Law Times

PAGE 14 China he would suffer more than mere possibility of persecution under s. 96 of Immigration and Refugee Protection Act (Can.), or probable risk under s. 97. Ap- plicant alleged that he was intro- duced to Christianity in 2005 and became member of house church in 2006. In December 2006, his house church activities were nearly discovered by Pub- lic Security Bureau ("PSB") and weekly services were reduced to once per month. In December 2007, applicant travelled to Can- ada on visitor's visa and while in Canada he regularly attended services. He received news from China that members of his un- derground house church were being questioned by members of PSB and that his house church leader had been arrested. Fearing that he would be arrested if he were to return to China he filed for refugee protection in Decem- ber 2008. Applicant produced documentary evidence to prove his conduct as Christian in Can- ada, including Certificate of Bap- tism, and letter from applicant's pastor in Canada. Member asked applicant detailed questions on knowledge of Christianity. With respect to applicant's sworn evi- dence that he was Christian in China, on basis of perceived con- flicts and inconsistencies, Mem- ber made negative credibility finding to conclude that he was not Christian in China. Appli- cant contended that as practis- ing Christian in Canada, he was entitled to make sur place claim. Application granted. Making of implausibility findings with respect to religious questioning requires RPD member to follow three-part process from evidence on record: find what might rea- sonably be expected by way of response to discrete question, fairly obtain applicant's answer and finally, conclude whether answer conforms with what might be reasonably suspected. Key feature of test is establish- ing what answer might be rea- sonably expected. This feature requires that credible and verifi- able evidentiary basis for expec- tation has been established and known. In present case appli- cant answered most of questions posed by member to member's satisfaction with implausibility finding being based only on few questions not considered to be satisfactorily answered. Because process of critical analysis as described was not followed, in particular, because there was no established and known credible and verifiable evidentiary basis for member's expectation that certain answers would be pro- vided, member's implausibility findings were erroneously made. Evidentiary support applicant advanced to prove that he was Christian in Canada, and in par- ticular, Minister's letter, was not fairly considered. Zhang v. Canada (Minister of Cit- izenship and Immigration) (May 4, 2012, F.C., Campbell J., File No. IMM-2216-11) 216 A.C.W.S. (3d) 721 (20 pp.). Conclusion regarding persecution Application for judicial review of denial of refugee claim. Ap- plicant, aged 37, was citizen of Pakistan, who sought protection in Canada, of homosexuals in Pakistan was reasonable tion as homosexual. In 2006, at insistence of his parents, appli- cant married and money that he obtained from his wife's dowry helped him to expand his busi- ness. Applicant and his wife had two children together. In 2007, applicant alleged that he began sexual relations with B. Appli- cant maintained that in Novem- ber 2008, while he was walking in market with B. he was confronted by M., who had aided him finan- cially in order for him to acquire his company, and who requested that he give up his homosexual- ity. Applicant alleged that he re- fused to comply with M.'s request and consequently, in June 2009, M. informed applicant's family of his sexual activities. As result, applicant's wife leſt him and took their children. Applicant alleged that he was arrested on June 25, 2009, at insistence of his father- in-law. In jail, applicant alleged that he was brutalized and at- tacked. When applicant was re- leased, he went to B.'s residence to recover. On June 29, 2009, at B.'s residence, applicant was al- legedly confronted once again by M., accompanied by Imam of local mosque. M. and Imam declared that they witnessed B. and applicant engaging in sexual activities, thereby making them liable for arrest under Sharia law. Applicant affirmed that Imam also pronounced fatwa against him. Consequently, applicant alleged that he was threatened with death by stoning if he were to return to Pakistan. Applicant fled to Canada and filed refu- gee claim. Board concluded that danger that applicant faced was localized and was