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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.).

Administrative Law

FREEDOM OF INFORMATION

Discretion not exercised in reasonable manner

This was application pursuant to s. 41 of Access to Information Act (Can.), to review decision of Library and Archives Canada (LAC). Applicant was journalist and he sought information on Canadian politician. LAC refused to disclose portions of R.C.M.P.’s dossier on politician based on s. 15 of Act, national security exemption. Applicant made formal complaint to Information Commissioner but commissioner found that applicant’s complaint was not justified. Application granted. There was two-step approach to analysis and review of claimed exemptions under s. 15 of Act. Court reviewing refusals of disclosure under discretionary exemptions were to review: whether documents fell within exemption claimed; and whether discretion was exercised properly. Reasonable expectation of probable harm was to be shown. Injury-based determination that must be undertaken by court must balance aims of Act and objectives, namely, that exemptions were to be interpreted restrictively. Information that was withheld from applicant was done in manner that ran counter to principles of Act and LAC’s mandate. LAC failed to exercise residual discretion once documents had been seen to be covered by s. 15 exemption. On balance of probabilities, court was not satisfied that discretion was exercised and if discretion was exercised it was not exercised in reasonable manner. Matter was set to LAC for re-determination.

Bronskill v. Canada (Minister of Canadian Heritage) (Aug. 11, 2011, F.C., Noel J., File No. T-1680-09) 205 A.C.W.S. (3d) 612 (108 pp.).

Appeal

FRESH EVIDENCE

No credible explanation for reason for witness’ recantation two years after the fact

Accused convicted of robbery. Crown’s case resting on evidence of two unsavoury witnesses identifying accused. Two years after trial, Crown witness providing sworn affidavit recanting his trial testimony implicating accused. Application to adduce recantation as fresh evidence dismissed and appeal dismissed. While admissibility and due diligence criteria met, recantation was incredible and unworthy of belief. No credible explanation for reason for witness’ recantation two years after the fact. Affidavit contained false statements and witness’ attitude to veracity of its contents ambivalent. Recantation could not reasonably be expected to affect assessment of witness’ trial testimony implicating accused in robbery.

R. v. Snyder (June 10, 2011, Ont. C.A., Doherty, Feldman and Epstein JJ.A., File No. C48284) 96 W.C.B. (2d) 121 (28 pp.).

Arbitration

JURISDICTION

Policy on discrimination and harassment did not limit or amend terms of collective agreement

Plaintiff was contract professor with defendant. Group of colleagues expressed concerns in letter to dean about hiring procedure used in employing plaintiff. Plaintiff claimed plaintiff suffered emotional and financial losses as result of letter. Defendant had collective agreement. Defendant argued claim arose during employment and arose under terms of collective agreement requiring arbitration of claim and excluded jurisdiction of court. Plaintiff acknowledged all of claims arose from dispute properly falling under collective agreement if plaintiff were found to be bound by collective agreement. Appellant was found to be bound by collective agreement. Policy on discrimination and harassment did not limit or amend terms of collective agreement which clearly did not permit court to have jurisdiction in plaintiff’s type of claim. Defendants’ motions were allowed. Court had no jurisdiction to deal with claims.

Christie v. Trent University
(Aug. 12, 2011, Ont. S.C.J., Tucker J., File No. 10-20390) 205 A.C.W.S. (3d) 318 (8 pp.).

Administrative Law

JUDICIAL REVIEW

Applicant had to exhaust remedies before Law Society before seeking review by court

Hearing Panel made discipline decision and penalty. Applicant appealed decision of Hearing Panel to Appeal Panel. Applicant would have right to appeal final decision of Appeal Panel. Application for judicial review was quashed as premature. Applicant had to exhaust remedies before Law Society before seeking review by court. There were no exceptional circumstances. Material did not show proceeding before Appeal Panel would be fatally flawed. Allowing application to proceed would fragment proceeding before Law Society.

Mundulai v. Law Society of Upper Canada (Aug. 9, 2011, Ont. S.C.J. (Div. Ct.), Jennings, Ferrier and Swinton JJ., File No. 330/11) 205 A.C.W.S. (3d) 309 (3 pp.).

Taxation

GOODS AND SERVICES TAX

While transfer amounted to negligence, action did not constitute gross negligence

Appeal by taxpayer from reassessment by Minister. Taxpayer transferred house it was building to its two shareholders. Taxpayer did not collect or remit GST on transfer. Minister assessed taxpayer on basis that it transferred both legal and beneficial interest in property to its shareholders, thereby resulting in supply of property on which GST was required to be collected pursuant to ss. 165 and 221 of Excise Tax Act (Can.). Minister imposed gross negligence penalty. Appeal allowed in part. Matter was referred back to Minister for reassessment on basis that s. 285 gross negligence penalty be deleted. Taxpayer was liable to collect and remit GST on transfer of property. Taxpayer failed to establish requisite certainty of intention establishing that property was in trust for taxpayer subsequent to transfer of title. While transfer by taxpayer amounted to negligence, action did not constitute gross negligence. Shareholders held subjective belief that taxpayer maintained some interest in property given that it continued to pay expenses related to it.

Canpar Developments Inc. v. Canada (Aug. 2, 2011, T.C.C., Paris J., File No. 2009-3264(GST)I) 205 A.C.W.S. (3d) 588 (7 pp.).

Employment Insurance

ENTITLEMENT

Lump sum given for loss of employment qualified as retiring allowance and excluded from insurable earnings


Appellant took maternity leave. Employer paid amounts to appellant to top up maternity leave. Employer terminated appellant’s employment. Appellant’s position was eliminated and replaced with reclassified position. Appellant received lump sum for loss of employment. Appellant applied for unemployment benefits. Appellant was informed appellant did not qualify for benefits. Appeal was dismissed. Lump sum given for loss of employment qualified as retiring allowance which was excluded from insurable earnings. Amendment made to Insurable Earnings and Collection of Premiums Regulations (Can.), excluded from insurable earnings maternity leave top up.

Geddes v. M.N.R.
(Aug. 8, 2011, T.C.C., D’Auray J., File No. 2010-3092(EI)) 205 A.C.W.S. (3d) 406 (8 pp.).

Immigration

EXCLUSION AND EXPULSION

Danger opinion remained valid despite overturning of conviction

Applicant was permanent resident. Applicant incurred extensive criminal record. Applicant was convicted of sexual assault of former spouse. Danger opinion was issued against applicant. Applicant was deported. Applicant re-entered Canada without approval of Minister and was charged with re-entering without permissions. Two inadmissibility reports were issued against applicant. Second deportation order was issued. Former spouse recanted allegations of sexual assault. At new trial sexual assault charges were dismissed. Danger opinion and first deportation order were already judicially reviewed. Applicant sought to quash danger opinion and two deportation orders. Application for judicial review was dismissed. Court was not in position to consider submission on res judicata given direction from Federal Court of Appeal and following its application by Justice. Danger opinion remained valid despite overturning of conviction for sexual assault. Danger opinion was based on three convictions. Danger opinion was not based on nullity. First deportation order was moot. Second deportation order was valid. Inadmissibility report and second deportation order were not to be quashed despite overturning of criminal conviction. Loss of permanent residence status was legal and there was no error in execution of deportation order. Section 326(2) of Immigration and Refugee Protection Regulations (Can.), remained in effect.

Pascale v. Canada (Minister of Citizenship and Immigration)
(July 13, 2011, F.C., O’Keefe J., File No. IMM-3127-10) 205 A.C.W.S. (3d) 500 (25 pp.).
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