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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.

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Deportation order was serious but unusual consequence of conviction

Accused’s application for extension of time to file appeal of his conviction that was dated May 18, 2012. Accused’s trial was supposed to start on May 18 and he was self-represented. He was charged with several offences, which included assault with weapon, forcible confinement and breach of recognizance. Matter had to be adjourned for four to six weeks. Accused did not want to wait that long and he decided to plead guilty that day. Presiding judge told accused he would have to accept facts that underpinned charges and accused responded that he understood and he was prepared to do so. He also told judge that his decision to plead guilty was fully voluntary. Accused was sentenced to 102 days of pre-sentence custody and to 15 months of probation. He was permanent resident of Canada and he was not yet Canadian citizen. On January 17, 2013 Immigration and Refugee Board advised accused that deportation order would be issued because he was convicted of serious criminal behaviour. Accused appealed that order. In April 2013 accused was again charged with criminal offences and this time he hired lawyer to represent him. He was advised at that time that he could have appealed convictions that led to deportation order. Accused filed this application in July 2013 and he claimed he was unaware of immigration consequences of his decision to plead guilty. Application allowed. Accused would have 30 days to file notice of appeal. He did not have reason to believe that appeal was necessary until January 17, 2013 when he received his deportation notice. It was not until April 2013 that he learned that appeal was possible and it was then that he formed intention to appeal. Consequently, his decision to appeal was made within timeframe that was reasonable in specific circumstances of this case. Delay that occurred between April and July 2013 was not held against accused because it resulted from erroneous legal advice. Delay between January and April 2013 was reasonable because accused was focused on appealing deportation order. As for merits of appeal deportation order was very serious but unusual consequence of conviction. Crown would not be prejudiced by appeal and extension of time to appeal would not be inappropriate.
R. v. Cimpaye (Jan. 7, 2014, Ont. S.C.J., Julianne A. Parfett J., File No. Ottawa 11-A10371) 111 W.C.B. (2d) 414.



Payment form said nothing about membership and seniority being cancelled

Applicant was member of respondent. Applicant renewed membership as full season vendor for 2013 market season. Full season stall fees were due by April 25, 2013 in form of three post-dated cheques. Applicant submitted full season application with cheque for one-third of amount of stall fees on April 5, 2013. Applicant did not retrieve registered letter reminding applicant he was at risk of losing full season status and seniority if he failed to deliver cheques. Respondent rejected applicant’s full season application and terminated his seniority. Applicant’s stalls were reassigned to another member. Applicant sought declaration that respondent breached bylaws, rules and regulation and requested recognition of his seniority, and return of specified stalls. Other stalls were available for applicant’s use provided he supplied cheques. Applicant’s seniority was ordered reinstated. Applicant was to be offered first choice of any vacant stall for 2014 season. Respondent’s removal of his seniority, and reallocation of his stalls was premature given confusion of bylaws, rules and regulation, stall payment form and messages delivered by general manager and director, applicant’s responses to address default, and respondent’s rejection of his full season application. Stall payment form was silent as to repercussions of not delivering three post-dated cheques by April 25, 2013. Stall payment form said nothing about membership and seniority being cancelled. Member was entitled to 30 days’ notice to address default.
Lacroix v. 1723445 Ontario Inc. (Dec. 31, 2013, Ont. S.C.J., Belch J., File No. Ottawa 13-57709) 236 A.C.W.S. (3d) 291.



Remedy of non est factum not available to willfully blind

Guarantees were provided by defendants for term loan made to defendant husband’s company, and defendants signed unlimited, continuing guarantee. Demand was made and then action commenced. Motion by plaintiff for summary judgment against defendants on guarantees. Defendant wife raised defences of non est factum and unconscionability. Motion granted. Defendant’s claim she spoke little English after 40 years in Canada and five children and 15 grandchildren raised here was incredible. Defendant owned real estate and, while she was not shareholder, officer or director of debtor, she clearly benefitted from husband’s financial dealings, so guarantee and enforcement not unconscionable. It was incredible defendant did not ask any questions before signing guarantees or that lawyer for debtor provided no explanation or information. Remedy of non est factum not available to wilfully blind, and plaintiff had opportunity to make inquiries. Defendant’s husband was not agent of plaintiff so could not have made misrepresentations to bind plaintiff. While defendant trusted husband, there was no evidence he coerced, bullied or forced her to sign, or that she did not have operating mind. Guarantee valid and enforceable against both defendants and plaintiff entitled to amount owing.
Meridian Credit Union Ltd. v. Vrankovic (Dec. 6, 2013, Ont. S.C.J., C.A. Tucker J., File No. Welland 1039/10) 236 A.C.W.S. (3d) 447.



