Law Times

Law Times • sepTember 5, 2016 Page 15 www.lawtimesnews.com CASELAW and there was risk former spouse might use tactics of intimida- tion, violence and manipulation against applicant to achieve goals of Hells Angels. There was noth- ing to indicate delegate had failed to consider matters such as invol- untary nature of applicant's rela- tionship with former spouse or her involvement of police when he threatened her on previous oc- casions. Those matters did not, in any event, undermine basis for decision which was reasonably supported by evidence. Minister entitled to err on side of public safety. Access to restricted area of airport a privilege, not a right. Decision fell within range of pos- sible, acceptable outcomes defen- sible in respect of facts and law. Wu v. Canada (Attorney General) (June 24, 2016, F.C., Paul S. Crampton C.J., T-1596- 15) 268 A.C.W.S. (3d) 10. Evidence OPINION EVIDENCE Application for leave to introduce reply report was granted Plaintiff First Nations intro- duced issue of honour of Crown in amended statement of claim. First Nations did not intend to call further evidence on issue of honour of Crown but both Canada and Ontario elected to produce expert reports on is- sue. First Nations applied for leave to introduce reply report, written in response to Ontario's expert report regarding honour of Crown. Application granted. Full motion was not required to address application and it was appropriate to address leave in abbreviated motion. Delay in producing report was explained, and parties had adequate no- tice of application. Information available in expert reports and trial record was sufficient to as- sess usefulness of First Nations' expert report without need for additional affidavit evidence, and any prejudice to Canada or Ontario could be addressed by mitigative measures. Report did not merely dispute factual evi- dence offered in Ontario's expert report but it advanced alternate approach to assessing whether honour of Crown had been up- held. Report was in response rather than in reply and it must be considered part of First Na- tions' main case. While First Na- tions initially took position they would not call evidence on issue, choice by Ontario to commis- sion expert report on honour of Crown reopened door for First Nations to respond with expert report. Issues arising in connec- tion with honour of Crown were important, must be addressed fully in evidence and court was assisted by receiving evidence from parties on issues. Approach adopted by First Nations entitled Ontario to reply to expert report. First Nations' expert was to tes- tify before Ontario's expert and was not to repeat any evidence covered in prior testimony. Alderville Indian Band v. R. (June 29, 2016, F.C., Leonard S. Mandamin J., T-195-92) 268 A.C.W.S. (3d) 99. Tax Court of Canada Social Welfare OLD AGE SECURITY Amount referred back to tribunal to determine Guaranteed Income Supplement eligibility Minister determined taxpayer's income for purposes of deter- mining his eligibility under Old Age Security Act (Can.) to Guaranteed Income Supple- ment (GIS), assessing his Italian pension income and including his wife's social assistance pay- ments from Italy. Taxpayer ap- pealed. Social Security Tribunal referred question of taxpayer's income for 2010-2012 to Tax Court of Canada. Appeal al- lowed in part, only to extent of Minister's concession on 2012 income. Taxpayer presented documents from Italy indicat- ing his pension income was slightly less than amount re- lied upon by Minister, which was also derived from Italian report from same institution. As amount would make little, if any, difference to taxpayer's entitlement to GIS, there was no need to change Minister's de- termination. Taxpayer's income for purpose of GIS entitlement was based on his and wife's in- come, calculated in accordance with Income Tax Act (Can.) (ITA) subject to exceptions for social assistance payment from charity or federal or provin- cial program which did not in- clude foreign social assistance. Section 56(1) of ITA specified that social assistance payments based on means, needs or in- come, including from foreign source, were to be included in income as were payments un- der foreign retirement arrange- ments unless they were not sub- ject to tax in that country. As wife's evidence that payments she received were not subject