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Law times • OctOber 1, 2012 that there was no appointment or proposed appointment. Tri- bunal was justified in weighing evidence as it did to find that it should dismiss complaint be- cause of jurisdictional consid- erations in relation to appoint- ment or deployment. Tribunal was entitled to deference in its determination regarding facts. Boshra v. Canada (Attorney General) (June 4, 2012, F.C., Near J., File No. T-789-10) 216 A.C.W.S. (3d) 915 (18 pp.). Immigration Application for judicial review of finding applicants were inad- missible for misrepresentations. Applicants were family from Iran. Principal applicant was cardiologist who applied un- der federal skilled worker class. Applicants hired consultant to prepare their application. Ap- plicant asked consultant about English test and was told that he did not have to take if for three or four years. Consultant sub- mitted false test result. Appli- cant actually took test in 2010. Applicant signed application were told but claimed he was not given opportunity to review it and did not receive a copy. Applicants were later notified their consultant was not au- thorized. Applicants were sent fairness letter alerting them to concerns with test result sub- mitted by consultant and pos- sible inadmissibility finding. Applicants responded they had been victim of consultant fraud and were not aware of false document. Officer rejected ex- planation on basis application clearly stated English test re- sult had to be submitted with application. Applicants argued there was no misrepresentation or, if there was, it was immate- rial and they had no knowledge of it. Application dismissed. False document was clearly de- signed to mimic IELTS report so was obviously submitted to mislead officials into thinking application was complete and applicant met language require- ments. Language ability was material part of application and false document could have in- duced an error. That applicants later submitted actual test result did not render misrepresenta- tion immaterial. Applicants seeking to enter Canada owed duty of candour and this re- quired them to ensure docu- ments were complete and ac- curate. Applicants chose to rely on consultant, so could not ex- onerate themselves by blaming him. Consultant provided in- structions contrary to those on application, which should have alerted applicants to fact his ad- vice was inaccurate. Applicants received fairness letter and were able to respond to concerns, so duty of fairness met. While consultant fraud was a serious problem, it was not a defence. While consultant fraud was serious problem, it was not a defence INADMISSIBLE AND REMOVABLE CLASSES Sayedi v. Canada (Minister of Citizenship and Immigration) (Apr. 13, 2012, F.C., Tremblay- Lamer J., File No. IMM-3289- 11) 216 A.C.W.S. (3d) 990 (22 pp.). ONTARIO CIVIL CASES Warsaw Convention precluded claim as pleaded injury Air Law CARRIAGE Plaintiff claimed damages for alleged mistreatment by flight attendants in course of in- ternational flight resulting in plaintiff ' began while plaintiff was on board aircraft when aircraſt arrived in Toron- to. Plaintiff claimed damages for pain and suffering, inflic- tion of mental distress, s arrest and detention ible confinement and false im- prisonment. Plaintiff claimed damages for severe bronchitis arising from incident. Defen- dants brought motion to dis- miss claim arguing applica- tion of Warsaw Convention precluded claim. Article 17 of Convention applied. Pleaded injury began while plaintiff was on board aircraſt, continued during disembarkation and concluded with continued de- tention by police. Incident in case was accident. All aspects of claim for damages of psy- chological harm, including pu- nitive and exemplary damages were struck out. Claim for gen- eral damages for bodily injury of bronchitis could be pursued. Plaintiff could not succeed un- der Convention for damages claimed for psychological harm and mental distress based on Article 29 of Convention. Arti- cle 29 made it clear claim for ag- gravated and punitive damages were not recoverable if claim was made under Convention or in contract or tort. Gontcharov v. Canjet (June 4, 2012, Ont. S.C.J., Wilson J., File No. CV-11-432902) 216 A.C.W.S. (3d) 839 (12 pp.). forc- preparation of new litigation plan Plaintiffs were students at school. Plaintiffs claimed resi- dential students at school were physically and psychologically abused. Plaintiff claimed abuse was systemic negligence and systemic breach of fiduciary duty. Plaintiffs claimed dam- ages of $200 million. Plaintiffs brought motion for certifica- tion of action as class proceed- ing. School was founded inde- pendently of Diocese. Motion was dismissed. Class proceed- ing was not preferable proce- dure. Expediency of framing claim as systemic wrongdoing would impede access to jus- tice for individual class mem- bers. Plaintiffs' reliance on sys- temic negligence and systemic Dismissal of motion suspended for six months to allow Civil Procedure CLASS ACTIONS CASELAW breaches of fiduciary duty was problematic. Success at com- mon issues trial achieved little for class members and judicial economy. Action was allowed to continue with different liti- gation plane that was proce- durally fair that should provide access to justice, behaviour modification, and judicial economy. Plaintiffs were directed to prepare new litigation plan. Dismissal of cer- tification motion was suspend- ed for six months to allow time for plaintiffs to prepare revised litigation plan and for to defendant and to give notice to putative class members. Identifiable class and common issues criteria were satisfied. Plaintiffs would be satisfactory representative plaintiffs. Action against Dio- cese was dismissed. There was no evidence of any direct in- volvement by Diocese at school in various abuses or even hav- ing received complaints of abuse at any material time. Re- lationship between Diocese and student was too remote to fairly impose duty of care. It was plain and obvious Diocese had no le- gally prescribed duty of care to students of school. There was no reasonable cause of action in negligence against Diocese. Claim for them against Diocese was untenable. There was no evidence Diocese had employer-employee rela- tionship with other defendants. It was plain and