was apprehended following dis- pute between mother and child during which mother edly locked child out of house. Protection application was at settlement conference stage in court proceedings. Trial dates had not yet been scheduled. Child, aged 14, was currently living with father. Father and child were opposed to release of alleg- Documents should be disclosed as they were very important and relevant to litigation. It was not appropriate that disclosure be postponed until trial. Children' records. Motion granted. Region of Halton v. B. (T.C.) (Feb. 10, 2012, Ont. C.J., O'Connell J., File No. 129/11) 211 A.C.W.S. (3d) 894 (13 pp.). Motion by defendant for order setting aside default judgment obtained by plaintiff, or in alter- native to vary award to exclude prejudgment interest. Parties entered into property manage- ment agreement whereby plain- tiff would provide property man- agement services to defendant. Defendant failed to pay outstand- ing invoices totaling $53,718. Some of invoices claimed 3% per month or 36% interest per year. Plaintiff was awarded judg- ment in amount of $72,822.72, which included prejudgment interest at rate of 36%. Motion granted. Judgment was varied to give plaintiffs partial judgment in amount of $36,865.50 plus 5% interest. It was appropriate that judgment be reduced to attract prejudgment interest of 5%. Interest rate of 36% was not justified. Feelix Yoga EPS Inc. v. Equity Three Holdings Inc. (Feb. 10, 2012, Ont. S.C.J., Donohue J., File No. Interest rate of 36% not justified Judgments and Orders SETTING ASIDE s Aid Society of the PAGE 15 CV-09-4246-SR) 211 A.C.W.S. (3d) 964 (9 pp.). Torts Motion by defendants for order striking out certain portion of plaintiff ' Statement of claim lacked in pleading essential elements of civil conspiracy CONSPIRACY Plaintiff alleged that defendants participated in civil conspiracy, which included breaches in contractual and fiduciary duties owed to plaintiff. Motion granted in part. Parts of statement of claim alleging civil conspiracy were struck. Statement of claim lacked in pleading essential elements of civil conspiracy or "knowingly received" on part of defendants. Parts of statement of claim alleg- ing association between parties represented were mildly suspi- cious and there was element of believability. Plaintiff was grant- ed opportunity to amend this portion of statement of claim. Amendment at current stage of proceeding was possible without prejudice to right of defendants, such that their waste of time and resources could be compensated by imposition of costs. Hamilton Health Sciences Corp. v. Resource Environmental Associates Ltd. (Jan. 25, 2012, Ont. S.C.J., Whitten J., File No. 05-21137) 211 A.C.W.S. (3d) 1006 (10 pp.). s statement of claim. Application by applicant through her litigation guardian for order removing respondent as trustee for estate, pursuant to s. 37 of Trustee Act (Ont.). Applicant had debilitating stroke, which severe- ly affected her mental capacity. Applicant currently resided in nursing home. Respondent was notifying that he was appointed trustee of trust, as per terms of his grandfather' Trustee had adopted indifferent atti- tude towards minutes of settlement Trusts and Trustees TRUSTEES stepbrother disagreed with how trustee was managing Stepbrother commenced appli- cant attempting to remove trust- ee. Parties entered into minutes of settlement. Application grant- ed. Continued conflict between trustee and stepbrother interfered with trustee' s will. Trustee's trust. his discretion under will and that conflict would continue. Conflict had resulted in interruption in income payments to applicant without a legitimate reason. Even if stepbrother was considered mere beneficiary, trustee' s proper exercise of al would be justified. Minutes of settlement s remov- with stepbrother effectively made stepbrother a co-trustee of trust. Trustee had adopted indifferent attitude towards minutes. Trustee had made investments without obtaining stepbrother' that trustee signed Venables (Litigation Guardian of) v. Gordon Estate (Feb. 8, 2012, Ont. S.C.J., Beaudoin J., File No. 11-50448) 211 A.C.W.S. (3d) 1012 (15 pp.). s approval. LT

• Cover