to tax in Italy was accepted, issue was whether they "foreign re- tirement arrangement" as con- templated by s. 56(1)(a)(i)(C.1) of ITA such that it would not be included in income. Wife effec- tively answered this question by describing difference between taxpayer's pension which he had contributed to compared to her means or income-based social assistance payment. Wife's de- scription of payment exactly matched description in s. 56(u) of ITA as social assistance pay- ment made on basis of means, needs, or income test, rather than as retirement arrangement, so payments were to be included in determining taxpayer's GIS entitlement. Minister indicated that wife's income had been in- correctly determined for one year at $8,053 when it was in fact only $6,711. Minister's income determinations for 2010 and 2011 were accepted and deter- mination for 2012 would be al- tered to ref lect decrease, leading combined income of $15,950.29 for that year. Amount referred back to tribunal for purposes of determining GIS eligibility. Fang v. R. (July 5, 2016, T.C.C., Campbell J. Miller J., 2016-398(OAS)) 268 A.C.W.S. (3d) 233. Ontario Civil Cases Arbitration JURISDICTION Court will not interfere with procedural or interlocutory orders in arbitration matters Regional municipalities retained applicant to design, build, and operate energy-from-waste facil- ity. Applicant entered into main agreement with respondent CPP as material subcontractor to per- form construction services for facility. Agreement provided for CPP to participate as party to any arbitration between municipali- ties and applicant if notified by either party and for applicant and CPP to submit to binding arbitra- tion of any dispute not resolved through negotiations. CPP en- tered into agreements with sub- contractors for specific services required to build facility. Subcon- tract agreement also contained mandatory arbitration clause. CPP issued notice of arbitration to applicant. Arbitrator granted CPP's motion for order adding subcontractors as parties to ar- bitration. Applicant's application for order setting aside arbitrator's decision was granted on basis that arbitrator failed to satisfy himself that persons sought to be joined in arbitration were parties to main agreement. CPP appealed and applicant brought motion to quash appeal on basis that no ap- peal lies from decision of applica- tion judge under Arbitration Act, 1991 (Ont.). Motion granted. Ar- ticle 16(3) of UNCITRAL Model Law on International Commer- cial Arbitration and s. 17(9) of Act provide that there shall be no appeal from decision of court on question of arbitrator's juris- diction. CPP's submission that application judge did not have jurisdiction to review applicant's application to set aside arbitra- tor's ruling because his decision was not jurisdictional in nature, and that court had jurisdiction to hear appeal of judge's decision, was rejected. Whether person is party to arbitration, agreement is question of jurisdiction. Court will not interfere with procedural or interlocutory orders in arbitra- tion matters. Appeal quashed. Covanta Durham York Re- newable Energy Limited Part- nership v. Barton-Malow Can- ada, Inc. (July 11, 2016, Ont. C.A., G.R. Strathy C.J.O., David Brown J.A., and Grant Huscroft J.A., CA M46511 (C62067)) 268 A.C.W.S. (3d) 16. Civil Procedure DEFAULT Appeal to set aside default judgment was dismissed Respondent was tenant who had slip and fall accident in 2003, on appellant landlords' property. Tenant brought action against landlords, and had landlords noted in default in 2005. Tenant did not obtain default judgment until 2014. Landlords claimed they only learned of action during enforcement proceed- ings in 2015. Landlords applied to set aside default judgment, but were unsuccessful. Land- lords claimed that they acted promptly after learning of de- fault, and had meritorious case. Landlords claimed that setting aside default was in interest of justice. Landlords appealed from motion judgment. Appeal dismissed. Motion judge made proper finding that it was likely landlords had prior knowledge of action. Landlords were found to have evaded service. Land- lords' own evidence was that they learned of court proceed- ing in 2014, but took no steps to inquire as to nature of proceed- ing for six months. There was evidence that tenant resided at property, contrary to landlord's assertions. Findings were based in evidence. Motion judge made no error. Ur-Rahman v. Mahatoo (July 8, 2016, Ont. C.A., J.C. MacPherson J.A., E.A. Cronk J.A., and M.L. Benotto J.A., CA C61704) Decision at 262 A.C.W.S. (3d) 325 was affirmed. 