obvious there was no fiduciary relationship between students and Diocese. Cavanaugh v. Grenville Chris- tian College (May 23, 2012, Ont. S.C.J., Perell J., File No. 08-CV- 347100CP) 216 A.C.W.S. (3d) 833 (35 pp.). vicarious liability Plaintiff was passenger in ve- hicle that collided with defen- dants' vehicle. Adjuster made offer of $2,500 to plaintiff by telephone. Adjuster argued she advised plaintiff of definition of threshold and implications of final release. Adjuster claimed she advised plaintiff that he was entitled to seek legal advice re- garding offer. Plaintiff was ad- vised by lawyer that he had two years to sue. Plaintiff ' No evidence adjuster knew of plaintiff 's alleged vulnerability SETTLEMENT $5,000 was accepted. Plaintiff signed release. Plaintiff cashed cheque received. Defendants brought motion for summary judgment. Motion was allowed. Claim was dismissed. Trial was not required. Offer of $5,000 was not improvident. It was not unreasonable for adjuster to conclude if was minor in- jury. Plaintiff sought legal ad- vice. There was no overwhelm- ing imbalance in negotiations. There was no evidence to sug- gest adjuster knew of plaintiff ' s offer of alleged vulnerability. Plaintiff failed to meet required criteria needed to set aside settlement on basis of unconscionabil- ity. Plaintiff was unable to show adjuster owed duty of care on facts. There was no evidence of www.lawtimesnews.com s duress. Hanna v. Polanski (May 31, 2012, Ont. S.C.J., Arrell J., File No. 05-19039) 216 A.C.W.S. (3d) 878 (13 pp.). Motion by plaintiff for finding of contempt against defendant, and orders under Rule 60.18(6) of Rules of Civil Procedure (Ont.), to examine members of defendant' No order compelling defendant to answer certain questions Contempt of Court GROUNDS PAGE 17 ecution. Plaintiff was granted default judgment. Defendant attended examination in aid of execution. During his exami- nation, defendant refused to answer some questions or to provide undertakings. No mo- tion was brought to compel defendant to answer particular questions, make productions or to satisfy undertakings fol- lowing refusals. Motion dis- missed. Orders made against defendant before judgment were with one exception, all relevant to issue of liability or damages, and did not deal with issues arising in execution of judgment. Plaintiff failed to es- tablish that defendant' s family in aid of ex- to provide information was de- liberate and wilful. It could not be said that defendant failed to answer certain questions and provide undertakings, as there was yet no order compelling him to answer those questions or determining validity of such questions. Plaintiff ' s failure to examine defendant's family s request members was not appropriate. Plaintiff had not exhausted all means to enforce his right to execution. Ghaeinizadeh v. Ku De Ta Capi- tal Inc. (June 29, 2012, Ont. S.C.J., Whitaker J., File No. CV- 09-385657) 216 A.C.W.S. (3d) 885 (6 pp.). Contracts This was appeal from motion judge' FRANCHISE AGREEMENTS Agreement provided several guides to intended meaning and scope of clause application for declaratory relief concerning enforceability of re- strictive covenants in franchise agreement. Parties entered into franchise agreement, under which franchisee acquired right to operate restaurant located in shopping complex. Dispute arose between parties regarding franchisee' s dismissal of appellants' terms of agreement, in particu- lar, certain restrictive covenants that constrained franchisee' s compliance with right to operate or be involved with competing business. Fran- chisor sued appellants, franchi- see, principals and related cor- poration. Appellants defended action and counterclaimed. Appellants sought declara- tions that restrictive covenants in issue were unenforceable. Motion judge held that appel- lants' arguments did not sup- s port conclusion that restrictive covenant clause in agreement was ambiguous to point of be- ing unenforceable as pure ques- tion of law. Appellants' motion for relief was dismissed. Appeal dismissed. Aſter scrutinizing wording of clause, including in context of other provisions of agreement, clause was not fa- cially ambiguous. Agreement provided several guides to in- tended meaning and scope of clause. In absence of any factual context for interpretation of clause, requisite patent ambigu- ity in clause had not been dem- onstrated to render it wholly unenforceable. Claim that clause was irretrievably ambig- uous as matter of law must fail. Invescor Restaurants Inc. v. 3574423 Canada Inc. (June 7, 2012, Ont. C.A., Cronk, Ju- riansz and Epstein JJ.A., File No. C53641) Decision at 200 A.C.W.S. (3d) 702 was affirmed. 216 A.C.W.S. (3d) 887 (8 pp.). Employment Employee appealed judgment holding that settlement released insurer GWL from future claims by employee. Employee was insured for long-term dis- ability benefits by GWL un- der policy of group insurance provided by former employer. Employee' Benefit coverage quantified as part of settlement agreement EMPLOYMENT STANDARDS employer was terminated. Em- ployee filed human rights com- plaint, claiming employment was terminated based on dis- ability. Employee entered into minutes of settlement with em- ployer, which contained release. GWL denied employee' s employment with for benefits based on release. Employee claimed that effect of release infringed ss. 54 and 57 of Employment Standards Act, 2000 (Ont.), and that GWL could not enforce clause. Mo- tion judge held that GWL could enforce or rely on terms of minutes of settlement. Appeal dismissed. Act was not benefits legislation. Once employee was entitled to benefits she could compromise amount, if any, she was entitled to. Benefit of coverage was quantified as part of settlement agreement. GWL was entitled to rely on minutes of settlement. Zelsman v. Meridian Credit Union Ltd. (May 30, 2012, Ont. C.A., Weiler, Blair and Juriansz JJ.A., File No. C54434) Deci- sion at 207 A.C.W.S. (3d) 233 was affirmed. 216 A.C.W.S. (3d) 914 (7 pp.). s claim Family Law Child was made Crown ward without access to mother. De- cision was made on summary judgment motion. Neither mother nor mother' CHILD WELFARE Judge required to consider whether access would impair child's opportunities for adoption were present. Mother appealed s counsel

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