presented by non-state actors. Board noted that applicant faced only mere chance of persecution for homo- sexuality if he were to relocate to Karachi. Board held that pro- posed IFA would not be unrea- sonable for applicant given that he would be able to find work in Karachi and that he had severed ties with his family (he was di- vorced by his wife and disinher- ited by his father). Applicant con- tested possible IFA on grounds that he would be found wherever he went by his persecutors and that as homosexual he would be in danger wherever he was in Pakistan because of religious ex- tremism. Application dismissed. Applicant had not demonstrated that board ignored any evidence. Board acknowledged all of doc- umentary evidence and com- mented on country conditions in Pakistan. Board recognized that documentation demonstrated examples of mistreatment of ho- mosexuals in Pakistan. Although law prohibited homosexuality in Pakistan, board concluded that, in practice, authorities rarely prosecuted cases. Board was aware of the problematic situa- tion in Pakistan and considered contradictory evidence. Based alleging persecu- CASELAW on objective documentary evi- dence adduced, court could not conclude that board erred based on evidence before it. Board's conclusion regarding relative absence of persecution of homo- sexuals in Pakistan was reason- able. Board's IFA findings were reasonable. Gillani v. Canada (Minister of Citizenship and Immigration) (May 4, 2012, F.C., Boivin J., File No. IMM-6317-11) 216 A.C.W.S. (3d) 717 (20 pp.). ONTARIO CIVIL CASES Agency Plaintiff was employed as broker with defendant company MGA under Defendants' breach not so funda- mental that it entitled plaintiff to repudiate contract in entirety INSURANCE AGENTS agreement. Parties disagreed on interpretation of bonus clause in agreement resulting in plain- tiff leaving MGA seven months prior to expiration of independent consultant agreement. Plaintiff did not seek alternate employment in insur- ance industry. Plaintiff argued only reasonable interpretation of bonus paragraph was that bonus was payable on all NAFYC or total production once that num- ber reached $300,000. Plaintiff's interpretation of contract pre- vailed. Section referred to bonus based on total production of NAFYC without qualification. "On achieving" was interpreted to mean qualification thresh- old not calculation threshold. Section served to qualify bonus entitlement on total production of NAFYC only by establishing $300,000 qualification threshold. Factual matrix supported plain- tiff's interpretation of contract. Contract was capable to two different meanings and was am- biguous. Doctrine of contra pro- ferentum applied. MGA draſted contract and finding that bonus provisions were ambiguous lead to ambiguity being resolved in favour of plaintiff. Plaintiff was entitled to recover damages for breach of contract in amount of unpaid commissions. Plaintiff was not entitled to further dam- ages. Defendants' breach was not so fundamental that it entitled plaintiff to repudiate contract in entirety. Plaintiff failed to miti- gate loss of income and was not entitled to compensation for al- leged losses. Counterclaim was dismissed. Defendants did not meet burden of proof to establish plaintiff breached contract. Lawrie v. OM Financial Inc. (Apr. 20, 2012, Ont. S.C.J., McCarthy J., File No. CV-08-355403) 216 A.C.W.S. (3d) 631 (15 pp.). Civil Procedure term in Motion by defendant for order dismissing plaintiff's action, pur- suant to Rule 15.02 of Rules of Civil Procedure (Ont.). Counsel commenced action for damages www.lawtimesnews.com Counsel commenced action without plaintiff ' GENERAL s authority for personal injuries sustained on behalf of plaintiff. Motion grant- ed. Counsel commenced action without plaintiff's authority. No information beyond minimal medical information from late 1990s and plaintiff's counsel's confirmation that plaintiff was under legal disability was pre- sented. There was no evidence as to when disability began. If dis- ability began sometime before statement of claim was issued, it was possible that plaintiff did not have capacity to instruct counsel to commence action on her be- half. Salisbury v. Sun Life Assurance Co. of Canada (July 5, 2012, Ont. S.C.J., Paraveski J., File No. 11- 25008) 216 A.C.W.S. (3d) 597 (5 pp.). Lease governed tenant's obliga- tions to pay tenant's proportion- ate share of repairs and mainte- nance to paved areas. Issue was whether tenant was required to pay