Law Times

Law Times • December 3, 2012 statements in writing, contrary to Customs Act (Can.) (CA), and for wilfully evading or attempting to wilfully evade compliance with report of goods provisions of CA by falsely describing goods. Accused was aware that Transport Canada did not allow importation of complete vehicle starter kit into Canada. Accused structured importation in two separate shipments to arrive at different times. Accused told customs official that one of shipments was only parts and was for two cars. Trial judge found that accused had falsely described components of single motor vehicle as automobile parts. Trial judge held that accused took advantage of perceived "loopholes" and that his actions and words were all to circumvent rules of CA, which he clearly understood. Accused argued that trial judge erred in interpreting regulations, erred in interpreting report of goods provisions of CA, erred in not recognizing importer's classification as protected by law, and that errors resulted in violation of his rights under Canadian Charter of Rights and Freedoms. Appeal dismissed. Trial judge understood and carefully considered accused's arguments with respect to classification. Trial judge considered and rejected as inconsistent with evidence accused's argument that he was not importer of goods. Trial judge understood and carefully considered accused's argument that his ss. 2(b), 7, 8 and 15(1) Charter rights were violated. Trial judge considered and dismissed as unfounded accused's argument that he had been unfairly targeted by customs officials and that they had fabricated evidence against him. Trial judge engaged in careful analysis of accused's evidence and found it to be implausible and improbable. Trial judge did not err in interpretation of law on importation of or in finding that accused's Charter rights were not violated. Trial judge did not misapprehend evidence or err in his analysis as to credibility and reliability of accused's testimony. There was ample evidence upon which trial judge could have reasonably concluded that accused made false statements in writing and falsely described goods as parts when they comprised complete vehicle. Re-determination process would not have prevented laying of charges for making false statements. Trial judge did not err in holding that essential elements of offence had been proven. R. v. McDonough (June 22, 2012, Ont. S.C.J., Miller J., File No. SCA(P) 1554/11) 103 W.C.B. (2d) 62 (10 pp.). ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Page 15 CASELAW Reasonable probability franchisees opted out as result of misleading information Action was certified as class action. CPVF used telephone campaign and established website to encourage class members to opt out of action. Plaintiff brought motion for order setting aside opt-out notices received from class members on grounds process was compromised. Any optout on or after specified date was declared invalid. Any optout prior to specified date was presumptively valid subject to right to any franchisee who opted out prior to specified date to move to set aside optout. Class members would be given further opportunity to opt out. Opt-out process was subverted by actions of CPVF. CPVF interfered with class members' fundamental right of access to justice. Canadian Franchise Council wearing hat of CPVF mounted campaign designed to kill class action by putting pressure on hold-outs by prominently listing growing list of names of opt-outs. Campaign painted exaggerated and misleading picture of dire consequences of class action. Campaign painted misleading picture of legal rights of optouts. Campaign demonized class counsel. There was reasonable probability that many franchisees decided to opt out as result of misleading information and unfair pressure amounting to intimidation. 1250264 Ontario Inc. v. Pet Valu Canada Inc. (July 27, 2012, Ont. S.C.J., Strathy J., File No. CV-09-392962-00CP) 218 A.C.W.S. (3d) 762 (18 pp.). COMMENCEMENT OF PROCEEDINGS Sponsorship did not subject sponsor to liability or negligence Plaintiff brought action in respect of accident in which plaintiff was rendered paraplegic while playing soccer in league operated by OSA at indoor soccer field owned by Soccerworld. Plaintiff claimed defendants as sponsors of OSA and Soccerworld had duty to inquire into and ensure OSA and Soccerworld had sufficient insurance to cover plaintiff 's healthcare and rehabilitation expenses in event of accident given plaintiff 's participation in potentially dangerous sport. Plaintiff claimed defendants breached duty. Defendants brought motion to strike out statement of claim and dismiss action. Motion was allowed. Case law supported proposition that sponsorship without right to possession or control did not subject sponsor to liability or negligence of third parties and did not make sponsors liable to participant in events which they sponsored. Claim in negligence failed because plaintiff did not plead facts of relationship of sufficient proximity between plaintiffs and defendants to ground duty of care and support plaintiff in negligence. No facts were pleaded that defendants had organizational role in OSA or had role in selecting insurance coverage for OSA members. Claim failed to plead appropriate reliance to raise duty of care. Boudreau v. Bank of Montreal (July 31, 2012, Ont. S.C.J., Lofchik J., File No. 10-18271) 218 A.C.W.S. (3d) 765 (14 pp.). Compensation for Victims of Crime ELIGIBILITY Board either applied wrong test for nervous shock or failed to appreciate evidence Deceased was shot and killed. Offenders were found guilty of first degree murder. Appellants sought compensation for nervous shock arising from death. Board denied appellants compensation on basis of deceased's contributory conduct. Board concluded there was insufficient evidence to establish claim for nervous shock. Appeals were allowed except brother's appeal. Board erred in failing to apply required proportionality analysis when board decided not to award any compensation. Board