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Thursday, October 20, 2016 @ 8:00 PM

Family Law - Custody and access - Removal of child from jurisdiction - Offences and penalties - Child abduction - Hague Convention - Practice and procedure - Courts - Jurisdiction - Ordinary residence - Appeals

Appeal by the father from a Divisional Court order finding the parties’ children were habitually resident in Ontario rather than Germany. The parties were Canadian citizens who married in Toronto in 2000. In 2001, they moved to Germany and attained permanent resident status. Their children were Canadian citizens born in Germany in 2002 and 2005. The father worked and resided in Germany. The children lived in Germany, but for two occasions in 2006 and 2010 when they visited Canada with the mother and attended school. The parties separated in 2011. The father was awarded interim custody. The parties resumed cohabitation in 2012. In April 2013, they agreed that the mother would take the children to Canada to attend school. The father signed a letter confirming his consent to the children’s travel in Canada until August 2014. Thereafter, the mother unilaterally decided to remain in Canada with the children. The father brought a Hague Convention application for the return of the children to Germany. The application judge concluded the children’s habitual residence in Germany did not change during the consensual travel period in Canada and ordered their return. The mother appealed to the Divisional Court. The Court concluded that the children’s habitual residence had changed to Ontario and thus the Hague Convention did not apply. The father appealed. ... [read more]

Thursday, October 20, 2016 @ 8:00 PM

Civil Litigation - Civil procedure - Settlements - Enforceability

Appeal by the Beam defendants from an order enforcing the settlement of the action and counterclaim. Beam defendants were sued in the Federal Court and the Superior Court of Quebec by the respondent Domaines Pinnacle Inc. (Domaines) with respect to trademark issues arising from the use of the word “Pinnacle” in connection with the sale of alcoholic beverages. As the date of trial in the Federal Court approached, the parties had settlement discussions which led to Beam making an offer to settle pursuant to which the claim and counterclaim in the Federal Court action would be discontinued and each party would bear its own costs. The offer was accepted, but a dispute arose as to whether the offer also included the discontinuance of the Superior Court action. Beam took the position that it did, while Domaines argued that it did not. As a result, each party brought a motion before the Federal Court seeking to have its opinion ratified. The Federal Court judge concluded that there was a settlement of the Federal Court action and counterclaim, but not the Superior Court action. He found that the only reasonable interpretation of Beam’s offer to settle was that it did not include the provincial court action, as it did not refer to that action. As a result, the judge ordered a permanent stay of proceeding with respect to Beam’s counterclaim. Beam appealed, raising issues of consensus ad idem and mistake, arguing that the Federal Court judge erred in rejecting extrinsic evidence and that there was evidence of surrounding circumstances which should have been taken into account into interpreting the terms of the offer. ... [read more]

Thursday, October 20, 2016 @ 8:00 PM

Criminal Law - Appeals - Grounds - Procedure

Appeal by the Crown from the dismissal of its application for substituted service of its appeal from Marton’s acquittal on charges of dangerous driving and flight from police. Marton was convicted of stunt driving in relation to the same information. The Crown made numerous attempts to serve Marton personally with the notice of appeal, then, having concluded that he was evading service, applied for an order for substituted service. The summary conviction appeal court dismissed the application on the basis that it lacked jurisdiction to order substituted service. ... [read more]

Thursday, October 20, 2016 @ 8:00 PM

Taxation - Customs and excise - Customs - Tariff classification - Imports - By type of product - Redeterminations and appeals - Appeals - Canadian International Trade Tribunal - Federal Court

Appeal by the Attorney General of Canada from a judgment of the Federal Court of Appeal setting aside a decision of the Canadian International Trade Tribunal (CITT). The Court had to determine whether hockey gloves, for customs tariff classification purposes, constituted a “glove, mitten or mitt”, oran “article of plastics”. The CITT concluded that certain blockers and catchers imported by the respondent Igloo Vikski Inc. were each classifiable as a “glove, mitten or mitt”. The Federal Court of Appeal, however, held that those blockers and catchers were also classifiable, prima facie, as “articles of plastics”. More particularly, the Court of Appeal found that the CITT had erred by stating that the goods must meet the description of a heading by applying Rule 1 of the General Rules for the Interpretation of the Harmonized System (General Rules) before Rule 2(b) of the General Rules could be used to extend that heading to cover goods made of mixed substances. In the Court of Appeal’s view, because the goods were prima facie classifiable under two headings, Rule 3 of the General Rules should have been employed to determine the proper classification of the gloves. The Court of Appeal therefore remitted the matter back to the CITT so that it could undertake that Rule 3 analysis. ... [read more]

