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Immigration

JUDICIAL REVIEW

Board failed to consider applicant’s evidence independently from that of mother

Applicant was eight years old when he made claim for refugee protection. Applicant claimed he was verbally and physically assaulted in St. Lucia because his mother was lesbian. Board did not believe mother’s evidence about her sexual orientation and dismissed claim. Applicant applied for judicial review. Application granted. Board erred in its treatment of applicant’s testimony. Board discounted applicant’s testimony mainly because it doubted mother’s credibility, which was not appropriate criterion. Board failed to consider value of applicant’s evidence independently from that of mother. Board’s approach did not involve consideration of applicant’s testimony on its own terms. Board failed to address possibility that mother might be perceived to be lesbian and that applicant might suffer adverse consequences in overly homophobic country of St. Lucia. Board’s decision was unreasonable.
Corneille (Litigation guardian of) v. Canada (Minister of Citizenship and Immigration) (Sep. 19, 2014, F.C., James W. O’Reilly J., File No. IMM-3510-13) 245 A.C.W.S. (3d) 180.

Administrative Law

JUDICIAL REVIEW

Evidence not properly considered in its totality and decision unreasonable

Sponsor was Canadian citizen. Sponsor’s spouse was citizen of India. Marriage was arranged by families and took place in December 2009, two days after parties met. Spouse applied for permanent residence however application was rejected by officer on basis that marriage was not genuine and was entered into primarily for purpose of acquiring permanent residence in Canada contrary to s. 4(1) of Immigration and Refugee Protection Regulations (Can.). Appeal was rejected by Immigration Appeal Division (IAD) in June 2011. Sponsor gave birth to child in June 2012, which was confirmed by genetic testing to be that of spouse, sponsor and spouse were in daily contact by Skype, sponsor had travelled to India for two trips of several months duration and was planning to travel for five month trip to India. Spouse applied for permanent residence again in November 2011, and application was again refused on ground first decision was final and conclusive and application was res judicata.  Despite via voce evidence of spouses on second appeal. IAD dismissed second appeal on basis that matter was res judicata or, in alternative, that marriage was entered into for primary purpose of acquiring status under Immigration and Refugee Protection Act. Sponsor applied for judicial review. Application granted. In adopting reasoning of previous decision, IAD did not address viva voce evidence of parties at second appeal.  Nor did IAD address new, fresh evidence adduced by sponsor beyond stating it had considered all evidence before it. No analysis was provided although  there was clear evidence that might alter outcome if properly considered in its totality i.e. evidence of continuing relationship, two to three trips to India of several months in duration, and birth of  child. While IAD had discretion to decide evidence put forward did not amount to decisive evidence, type of evidence adduced in this matter has been held to be fresh, decisive evidence in previous judicial reviews of spousal-sponsorship applications. IAD was obliged to address why it did not constitute such evidence in present case beyond simply adopting reasons of previous panel. Failure to do so indicated that evidence was not properly considered in its totality and decision of IAD was unreasonable.
Sandhu v. Canada (Minister of Citizenship and Immigration) (Sep. 2, 2014, F.C., Luc Martineau J., File No. IMM-1309-14) 245 A.C.W.S. (3d) 188.

Evidence

HEARSAY

Prejudice from inability to cross-examine could be reduced through specific jury instruction

Accused charged with assault causing bodily harm. Crown applied to admit portion of statement prepared by witness within days of incident in question under past recollection recorded exception to hearsay rule. Witness was in charge of security at bar and observed some interactions that occurred between accused and complainants. Witness testified that accused was punching or stomping one or both individuals, but that he could not remember angles or exactly who was doing what. Witness testified that he did not have current memory of details of accused’s participation in actual beating and, in this regard, had been relying on what he had stated in statement he provided to his employers and to police shortly after assault occurred. Witness testified that when he typed statement, he was not under influence of alcohol and he wrote statement to best of his knowledge and tried to be honest at time. Witness testified that he wrote statement when events of evening were freshest in his memory and that, at time he wrote statement, he was certain about what he wrote. Application allowed. Witness’s memory loss was genuine, as it had been three years since assault occurred. Witness had continued to work as head of security at bar since incident and had witnessed many confrontations and fights. Witness vouched for reliability of his written statement. Witness’s evidence was highly probative, as it was evidence from independent and uninvolved observer as to what happened during attack in alley. Prejudice that arose from inability of defence counsel to fully cross-examine witness on his observations at time of attack, due to absence of current memory, could be reduced through specific jury instruction to effect that past recollection recorded was lower form of evidence to which jury should give extra cautious scrutiny. Defence counsel had ability to cross-examine witness on his vantage point when observations were made and extent to which his view was blocked due to presence of many men in small space.
R. v. Louangrath (Mar. 5, 2014, Ont. S.C.J., Aitken J., File No. 11-10657) 116 W.C.B. (2d) 164.

