Law Times

PAGE 18 nature of motion, and fact that it had only been made aſter she had completed her questions and requested conference for unrelated purpose, and no spe- cific references had been pro- vided to member. Member also noted that she had not been ac- cused of having prejudged case, and that she had not in fact done so. In addition, member observed that applicant had not appeared to be intimidated and that questions previously put to applicant by member elicited same answers when asked by counsel. Applicant contended that member' "intimidating" and "threaten- ing" and that member' during hearing demonstrated reasonable apprehension of bias and that he was not ac- corded fair hearing. In assess- ing whether member' s behaviour was s conduct iour rose to level of reasonable apprehension of bias, court reviewed affidavits of applicant and articling student who at- tended hearing as co-counsel together with transcript. Affi- davits were sworn almost three months aſter hearing. Applica- tion dismissed. There were im- portant discrepancies between allegations made in student' s behav- affidavit and transcript of hear- ing. Whereas student deposed that she told member that she "felt threatened by her" and that she found member' s when asked whether she found member threatening, student responded that she "did not say threatening exactly, possibly in- timidating, slightly". Given sig- nificant discrepancies between transcript and student' ner and demeanour intimidat- ing, s "man- " transcript revealed that, evidence, court gave her affida- vit little weight. During hear- ing, counsel for applicant led applicant extensively with his questions about alleged intimi- dation. Such leading question- ing was inappropriate and elic- ited obvious response. Court drew strong inference that ap- plicant was led by such ques- tions or prompted by counsel to state that he felt intimidated, whether or not that was appli- cant' s affidavit ingly court put little weight on Applicant' however, those exchanges were not between member and ap- plicant and did not take place until well into hearing. At no time did member ask inap- propriate question or address negative remark to applicant. In presence of exchanges between counsel and member, there was no doubt that everyone in room felt uncomfortable. However, fact that applicant may have felt uncomfortable, or even intimi- dated, did not amount to bias. While member clearly allowed her frustration with counsel to show in her body language, her tone of voice and certain of her remarks to counsel, her conduct, although possibly in- showed that there were some sharp exchanges between ap- plicant' s feeling at time. Accord- s affidavit. Transcript s counsel and member, temperate and regrettable, did not amount to reasonable ap- prehension of bias. Informed person, viewing matter realisti- cally and practically, and hav- ing thought matter through, would conclude that dispute between counsel and member did not result in situation where it was more likely than not that member, whether consciously or unconsciously, would not decide fairly. Applicant had not persuaded court that member' behaviour was such as to give rise to reasonable apprehension of bias or that decision did not fall within range of possible, ac- ceptable outcomes which were defensible in respect of facts and law. Ramirez v. Canada (Minister of Citizenship and Immigration) (June 25, 2012, F.C., Snider J., File No. IMM-8818-11) 218 A.C.W.S. (3d) 634 (16 pp.). s Application for judicial review of denial of applicant' Neither ex-wife nor daughters provided evidence in support of application SELECTION AND ADMISSION manitarian and compassionate (H&C) application. s hu- applicant leſt Montenegro for United States, claiming asy- lum based on difficulties with Serbs in Yugoslavia. He mar- ried citizen of United States and they had two daughters. He abandoned his refugee claim in United States and relied on sponsorship application, how- ever, it was never completed and in 2007 he was deported back to Montenegro. Appli- cant came to Canada on March 22, 2008, and claimed refugee protection alleging that he was involved in altercation with high ranking police officer in February 2008 and was forced into hiding. In January 2009, his daughters joined him in Canada, claiming refugee status against United States. In Sep- tember 2009, they withdrew their claim and returned to live with their mother. On July 14, 2010, due to credibility con- cerns, Refugee Protection Divi- sion determined that applicant was not Convention Refugee or person in need of protection. Leave to this court was denied on November 16, 2010. Ap- plicant initiated Pre-Removal Risk Assessment (PRRA) ap- plication and H&C application. PRRA was negative and H&C application was denied. Officer reviewed applicant' In 1989, ment in Canada, best interests of his daughters, and country condition in Montenegro and concluded that there was no unusual and undeserved or disproportionate hardship. Of- ficer acknowledged that appli- cant had two American born daughters, aged 11 and 9, and that he had alleged that his ex- wife relied on him to support them. Officer found that infor- mation on how applicant sup- ported his daughters financially was not provided and there was s establish- CASELAW no indication regarding nature or frequency of communica- tion with his daughters since their return to United States. Although applicant had stated that it would be easier for his daughters to visit him in Can- ada, officer said that there was no indication as to how girls, who were still minors, would travel to Canada or would be al- lowed to do so by their mother. Negative inference was made because neither his ex-wife nor daughters provided any evi- dence in support of his applica- tion. Officer concluded that evi- dence did not indicate that his daughters' best interests would be impacted such that exemp- tion was warranted. Applicant contended that officer ignored statements made by him that went to issue of his children' best interests and also failed to consider that applicant would suffer chronic unemployment in Montenegro. Application dismissed. Absent any evidence from mother in Florida, there was nothing to indicate that she would be prepared to have her children travel to meet their father in Canada or how they would do so, unless she agreed to accompany them. These ob- servations and dearth of evi- dence corroborating applicants' statements were relevant