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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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Civil Procedure

DISCOVERY

Deemed undertaking rule only applied to proceedings other than one in which evidence obtained

Settlement of several class actions resulted in Indian Residential Schools Settlement Agreement (“IRSSA”). Plaintiffs were claimants under Independent Assessment Process (“IAP”), established pursuant to IRSSA. Truth and Reconciliation Commission of Canada (“TRCC”), constituted under IRSSA, brought request for direction requiring defendant government of Canada to produce records of 1992 to 1996 Ontario Provincial Police (“OPP”) investigation of assaults and other crimes against students at particular residential school. Request granted. Court had jurisdiction to order Canada to honour its disclosure and production obligations under IRSSA. Jurisdiction derived from court’s power over administration of class action settlements; plenary jurisdiction under s. 12 of Class Proceedings Act, 1992 (Ont.); and IRSSA, which included jurisdiction to enforce court’s own approval and implementation orders. OPP documents in Canada’s possession should be produced to TRCC as they were clearly relevant to its mandate. Deemed undertaking in Rule 30.1 of Rules of Civil Procedure (Ont.), did not preclude production. Deemed undertaking rule only applied to proceedings other than proceeding in which evidence was obtained. Proceedings that culminated in IRSSA included or were same as proceedings associated with order for production of OPP records to Canada. Purposes of plaintiffs in actions in which OPP documents were obtained were overtaken by purposes of their participating in IRSSA as IAP claimants.
Fontaine v. Canada (Attorney General) (Jan. 14, 2014, Ont. S.C.J., Perell J., File No. 00-CV-129059) 237 A.C.W.S. (3d) 353.

Aboriginal Peoples

EXEMPTION FROM TAXATION

Transaction was effectively sham

Lender was Aboriginal capital corporation, but was not Indian as defined by Indian Act (Can.). Lender loaned borrower, Indian on reserve, $125,000 for his fish hatchery business. Loan was structured as conditional sale of chattels. In effect, lender obtained some on-reserve chattels from borrower without paying for them and then secured its business loan on those on-reserve chattels. Borrower made four interest installments on loan and then stopped making payments and declared bankruptcy. Following borrower’s discharge from bankruptcy, lender seized chattels from borrower on reserve. Borrower sued lender for damages. Trial judge found that lender was liable for conversion. Trial judge held that lender’s seizure of chattels on reserve contravened s. 89(1) of Act and was not allowed under s. 89(2). Lender appealed. Appeal dismissed. Section 89(1) of Act prohibited Indian from granting security on any of his or her real or personal property on reserve except to another Indian. Section 89(2) of Act allowed person who had sold chattel to Indian, but retained title or right to possession to exercise rights against chattel even if chattel was on reserve. Purpose of provisions was to protect Indians from being exploited by non-Aboriginals and losing land or chattels on reserve to non-Indians. Transaction parties purported to enter into was merely notional because payment was notional. Transaction purported to be sale and repurchase of borrower’s equipment, as well as loan to him using same $125,000. Transaction could not come within s. 89(2) of Act because it was effectively sham.
Benedict v. Ohwistha Capital Corp. (Jan. 29, 2014, Ont. C.A., K. Feldman J.A., J. MacFarland J.A., and G.R. Strathy J.A., File No. CA C53282) Decision at 199 A.C.W.S. (3d) 1030 was affirmed.  237 A.C.W.S. (3d) 278.

Civil Procedure

DISCOVERY

Disclosure of information underlying report not dependent on whether expert would testify

City brought motion for production of files of all experts whom plaintiffs proposed to testify on liability plus file of life care planner whose evidence would centre on future care costs. Plaintiffs were willing to produce files on condition that city be required to do same. City agreed to do so with exception of its life care planner because it was uncertain as to whether it would call her as witness. Plaintiff brought motion for production of file of city’s life planner. Motion dismissed with respect to entire file of city’s life planner. Entire file did not need to be produced, but fundamental information underlying report of city’s life planner was to be produced whether or not she would testify. Disclosure of foundational information underlying expert’s report was not dependent on whether expert would testify. City did not give undertaking that it would not call its life planner as witness and served her report on plaintiffs. Service of report constituted waiver of litigation privilege. Even if city wished to give undertaking that it was not going to call its life planner as witness, it was too late because report was served and litigation privilege waived.
Andreason v. Thunder Bay (City) (Jan. 30, 2014, Ont. S.C.J., D.C. Shaw J., File No. Thunder Bay CV-09-0044) 237 A.C.W.S. (3d) 52.