Arson

PROOF OF OFFENCE

Occurrence of two fires in house at same time could not be explained by accident

Accused appealed conviction for arson. Accused’s neighbour saw her leaving her home shortly before he observed smoke coming from house, and on entering house, neighbour discovered contents of pot burning on stove. Fire investigators discovered iron in second floor closet, sitting in middle of pile of burned clothing. Serious quantity of paint had been sprayed throughout main floor of house, on walls, flooring, furniture, and other objects. Accused had financial motive for fire. After her release from custody, accused went to see her landlord and admitted to having started fire. Upon her arrest, accused was advised of her right to counsel, was cautioned, and consulted with counsel. Officer repeatedly told accused that she would be released from custody whether she gave statement or not. After lengthy, videotaped interview, accused admitted that she had started fire, stating that she was depressed and suicidal as result of her family’s financial situation. Accused argued that trial judge misapprehended evidence by reasoning that her statement was likely to be true because she provided accurate details, by finding that landlord’s evidence about her apology was reliable, as landlord had suffered other losses not compensated by insurance, and by finding that fires were started in two locations in the second floor bedroom, and reasoning that therefore fires were intentionally set. Appeal dismissed. Having found that accused’s confession was voluntary, trial judge was entitled to consider whether it was reliable and consistent with objective evidence and opinion of fire investigator. It was never suggested to landlord in cross-examination that she had motive to lie because she had not been paid by insurance company or fully compensated for damage. Trial judge referred to fact that two separate fires were started in house, one upstairs in bedroom closet and other downstairs in kitchen, which was alone sufficient to support conclusion that occurrence of two fires in house at same time could not have been explained by accident. If there was misapprehension of evidence, alleged error did not play essential part in reasoning process. Fact of two fires on two separate floors was sufficient to rule out accident.
R. v. Sousa (Jul. 21, 2014, Ont. C.A., G.R. Strathy C.J.O., K. Feldman J.A., and David Watt J.A., File No. CA C56227) 116 W.C.B. (2d) 162.

Income tax

EVASION OF TAX

Motion was collateral attack on jeopardy order proceedings

Taxpayer wrote on income tax returns, “collecting income tax by government is against Constitution of Canada.” Taxpayer was charged with income tax evasion. Taxpayer’s objections to 1993 to 1996 income tax assessments were being held pending disposition of tax evasion charges. Between June 1999 and May 2003, CRA collected $871,291.90 from taxpayer pursuant to 1999 jeopardy order. In 2010 and 2011, taxpayer was twice convicted of tax evasion and ordered to pay fines of $522,346.73 and $101,393.80. Taxpayer’s case before Tax Court was reactivated. Taxpayer wished funds collected pursuant to jeopardy order to be applied to liability which would survive potential bankruptcy. Federal Court dismissed taxpayer’s motion for order directing that money collected pursuant to jeopardy order be first applied to fines arising from criminal convictions. Court considered that, when jeopardy order was issued and money was collected pursuant to order, only debt owing was tax debt, not criminal fine and that taxpayer was not permitted to choose how to allocate involuntary payment. Taxpayer appealed. Appeal dismissed. Judge did not err in dismissing taxpayer’s motion. Taxpayer was not challenging validity of search warrant so there was no basis to conclude taxpayer’s Charter rights were violated. Taxpayer failed to show that judge’s factual finding that CRA had every reason to believe taxpayer would not voluntarily pay his taxes was wrong or that jeopardy order would not have issued but for evidence obtained by way of search warrant. There was no impropriety in fact that some evidence obtained through search warrant was put before court in motion to obtain jeopardy order. Nor was CRA’s use of jeopardy order to enforce payment of tax debt analogous to use of criminal powers to enforce civil debt. Only way to vary or vacate jeopardy order was by application for review by judge of court which issued order and no appeal lies from such review. Jeopardy order was already reviewed and upheld so motion was collateral attack on jeopardy order proceedings. Finally, taxpayer failed to demonstrate that process followed to date, or to be followed, was not in accordance with principles of fundamental justice.
R. v. Klundert (Jun. 16, 2014, F.C.A., Eleanor R. Dawson J.A., Johanne Trudel J.A., and D.G. Near J.A., File No. A-83-13) Decision at 107 W.C.B. (2d) 155 was affirmed.  116 W.C.B. (2d) 179.

