Law Times

Law times • SEPTEMBER 15, 2008 unbeknown to wife he continued to use the line of credit. Husband declared bankruptcy and declared debts to applicant. Husband con- tinued to service line of credit minimum payments in order that applicant did not seize home. Wife signed an application to cover overdraft at this time which re- ferred to the $90,000 line of credit owing which she did not note. Application to enforce debt dis- missed. Plaintiff had been relieved of his debt to applicant by way of his bankruptcy and had been co- erced into servicing a non-existent debt. Renewal of mortgage did not amount to new consideration. Wife could not be liable since her contract to gain mortgage clearly stipulated that the line of credit would be closed and as such her liability for debt could not be re- vived. Wife could not know that line of credit had not been closed since statement were sent to a postal box in another city and her signature of a $3,000 overdraft could not amount to consent to pay the $90,000 line of credit. Bank of Nova Scotia v. Jorgensen (Apr. 10, 2008, Ont.S.C.J., Lalonde J., File No. 02-CV- 20519) Order No. 008/114/048 (14 pp.). Family Law DOMESTIC CONTRACTS Little weight was given to separation agreement Parties had two children during time father was married and raising three children with wife. Applicant sought child support on temporary basis. Respondent argued undue hardship because respondent was supporting two of three children from marriage. Respondent's in- come was $72,265. Wife's income was $52,000 per year. Respondent transferred respondent's one half interest in matrimonial home to wife. Under separation agreement respondent gave up $143,226, left himself no place to live, did not obtain release of spousal support and agreed to pay full Guideline amount to two children of mar- riage with proportionate share of university fees. Husband sought access. Little weight was given to agreement because it appeared contrived to allocate respondent's resources disproportionately to first family to prejudice of second family. Respondent's claim of un- due hardship failed because it was based on respondent's obligations under agreement. It was reason- able for child to pay one third of college expenses. Enforcing access was impractical and unrealistic given ages of children. Respon- dent was to pay Guideline support of $1,068 per month and was to pay proportionate share of college expenses after deducting child's contribution. Respondent was to have liberal access in accordance with wishes of children. Ramphal v. Doodnauth (May 1, 2008, Ont.S.C.J., Baltman J., File No. FS-06-0943-00) Order No. 008/127/027 (12 pp.). Insurance Accident occurred on parking lot adjacent to Driver Examination Centre. Defendant was attempt- ing to use designated parking spot AUTOMOBILE INSURANCE Defendant driving in parking lot was not driving "on highway" at time of accident for persons taking test. Defendant had G1 driver's permit and was not permitted to drive on high- way without accompanying driver. Defendant did not have accompa- nying driver at time of accident. Insurer would not pay for loss if person drove automobile while not authorized by law. It could not be said defendant was not authorized by law to drive when accident oc- curred. Defendant was not driving on highway at time of accident. Parking lot was not common and public. Parking lot was privately owned. Parking lot was intended to be used by people dealing with tenants of plaza. Lamsar v. Bajaj (May 6, 2008, Ont.S.C.J., Herman J., File No. 03-CV-261159CM 1) Order No. 008/128/009 (4 pp.). Professions BARRISTERS AND SOLICITORS Appellants had standing to have accounts assessed CASELAW cation for leave to appeal. Agency's memorandum did not raise any argument that was not made by respondents or that could not have been made by them. Memoran- dum filed by agency was simply restatement of tribunal's position on merits of case. This created air of partisanship in case where pos- sible outcome would be order that all or part of decision be returned to agency for consideration in ac- cordance with directions given by court. Agency must preserve its impartiality and appearance of impartiality notwithstanding standing which s. 40(4) of Canada Transportation Act afforded it. It could not do so if it adopted ad- versarial position with respect to applicants. Air Canada v. Canada (Transporta- tion Agency) (May 5, 2008, F.C.A., Pelletier J.A., File No. 08-A-11) Order No. 008/133/081 (9 pp.). Human Rights Legislation Sisters were involved in estate dis- pute with their uncle following death of their father. Estate was comprised of real estate portfolio held for most part in partnership between their father and uncle and known as E.. Sisters retained H. to represent them. Estate issues were ultimately resolved to very considerable financial advantage of sisters. As part of settlement, E. came under control of father's estate. H.'s account was directed to be paid by E.. Sisters were very concerned about size of H.'s ac- count. Application judge erred in refusing sister's request to have H.'s legal accounts referred for assess- ment. Sisters were in reality clients for whom H. provided services. Sisters therefore had standing to have accounts assessed. Further, Rules of Professional Conduct of Law Society of Upper Canada required that sisters, as clients, be told whether account contained premium and that they had right to have accounts assessed under Solicitors Act (Ont.). They were told neither. Glanc v. O'Donohue & O'Donohue (May 20, 2008, Ont. C.A., Weil- er, Blair and MacFarland JJ.A., File No. C46462) Appeal from 153 A.C.W.S. (3d) 988 with supple- mentary reasons at 156 A.C.W.S. (3d) 935 allowed. Order No. 008/142/127 (11 pp.). FEDERAL COURT OF APPEAL Administrative Law BOARDS AND TRIBUNALS Canadian Transportation Agency had to preserve its impartiality In response to motion by appli- cants for leave to appeal from de- cision of Canadian Transportation