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Crown

PRIVILEGE

Informer privilege did not apply to Canadian Security Intelligence Service human sources

This was appeal from Federal Court Judge’s decision ordering disclosure of documents that were allegedly sensitive and potentially injurious. Appeal allowed. Three-prong test to be applied was set out in R. v. Ribic (2003), 185 C.C.C. (3d) 129 (F.C.A.). Judge must first determine whether information sought to be disclosed was relevant to proceedings in which it was intended to be used. If information met relevancy test judge must determine whether disclosure of information would be injurious to international relations, national defence or national security. If judge was satisfied that disclosure of sensitive information would result in injury judge must determine whether public interest in disclosure outweighed public interest in non-disclosure. Informer privilege did not apply to Canadian Security Intelligence Service human sources, as that would be contrary to s. 38 of Canada Evidence Act and express will of Parliament. However, in applying Ribic test judge either discounted evidence of injury or did not give it weight it deserved. Judge committed palpable and overriding error and disclosure order was set aside.

Canada (Attorney General) v. Kalifah
(June 13, 2011, F.C.A., Blais C.J., Letourneau and Trudel JJ.A., File No. A-428-10) 203 A.C.W.S. (3d) 771 (32 pp.).

Civil Procedure

COSTS

No special reasons in case justifying award of costs

Appellant was successful in appealing judgment dismissing application for judicial review of decision under Immigration and Refugee Protection Act (Can.). No submissions on costs appeared in memorandum of fact and law. No submissions on costs were made at hearing. Judgment on appeal and reasons for judgment were silent on costs. Appellant brought motion for order granting costs on solicitor-and-client basis. Motion was dismissed. Motion for costs was subject to Rule 22 of Federal Court Immigration and Refugee Protection Rules (Can.), which precluded award of costs in absence of special reasons. There were no special reasons in case justifying award of costs in favour of appellant.

Ndungu v. Canada (Minister of Citizenship and Immigration)
(June 21, 2011, F.C.A., Sharlow, Dawson and Layden-Stevenson JJ.A., File No. A-501-09) 204 A.C.W.S. (3d) 31 (11 pp.).

Wills And Estates

ESTATE ADMINISTRATION

Bill of costs in excess of $700,000 must be able to stand on its own

This was appeal from motion judge’s decision ordering partial probate. Parties were brother and sister. Mother made will in 1987, which expressly excluded appellant and her children. After will was executed there were four codicils. Mother died in November 2007. Respondent applied for summary judgment in respect of 1987 will and codicils. Motion judge granted partial probate in respect of 1987 will and first two codicils. Motion judge made award for full amount of fees requested by respondent. Appeal allowed in part. Appellant raised significant concerns about bill of costs presented by respondent and they must be addressed even if appellant failed to file own bill of costs. Bill of costs in excess of $700,000 must be able to stand on own without reference to bill of costs from appellant. Costs award was set aside and issue of quantum was referred to motion judge for reassessment.

Smith Estate v. Rotstein
(July 5, 2011, Ont. C.A., Armstrong, Epstein and Karakatsanis JJ.A., File No. C52105) Decision at 187 A.C.W.S. (3d) 900 was affirmed. 203 A.C.W.S. (3d) 898 (23 pp.).

Civil Procedure

WANT OF PROSECUTION

Respondents did not proceed as if they were acting on principle of finality

This was appeal from motion judge’s dismissal of motion to set aside registrar’s administrative dismissal order. Motor vehicle accident occurred on October 5, 2001. Appellant alleged that tractor trailer driven by respondent swerved into her lane on highway. Appellant was involved in second motor vehicle accident in March 2005 and commenced separate action. In August 2007 registrar made administrative dismissal of action. Status notice and order dismissing action were sent to appellant’s former counsel. On application to set aside dismissal order motion judge found delay was not adequately explained, prejudice could be inferred and presumed and respondents were entitled to rely on finality of registrar’s order. Appeal allowed. It was palpable and overriding error to say that appellant did not give any reason for slow progress of matter up to date of status hearing notice. Respondents’ counsel continued to attend discoveries in second accident and did not raise any indication that something was wrong so it was hard to see what prejudice respondents were suffering. Respondents did not proceed as if they were acting on principle of finality, as they continued to participate in litigation. Registrar’s order should have been set aside.

Aguas v. Rivard Estate
(July 5, 2011, Ont. C.A., Rosenberg, Feldman and Juriansz JJ.A., File No. C52438) 203 A.C.W.S. (3d) 741 (25 pp.).

Income Tax

Amount paid directly to independent adult daughter could not be considered child support

Appellant was divorced. Appellant’s daughter, aged 20, was studying in university. Daughter brought action to obtain financial support from appellant. Appellant paid $2,125 for the year to his daughter according to terms of judgment. When appellant filed his income tax he claimed deduction of $2,125 in child support. Minister reassessed appellant and disallowed deduction. Appellant appealed. Appeal dismissed. Amount paid directly to independent adult daughter could not be considered child support. Former spouse did not receive any of the amount paid.

