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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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Extraordinary Remedies

HABEAS CORPUS

Judge erred by failing to remand accused after cancellation of release

Accused pleaded guilty to three counts of breaching an undertaking while awaiting sentencing on underlying charges. At sentencing hearing on breach counts Crown sought cancellation of accused’s release on underlying charges. Defence argued that court had no jurisdiction to cancel release because accused had not formally been arrested pursuant to s. 524(1) or (2) of Criminal Code. Sentencing judge imposed 10-day sentence and ordered accused’s release cancelled. Matter was spoken to again two days later after judge was told she had not remanded the accused. Sentencing judge remanded accused in custody for six weeks to the date for her sentencing hearing on the outstanding charges. Application for writ of habeas corpus granted. Sentencing judge was entitled to cancel accused’s release despite lack of formal arrest pursuant to s. 524(1) or (2). Accused was lawfully detained and had received notice that Crown would bring s. 524 application so arrest or re-arrest was not required. Sentencing judge erred by failing to remand accused to next available bail court after cancellation of her release. Warrant of remand quashed.

R. v. Ramage (June 13, 2011, Ont. S.C.J., Fregeau J., File No. CR-11-006-MO) 96 W.C.B. (2d) 293 (29 pp.).

Employment Insurance

APPEAL

Nature of contract confirmed appellant was autonomous

Appellant sought revision of Minister’s decision that dismissed application for employment insurance. Minister affirmed that appellant was not employee for concerned corporation and worked as autonomous throughout his contract. Appellant claimed that employee status was not mentioned in job offer letter but was discussed personally with representatives of corporation. Appellant affirmed that activities were supervised and that corporation exercised control over him. Appeal not allowed. Absence of fixed working hours, control over appellant’s work and great flexibility to perform activity confirmed appellant’s status of self-employed. Court underscored that nature of contract, establishing prospective gains and losses, confirmed that appellant was autonomous.

Watzke v. M.N.R. (July 15, 2011, T.C.C., Miller J., File No. 2010-2371(EI); 2010-2372(CPP)) Reasons in French. 205 A.C.W.S. (3d) 980 (8 pp.).

Contempt Of Court

GROUNDS

Claim that auditors pilfered boxes of documents not substantiated

Motion by director of taxpayer for order for contempt. Minister assessed director under Excise Tax Act (Can.) as liable for tax debt of corporation. Director filed appeal. Director’s motion for disclosure of certain documents was granted. Motion dismissed. Director did not provide even prima facie case that order for documents had not been complied with. Director provided list of documents he claimed were being withheld, but this list suffered from vagueness. Claim that auditors pilfered boxes of documents was not substantiated and could not form basis for contempt order against Crown. Order granting appeal would be inappropriate on preliminary motion. Exercise of due diligence was not proper ground for allowing appeal and could only be determined with full hearing. Minister had not breached costs order. Dismissal of tax-related criminal charges against director did not provide support for motion.

Lougheed v. Canada
(Aug. 26, 2011, T.C.C., Woods J., File No. 2006-2031(GST)G) 96 W.C.B. (2d) 278 (10 pp.).

Employment

PUBLIC SERVICE

Analysis generic and akin to rubber stamp

Application for judicial review of three decisions made by Decision Reviewer of CRA. Applicants made allegations of arbitrary treatment after they were unsuccessful in promotional process at CRA. Decision reviewer did not find any evidence of arbitrary treatment in selection process. Application allowed. Reasons inadequate. Analysis conducted by Decision Reviewer confined to sentence in which she expressed that applicants provided insufficient analysis in their Portfolios of Technical Competencies. Analysis generic and akin to rubber stamp. Nothing to suggest that allegations of applicants seriously considered. Notes of Decision Reviewer raised further concerns instead of clarifying reasons or expressing basis for decisions. Notes revealed Decision Reviewer found some of the worksheet comments of the Technical Competency Assessors to be questionable. Several e-mails in which Decision Reviewer expressed that requests for decision review might represent arbitrary decisions. Nothing to indicate how Decision Reviewer resolved issues presented by applicants or uncovered by her own review to come to conclusion TCA’s were reasonable in awarding scores.

D’Urzo v. Canada Revenue Agency
(July 28, 2011, F.C., Near J., File No. T-591-10) 205 A.C.W.S. (3d) 979 (19 pp.).

Administrative Law

JUDICIAL REVIEW

Interest due given respondents had means to calculate taxes due

Applicant sought judicial review of respondents’ decision that dismissed payment of interest on sums due. Applicant claimed that decision was unreasonable and lacked transparency in decision-making process. Supreme Court confirmed decisions rendered previously, ordering payment of sums as replacement of property taxes due. After decision of Supreme Court, respondents refused to pay interests. Application allowed. Court affirmed that decision not to pay sums was not based on impossibility to calculate them, but rather in respondents’ claim that sums paid as business tax could be deducted. Court affirmed that interests were due to circumstances of case and failure of respondents to make provisional payment. Interests were due given that respondents had all means to calculate taxes due and were duly notified according to terms of applicable legislation.