Bankruptcy and Insolvency

COURTS AND PROCEDURE

Court ought not make ruling regarding claim surviving bankruptcy in advance of actual bankruptcy

Plaintiffs owned property and hired defendant to perform renovations pursuant to two contracts. Plaintiff paid portion of money. Plaintiffs claimed work was never completed and only fraction of work was completed with minimal amount of materials supplied. Work done was substandard and had to be demolished and rebuilt by new contractors. Materials supplied were substandard and were wasted due to poor quality of work. Plaintiffs claimed funds paid to defendants in respect of construction contracts were to be held in trust under Construction Lien Act (Ont.) (CLA). Defendants had not commenced any bankruptcy proceedings or taken any steps under Bankruptcy and Insolvency Act (Can.) (BIA). Defendants intimated that they might eventually do so. Plaintiffs sought declaration that stay did not operate under s. 69.3 of BIA. Declaration denied. Defendants were not trustees for plaintiff under CLA and relationships were not analogous to case law. Fraud was not pleaded or proved. Misappropriation was not shown. Court ought not to make ruling regarding claim or judgment surviving bankruptcy in advance of any actual bankruptcy.
Bridgmohan v. 2218667 Ontario Ltd. (Jan. 22, 2014, Ont. S.C.J., E.M. Morgan J., File No. CV-12-454013) 237 A.C.W.S. (3d) 9

Immigration

PERSON IN NEED OF PROTECTION

Specialized knowledge had no bearing on board’s credibility findings

Refugee claimant was citizen of Albania who claimed protection based on existence of blood feud between his family and another family. Claimant submitted evidence from individual who had been discredited as fraud who provided false blood feud attestation letters in exchange for money. Board informed claimant that letters would be scrutinized in light of recent Response to Information Request (RIR) and board’s specialized knowledge. Board identified several omissions, inconsistencies and implausibilities, which led it to conclude that claimant was not credible and did not have subjective fear of persecution. Claimant applied for judicial review, contending that board made unreasonable credibility findings, and relied upon specialized knowledge during hearing without disclosing what specialized knowledge was, in contravention of Rule 22 of Refugee Protection Division Rules (Can.), thereby breaching its duty of procedural fairness. Application dismissed. Specialized knowledge of board was only based on RIR. Even if board erred in not clearly indicating its specialized knowledge as required by Rule 22, this was not sufficient basis to set aside decision as there was no reason to conclude that specialized knowledge had any bearing on board’s credibility
findings, which were clearly identified and reasonable.
Toma v. Canada (Minister of Citizenship and Immigration) (Feb. 3, 2014, F.C., Catherine M. Kane J., File No. IMM-1799-13) 237 A.C.W.S. (3d) 186.

Administrative Law

DUTY TO ACT FAIRLY

No procedural fairness obligations in relation to contribution agreements

Citizenship and Immigration Canada (CIC) had Language Instruction for Newcomers to Canada (LINC) program that provided funding for language instruction. CIC had provided funding to Canadian Arab Federation (CAF) under LINC program for many years. Minister of Citizenship and Immigration decided to discontinue funding to CAF under LINC program. Minister’s decision was based on CAF having made statements that promoted hatred, anti-Semitism, and support for banned terrorist organizations. Minister declined request to meet with CAF. CAF brought application for judicial review. Application dismissed. Minister did not owe duty of procedural fairness to CAF. Nature of relationship was strictly commercial. There was no statutory provision that imposed procedural fairness obligations in relation to contribution agreements. There was no contractual provision stipulating service provider organizations would be treated in procedurally fair manner. Imposing procedural rights would unduly burden Minister. Parties’ rights were best protected by reviewing court’s assessment of reasonableness of decision. In absence of duty of procedural fairness, no consideration had to be given to issue of reasonable apprehension of bias.
Canadian Arab Federation v. Canada (Minister of Citizenship and Immigration) (Dec. 23, 2013, F.C., Russel W. Zinn J., File No. T-447-09) 237 A.C.W.S. (3d) 4.

Civil Procedure

DISCOVERY

Individual defendant might have access to material, but it was property of corporate defendant

Individual defendant entered into employment contract with plaintiff in 2004, and entered into further agreement in 2009. Individual defendant resigned in 2012, and began working for corporate defendant. Plaintiff claimed defendants were in breach of contractual obligations to plaintiff. Plaintiff asserted individual defendant used confidential information to plaintiff’s prejudice and solicited business from plaintiff’s clients in violation of contract. Individual defendant refused to produce client profile reports contained in system used by corporate defendant. Individual defendant as employee of corporate defendant had access to system. Plaintiff brought motion to require individual defendant to re-attend at examination for discovery and answer questions refused at original examination for discovery. Motion dismissed. Individual defendant had right to refuse to produce client profile reports contained in system. Individual defendant might have had access to material in system, but it was property of corporate defendant. If material was otherwise relevant, it could be produced through principal of corporate defendant. Notwithstanding that party might be in possession of document or have access to document, if that document belonged to another party, production would not be compelled.
Donaldson Travel Inc. v. Murphy (Jan. 14, 2014, Ont. S.C.J., R.D. Reilly J., File No. C-285-12) 236 A.C.W.S. (3d) 872.

