CIVIL LITIGATION
CIVIL PROCEDURE – Parties – Class
or representative actions – Certification
– Procedure – Representative plaintiff.
Motion by the plaintiffs, Sivak and others,
for certification of their action as a class proceeding. The plaintiffs accused the Canadian
government of conspiring to deprive them
and other Czech Roma of rights under the
Canadian immigration system. The action
arose in the context of a 2009 Fact-Finding
Mission Report on State Protection in the
Czech Republic and the extent to which it
related to the decision-making process of the
Refugee Protection Division. The matter
was converted to an action, as it raised
important issues of institutional bias that
could not be assessed on judicial review. The
plaintiffs moved for certification of six classes
of Czech Roma claimants. The defendants
conceded that the pleadings disclosed a reasonable cause of action confined to the issue
of reasonable apprehension of bias arising
from the 2009 report, that a viable class
could be identified, and that a common and
factual legal question was established on the
bias issue. The defendants submitted that
the plaintiffs failed to establish that a class
proceeding was the preferable procedure
and failed to meet the test for a representative plaintiff.
HELD: Motion dismissed. The plaintiffs
did not put forward a proper affidavit to support their motion and to establish a proper
representative plaintiff. It was not appropriate to use individual evidence from past files
to buttress the plaintiffs’ application without
providing the defendants a full opportunity
to respond. In addition, the plaintiffs failed
to establish that a class proceeding was the
preferable procedure for the just and efficient resolution of what appeared to be the
common question of law and fact of whether
the 2009 report gave rise to a reasonable
apprehension of bias. Rule 220 was available
to determine that issue through a preliminary determination of a question of law.
Should that question be answered in the
plaintiffs’ favour, they were permitted to
renew their request for the class of claimants
where the 2009 report was in evidence.
Other failed claimants were permitted to
challenge negative decisions in accordance
with the Immigration and Refugee Protection Act by way of judicial review on an
individual basis. A class action would significantly delay the pending legal challenges to
individual refugee decisions.
Sivak v. Canada, [2012] F.C.J. No.
293, Federal Court, Russell J., February
28, 2012. Digest No. 3146-003
CONFLICT OF LAWS
JURISDICTION – Forum conven-
iens – Choice of forum by parties.
Appeal by Momentous.ca from a judg-
ment of the Ontario Court of Appeal
affirming a decision dismissing the action
against all the respondents on the basis of
arbitration and forum selection clauses in
the parties’ agreements. Shortly after filing a
statement of defence, the respondents
moved under Rule 21.01( 3)(a) of the Ontario
Rules of Civil Procedure to dismiss the claim
on the ground that Ontario Courts had no
jurisdiction because Momentous.ca had
signed agreements providing that disputes
would be arbitrated or litigated in North
Carolina. At issue in this appeal was whether
the respondents could move under Rule
21.01( 3)(a) to seek dismissal of the action
based on the arbitration and forum selection
clauses in the agreements, notwithstanding
the delivery of a statement of defence.
Momentous.ca submitted that a party that
delivered a statement of defence on the
merits was precluded from relying upon a
forum selection clause, even where the state-
ment of defence explicitly sought to enforce
the clause.
CRIMINAL LAW
CONTROLLED DRUGS AND SUB-
STANCES – Possession for the purpose
of trafficking – Marijuana – Cultivation
or production.
Appeal by the accused from convictions
of possession of marijuana for the purpose of
trafficking and cultivation of marijuana. Fol-
lowing a drawn-out, sporadic investigation,
police obtained and executed a telewarrant
at the accused’s rural property, resulting in
the seizure of the evidence underlying the
offences. The evidence included live and
packaged marijuana, growing instructions,
and receipts for chemicals and fertilizers
found in the accused’s living quarters. The
accused told police that the shed housing the
operation had been leased to a friend 18
months earlier. She denied knowledge of the
grow-operation or how the receipts for its
supplies had got into her trailer. At trial, the
accused contended that the police failed to
meet the requirements for a telewarrant,
and that the Information to Obtain (“ITO”)
did not set out sufficient reliable information
supporting the issuance of the warrant. The
trial judge corrected inconsequential errors
in the ITO and excised several paragraphs as
misleading or irrelevant. The trial judge
found unwarranted omissions regarding the
police investigation, but ruled that they were
of minor significance. The judge found that
the police affiant made inadvertent errors
due to inexperience. The judge admitted the
evidence and found that the Crown adduced
sufficient evidence establishing that the
accused had knowledge and control of the
grow-operation. The accused appealed from
her conviction on the basis that the trial
judge erred in admitting the evidence seized,
and that the verdict was unreasonable and
unsupported by the evidence.
OFFENCES AGAINST PERSON
AND REPUTATION – Motor vehicles –
Failing to stop or remain at accident scene
– Impaired driving – Failing or refusing to
provide breath or blood sample.
Appeal by the Crown from Barrett’s
acquittals on charges of refusing to provide a
blood sample, impaired driving, and failing
to stop at the scene of an accident. Barrett
was driving his vehicle in a downtown area.
A taxi was proceeding along a one-way street
when Barrett turned onto the street heading
in the wrong direction. The taxi driver
sounded his horn, but Barrett’s vehicle hit the
taxi head-on. Barrett then backed up and
drove along the side of the taxi, scraping the
driver’s side of the vehicle. Without stopping,
Barrett continued up the street, heading in
the wrong direction. He then made a U-turn
and drove slowly past the taxi, but did not
stop. He drove up the road, and turned onto
a main street. The taxi driver and a passenger
sustained injuries. Another taxi followed
Barrett and reported that Barrett’s vehicle
struck a parked car and continued on with-
out stopping. A witness described Barrett’s
driving as “all over the road”. Eventually, Bar-
rett stopped his vehicle, got out, and began
walking down the street, where police
stopped him. Barrett could not speak as a
result of surgery to his mouth and throat, and
he was on medication for pain related to the
surgery. At issue on appeal was whether the
trial judge erred in directing a verdict of
acquittal on the charges of refusing to pro-
vide a blood sample, and determining that
Barrett did not have the requisite mens rea
for the offences of impaired driving and fail-
ing to stop at the scene of an accident.