Larouche v. Canada (June 29, 2011, T.C.C., Favreau J., File No. 2010-3669(IT)I) Reasons in French. 203 A.C.W.S. (3d) 884 (6 pp.).

Income Tax

Appellant used amount borrowed to give gifts to relatives and buy home

Appellant was sole shareholder and director of corporation. In 2000 corporation loaned appellant $5 million. Appellant paid interest on loan but corporation allowed him to keep the capital and made no attempts to recover it. According to appellant corporation forgave loan since corporation was going to be sold to public corporation. In 2002, Minister reassessed appellant and added $5 million to his declared income. Appellant appealed. Appeal dismissed. Even though reassessment was late it was still valid. Appellant did not suffer any prejudice from late reassessment. Appellant used amount borrowed to give gifts to his relatives and to buy home. Commercial debt was not a condition to include amount in appellant’s income.

Remillard v. Canada (June 29, 2011, T.C.C., McArthur J., File No. 2009-1660(IT)G) Reasons in French. 203 A.C.W.S. (3d) 881 (17 pp.).

Charter Of Rights

RIGHT TO COUNSEL

Accused’s circumstances and jeopardy never changed from time of arrest to time of interview

Accused charged with three counts of arson and two counts of mischief. Accused applied to exclude evidence based on breach of s. 10(b) Charter rights. Accused was arrested after police searched his computer. Police were aware that accused’s parents were forbidding their interviewing of any of their children without either their presence, or that of counsel retained by them. Accused spoke to counsel following his arrest. Application dismissed. No evidence that counsel was dissatisfied with contact he had with accused. No concern expressed by accused during his interview that he needed more time, was dissatisfied in any way with advice received, or wished to speak to counsel again. While only 18 years and 2 months at time of his arrest, accused was considered adult and his parents were not in position to demand that his lawyer be present during interview. Accused’s circumstances and jeopardy never changed from time of his arrest to time of interview and no subsequent right or access to counsel was mandated. No breach of accused’s rights.

R. v. Gander
(June 6, 2011, Ont. S.C.J., Thomas J., File No. CR-10-00002703-00MO) 95 W.C.B. (2d) 495 (15 pp.).

Assault

COMMON ASSAULT

Accused’s evidence non-responsive, self-serving, confusing, discursive and inconsistent

Accused charged with assault, uttering death threats and forcible confinement stemming from incident with his then wife. Allegedly, after an argument, accused punched complainant in the head and when she informed him of her intention to phone police, made remarks to the effect that he would bring her back to Afghanistan where he could deal with her without any legal consequences. Complainant, with assistance of bed sheets, left apartment by climbing down from the balcony. Accused found guilty of assault and uttering death threats, not guilty of forcible confinement. Court found accused’s evidence to be non-responsive, self-serving, confusing, discursive and inconsistent and likewise found testimony from other defence witnesses wholly unbelievable or of little value. Court accepted testimony of the man who drove complainant to police station as a wholly unbiased witness whose testimony was consistent and uncontradicted. Court accepted complainant’s testimony. Case for forcible confinement not made out.

R. v. Wardak (June 9, 2011, Ont. C.J., Wright J., File No. 998-11-04214-00) 95 W.C.B. (2d) 468 (12 pp.).

Parole

POWERS OF PAROLE BOARD

Non-imposition of duration of condition should be interpreted as imposed throughout duration of parole

Petitioner sought revision of decision of board that imposed conditions for release on parole. Petitioner was sentenced to eight years in jail for four counts of sexual assault on victims aged six to nineteen. Petitioner claimed that residence assignment was incompatible with his history and that board failed to establish duration of condition. Application not allowed. Court affirmed that conditions imposed were compatible with gravity of crime committed, age of victims and his attitude to minimize conduct. Court ruled that non-imposition of duration of condition was allowed with jurisprudence and should be interpreted as imposed throughout duration of parole.

Ross v. Canada (Procureur general) (July 6, 2011, F.C., Scott J., File No. T-1954-10) Reasons in French. 95 W.C.B. (2d) 517 (18 pp.).

Immigration

PERSON IN NEED OF PROTECTION

Board under obligation to explain why it had ignored evidence which corroborated applicants’ allegations

Applicants were a family from Mexico. Father had filed complaint against two police officers in Mexico who he claimed had threatened him and attempted to murder him. One of the police officers then raped his daughter. Family fled to Canada. Refugee claim was dismissed as it was found that they had internal flight alternative. Applicants brought present application for judicial review. Application allowed. Board failed to explain why it did not accept the pertinent evidence which fully supported the applicants’ arguments. Board was under an obligation to explain why it had ignored evidence which corroborated the applicants’ allegations. This omission constituted reviewable error.

Yanez v. Canada (Minister of Citizenship and Immigration)
(July 4, 2011, F.C., Lemieux J., File No. IMM-5539-10) Reasons in French. 203 A.C.W.S. (3d) 815 (6 pp.).
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