Thursday, October 20, 2016 @ 8:00 PM

Insurance Law - Automobile insurance - Uninsured or underinsured motorist coverage

Appeal by the plaintiff from the motion judge’s determination that payment of his claim was barred by s. 25(1) of the Motor Vehicle Accident Claims Act. The appellant was a Brazilian citizen. While he was in Canada illegally, the appellant was struck by an unidentified driver while crossing the street. The appellant had previously been deported from Canada. He re-entered Canada in 2002 and he remained in Canada illegally until the time of the accident. He obtained an Ontario driver’s licence, which he renewed when required although he never owned a car. He had no insurance and he supported himself by working illegally in the construction industry. He also registered a drywall sole proprietorship, applied for a tax number as a non-resident, joined a union and carried out normal daily living activities. The appellant commenced a claim against the unidentified driver and the Superintendent of Financial Services for compensation out of the Motor Vehicle Accident Claims Fund. After commencing the proceeding, the appellant unsuccessfully claimed refugee status and was deported. He now resided in Brazil. The Superintendent defended the action on the basis of s. 25(1) of the Motor Vehicle Claims Act, which precluded payments out of the Fund in favour of a person who ordinarily resided outside Ontario at the date of the motor vehicle accident. Both parties moved for summary judgment to determine the appellant’s entitlement to access the Fund. The motions judge found that the appellant was not entitled to access the fund, as he was not ordinarily residing in Ontario as of the date of the accident. The motion judge based his decision on the fact that the appellant had twice entered Canada unlawfully and worked illegally, and that he knew he could not return to Canada without express authorization under the relevant immigration legislation. As a result, the motion judge dismissed the appellant’s motion for summary judgment and dismissed his claim and granted the Superintendent’s companion motion for summary judgment. The appellant appealed arguing that the judge erred in finding that payment of his claim was barred by s. 25(1) of the Act. ... [read more]

Thursday, October 20, 2016 @ 8:00 PM

Real Property Law - Condominiums - Condominium corporation - Meetings - Owners’ meetings - Annual general meetings

Appeal by the strata corporation from a decision by a chambers judge concluding that strata developer, 0738039 B.C. Ltd. (073), was not liable to pay a penalty. 073 developed a six unit strata development. The first unit was sold in May 2010. The next two units were sold in April and November 2013, and the forth unit was sold in August 2014. 073 owned the remaining two lots. The principal of 073 was erroneously of the view that a strata developer did not have to call the annual general meeting (AGM) until nine months plus six weeks after the sale of 50 percent plus one of the lots. In fact, the strata developer was required to call an AGM by April 2011 pursuant to s. 16 of the Strata Property Act (Act). 073 did not call the first AGM until February 28, 2015. After the first AGM, the strata council decided to pursue the strata developer for payment of the amount established by s. 17 of the Act. The strata corporation (Strata) filed a petition on July 24, 2015, claiming some $201,000 under s. 17(b) of the Act for the delayed AGM. The chambers judge concluded that 073 was not liable to pay the s. 17(b) penalty. The strata corporation submitted that the chambers judge erred in law by concluding that the penalty to be imposed on an owner developer under s. 17(b) occurred only if an owner called the first annual general meeting under s. 17(a), which didn’t happen in the current case. ... [read more]

Thursday, October 20, 2016 @ 8:00 PM

Immigration Law - IMMIGRANTS - Practice and judicial review - Appeals to Court of Appeal or Supreme Court of Canada

Appeal by Liang and her solicitor Wong from a Federal Court order and costs award. Liang sought reconsideration of a Federal Court decision denying leave to commence judicial review of a decision by the Immigration Appeal Division of the Immigration and Refugee Board. The Federal Court found that the reconsideration motion had no merit, as there was no indication the order denying leave did not accord with the reasons for judgment, or otherwise resulted from omission or oversight. The Federal Court found that Liang’s solicitor, Wong, attacked the integrity of the Court during his conduct of a motion brought improperly and without reasonable cause. The Court awarded costs of $1,000 against Wong personally. Liang and Wong appealed. The Court of Appeal Registry sought directions on the basis s. 72(2)(e) of the Immigration and Refugee Protection Act (IRPA) barred appeals from decisions refusing leave to commence judicial review proceedings. The Minister submitted that the notice of appeal should be removed from the Court file with the file closed. The appellants submitted that their appeal should continue. ... [read more]

Thursday, October 20, 2016 @ 8:00 PM

Legal Profession - Practice by unauthorized persons - Suspended or disbarred lawyers