Appeal

LEAVE TO APPEAL

Not clear from judge’s reasoning whether he considered creating subclass

Plaintiffs were charitable or religious organizations who were seeking restitution of lottery licensing and administration fees paid by them to the municipalities after January 1, 1990, alleging that fees were illegal and unconstitutional taxes. Plaintiffs sought order certifying actions as class proceedings. Judge certified only claims he found were not prima facie time-barred. Divisional Court allowed plaintiffs’ appeal finding that judge erred in law when he refused to certify portion of claims that were prima facie time-barred. Divisional Court referred matter back to judge for reconsideration. Judge certified all claims going back to January 1, 1990, including prima facie time-barred claims. Municipalities sought leave to appeal judge’s decision. Leave to appeal granted. When matter was referred to judge to reconsider certification in accordance with s. 5(1)(b), (d) and (e) of Class Proceedings Act, 1992 (Ont.), he was required to conduct analysis set out in case law. In order to determine whether class proceeding was preferable procedure judge was required to consider whether, given all circumstances of particular claim, it would be preferable to other methods of resolving claim and that it would be preferable to use of individual proceedings. Analysis required judge to compare advantages and disadvantages of proceeding with all plaintiffs by way of class proceeding and consider advantages and disadvantages with respect to goals of class proceedings. Judge did not conduct proper analysis. Judge did not provide analysis of whether prima facie time-barred claims actually formed subclass that were specifically contemplated in s. 5(2) of Act. It was not clear from judge’s reasoning whether he considered appropriateness of creating subclass. There were reasons to doubt correctness of judge’s order. Development of law with respect to class actions had implications that were broader than this case.
Amyotrophic Lateral Sclerosis Society of Essex (County) v. Windsor (City) (Oct. 30, 2013, Ont. S.C.J., Mary Jo M. Nolan J., File No. DC-13-52-ML, DC-13-53-ML) Leave to appeal from 224 A.C.W.S. (3d) 265 was allowed.  236 A.C.W.S. (3d) 827.

Immigration

JUDICIAL REVIEW

Applicant entitled to know what indictable offence was being cited against him

Applicant was citizen of Canada and Brazil. Wife was citizen of Brazil and claimed New Zealand citizenship. Wife paid paralegal to obtain her New Zealand citizenship and passport. Applicant and wife travelled and wife was denied boarding because New Zealand passport was found to be counterfeit. Applicant’s passport was seized on return to Canada. Applicant denied he knew wife’s passport was counterfeit. Applicant was denied passport services for five years. Director found applicant was involved in misuse of his passport by attempting to assist improperly documented person to travel. There was no evidence applicant was charged or convicted of committing indictable offence in Canada or any offence in foreign country. Applicant sought judicial review. Application granted. There was no finding of indictable offence. Director had no jurisdiction to make such finding because it was matter of criminal law to be determined by judge not government official. Director did not identify provisions of Immigration and Refugee Protection Act (Can.), that was to form basis of indictable offence. Applicant was entitled to know what indictable offence was being cited against him and failure to do so was breach of natural justice and procedural fairness. In interpreting s. 10(2)(b) of Canadian Passport Order, power to revoke was dependent on commission of indictable offence in Canada or offence of similar type in another country. Words “in committing an indictable offence” meant that pre-condition to revocation or service denial was commission of indictable offence by subject person. Without identifying which offence was claimed to be in issue, it was not possible for director to show reasons to be reasonable.
Dias v. Canada (Attorney General) (Jan. 21, 2014, F.C., Michael L. Phelan J., File No. T-1344-12) 236 A.C.W.S. (3d) 989.

Citizenship

APPEAL

Serious irregularity had allowed applicant to obtain adoption order in Ukraine

Applicant was citizen of Canada and Ukraine. Applicant worked as medical doctor and had home in Saskatchewan, and she also maintained home in Ukraine. Applicant was granted approval to adopt children from Ukraine through international adoption. However, applicant adopted two children in Ukraine through domestic private adoption approved by Ukrainian Court. Officer refused to grant citizenship to applicant’s adopted children under s. 5.1(1) of Citizenship Act (Can.). Officer was not satisfied that adoption was in accordance with Ukraine legislation. Officer was not satisfied that applicant disclosed full information respecting place of permanent residence and marital status to Ukrainian judge who made decision on adoption. Applicant applied for judicial review of officer’s decision. Application dismissed. Officer was obligated to find out and consider whether adoptions were in accordance with laws of place where they took place and laws of country of residence of adopting citizen. Officer discovered that applicant had not effected international adoption, but had secured domestic adoption in Ukraine. Officer was obligated to determine how Canadian citizen, who was resident in Saskatchewan at time of citizenship applications, was able to obtain domestic adoptions in Ukraine. Officer concluded that applicant secured domestic adoptions because she presented herself as Ukraine resident. Applicant did not reveal she was also resident of Canada and was married to non-Ukrainian resident of Canada who lived in Saskatchewan where applicant had medical practice. Officer had good reason to conclude that serious irregularity had allowed applicant to obtain adoption order in Ukraine. Adoption order would not have been obtained if applicant revealed she was Canadian citizen who had been living in Canada for number of years. Ukrainian court was not provided with fundamental information that was relevant to its jurisdiction to grant order. Officer was not biased, did not deny applicant procedural fairness and did not err in assessment of evidence. There were sufficient grounds for officer to disregard Ukrainian court order.
Cheshenchuk v. Canada (Minister of Citizenship and Immigration) (Jan. 13, 2014, F.C., James Russell J., File No. T-2217-12) 236 A.C.W.S. (3d) 825.
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