PROCEDURE

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.

EXISTENCE OF RELATIONSHIP

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.

APPEAL

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.

PROOF OF OFFENCE

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.

STAY OF PROCEEDINGS

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.