Immigration

OFFENCES

Only by assuming guilt by association could director conclude applicant committed offence

Director denied applicant passport services for five years because he knowingly organized, induced, aided or abetted wife to travel using counterfeit New Zealand passport. Applicant applied for judicial review. Application was granted. Attorney General appealed. Appeal dismissed. Federal Court erred in finding that director acted in procedurally unfair manner by failing to put alleged offence to applicant for response because it was put to him. However, facts relied on by director could not lead to conclusion that applicant committed offence under s. 117 of Immigration and Refugee Protection Act (Can.). None of facts positively supported finding that applicant used his passport to knowingly aid, organize, induce or abet wife to come to Canada with counterfeit passport. Only by unreasonably assuming guilt by association could director conclude from facts alone that applicant committed s. 117 offence. Director disbelieved what applicant told him but disbelief, without more, did not support finding that applicant committed offence.
Dias v. Canada (Attorney General) (Sep. 10, 2014, F.C.A., Pelletier J.A., David Stratas J.A., and Webb J.A., File No. A-102-14) Decision at 236 A.C.W.S. (3d) 989 was affirmed.  245 A.C.W.S. (3d) 183.

Courts

STAY OF PROCEEDINGS

Plaintiffs had avenues available within labour relations regime to challenge agreements

Plaintiffs were unionized masonry contractors in industrial, commercial and institutional sector of Ontario’s construction industry. Defendants were construction trade unions. Plaintiffs entered into independent contractor agreements with bricklayers. Plaintiffs alleged that defendants entered collective agreements and memorandum of agreement that prevented plaintiffs from continuing to enter into independent contractor agreements. Plaintiffs commenced action against defendants claiming that memorandum of agreement and collective agreements were unlawful and void, seeking injunctive relief and damages for conspiracy, intimidation, inducing breach of contract and/or causing loss by unlawful means. Defendants moved for order dismissing or staying action on ground that court had no jurisdiction over subject matter of action. Motion was granted. Motion judge stayed action on ground that essential character of dispute was labour relations over which Labour Relations Board had exclusive jurisdiction. Plaintiffs appealed. Appeal dismissed. Motion judge applied correct test and reached correct result. Essential character of dispute fell within board’s exclusive jurisdiction. Plaintiffs had avenues available within labour relations regime to challenge validity of memorandum of agreement and collective agreements. There was no deprivation of ultimate remedy plaintiffs sought. Motion judge did not err in refusing to grant interlocutory relief.
Limen Group Ltd. v. Blair (Sep. 23, 2014, Ont. C.A., Doherty J.A., S.E. Pepall J.A., and M. Tulloch J.A., File No. CA C59045) Decision at 242 A.C.W.S. (3d) 421 was affirmed.  245 A.C.W.S. (3d) 200.

Contracts

FORMATION

Issue of set-off had not been raised during contractor’s attempts to collect payment

Company related to contractor owed property owner money. Contractor rented certain equipment with operator to property owner. Contractor rendered invoice to owner for $34,860 but owner never paid. Owner alleged work was supposed to be performed by related company and was to be credited against amount owing by related company. Contractor brought action against owner for amount owing. Action allowed. Contractor was awarded $34,860 as claimed. Owner’s allegations were not supported by evidence. Evidence of contractor was accepted. Contractor never agreed to provide work to owner on basis that it would be set off against related company’s obligations to owner. Further, contractor never did anything to lead owner to believe contractor did not expect payment of its invoice. Issue of set-off had not been raised during contractor’s attempts to collect payment until contractor’s counsel sent demand letter.
Atlas Corp. v. Walker Aggregates Inc. (Aug. 21, 2014, Ont. S.C.J., DiTomaso J., File No. Barrie CV-12-0357OTSR) 245 A.C.W.S. (3d) 81.

Civil Procedure

SUMMARY JUDGMENT

Actions and steps taken by defendant were prima facie authorized by statute

Plaintiff was ordered by municipality inspectors to remove materials on land owned by him. Plaintiff failed to comply with order and had materials removed at his costs and against his wishes. Plaintiff brought action against municipality alleging that decision and its enforcement was negligent and excessive. Defendant brought motion for summary judgment for dismissal of plaintiff’s action. Motion granted. Actions and steps taken by defendant were prima facie authorized by statute. There was no evidence suggesting that actions were beyond what was authorized by law. Plaintiff failed to present genuine issue for trial, as he adduced no evidence of defendant’s alleged negligence or bad faith.
Meloche v. Alfred and Plantagenet (Township) (Sep. 19, 2014, Ont. S.C.J., Ronald M. Laliberte Jr. J., File No. L’Orignal 534-2012) 245 A.C.W.S. (3d) 67.