proportionate share of cost to rebuild parking lot at Centre. Landlord treated cost as repair. Work extended life of parking lot and reduced operating costs. Application was denied. Dec- laration issued that tenant was entitled to set-off sums paid on account of repairs as against rent due and owing under lease. Re- habilitation of parking lot was significant capital project. Work performed on parking lot went beyond simple repair or patch job. Work resulted in complete rehabilitation of parking lot. Finished product was as good as new parking lot. Cost was capital expenditure and not repair. Cost of work was not to be charged to tenant as additional rent. Riocan Holdings Inc. v. Metro Ontario Real Estate Ltd. (Apr. 27, 2012, Ont. S.C.J. (Comm. List), Morawetz J., File No. CV-10- 8764-00CL) 216 A.C.W.S. (3d) 755 (17 pp.). lot went beyond simple repair or patch job Work performed on parking SET-OFF Town and company entered agreements for waterfront rede- velopment project that provided for transfer of lands from town to company. Plaintiffs opposed redevelopment project and sought declaration that agree- ments were ultra vires and illegal. Plaintiffs Town authorized to provide any service it considered necessary SUMMARY JUDGMENT prevent project from proceeding on grounds it was outside town's statutory powers, constituted il- legal bonuses and was without sufficient consideration. All par- ties sought summary judgment. Plaintiffs' motion for summary judgment was dismissed. De- fendants' motion for summary judgment was allowed. sought injunction to appropriate case to grant sum- mary judgment. Plaintiffs' action was dismissed. Overall contrac- tual arrangement for project was within scope of town's general powers under Municipal Act, 2001 (Ont.). Overall contrac- tual arrangement was intra vires It was September 24, 2012 • Law timeS town's statutory powers under ss. 8, 9 and 11 of MA and s. 37 of Planning Act (Ont.). Town had powers of natural person includ- ing power to enter into contracts. Town was authorized to provide any service it considered neces- sary or desirable for public and could pass by-law to achieve such end. Town's powers were to be interpreted broadly. Contractual arrangement did not involve il- legal bonus contrary to s. 106 of MA. There was more than adequate consideration passing from company to town for by- law amendment and for transfer of property. There was no legal partnership between town and company. Project did not violate s. 106 of MA. Nowak v. Fort Erie (Town) (May 2, 2012, Ont. S.C.J., Hainey J., File No. CV-11-424814) 216 A.C.W.S. (3d) 624 (12 pp.). Employment Action by employee for damages for wrongful dismissal. Employ- ee had worked for employer for 18 years. Employee was informed that his position was being elimi- nated, and that similar position at another job at related company was available with same pay. Em- ployee turned down replacement job offer. Employee found other work at much lower position and salary. Action dismissed. Em- ployee failed to mitigate his dam- ages. Had employee accepted position at related company, he would not have experienced any losses flowing from his dismissal. Acting reasonably, employee should have accepted offer and said nothing more. Ghanny v. 498326 Ontario Ltd. (June 15, 2012, Ont. S.C.J., Be- lobaba J., File No. CV-08-359788) 216 A.C.W.S. (3d) 657 (7 pp.). related company he would not have experienced any losses WRONGFUL DISMISSAL Had employee accepted position at Family Law Society sought Crown ward- ship for purposes of adoption of children. Father was noted in default. Mother filed plan of care but did not attend for trial. Only plan that had merit was to place children for adoption. Mother did not exercise access to older child for almost one year. Older child was already found to be child in need of protection. Child was in need of protection in that mother failed to adequately care for or supervise and protect child from physical harm. Child was in need of protection in that child was likely to suffer emotional harm resulting from mother's failure Mother's actions showed mother was prepared to abandon child CHILD WELFARE ful contact with child since date of apprehension seven months ago. Mother's failure to follow through, to work co-operatively with society and failure to attend trial to maintain meaning- pared to abandon child. Child's physical, mental and emotional needs could only be met by mak- showed mother was pre-

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