Fair reading of report left people feeling applicant was ticking time bomb

Applicant had been permanent resident since 1991, after being found refugee from Ethiopia. Applicant was sentenced to six and one-half years’ imprisonment after being convicted of incest on older daughter and assault on younger daughter and was ordered deported upon release. In danger opinion, delegate noted crimes were serious, with incest on older daughter for seven years and multiple assaults including blows to head on younger daughter. Applicant denied incest and assaults and insisted he was disciplining children. Applicant expressed no remorse and refused treatment. Psychologist opined applicant was low to moderate risk to re-offend and diagnosed pedophilia. Delegate concluded applicant was danger to public without treatment, and continued denial and lack of remorse prevented his rehabilitation. Application by judicial review of danger opinion. Application dismissed. Delegate did not ignore fact applicant had not re-offended for twelve years and fact he did not place as much emphasis on this factor as applicant would have liked did not render decision unreasonable. Delegate, not psychologist, had burden of assessing risk and was entitled to deference for decision that was reasonable as a whole. Fair reading of psychologist’s report would have left many reasonable people with feeling applicant was a ticking time bomb.
Yalemtesfa v. Canada (Minister of Citizenship and Immigration) (Dec. 13, 2013, F.C., Michael L. Phelan J., File No. IMM-1201-13) 236 A.C.W.S. (3d) 449.



No way to tell from record why DNA requirement imposed, and upon what authority

Delegate of Minister of Citizenship and Immigration (“officer”), had refused application of foreign national citizen of Philippines (“mother”) and her husband, who was Canadian citizen (“father”) on behalf of their minor child, for Certificate of Citizenship under s. 12(1) of Citizenship Act (Can.). Citizenship and Immigration Canada found that there was insufficient proof that Canadian citizen was child’s biological father, and therefore refused application for Citizenship Certificate. Father and mother were advised that DNA evidence would be required to establish that Canadian citizen was child’s father. Certificate of Live Birth for child had been provided, however DNA evidence was not provided and application for Citizenship Certificate was denied. Only reason given for DNA demand and refusal to accept birth certificate was that child was born at home with mid-wife and not in hospital. Application allowed; decision quashed and matter returned for reconsideration by different officer. Reason why DNA requirement was needed for child born at home was not articulated. There was no evidence that reason for this requirement was ever explained to mother and father or that it was publically available in policy manual or elsewhere. There was no indication that mother and father were advised that s. 3(1)(b) could be satisfied in any other way than through DNA testing. There was no way to tell from record why DNA requirement had been imposed, and upon what authority. Without this information, decision lacked intelligibility and transparency to render it reasonable. Because rationale and legal justification for DNA requirement were never explained to mother and father, they had no opportunity to argue or explain why it should not be applied to them, or opportunity to offer alternative evidence that could suffice to satisfy s. 3(1)(b) of Act. This was procedurally unfair.
Watzke v. Canada (Minister of Citizenship and Immigration) (Jan. 8, 2014, F.C., James Russell J., File No. T-229-12) 236 A.C.W.S. (3d) 301.



Inmates participating in work programs not employees

Applicant was member of Canadian Prisoners’ Labour Confederation (CPLC), which was organization of inmates of federal correctional institutions. Objective of CPLC was to compel Correctional Service of Canada to engage in collective bargaining with respect to terms and conditions under which inmates participated in institutional work programs. Officials of Correctional Service of Canada denied applicant and other organizers of CPLC right to sign up members at particular institution. Applicant submitted complaint to Public Services Labour Relations Board. Board concluded it had no jurisdiction to entertain complaint because inmates of federal correctional institution who participated in institutional work program were not employees as defined in s. 2(1) of Public Service Labour Relations Act (Can.), because they were not appointed by Public Services Commission to position created by Treasury Board. Board dismissed complaint without considering merits. Applicant applied for judicial review of board’s decision. Application dismissed. Board’s understanding of facts was open to it on evidence before it. Board’s analysis of jurisprudence and relevant statutory provisions was well explained and soundly reasoned. Inmates participating in work programs organized by Correctional Service of Canada had not been appointed to position in federal public service and were not employees within meaning of Act.
Jolivet v. Treasury Board (Correctional Service of Canada) (Jan. 7, 2014, F.C.A., K. Sharlow J.A., Mainville J.A., and Near J.A., File No. A-192-13) 236 A.C.W.S. (3d) 484.

Breaking and entering


Similar fact evidence admitted due to high degree of similarity found in three break-ins

Trial of accused for six offences in connection with three break-ins into three restaurants during July 2012. For each restaurant accused was charged with break and enter and commit theft and with possession of instrument suitable for breaking into place. Video surveillance from each restaurant showed that person who wore black balaclava over face and black jacket entered premises. In two cases person took cash from safe but in third case person was unable to break into safe. Crown claimed that accused was perpetrator and it brought similar fact evidence application based on third incident for which there was witness who saw perpetrator leave restaurant. Police found balaclava after third break-in and DNA taken from it matched accused’s sample that was contained in national DNA bank. Accused convicted of all offences. His evidence was not credible. Court was satisfied that accused was person who was seen by witness. Similar fact evidence was admitted to show that accused broke into first two restaurants due to high degree of similarity found in three break-ins. Probative value of this evidence outweighed its potential prejudice. Ample evidence existed to show that accused was perpetrator in all three incidents. For third break-in accused was not convicted of break, enter and commit theft but rather of break and enter with intent since he could not obtain cash from safe.
R. v. Marini (Jan. 16, 2014, Ont. S.C.J., E. Gareau J., File No. 7348/12) 111 W.C.B. (2d) 301.