Appeal by Beaver from the injunction granted to the Law Society, prohibiting Beaver, a suspended lawyer, from engaging in the practice of law, including acting as an agent. Beaver had been a criminal defence lawyer in Edmonton for many years prior to being suspended in May 2015 amid allegations of financial misconduct. The suspension was interim in nature, as the investigation by the Society was ongoing. Following the suspension, Beaver began operating a website, Beaver Legal Consulting, in which he offered services as a legal agent. The website contained a disclaimer stating that he was not currently licensed to practice law and was facing an interim suspension imposed by the Society. In December 2015, the Society relayed concerns to Beaver that he was providing legal services. It asked Beaver to sign an undertaking to refrain from engaging in various prohibited activities. Beaver took the position that his signature on the undertaking did not preclude his acting as an agent. In January 2016, the Society brought an originating application asking for declarations that Beaver was providing legal services and acting as a barrister and solicitor, and seeking injunctive relief to prevent him from practicing law and providing any of the services offered by his website. ... [read more]

Thursday, October 20, 2016 @ 8:00 PM

Planning and development - Building regulations - Stop work orders

Application by a property developer, Mountain Shores Land Ventures Ltd. (Mountain Shores), for leave to appeal from the decision of the Subdivision & Development Appeal Board (SDAB) denying its appeal from the issuance of a stop order by the County requiring it to stop work on a recreational subdivision development under construction. Mountain Shores and the County entered into a development agreement that provided, among other things, that if Mountain Shore defaulted on any of its obligations under the agreement, the County would give written notice of the default and Mountain Shores would be required to remedy the default within 30 days. Mountain Shores did not comply with all of the requirements under the agreement. It was given written notice of the default. Contemporaneous with the issuance of the notice of default, the County issued a stop order. Mountain Shores appealed to the SDAB. The SDAB denied the appeal. Mountain Shores argued on appeal that the SDAB erred in concluding that the interaction of ss. 645(1)(b) and 645(2)(a) of the Municipal Government Act with the provisions of the development agreement requiring the County to give it 30 days to remedy any default meant that the stop order could not validly have been issued on the same day as the notice of default and could not have been validly issued before the expiry of the 30 day period. It also argued that the SDAB erred in dismissing the appeal before the grace period had expired. ... [read more]

Thursday, October 13, 2016 @ 8:00 PM

Immigration Law - Refugee protection - Practice and judicial review - Natural justice - Duty of fairness - Right to counsel

Appeal by the Minister of Citizenship and Immigration from the Federal Court’s dismissal of the Minister’s application for judicial review of a decision by the Refugee Appeal Division (RAD) with respect to the refugee claims of a couple from Venezuela. The couple entered Canada legally on study permits and subsequently claimed refugee status. After completing basis of claim forms, the couple was interviewed by an officer from Citizenship and Immigration Canada (CIC officer), who found they were eligible to claim refugee protection. Their claims were referred to the Refugee Protection Division (RPD). Approximately two weeks later, a “hearing advisor” employed by the Canada Border Services Agency (CBSA) required the respondents to attend before him that day for an interview. The couple’s lawyer was not advised of the interview appointment and the couple was not asked if they wanted counsel present. The interview proceeded in the absence of counsel. Questions were posed by a hearing advisor about statements the couple made on the basis of claim forms. Four days later, the Minister of Public Safety and Emergency Preparedness provided notice of intention to intervene in the respondents’ refugee claims. The intervention was based on two solemn declarations made by the hearing advisor and two documents prepared by third parties relating to country conditions in Venezuela. The couple sought to exclude the solemn declarations from evidence at their hearing before the RPD. The RPD accepted the solemn declarations, finding that the hearing advisor had jurisdiction to conduct the interview and that the couple’s right to counsel was not triggered because the couple was neither arrested nor detained and because they never asked to have their counsel present. The RPD dismissed the couple’s refugee claim, finding that they were not credible witnesses and that the incidents they reported experiencing in Venezuela were not as a result of their opposition to the government. The RAD concluded that the hearing advisor’s solemn declarations should have been excluded because the couple’s counsel had not been advised of the scheduled interview, which breached principles of natural justice and fairness. The RAD considered the appropriate remedy to refer the refugee claims back to the RPD for re-determination by a different member. The Federal Court had concerns about why the interview was conducted by the hearing advisor when the Minister had no security of criminality concerns about the couple. It found the RPD erred in finding the officer retained jurisdiction to interview the couple after their refugee claim was referred to the RPD. The Court also rejected the RPD’s position that the interview was merely a routine information gathering exercise, finding that the couple had a statutory right to have counsel present during any material aspect of the proceeding, including the interview. ... [read more]