Montreal (Ville de) v. Administration Portuaire de Montreal (July 27, 2011, F.C., Martineau J., File No. T-833-10; T-936-10) Reasons in French. 205 A.C.W.S. (3d) 878 (17 pp.).

Family Law

CHILD WELFARE

Mother did not establish ability to provide safe home and consistent parenting

Society sought order for Crown wardship of two children with no access for purpose of adoption. Society relied on allegation mother did not comply with terms of order. Motion for summary judgment was allowed. Mother did not establish ability to provide safe home and consistent parenting. Mother had done too little to raise triable issues. It was plain and obvious mother would not succeed at trial.

C.A.S. Simcoe v. B. (K.)
(July 28, 2011, Ont. S.C.J., Olah J., File No. FC-09-895) 205 A.C.W.S. (3d) 698 (14 pp.).

Civil Procedure

COSTS

Should have been obvious to plaintiffs that they stood little or no chance of success

Plaintiffs’ motion for summary judgment was dismissed. Defendant was successful on motion. Motion was of moderate complexity. Motion was important to parties. Defendant made offer to settle. It should have been obvious to plaintiffs that plaintiffs stood little or no chance of success. Plaintiffs were to pay costs on substantial indemnity basis. Plaintiffs were ordered to pay costs of $68,064 inclusive of fees, HST and disbursements within 30 days.

Allen v. Succession Capital Corp.
(July 25, 2011, Ont. S.C.J., Goodman J., File No. 1951/10) 205 A.C.W.S. (3d) 638 (15 pp.).

Contempt Of Court

GROUNDS

Mother’s denial of access completely without merit

Motion by father for order finding mother to be in contempt of court. Parties had two children and separated. Minutes of Settlement provided that parties share joint-custody, that children live primarily with mother and that father have specified access to children. Father alleged that mother was in breach of terms of access. Mother did not appear at hearing. Motion granted. Mother denied father access to children from 2008 to present, contrary to judgment. Mother breached terms of judgment by failing to advise father of children’s addresses; failing to provide telephone access to the children; failing to consult and advise father as to change of schooling for children; failing to provide children’s report cards; and failing to advise father about child’s autism diagnosis. Mother’s denial of access was completely without merit.

Mitchell v. Landriault (Aug. 11, 2011, Ont. S.C.J., Pierce J., File No. FS 35/00) 96 W.C.B. (2d) 206 (11 pp.).

Appeal

GROUNDS

Complainant’s evidence remained reliable and credible

Appeal from conviction. Accused was convicted of two counts of sexual assault, sentenced to 60 days’ imprisonment and 12 months’ probation. When appeal argued, he had served entire term of both his incarceration and probation. Trial judge found that accused placed his hand on complaint’s chest above her breast and that he put his hand on complainant’s ankle while he masturbated; accused massaged shoulder of complainant for sexual purpose and touched her thighs and spread her legs for sexual purpose. Trial judge reviewed evidence of accused and provided reasons why she rejected it. She was alive to frailties of complainant’s evidence. Trial judge’s reasons were not lacking in proper analysis. While trial judge did not specifically mention the third test of W. (D.), it was clearly in her mind in assessing evidence as whole. She was alive to concerns about why complainant acted in way that she did and whether those concerns were able to be explained in a manner that allowed justice to conclude that complainant’s evidence remained reliable and credible. Appeal dismissed.

R. v. Oyebade (Aug. 15, 2011, Ont. S.C.J., Gilmore J., File No. 09-05487) 96 W.C.B. (2d) 193 (6 pp.).

Immigration

PERSON IN NEED OF PROTECTION

No information to suggest police not making genuine and earnest efforts to investgate

Application for judicial review of denial of refugee claim. Applicants were citizens of Mexico who alleged fear of loan shark, who was associated with criminal organization. Principal applicant had borrowed money from loan shark then could not repay. Applicant alleged that he was beaten by loan shark and attempt was made to kidnap his daughter. Principal applicant and his family moved to different locations in Mexico and made complaints to police. Applicant’s wife, did call police but did not remain to give a report and did not make any further attempts to follow up with police. Applicants fled to Canada and sought refugee protection. Member concluded that applicants had not rebutted presumption of state protection as documentary evidence indicated that issues of corruption and deficiencies were being addressed by the state of Mexico. Member also concluded that there was no information to suggest that police were not making genuine and earnest efforts to investigate claimant’s allegations and apprehend claimant’s perpetrator. Claimant’s choice to leave Mexico may have resulted in investigation being delayed or abandoned, given that he, as victim, was key witness. Member also concluded that as wife called police but did not remain to give report and did not make any further attempts to follow up with police, she had demonstrated only merest attempt to avail herself of protection of police and without further contact police would be helpless in rendering support. Wife’s actions did not support contention of lack of state protection. Application dismissed. Member had made no palpable or overriding error in reaching conclusion that there was adequate state protection. As to whether the applicants made sufficient efforts to avail themselves of state protection, findings of member were not unreasonable.

Lechuga v. Canada
(Minister of Citizenship and Immigration) (July 20, 2011, F.C., Hughes J., File No. IMM-474-11) 205 A.C.W.S. (3d) 817 (6 pp.).
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