Law Times

LAW TIMES / JUNE 23, 2008 found there was no nexus between applicants alleged fear of perse- cution and five grounds in Convention. Refugee Protection Division acknowledged appli- cants were victims of criminal act and violence. Refugee Protection Division concluded applicants did not show government was unable to protect them. Refugee Protection Division found loss of confidence in state institutions was not reasonable justification for refusing to seek state pro- tection. Application for judicial review was dismissed. Excuse for not contacting police was not rea- sonable. It was not unreasonable to expect applicants to contact authorities. Refugee Protection Division could have provided bet- ter reasons and may have been too demanding as to what had to be established to prove state protec- tion was unavailable but errors were not fatal to decision. Lopez v. Canada (Minister of Citi- zenship and Immigration) (Feb. 22, 2007, F.C., de Montigny J., File No. IMM-3688-06) Order No. 008/073/147 (11 pp.). Applicant was denied permanent residence. Officer was not satis- fied applicant would be able to become economically established in Canada. Officer determined applicant could not be award- ed points for Bachelor of Arts Degree because applicant com- pleted course as private candidate. Applicant's request for reconsid- eration was denied. Application for judicial review was allowed. Applicant satisfied two criteria for being awarded 20 points under educational heading. Applicant had two-year university educa- tional credential at bachelor's level and applicant completed 14 years of full-time studies despite being private or external student on degree. Determination by offi- cer that applicant's degree was taken as private student was irrel- evant and at odds with Federal Skilled Workers Program Manual. Officer erred in misinterpreting documents and letter of expla- nation by competent education authority. Hameed v. Canada (Minister of Citizenship and Immigration) (Feb. 29, 2008, F.C., Frenette J., File No. IMM-2383-07) Order No. 008/073/172 (21 pp.). SELECTION AND ADMISSION Applicant satisfied two criteria for points award under educational heading CIVIL CASES Civil Procedure ONTARIO DISCOVERY Plaintiff's clinical records subject to partial privilege Plaintiff alleged serious and perma- nent injuries resulting from motor vehicle brought motion to compel pro- duction of clinical notes and records of plaintiff's treating psy- chiatrist. There was evidence of overlap between plaintiff's pre- accident condition and current condition. Best way to ascertain extent plaintiff's psychological problems were caused by accident was to examine records of plain- tiff 's treating psychiatrist. Records accident. Defendants were not subject to absolute privi- lege for purpose of issues to be resolved in lawsuit. Records were subject to partial privilege. Some of records were to be produced. Records describing abuse and his- tories of other people did not need to be produced. It was unfair to require defendant to proceed to trial without non-privileged records. No one could see records other than plaintiff's counsel, defendant's counsel, experts and instructing clients. A. (A.) v. Security National Insur- ance Co. (Mar. 4, 2008, Ont. S.C.J., Master Graham, File No. 04-CV-265883 CM1) Order No. 008/066/024 (11 pp.). Employment Plaintiff brought action against numbered company and defen- dant for wrongful dismissal. Judgment was granted in favour of plaintiff. Plaintiff sought dec- laration respondent was successor employer and related company to numbered company and that companies were same as defen- dant. Application was dismissed. Adequate evidence was not offered to support applicant's request to ignore separate existence of corporations. Respondent was successor employer and related company of numbered company. Judgment obtained against num- bered company was enforceable against respondent. Judgment was not enforceable against defendant personally. It was inappropriate to appoint receiver in aid of collect- ing outstanding judgment. Haskett v. 1334952 Ontario Inc. (Mar. 6, 2008, Ont.S.C.J., Daley J., File No. 02-BN-12060) Order No. 008/071/036 (11 pp.). EMPLOYMENT RELATIONSHIP Judgment in wrongful dismissal action not enforceable against defendant personally Plaintiff was laid off. Defendant paid plaintiff termination and sev- erance pay. Plaintiff claimed enti- tlement to severance pay based on employment since 1978 for defendant's predecessor in busi- ness. Defendant acquired business as going concern. Defendant did not acquire business by dealing with only third parties. Fact defen- dant acquired property necessary to business from landlord was not important. Section 9(1) of Employment Standards Act, 2000 (Ont.), applied where employer sold or transferred business or part of business. Plaintiff was entitled to judgment for $22,373. Macdonald v. Blastech Corp. (Mar. 4, 2008, Ont.S.C.J., Ramsay J., File No. 05-21362SR) Order No. 008/071/048 (5 pp.). EMPLOYMENT STANDARDS Section 9(1) of Employment Standards Act, 2000 (Ont.) applied where employer sold or transferred business or part of business Family Law Endorsement allowed respondent to specified date to file answer and financial statement. Respondent did not file. Respondent tried to exercise right to stay proceedings to allow respondent to make full PROPERTY Applicant not entitled