Where accused re-offends while on release principle of denunciation must be given more significance

Accused sought leave to appeal his sentences of 18 months’ imprisonment for first count, and 30 months’ imprisonment on second count imposed after he pleaded guilty to two counts of possession of cocaine for purposes of trafficking. Accused was in possession of $1,130 cash, small amount of marijuana, Percocet pills, digital scales, cell phones, and some 95.5 grams of cocaine. Accused was released on undertaking and while he was awaiting trial, was found in possession of 288.5 grams of cocaine, 79 ecstasy pills and $540 in cash. Sentencing judge recognized and took into account that accused’s youth, lack of previous record, gambling addiction, rehabilitation efforts, remorse, and guilty pleas were mitigating factors and alluded to danger that lengthy term of imprisonment could impair rehabilitation and reintegration of accused as responsible member of community. However, sentencing judge considered it aggravating factor that accused committed second offence while released on undertaking and awaiting disposition of first offence. Leave to appeal granted; appeal dismissed. Where accused re-offends while on release, sentencing principles of general deterrence and denunciation must be given more significance to discourage and denounce such conduct. Court saw no basis for accused’s submission that sentences on two offences should have been concurrent. Court not persuaded that sentencing judge made any error or that sentence was unfit.
R. v. Woods (Dec. 12, 2013, Ont. C.A., R.G. Juriansz J.A., C.W. Hourigan J.A., and M.L. Benotto J.A., File No. CA C56640) Decision at 105 W.C.B. (2d) 777 was affirmed.  111 W.C.B. (2d) 279.



Fact that trial may have to be adjourned did not amount to abuse of process

Plaintiff had commenced tort action for damages for injuries suffered in motor vehicle accident. Plaintiff also brought application to Financial Services Commission of Ontario (“FSCO”) seeking income replacement benefits. Plaintiff’s first claim was resolved on basis of partial settlement, but his second claim was denied. Plaintiff then commenced action for income replacement benefits, mental distress and punitive damages. Plaintiff’s insurer objected to benefits action proceeding based on plaintiff having accident benefits claim for medical expenses outstanding at FSCO. Plaintiff was subsequently granted order permitting him to withdraw claim before FSCO. Benefits action and tort action were ordered to be tried together. Insurer sought stay of benefits action on basis it would be abuse of process because it was too late for him to change forums from FSCO to court. Motion dismissed. Fact that trial may have to be adjourned did not amount to abuse of process. Nor was there prejudice to defendants in tort action. That issue had already been determined by master in issuing order that action be tried together. Contrary to submissions of insurer, plaintiff would suffer prejudice if action were stayed. Plaintiff would be required to duplicate evidence in both proceedings and his claims for damages for mental suffering and punitive damages would be limited to what was allowed at arbitration. Allowing benefits action to proceed did not violate principles that doctrine of abuse of process was intended to protect.
Korus v. State Farm Mutual Automobile Insurance Co. (Dec. 18, 2013, Ont. S.C.J., Frank J., File No. CV-13-00478162-0000) 236 A.C.W.S. (3d) 120.

Civil Procedure


No individuals involved who should absorb costs of motion other than lawyers

Respondent brought motion to enforce settlement arising from accepted offer to settle. Court determined that there was binding settlement, but it should exercise its discretion to set aside settlement because weighing of potential prejudice favoured applicants. Court found that lawyer who represented applicants made innocent slip by accepting respondent’s offer. Respondent applied for costs on partial indemnity basis to be paid personally by applicants’ lawyers. Application granted. Binding settlement was reached at law and in circumstances it was reasonable for respondent to require compelling evidence as to why agreement should be voided. It was not unreasonable for respondent not to believe word of lawyer when she urged him to accept that innocent mistake had occurred. Costs incurred were caused solely by lawyers. In circumstances of case there were no individuals involved who should absorb costs of motion other than lawyers. Amounts billed were commensurate with time required by complexity of matter. Costs sought to be recovered were reasonable. Lawyers were to pay respondent partial indemnity costs of $17,740.44.
Catford v. Catford (Jan. 7, 2014, Ont. S.C.J., S.E. Healey J., File No. CV-13-0353, CV-13-0351) Additional reasons to 235 A.C.W.S. (3d) 74.  236 A.C.W.S. (3d) 36.
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