did not consider contribution of two offenders. Board did not consider proportionality between deceased's conduct and very severe injuries deceased sustained which resulted in death. Board either applied wrong test for nervous shock or failed to appreciate evidence before it when it applied test. Common law of nervous shock did not limit compensation to individuals who were direct witnesses of event and did not automatically exclude individuals who first learned of event from third party. Board disregarded fact appellants went to scene and saw deceased's covered body. In concluding appellants did not satisfy requirement for proximity board focused on way in which appellants learned of deceased's death and fact appellant did not witness shooting. There was evidence appellants experienced psychological difficulties soon after event. Board did not err in law in concluding brother did not meet test for nervous shock given lack of evidence in support of claim. Saez-Larrazabal v. Criminal Injuries Compensation Board (June 21, 2012, Ont. S.C.J. (Div. Ct.), Sachs, Whalen and Herman JJ., File No. 176/11; 177/11; 178/11; 179/11) 218 A.C.W.S. (3d) 818 (15 pp.). Injunctions INTERLOCUTORY RELIEF Relief from forfeiture not appropriate as plaintiffs did not make diligent efforts to renew lease Application by plaintiff tenants for interlocutory injunction restraining defendant landlord from interfering with or www.lawtimesnews.com evicting plaintiffs from premises where they were operating garage, or relief from forfeiture of lease between parties. Defendant owned land and buildings and negotiated lease with plaintiffs in May 2011, with term from June 2011 to June 2012. There were discrepancies about terms of lease and whether plaintiffs received complete copy. Plaintiffs complained defendant failed to live up to duties as landlord by not proving office, hours of operation, power, access, lifting, heating and hydro, and interfered with plaintiffs' clients. Defendant denied allegations and alleged plaintiffs took products from its gas bar and blocked its pumps, made unauthorized changes to electrical circuits, did not operate for extended period and held property out as their own. Plaintiffs claim that, when they tried to negotiate renewal, defendant refused to provide complete copy of lease. Plaintiffs argued $9,000 paid initially was for first and last month's rent, so payment made by June 1, 2012 took lease into renewal period. Defendant argued $9,000 was deposit, so final payment was simply for last month's rent in June 2012. Application dismissed. There were serious issues to be tried about the lease and the significance of the $5,000 payment for June 2012. Plaintiffs failed to establish irreparable harm, however. Business survived earlier move and prospered. Furthermore, given plaintiffs' allegations about defendant's interference, move may be beneficial. There was no evidence current location was vital to success. As plaintiffs left discussions about renewal until one month before lease ended and did not make diligent efforts to renew, relief from forfeiture not appropriate. 7867786 Canada Ltd. v. Ugarrit Inc. (Riverside Garage) (July 20, 2012, Ont. S.C.J., Aitken J., File No. 12-54792) 218 A.C.W.S. (3d) 951 (6 pp.). FEDERAL COURT Employment EMPLOYMENT STANDARDS Crucial question whether applicant "dismissed" or employment contract expired Applicant had worked as special adviser to AFN under series of one-year term contracts commencing in 2003. Applicant was advised that his employment with AFN would end on September 25, 2009, but was subsequently extended to March 31, 2010. Applicant filed complaint of unjust dismissal against AFN pursuant to s. 240 of Canada Labour Code. Adjudicator determined that he had no jurisdiction over complaint because applicant was not permanent employee at time of termination of his employment and dismissed applicant's complaint of unjust dismissal. Application for judicial review allowed. Adjudicator erred in finding that he had no jurisdiction to inquire into justness of employer's decision to sever employment relationship. Crucial question for adjudicator was whether applicant was "dismissed" or whether term of his employment contract had expired and was not renewed. Answer to this question required adjudicator to make finding in clear and unmistakable terms as to when applicant's contract of employment was to expire. This he failed to do. Matter was remitted to same adjudicator for re-determination. Young v. Assembly of First Nations (May 16, 2012, F.C., Mactavish J., File No. T-144311) Application for judicial review from 25 D.E.L.D. 147 was allowed. 218 A.C.W.S. (3d) 852 (11 pp.). SUPREME COURT OF CANADA Kidnapping Kidnapping is aggravated form of forcible confinement Accused charged with kidnapping and forcible confinement. Victim was abducted and then confined in three different houses. Fingerprint, footprint, and DNA evidence connected accused to all three houses where victim was confined. No evidence linked accused to victim's initial abduction. Trial judge finding that accused assisted principal offenders in confining victim in three houses but did not take part in initial abduction. Trial judge acquitted accused of kidnapping but convicted him of forcible confinement. Court of Appeal allowed Crown's appeal and entered conviction for kidnapping, finding that kidnapping is continuing offence and that party liability for kidnapping may be incurred in course of continuing confinement. Appeal dismissed. Kidnapping is aggravated form of forcible confinement and is continuing offence that lasts for duration of victim's confinement. Accused assisted in victim's continuing confinement while knowing or being wilfully blind to fact that victim was kidnapped. Accused thereby made himself party to offence of kidnapping. R. v. Hernandez (July 26, 2012, S.C.C., McLachlin C.J., LeBel J., Deschamps, Fish, Rothstein, Cromwell and Moldaver JJ., File No. 34286) Decision at 94 W.C.B. (2d) 161 was affirmed. 102 W.C.B. (2d) 694 (37 pp.). LT

• Cover