to net proceeds from sale of home CASELAW answer and defence. Respondent exercised rights unilaterally under s. 7 of Canadian Charter of Rights and Freedoms. Charter did not afford applicant such right. Terms of endorsement were brought to respondent's attention. Applicant's motion for judgment was con- sidered on uncontested basis. Applicant sought net proceeds from sale of parties' home to be paid to applicant. No amount was due to respondent from proceeds. Entire amount was due applicant. All family photographs were to be made available to applicant for one week to allow applicant to copy photos. Respondent was to pay applicant amount of overdraft incurred solely by respondent. Marshall v. Marshall (Mar. 6, 2008, Ont.S.C.J., Gordon J., File No. FS2006-05) Order No. 008/071/023 (4 pp.). SUPPORT Husband entitled to spousal support but wife did not have means to pay way due to Highway Traffic Act (Ont.) violation. She and vehicle was searched and she was charged with offences under Tobacco Tax Act (Ont.). Defendant was person not permitted by Act to have more than 200 cigarettes. While there was power under Act to perform warrantless search such search had to be done by person authorized by Minister. Crown did not lead evidence of such person pursuant to s. 24(1) of Act. Due to impre- cise nature of officer's evidence regarding ordering of finding of radar detector and unmarked cig- arettes in passenger compartment, cigarettes were found as a result of unreasonable search. Defendant was found not guilty. R. v. Dumont (Feb. 25, 2008, Ont. C.J., Leaman J.P., File No. 072366) Order No. 008/114/032 (21 pp.). Evidence Parties had two children. Older child, aged 19, attended univer- sity. Husband received WSIB pay- ments of $1,022 per month. Wife's monthly income was $3,948. Younger child was to remain in mother's custody. Younger child, aged 16, was to make decisions as to timing and duration of access visits with husband. Husband was not capable of engaging in gainful employment. Husband's claim for spousal support was dismissed. Husband was entitled to spousal support, but wife did not have means to pay spousal support. Husband was to pay child sup- port of $157 per month. Property was valued. Husband was to pay equalization payment of $23,321 to be paid from net proceeds of sale of matrimonial home. Ratman v. Ratman (Mar. 4, 2008, Ont.S.C.J., Daley J., File No. FS-06-057104-00) Order No. 008/066/034 (25 pp.). ONTARIO CRIMINAL CASES Charter Of Rights Accused was stopped by uni- formed foot patrol of police during street festival. Accused was found to have loaded gun and was charged with firearms offences. Accused was psychologi- cally detained from time officer questioned him and physically detained when police assumed physical control of him. Accused's s. 9 right and s. 10(a) right to be informed of reasons for detention were violated. Admission of fire- arm would not bring administra- tion of justice in to disrepute as firearm was serious weapon and accused was found guilty of four counts. R. v. Digiacomo (Mar. 10, 2008, Ont. C.J., Green J.) Order No. 008/079/030 (15 pp.). SEARCH AND SEIZURE Cigarettes found in vehicle as result of unreasonable search ARBITRARY DETENTION OR IMPRISONMENT Firearm admitted into evidence notwithstanding s. 9 Charter breach IDENTITY OF ACCUSED No meaningful corroboration supported complainant's testimony PAGE 15 DANGEROUS DRIVING Marked departure not established beyond reasonable doubt Defendant had pulled his vehicle into westbound lane of highway to pass vehicle in front of him. Defendant was pulled over and charged with dangerous driving. Defendant had no intoxicants and was not speeding prior to passing other vehicle. Trial judge was not convinced beyond rea- sonable doubt defendant's driv- ing was marked departure from standard of care that of reasonable person. Defendant was found not guilty. R. v. Stephens (Jan. 29, 2008, Ont. C.J., Bourque J.) Order No. 008/079/020 (14 pp.). Professions Accused was charged with theft and use imitation firearm while committing theft. Single employ- ee of kiosk was robbed of $27,751 taken by individual who could not be identified by video cam- eras. Complainant later confessed he and accused were involved in scheme to steal from kiosk. Complainant was Vetrovec wit- ness. There was no meaningful corroboration that supported complainant's testimony. Accused was found not guilty. R. v. Bernard (Mar. 10, 2008, Ont. S.C.J., Hill J., File No. CRIMJ(P) 0041/70) Order No. 008/073/265 (20 pp.). Crown applied for order remov- ing solicitor as solicitor for defen- dant Corporation and individual accused. Defendants were charged with offences under Occupational Health and Safety Act (Ont.) arising from accident in which worker was killed. Worker was killed by reversing crane operated by individual defendant. There was no doubt confidential infor- mation was provided to solicitor from both defendants. There was realistic risk of conflict because evidence from individual defen- dant could be inconsistent with corporation's defence. Motion was granted. R. v. Con-Drain Co. (1983) Ltd. (Mar. 7, 2008, Ont. C.J., Arm- strong J., File No. 0700170) Order No. 008/079/032 (14 pp.). BARRISTERS AND SOLICITORS Solicitor removed where there was realistic risk of conflict 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. 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