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PAGE 14 CASELAW CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. COURT OF APPEAL FEDERAL Respondents had laid submarine fibre-optic cables across river. Defendant was lifetime fisherman and sole shareholder and presi- dent of company, which owned fishing vessel, of which defendant was master. On two separate oc- casions, anchors of defendant's crab fishing cages got hooked on cable. Both times defendant freed anchor by cutting cable with cir- cular electric saw. Judge found that defendant's personal act was deliberate and done with intent to cause loss resulting from cutting of cable and therefore, that defen- dant was liable for loss. Since de- fendant was company's directing mind and its sole officer, his ac- tions were deemed to be the com- pany's. Therefore, company was also liable on basis of defendant's actions. As result, appellants were held liable for damage to cable and respondents' loss, in amount of $980,433. Judge also found that appellants could not limit their liability pursuant to Article 4 of Convention on Limitation of Liability for Maritime Claims, 1976, reproduced in Schedule I to Marine Liability Act (Can.), nor benefit from protection of marine insurance policy issued to them by Royal. Appeal dismissed. It was open to judge to find that cable was navigational hazard within meaning of Charts and Nautical Publications Regulations, 1995 (Can.), and that defendant ought to have known about presence of cable by virtue of said Regulations and that he had breached this stat- utory obligation. Defendant owed duty of care to his "neighbours Appellants' act constituted willful misconduct resulting in loss of insurance coverage Admiralty GENERAL both on and below the water line" and breached that duty by tam- pering with cable by cutting it in two without further investigating about it. Judge did not err in hold- ing defendant jointly and severally liable with company. Defendant intentionally and deliberately cut cable twice. Defendant did all this while exercising his duties as mas- ter and alter ego of company, cor- porate owner of vessel. Judge did not err in limiting liability. Loss resulted from defendant's person- al act of cutting cable, "committed with intent to cause such loss," as provided for at Article 4 of 1976 Convention. There was no need for judge to make finding that de- fendant knew exact value of cable and fact that it was in use before he could reach conclusion he did. Defendant did intend to cut cable into pieces. Respondent claimed cost of putting it back together. Finally, judge had no difficulty finding that defendant's conduct was "marked departure from the norm," something more than mere negligence. As result, he found that appellants' act consti- tuted wilful misconduct resulting in loss of their insurance policy coverage. Societe v. Peracomo Inc. (June 29, 2012, F.C.A., Letourneau, Gauthier and Trudel JJ.A., File No. A-199- 11) Decision at 201 A.C.W.S. (3d) 323 was affirmed. 217 A.C.W.S. (3d) 4 (30 pp.). Telus Communications Industrial and Intellectual Property Appellant entitled to prejudgment interest on statutory damages Issue on appeal was whether col- lective society that elected statu- tory damages under s. 38.1(4) of Copyright Act in respect of royal- ties owed in British Columbia was entitled to prejudgment interest pursuant to s. 1(1) of Court Or- der Interest Act (B.C.) from date on which royalties were payable. COPYRIGHT These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. Appellant SOCAN was collective society which owned or adminis- tered right of public performance in Canada, and right to authorize such public performances, in most popular works in current use in Canada. By virtue of tariff approved by Copyright Board (Tariff 3C), SOCAN was entitled to collect royalties from licensees for calendar years 2005 to 2010. In years 2005 to 2010 inclusive, respondent IIC was licensee un- der Tariff 3C, operating nightclub at which it presented to public performances of recorded music that included works in SOCAN repertoire. IIC paid part of roy- alties due for 2005, and nothing for subsequent years. SOCAN filed statement of claim seeking judgment against IIC in amount of unpaid royalties. Statutory ba- sis for claim for unpaid royalties was s. 68.2(1) of CA. Statement of claim also gave notice that SO- CAN may elect in alternative to claim statutory damages under s. 38.1(4) of CA. IIC was served with statement of claim but did not file SOCAN filed notice of motion seeking default judgment elect- ing to recover statutory damages pursuant to s. 38.1(4). It claimed statutory damages equal to seven times amount of unpaid royal- ties, plus prejudgment interest at annual rate of 3%. Prothonotary held that IIC was liable for unpaid royalties in amount claimed, and that SOCAN was entitled to make election under s. 38.1(4). Aſter considering relevant factors, he determined that multiplier of six would be appropriate. Protho- notary declined to award pre- judgment interest from date on which cause of action arose. Judge notice of appearance. agreed with prothonotary and dismissed appeal. Appeal allowed. CA says nothing about prejudg- ment interest and no other Act of Parliament could possibly be interpreted to preclude award of prejudgment interest on mon- etary award made under CA. It followed that in this case, s. 36(1) of Federal Courts Act (Can.) ap- plied. SOCAN's entitlement to prejudgment interest must be determined by law of British Co- lumbia. SOCAN was entitled in this case to prejudgment interest on statutory damages awarded by prothonotary from date on which cause of action arose. Un- der s. 1(1) of COIA, court had no discretion to choose any other pe- riod for which prejudgment inter- est was payable. Society of Composers, Authors and Music Publishers of Cana- da v. IIC Enterprises Ltd. (June 14, 2012, F.C.A., Sharlow, Pel- letier and Mainville JJ.A., File No. A-499-11) Decision at 207 A.C.W.S. (3d) 220 was reversed. 217 A.C.W.S. (3d) 168 (16 pp.). FEDERAL COURT Immigration support by recent evidence Application for judicial review, under s. 72(1) of Immigration and Refugee Protection Act of decision Officer's conclusion on availability of state protection not EXCLUSION AND EXPULSION application for pre-removal risk assessment. Applicant was citizen of Iraq. Applicant was Christian. Applicant came to Canada at age of 11 and became permanent resident of Canada in 1981 with his parents, his brothers and sis- ters. Applicant was inadmissible to Canada due to his 69 criminal convictions. Officer concluded that although applicant's fear of persecution in Iraq based on his religion was justified, he failed to rebut presumption of state protec- tion. Application granted. Matter was referred to another officer for redetermination. dismissing applicant's unreasonable. Officer did not Decision was adequately address availability of state protection to applicant. Of- ficer's conclusion on availability of state protection was not sup- ported by recent past evidence. Occasional exceptions, hopes and intentions were not barometer for true climate of religious tolerance from one of religious persecution. Touma v. Canada (Minister of Citizenship (May 29, 2012, F.C., Shore J., File No. IMM-8192-11) 217 A.C.W.S. (3d) 148 (14 pp.). and Immigration) Notes in file did not enable court to understand line of reasoning Application for judicial review of decision by Citizenship and Immigration Canada service delivery agent refusing, at pre- qualification stage, applicant's ap- plication for permanent residence under federal skilled worker class on ground that she did not meet requirements of s. 75(2) of im- migration and refugee protec- tion regulations. Applicant was citizen of Kingdom of Morocco. Applicant was physician with specialization in oncology. Agent concluded that applicant failed to establish that she held occupa- tion of specialist physician corre- sponding or occupation of general practitioner and family physician. Application was categorized ineli- gible for processing. Application granted. Agent's decision was set aside, and matter was referred back to Citizenship and Immigra- tion Canada for reconsideration by another agent. Agent's deci- sion was unreasonable in every re- spect. Notes in file did not enable court to understand agent's line of reasoning. Affidavit provided no further justification for impugned decision. It was clear that appli- cant was experienced physician. Taleb v. Canada (Minister of Citizenship SELECTION AND ADMISSION (Apr. 3, 2012, F.C., Martineau J., File No. IMM-5394-11) 217 A.C.W.S. (3d) 163 (18 pp.). and Immigration) OctOber 15, 2012 • Law times Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

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