Agency, agency filed comprehen- sive memorandum of fact and law. Moving parties applied to strike agency's memorandum on ground it amounted to defence of its deci- sion on merits and was improper. Agency contended that admin- istrative tribunal could speak in defence of its own decision where it was argued that decision was pa- tently unreasonable. Order granted that agency's memorandum and supporting material were not to be considered in disposition of appli- HUMAN RIGHTS COMMISSION Enforcement actions were not Appellant brought complaint that H.C. had acted contrary to s. 5 of Canadian Human Rights Act, by regulating herbal products in dis- criminatory way, according to eth- nic origin. Essence of complaint was that H.C. had in effect dis- criminated against complainants by enforcing Food and Drugs Act (Can.), against their company, but not against other businesses who were deserving of same treatment. This differential treatment was said to be based on ethnicity. Ap- plications judge correctly held that commission did not have jurisdic- tion to deal with complaint. En- forcement actions which formed object of complaint were not "ser- vices" within meaning of s. 5. Canada (Attorney General) v. Watkin (May 2, 2008, F.C.A., Nadon, Ryer and Noel JJ.A., File No. A-345-07) Appeal from 159 A.C.W.S. (3d) 243 dismissed. Or- der No. 008/133/079 (18 pp.). "services" within meaning of s. 5 of Canadian Human Rights Act ONTARIO CRIMINAL CASES Jury EMPANELLING Questions concerning pretrial publicity and racial bias were allowed Accused was charged with two counts of first degree murder and thirteen counts of aggravated as- sault. It was alleged accused had unprotected sex with thirteen complainants while knowingly being HIV positive. Accused was black from Uganda. Defence sought leave to ask potential ju- rors questions surrounding pretrial publicity and their impartiality in deciding case of black man charged with killing two white women. Question concerning pretrial pub- licity was allowed but there was no evidence of bias against individuals with HIV in community. Ques- tion concerning racial bias was allowed. R. v. Aziga (June 18, 2008, Ont. S.C.J., Lofchik J., File No. 07/1122) Order No. 008/175/130 (14 pp.). www.lawtimesnews.com FEDERAL COURT Employment OCCUPATIONAL HEALTH AND SAFETY Decision overturning decision which directed employer to protect any person at correctional Application for judicial review of decision of Appeals Officer over- turning decision of Health and Safety Officer directing employer to protect any person at correc- tional facility from danger of sec- ond-hand smoke. Correctional facility was subject to no smok- ing policy but significant amount of smoking still occurred. Em- ployee refused to work due to be- lief that exposure to second-hand smoke was dangerous. Health and safety officer agreed expo- sure to second-hand smoke con- stituted danger to employee and directed employer to protect any person from danger. Employer successfully appealed. Applica- tion granted; matter returned for re-determination. Standard of review was reasonableness with respect to both development of test for "danger" and application of test to facts of case. Decision of appeals officer was subject to strong privative clause and he was owed some deference. Appeals officer's test for danger was rea- sonable but he failed to consider evidence of continual exposure to second-hand smoke despite no smoking policy. Union of Canadian Correctional Officers v. Canada (Attorney Gen- eral) (Apr. 28, 2008, F.C., O'Keefe facility from danger of second-hand smoke was not reasonable PAGE 15 J., File No. T-1315-06) Order No. 008/126/115 (21 pp.). Human Rights Legislation HUMAN RIGHTS COMMISSION Taxpayer's ability to pay was not prohibited ground of discrimination Application for judicial review of decision of Canadian Human Rights Commission refusing to investigate complaint. Taxpayer was divorced father who had joint and shared custody of child. Tax- payer formerly received child sup- port and equivalent-to-spouse tax credits. Income Tax Act (Can.), was amended such that these cred- its were not longer available to taxpayer. Taxpayer unsuccessfully appealed from his income tax as- sessments. Amendment to Act was found to be constitutional. Taxpayer did not appeal but rather filed complaint with commission. Commission refused to investigate because alleged discrimination was not linked to prohibited ground of discrimination. Application dis- missed. Standard of review was correctness since issue involved ju- risdiction of commission and statu- tory interpretation. Commission' decision was correct. Discrimina- tion at issue was based on taxpayer' ability to pay, which was legislative policy and not prohibited ground of discrimination. Canada Revenue Agency had duty to enforce Act and could not be condemned for doing so. Taxpayer ought to have appealed from judgment finding amendment to be constitutional. Donovan v. Canada (Apr. 22, 2008, F.C., Harrington J., File No. T-1337-07) Order No. 008/126/111 (10 pp.). s s LT Obtain Copies of Judgments to copies of original decisions Your 24/7 connection caseimage.ca is an online database of both unreported and reported court and tribunal decisions — www.caseimage.ca $12.50* per case CaseLaw on Call • rates Single or multiple copies of the full text of any case digested in this issue can be supplied at the rates shown. Via E-mail Cost per case $17.50* sales@canadalawbook.ca Via Mail Cost per page $0.60* Minimum charge $10* Plus postage Via FAX Via Courier Cost per page $2.50* Minimum charge $10* Cost per page $0.60* Minimum charge $10* Plus courier charges CaseLaw on Call • order form Attention: Photocopy Service: Please send the full text of the following judgments. Orders must provide the case name, case order number (9 digits) and number of pages. Please enclose payment unless you have a VISA, MasterCard, AMEX or Canada Law Book account number. 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