uncertainties in the hardwood market
which limited its marketability and value.
The judge’s conclusion was adequately
explained when examined in the context
of the evidentiary record.
Shannon v. Shannon, [2011] B.C.J.
No. 1903, B.C.C.A., per Smith J.A.
(Nielson and Bennett JJ.A. concurring), Oct. 14/11. Digest No. 3126-016
(Approx. 9 pp.)
IMMIGRATION
REFUGEES – The appellate court
dismissed an appeal from a judicial
review decision overturning the grant-
ing of refugee protection to appellant.
Appeal from the minister’s successful
application for judicial review of a deci-
sion by the Immigration and Refugee
Board granting appellant refugee protec-
tion. Appellant was a white citizen of
South Africa. He claimed refugee status
on the basis of fear of discrimination,
harassment and possible death because of
his race. He reported having been
attacked and assaulted by black South
Africans, who used racial slurs, on num-
erous occasions. The Refugee Protection
Division of the Immigration and Refugee
Board found that appellant was a refugee
because he had a well-founded fear of
persecution on the ground of his race.
The application judge held that the
Board’s decision was unreasonable. He
found that there was no objective founda-
tion for a finding in appellant’s personal
evidence that he left South Africa because
he feared race-based crime. Appellant’s
reasons for coming to Canada were eco-
nomic and had nothing to do with being a
refugee.
in dispute. Applicant paid sick leave
benefits only until the employee’s contract ended on June 30. The union filed a
grievance and the arbitrator found applicant was required to pay sick leave benefits for the entire 180-day period.
HELD: Application dismissed. The
arbitrator was asked whether the collective agreement entitled the employee to
benefits for 180 days despite his employment ending. The collective agreement
stated that employees shall be entitled to
sick benefits for 180 days or until the start
of long-term disability. The arbitrator
distinguished between coverage and
entitlement and found that, although
coverage ended when the employee’s
employment ended, his entitlement to
sick benefits vested during his employment. The arbitrator’s interpretation was
reasonable, clearly explained and consisted with the vesting entitlement principles confirmed in similar cases.
Carleton University v. Carleton University Academic Staff Assn. [2011]
O.J. No. 43998, Ont. Div. Ct., per Valin
J. (Belch and Rady JJ. concurring),
Oct. 5/11. Digest No. 3126-019 (Approx.
7 pp.)
INTERNATIONAL LAW
NEGLIGENCE
EXTRADITION – The appellate
court rejected an appeal from an extradition committal order and an applica-
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tion for judicial review of a surrender
order.
Appeal from an extradition committal
order and application for judicial review
of the concomitant surrender order issued
by the minister of justice. Appellant was
wanted in the U.S. for trial on various
offences related to an alleged telemarket-ing credit card fraud scheme. The scheme
allegedly involved 30,000 victims
defrauded out of $7,000,000. Appellant
was committed to stand trial on the
equivalent Canadian offence of fraud over
$5,000. He challenged the committal
order on the basis that the Authority to
Proceed filed by the Crown was a photocopy rather than an original. In addition,
appellant submitted that the evidence
contained in the certified Record of the
Case was insufficient, as the losses suffered by each of the eight victims identified in the Record were less than $5,000,
both collectively and cumulatively. Appellant further submitted that his identification as the person sought was not proven
on a balance of probabilities. The surrender order was challenged on the basis that
it included reference to a broad conspiracy allegation mentioned in the requesting
state’s materials, whereas committal was
not sought on the basis of a conspiracy.
HELD: Appeal and application dismissed. There was no basis for appellate
interference with either the committal
order or the surrender order. The photocopy of the Authority to Proceed did not
deprive the extradition judge of jurisdiction to proceed, as the Extradition Act
did not require an original or certified
copy. The evidence supporting committal
was sufficient. A wealth of evidence supported appellant’s role as the architect of
a massive and highly sophisticated fraud.
The evidence indicated that the quantum
of the alleged scheme extended far beyond
the victims expressly identified in the
Record as anticipated witnesses. There
was no error in the treatment of the identification evidence, as its reliability was
not germane to the determination of
whether the totality of the evidence was
sufficient to justify committal. Ordering
surrender on both fraud and conspiracy
charges did not offend the principle of
double criminality, as it was for the
United States trial court to determine
guilt on the charges at issue.
United States of America v. Orpha-nou, [2011] O.J. No. 4252, Ont. C.A.,
per Cronk J.A. (Weiler and Watt JJ.A.
concurring), Sept. 27/11. Digest No.
3126-018 (Approx. 10 pp.)
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COLLECTIVE AGREEMENT – An
arbitrator did not err in finding that an
employee was entitled to 180 days of
sick leave benefits under the collective
agreement.
Application for judicial review of the
arbitrator’s decision the employee was
entitled to 180 days of sick leave benefits
under the collective agreement. Applicant
hired the employee professor under a
one-year contract, which it renewed three
times before advising him his employment would end June 30, 2008. Respondent union represented fixed-term faculty
members. On June 14, 2008, the employee
had advised applicant he was incapacitated by serious illness and applied for
sick leave and long-term disability benefits. The legitimacy of the illness was not
CAUSATION – The trial judge
improperly shifted the burden of proof
to defendants to prove that they did not
cause water damage to plaintiff’s building.
Appeal from judgment finding defendants liable to plaintiff in negligence and
nuisance for water damage caused to the
basement of plaintiff’s building. Plaintiff
had alleged that the damage was caused by
water flowing from defendants’ neighbouring property. The trial judge found
that defendants breached their duty to
protect their neighbour, and failed to rebut
a resulting presumption of negligence
despite an absence of proof of causation.
In addition, the judge found that defendants had a duty to join plaintiff in their
claim against the City for water infiltration
in both buildings caused by an open city
water main.
HELD: Appeal allowed. A new trial was
ordered. By improperly shifting the burden
of proof and finding against defendants on
the basis of failing to rebut a presumption
of fault, the trial judge made a significant
error of law. Plaintiff did not provide compelling evidence to demonstrate that the
water had migrated from defendants’
building. Nor was there strong evidence of
fault on the part of defendants. Nothing
on the facts justified finding a presumption of negligence or justified shifting the
burden of proof. In addition, the judge
erred in finding a duty to join plaintiff in
defendants’ action against the City for the
egress caused by the broken water main.
Furthermore, the judge erred in the analysis of causation, as there was no basis for
deviation from the standard “but for” test
for causation. The judgment was incapable of being sustained on the basis of
nuisance alone, as nuisance was excluded
in respect of the more significant infiltration, for which the City was responsible.
Donley Investments Ltd. v. Canril
Corp., [2011] O.J. No. 4322, Ont. C.A.,
per Winkler C.J.O., Sharpe J.A. and
Cunningham A.C.J.S.C.J. (ad hoc), Oct.
5/11. Digest No. 3126-020 (Approx. 5
pp.)
