Law Times

Law times • OctOber 22, 2012 Applicant had been kidnapped, beaten, raped, and ordered not to contact police. Thereaſter, applicant received threaten- ing telephone calls demanding payment of money. Board not convinced of well-foundedness of fear as actions not consistent with someone fleeing persecu- tion or risk of harm in that she made only merest of efforts to seek state protection even though it was readily offered. Despite her initial report of the attack, applicant did not make further efforts to seek state pro- tection in response to extortion payments. Application dis- missed. Failure to take steps to seek state protection beyond an initial denunciation a relevant consideration. Ortega v. Canada (Minister of Citizenship and Immigra- tion) (May 18, 2012, F.C., Near J., File No. IMM-6783-11) 217 A.C.W.S. (3d) 428 (8 pp.). Application for judicial review of decision of Refugee Protec- tion Division of Immigration and Refugee Board that appli- cant, a citizen of Ethiopia, was neither a Convention Refugee nor a person in need of protec- tion. Applicant came to Canada in February 2010 to visit preg- nant daughter and received call in April 2010 that husband had been imprisoned. Husband still imprisoned and had not been charged or appeared before a court since his detention began. Board rejected claim on basis applicant had not been involved in any significant political activi- ties or had significant problems with authorities as result of her limited political involvement. No evidence that husband had been arrested for political ac- tivities or beliefs or that children had experienced problems in Ethiopia. Board concluded ap- plicant had no strong political convictions and had become involved with UHRD in Canada in order to strengthen her claim. Application dismissed. Appli- cant had opportunity to present her case. No obligation upon board to point out in course of hearing that it had concerns about her credibility. Tesema v. Canada (Minister of Citizenship and Immigration) (May 18, 2012, F.C., Heneghan J., File No. IMM-6918-11) 217 A.C.W.S. (3d) 429 (9 pp.). No obligation on board to point out concerns about credibility Application for judicial review of decision of immigration of- ficer to refuse application for permanent residence on hu- manitarian and compassion- ate considerations on basis that applicant would not suffer unusual and underserved or disproportionate hardship if he were required to obtain perma- nent resident visa from outside Canada. Applicant suffers from Consequences if applicant unable to access medical care potentially life threatening SELECTION AND ADMISSION schizophrenia. Officer found that treatment including medi- cation would be available to ap- plicant in Democratic Republic of Congo (DRC), particularly in Kinshasa where specialized psychiatric facility exists. Ap- plication allowed. Officer erred in assessing hardship applicant would face in DRC as result of his major mental illness. Men- tal health facilities lack special- ists to treat schizophrenia and medication oſten too expensive for patient. Consequences for applicant if he was unable to access proper medical care in DRC potentially life threaten- ing and non-speculative. Ap- plicant' had led to aggressive behaviour that brought him into contact with police and criminal justice system in Canada. No reason to believe this would not hap- pen in DRC if applicant unable to access appropriate medical treatment. Evidence regarding prison conditions in DRC hor- rific. Lemika v. Canada (Minister of Citizenship and Immigration) (Apr. 20, 2012, F.C., Mactavish J., File No. IMM-5233-11) 217 A.C.W.S. (3d) 430 (10 pp.). s illness when untreated Application for judicial review of decision of immigration of- ficer refusing post-graduation work application. Applicant ar- rived in Canada to obtain with study permit a bachelor' Application for restoration brought outside 90-day period VISITORS in accounting. Applicant no longer had temporary resident status as of December 30, 2010 when study permit expired. Applicant did not apply for post-graduation work permit until May 5, 2011. Application dismissed. Applicant failed to submit application for restora- tion of temporary resident sta- tus within specified period of 90 days. Language in s. 182 of Immigration and Refugee Pro- tection Regulations (Can.), not discretionary. Officer must re- fuse application for restoration brought outside of 90-day pe- riod imposed by law. Adroh v. Canada (Ministre de la Citoyennete et de l'immigration) (May 4, 2012, F.C., Tremblay- Lamer J., File No. IMM-5720- 11) 217 A.C.W.S. (3d) 432 (6 pp.). s degree Murder Accused sought revision of de- cision that found him guilty of second degree murder. Accused was found guilty of murder- ing his adoptive parents. Ac- cused did not dismiss crime, but claimed to be victim of ju- dicial error. Accused affirmed that certain evidence were fab- ricated and others, overlooked. Application dismissed. Based on evidence presented, court af- firmed that verdict could not be Alleged judicial error not supported by evidence SECOND DEGREE MURDER CASELAW result of judicial error. Evidence and testimonials were consis- tent with version presented by prosecution and confirmed by numerous experts. Alleged judi- cial error was not supported by evidence. Timm v. Canada General) (May 2, 2012, F.C., Harrington J., File No. T-680- 11) Reasons in French. 102 W.C.B. (2d) 154 (22 pp.). (Procureur ONTARIO CIVIL CASES Civil Procedure Motion for certification of ac- tion claiming as class proceed- ing. Plaintiff was former fran- chisee that operated store from January 2005 to April 2008, when it abandoned business. Defendant had not disputed that plaintiff met cause of action requirement. Order adjourning motion with leave to bring mo- tion to substitute new represen- tative plaintiff. Grave concerns about competence and suitabil- ity of proposed representative plaintiff. Plaintiff who com- plains about franchisor' CLASS ACTIONS Plaintiff not suitable representative of class faith and fair dealing did not itself display reciprocal obliga- tion of good faith and fair deal- ing. Plaintiff guilty of egregious breaches of contract and was itself guilty of non-disclosure. Plaintiff not suitable represen- tative of class. Sole motivation in commencing action was to deflect s good der franchise agreement. Not kind of exceptional case where