Breathalyzer

PRESUMPTION
Expert evidence highlighted importance of accuracy and reliability
Accused appealed her conviction for driving “over 80”. Accused submitted that trial judge erred in holding that expert evidence concerning concentration of alcohol in her blood at time of driving, which was based on her testimony as to her pattern of drinking, could not raise reasonable doubt about her guilt because projected blood alcohol levels “straddled” 80 milligrams of alcohol in 100 millilitres of blood threshold. Trial judge relied on decision of the Supreme Court of Canada in R. v. Gibson for this proposition. However, in subsequent case of R. c. Ibanescu which was decided after trial judge delivered her judgment, court clarified that such “straddle” evidence is capable of raising reasonable doubt. Crown called toxicologist to provide expert evidence about what accused’s blood alcohol level would have been at time of driving. Toxicologist was also questioned about accused’s blood alcohol concentration (“BAC”) based on various scenarios about time of the accused’s drinking and time of driving, based on assumption that she consumed two pints of five per cent alcohol beer. This resulted in “straddle” evidence at issue. Accused testified that she only had two beers before she left bar and man she had been at bar with gave testimony that was vague but somewhat corroboratory. Based on drinking scenarios corresponding to accused’s evidence that she consumed two beers, toxicologist testified if drinking began at 7:00 p.m. accused’s BAC would have been between 2 and 87 milligrams per 100 millilitres at 3:30 a.m. If drinking started at 6:00 p.m. it would be between 0 and 72 milligrams per 100 millilitres. If time of driving was 4:00 a.m. two ranges would be 0 to 72 and 0 to 82 milligrams per 100 millilitres. Appeal dismissed. Trial judge rejected accused’s evidence of consumption and court found no error in doing so. Toxicologist’s evidence showed that if accused had even substantial portion of one other beer she would have been over legal limit on any reasonable scenario. Trial judge was not entitled to take that evidence into account in assessing accused’s credibility in relation to whether breath test results were accurate and she did not do so. However, that evidence demonstrated how imprecision with respect to times of drinking and amounts consumed could impact adversely on findings of credibility and reliability. Court saw nothing in criticized portion of trial judge’s reasons that fell outside parameters of such accepted means of assessing evidence. Expert evidence highlighted importance of accuracy and reliability with respect to amount of alcohol consumed.
R. v. Denduk (Aug. 7, 2014, Ont. S.C.J., F. Dawson J., File No. SCA(P) 380/13) Decision at 107 W.C.B. (2d) 457 was affirmed.  116 W.C.B. (2d) 62.PRESUMPTION
Expert evidence
highlighted importance of
accuracy and reliability
Accused appealed her conviction for driving “over 80”. Accused submitted that trial judge erred in holding that expert evidence concerning concentration of alcohol in her blood at time of driving, which was based on her testimony as to her pattern of drinking, could not raise reasonable doubt about her guilt because projected blood alcohol levels “straddled” 80 milligrams of alcohol in 100 millilitres of blood threshold. Trial judge relied on decision of the Supreme Court of Canada in R. v. Gibson for this proposition. However, in subsequent case of R. c. Ibanescu which was decided after trial judge delivered her judgment, court clarified that such “straddle” evidence is capable of raising reasonable doubt. Crown called toxicologist to provide expert evidence about what accused’s blood alcohol level would have been at time of driving. Toxicologist was also questioned about accused’s blood alcohol concentration (“BAC”) based on various scenarios about time of the accused’s drinking and time of driving, based on assumption that she consumed two pints of five per cent alcohol beer. This resulted in “straddle” evidence at issue. Accused testified that she only had two beers before she left bar and man she had been at bar with gave testimony that was vague but somewhat corroboratory. Based on drinking scenarios corresponding to accused’s evidence that she consumed two beers, toxicologist testified if drinking began at 7:00 p.m. accused’s BAC would have been between 2 and 87 milligrams per 100 millilitres at 3:30 a.m. If drinking started at 6:00 p.m. it would be between 0 and 72 milligrams per 100 millilitres. If time of driving was 4:00 a.m. two ranges would be 0 to 72 and 0 to 82 milligrams per 100 millilitres. Appeal dismissed. Trial judge rejected accused’s evidence of consumption and court found no error in doing so. Toxicologist’s evidence showed that if accused had even substantial portion of one other beer she would have been over legal limit on any reasonable scenario. Trial judge was not entitled to take that evidence into account in assessing accused’s credibility in relation to whether breath test results were accurate and she did not do so. However, that evidence demonstrated how imprecision with respect to times of drinking and amounts consumed could impact adversely on findings of credibility and reliability. Court saw nothing in criticized portion of trial judge’s reasons that fell outside parameters of such accepted means of assessing evidence. Expert evidence highlighted importance of accuracy and reliability with respect to amount of alcohol consumed.
R. v. Denduk (Aug. 7, 2014, Ont. S.C.J., F. Dawson J., File No. SCA(P) 380/13) Decision at 107 W.C.B. (2d) 457 was affirmed.  116 W.C.B. (2d) 62.

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