268 A.C.W.S. (3d) 48. SETTLEMENT Motion to set aside minutes of settlement was dismissed Appellant was unsuccessful in motion to set aside minutes of settlement in family law pro- ceedings. Appellant appealed. Appeal dismissed. There was no merit in ground of appeal assert- ing that motion judge erred in making findings of credibility and reliability on basis of affi- davit evidence. Appellant did not submit before motion judge that trial was necessary. Motion judge was entitled to determine matter on basis of material pre- sented. Motion judge provided adequate reasons for rejecting appellant's affidavit evidence. There was no apprehension of bias. Motion judge's criticism of appellant's failure to notify ap- pellant's former counsel of al- legation of unprofessional con- duct was warranted. Appellant was not denied natural justice or procedural fairness because argument of motion was not recorded. There was no legal requirement for argument to be transcribed. Both parties were represented and court followed standard practice in dispensing with court reporter. Pellew v. Pellew (June 22, 2016, Ont. C.A., Robert J. Sharpe J.A., P. Lauwers J.A., and B.W. Miller J.A., CA C61685) 268 A.C.W.S. (3d) 67. Ontario Criminal Cases Charter of Rights ENFORCEMENT OF RIGHTS Superior Court has jurisdiction to consider applications that have been rendered moot Accused pleaded guilty to pro- ducing marihuana and cannabis resin. Crown originally gave no- tice that it was seeking manda- tory minimum sentence of six months' incarceration, pursu- ant to s. 7(2)(b)(i) of Controlled Drugs and Substances Act (Can.) ("CDSA"). Accused com- menced application in Superior Court challenging constitution- ality of s. 7(2)(b)(i) of CDSA ("ap- plication"). Prior to hearing of application, Crown informed accused that it would not rely on notice provision contained in s. 8 of CDSA, which rendered application moot. Hearing was held to consider request by ac- cused that court exercise its discretion to hear application. Request by accused rejected; application dismissed. Superior Court does have jurisdiction to consider applications that have been rendered moot. However, this was not one of those rare cases where court ought to con- sider moot issue. Recent Ontario decision provided thorough and thoughtful analysis of s. 7(2)(b) (i) of CDSA. That decision was being appealed, and appellate review would provide better fo- rum for constitutional challenge. Defence argument that s. 7(2)(b) (i) of CDSA created inf lationary f loor for sentencing was not sat- isfactory. Hearing of application would require undue consump- tion of judicial resources. R v. Morris (June 16, 2016, Ont. S.C.J., Mulligan J., Barrie 14-036) 131 W.C.B. (2d) 18. RIGHT TO BE INFORMED OF SPECIFIC OFFENCE There was no breach of accused's s. 10(a) Charter rights Accused was seen leaving prem- ises in vehicle prior to tactical unit entering premises to exe- cute search warrant and was fol- lowed. Vehicle was stopped and police went ahead with high risk takedown. Accused was arrested for firearms related offences and detained in rear of police cruiser. Accused made two utterances while in police car. Handgun was found in premises. Accused was charged with various of- fences related to unlawful pos- session of handgun and with possession of marijuana. Ac- cused challenged voluntariness of statements and sought decla- ration that his Canadian Char- ter of Rights and Freedoms ss. 9, 10(a) and (b) rights were violated at time of his arrest. Accused ap- plied for exclusion of evidence. Application dismissed. Accused understood charges he was fac- ing sufficiently to propose deal whereby he would protect his girlfriend and avoid potential for other criminal activity to be discovered during search. Ac- cused indicated his intention to speak with lawyer. Information provided by officers was suffi- cient to meet requirements of s. 10(a) of Charter. There was no breach of accused's s. 10(a) Char- ter rights. R. v. Lacroix (May 6, 2016, Ont. S.C.J., Marc Labrosse J., 11A-8440) 131 W.C.B. (2d) 32.

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