court should refuse altogether to consider suitable replace- ment. Would be unfair to pro- posed class to dismiss motion outright having found action to be otherwise suitable for certi- fication without giving another representative opportunity to come forward. Would be waste of time, money and judicial re- sources to require that class start afresh. franchisor's claims un- 6323588 Canada Ltd. v. 709528 Ontario Ltd. (May 23, 2012, Ont. S.C.J., Strathy J., File No. CV-08- 7587-00CL) 217 A.C.W.S. (3d) 278 (24 pp.). Plaintiffs brought class action claiming defendants conspired to fix prices of chocolate prod- ucts in Canada and that defen- dant ITWAL engaged in price maintenance. Plaintiffs brought motion to certify class action for purposes of settlement only. Plaintiffs sought approval of settlement and approval of pay- ment of fee to Ontario and Brit- ish Columbia class counsel. Ac- tion was certified. There were no opt outs from settlement. Suc- cess was not guaranteed. "Most favoured nation" provision was reasonable compromise that parties sometimes have to make Payment of $800,000 reasonable interim compensation for class counsel www.lawtimesnews.com in order to achieve settlement. Settlement terms were fair and reasonable. Success of class counsel would be judged on how well they did overall against all defendants. Substantial interim payment was already made. For interim fee class counsel were indemnified for disbursements in full and were awarded 50% of fee claimed. Total payment of $800,000 inclusive of GST and disbursements was reason- able interim compensation in respect of Ontario and British Columbia proceedings. Osmun v. Cadbury Adams Can- ada Inc. (June 29, 2012, Ont. S.C.J., Strathy J., File No. 08-CV- 347263PD2) 217 A.C.W.S. (3d) 279 (11 pp.). COMMENCEMENT OF PROCEEDINGS Plaintiff claimed technician from defendant installed cable television services on behalf of Bell. Technician detached an- tenna from home in access roof removing shingles. Technician stepped onto roof which cre- ated hole. Technician informed plaintiff of minor damages and stated someone would come to repair roof. Technician indi- cated no water could come in through roof. No repairs were made to roof. Home suffered significant water damage aſter heavy rainfall. Plaintiff claimed damages arose from flooding in- cident on date of heavy rainfall. Defendants argued plaintiffs discovered claim on date work was done. Defendant brought motion to strike out statement of claim and dismissing action. It was premature to strike out entire statement of claim and dismiss action on basis action was commenced aſter applicable two-year limitation period. Full finding of facts was necessary to determine when plaintiff dis- covered claim. It was inappro- priate to determine limitation period issue before trial where discoverability was issue. State- ment of claim did not sufficient- ly advance requisite elements of tort of public nuisance and did not disclose reasonable cause of action. Plaintiff ' limitation period issue before trial Inappropriate to determine pleaded were not special dam- ages for purposes of tort of pub- lic nuisance. Plaintiff ' s damages as public nuisance was struck out. Whitters v. Furtive Networks Inc. (Apr. 5, 2012, Ont. S.C.J., Steven- son J., File No. CV-11-420068) 217 A.C.W.S. (3d) 283 (7 pp.). s claim for Plaintiff claimed commissions were owed to plaintiff as result of transaction. Plaintiff sought order directing non-party and defendants to pay into court any moneys forthcoming from transaction. Defendants denied defendants would not pay plain- tiff commissions. Motion was dismissed. There was no trans- action in existence to give rise to plaintiff ' PAYMENT INTO COURT No specific fund earmarked to litigation in issue s claim for commission Page 17 under ICA. Plaintiff 's claim for payment of commission under contract did not create neces- sary proprietary claim against specific fund required to justify order. Specific fund referable to litigation did not exist. There was no suggestion corporate de- fendant could not pay any com- mission owing if claim arose in future. There was no specific fund reasonably identifiable and earmarked to litigation in issue. Claim was not legally enforce- able. Claim for damages was different from claim for relief in- volving special fund earmarked for litigation. Motion was specu- lative. There was no support for balance of convenience granting order. Plaintiff did not establish potential harm would occur if relief were not granted. Heasty v. 1648290 Ontario Ltd. (July 5, 2012, Ont. S.C.J., Dito- maso J., File No. CV-12-109643- 00) 217 A.C.W.S. (3d) 306 (7 pp.). Motion by defendant for leave to bring motion and for summary judgment. Defendant had con- sented to action being placed on trial list. Order granting leave to proceed with motion for summary judgment. Summary judgment motion had merit with respect to allegation that plaintiff did not notify county within ten days aſter occurrence of injuries. Little evidence that trial dates are in jeopardy. Pro- cedural prejudice largely specu- lative. Summary judgment not likely to cause actual prejudice given stage of proceedings. Par- ties would have another fiſteen weeks to prepare for trial aſter summary judgment motion. Allen v. Prince Edward (Coun- ty) (Apr. 4, 2012, Ont. S.C.J., Minnema J., File No. CV-10- 327-00) 217 A.C.W.S. (3d) 312 (6 pp.). SUMMARY JUDGMENT Summary judgment not likely to cause actual prejudice given stage of proceedings This was appeal from motion judge' New test for summary judgment was full appreciation test plaintiff 's defamation action. s decision dismissing Plaintiff owned and operated blog on which he posted leſt- wing opinions on political and public interest issues. Defen- dants operated and moderated message board. Individual de- fendant was right-wing com- mentary who frequently com- mented on message board. Plaintiff alleged that individual defendant labelled him "one of the Taliban' porters" during blogging alter- cation. Comment was posted on message board. Plaintiff brought defamation action. Mo- tion judge found that there was no genuine issue for trial. Mo- tion judge held that impugned words were not capable of being defamatory of plaintiff and were not in fact defamatory. Appeal allowed. Motion judge erred in granting summary judgment in circumstances. New test for s more vocal sup-

• Cover