and finding was not perverse. Ap- plicant was self-employed in construction in Montenegro when he lived there between 2007 and 2008, and there was no evidence his skills would not still be needed there, he had re- mained employed in construc- tion industry in Canada, and he was familiar with language and culture in Montenegro and his family there would likely help him with reintegration. There was evidence that applicant had reintegrated in Montenegro be- fore and there was no evidence that he could not do so again. Delosevic v. Canada (Minister of Citizenship and Immigra- tion) (June 28, 2012, F.C., Zinn J., File No. IMM-6146-11) 218 A.C.W.S. (3d) 651 (9 pp.). s Parole ry criteria requirement assessment Applicant sought judicial re- view of decision of National Pa- role Board Appeal Division af- firming parole board' Applicant did not meet mandato- DAY PAROLE grant day or full parole. Parole board considered applicant' involvement in illicit tobacco trade, lack of co-operation with psychologist and did not order new psychological assessment. Applicant argued board erred in not ordering new assessment based on s. 101(b) of Correc- tions and Conditional Release Act (Can.) which required consideration of all evidence. Applicant did not meet manda- tory criteria for ordering assess- ment. Applicant further argued that appeal division erred in not considering new psycho- logical assessment he had pre- s refusal to s www.lawtimesnews.com pared and filed only before it. Board found applicant was risk to public safety with likelihood to reoffend although had low risk to commit violent offence. Application dismissed. Appeal division only had to consider matters before board so there was no obligation to consider new psychological assessment. Board did not err in not order- ing assessment as applicant did not meet mandatory criteria requiring assessment and board properly considered applicant' relationship with psychologist. There was no error in board considering applicant' s ment in illegal tobacco trade despite applicant' of innocence as board could consider material filed before it by corrections. Lively v. Canada (Attorney Gen- eral) (May 24, 2012, F.C., Noel J., File No. T-1875-11) 102 W.C.B. (2d) 592 (17 pp.). s protestations ONTARIO CIVIL CASES Appeal Parties had one child. Order re- quired father to pay child sup- port arrears of $49,650 adjusted retroactively from specified date adding $37,063 to arrears. Father was to pay ongoing child support of $611 per month based on imputed annual in- come of $66,131. Father was to pay 43 per cent of s. 7 expenses. Appeal was allowed in part. Application judge erred in fail- ing to view dramatic decline in interest rates since 1995 com- bined with extensive passage of time during which arrears accumulated as amounting to exceptional and compelling cir- cumstances to warrant change in post-judgment interest. Al- lowing arrears to continue to attract interest at rate of 10 per cent was unfair to father and would provide excessive re- turn to mother. Amount of in- terest on arrears was set aside and replaced with average rate of post-judgment interest be- tween 1995 and order under appeal. Father' interest at rate of 10 per cent unfair to father FRESH EVIDENCE Allowing arrears to attract troduce fresh evidence relat- ing to income in form of CRA assessments was dismissed. Father gave no explanation of failure to produce income doc- umentation at time of hearing and proposed evidence would not have affected result. Crosbie v. Crosbie (July 26, 2012, Ont. C.A., Simmons, Jurian- sz, and Epstein JJ.A., File No. C54415) 218 A.C.W.S. (3d) 588 (8 pp.). s motion to in- Bankruptcy and Insolvency ARRANGEMENTS Applicant brought motion for approval of sales transaction Receiver made sufficient effort to get best price s involve- November 26, 2012 • Law Times contemplated by asset purchase agreement. Purchaser would purchase all or substantially all of mill assets of applicant. Mon- itor recommended that trans- action be approved. Applicant sought authorization to take ad- ditional steps to execute addi- tional documents as necessary to give effect to purchase agree- ment. Applicant sought vesting order, approval of fiſth report of monitor, and declaration that subdivision control provisions in Planning Act (Ont.), not apply to vesting of title to real property in purchaser. Ap- plicant sought amendment to initial order extending stay of proceedings to specified date. Motion was allowed subject to adjustment with respect to Act declaration. Granting of vesting order was not for purposes of s. 50(3) of Act conveyance by way of deed or transfer. It was not necessary to issue declaration that subdivision control provi- sions contained in Act did not apply to vesting of title. Trans- action was approved. Request- ed extension of stay was appro- priate given it was established applicant was and continued to work in good faith and with due diligence. Transaction was approved. Monitor engaged in extensive marketing program. Consideration in transaction was not so unreasonably low so as to warrant court entering into sales process by consid- ering competitive bids. Offer did not lead to inference that strategy employed by monitor was inadequate, unsuccessful or improvident or that price was unreasonable. Receiver made sufficient effort to get best price and did not act improvi- dently. Applicant and monitor considered interests of all par- ties. There was no unfairness in working of process. Terrace Bay Pulp Inc. (Re) (July 27, 2012, Ont. S.C.J. (Comm. List), Morawetz J., File No. CV- 12-9566-00CL) 218 A.C.W.S. (3d) 488 (12 pp.). did Parties were married nine years and had four children. Mother sought custody of children with supervised access to father. Mother sought restraining or- der except for purposes of ac- cess exchange. Mother argued father had mental health issues for which father refused to ob- tain treatment. Mother sought to impute income to father. Mother sought child support. Father saw children three times since 2011. Mother and chil- dren lived with paternal grand- parents. Father lost last employ- ment. Father did not present evidence to indicate father was not able to work. There were at least ten police reports involv- ing father. Father breached tem- porary restraining order. Moth- whereby mother and children protected against father Continuation of restraining order only mechanism Family Law CUSTODY

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