Law Times

Law Times • September 2, 2013 ing whether evidence substantiated raid. RPD identified no basis for determining prison visiting card was fraudulent. RPD erred by summarily rejecting applicant's detailed knowledge of Catholicism on basis acquired after arrival in Canada. RPD put conclusion before the evidence. RPD unreasonably determined applicant could practice religion freely in China. Treatment of evidence inappropriate. Decision to reject certain evidence not carte blanche basis on which to reject all remaining evidence. Matter referred for reconsideration before different member. Chen v. Canada (Minister of Citizenship and Immigration) (Mar. 26, 2013, F.C., Donald J. Rennie J., File No. IMM-5888-12) 228 A.C.W.S. (3d) 218. SELECTION AND ADMISSION Reasons must demonstrate that officer performed duty Applicant, wife and child were citizens of Pakistan, but sought to come to Canada as permanent residents. Applicant applied for permanent residence as Federal Skilled Worker under National Occupational Category ("NOC") 0631 as a Restaurant and Food Service Manager. Officer's March 2012 decision refused application on basis applicant did not perform main duties of NOC. Applicant requested judicial review. Applicant required to satisfy officer he performed duties in NOC's lead statement, and "substantial number of the main duties". Officer's statement that applicant had not performed main duties provided no guidance as to why application refused. Not apparent whether officer turned mind to test under Regulations. To be reasonable, reasons must demonstrate officer performed duty. Decision quashed and sent back for redetermination by different officer. Abbasi v. Canada (Minister of Citizenship and Immigration) (Mar. 18, 2013, F.C., Judith A. Snider J., File No. IMM-432012) 228 A.C.W.S. (3d) 229. ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Interests of justice may entitle court to hold hearing outside home province Concurrent class proceedings certified in Ontario, British Columbia and Quebec on behalf of individuals infected with Hepatitis C by Canadian blood supply. National settlement agreement binding upon receiving court approval. Courts approved settlement agreement establishing fund from which eligible claimants could receive compensation. Pursuant to settlement agreement, courts assigned supervisory role over implementation and enforcement of agreement. Class counsel filed mo- Page 17 caselaw tions before supervisory judges from Ontario, British Columbia and Quebec for approval of protocol extending original deadline in settlement agreement for filing claims. Class counsel proposed that motions be heard by supervisory judges sitting together in Alberta. Attorney General of Ontario objected, arguing lack of jurisdiction. Class counsel's motion granted. Parties accepted Superior Court of Justice in Ontario has jurisdiction over subject matter and personal jurisdiction. Objection solely concerned judge's physical location for hearing. English common law prohibiting English courts from sitting outside England not applicable as English common law not suited to modern realities. Provincial superior court sitting elsewhere in Canada does not engage issue of sovereignty among foreign states. No constitutional or statutory limitation on geographical location where provincial superior courts may sit. Superior courts have inherent jurisdiction to control own process, including fashioning procedures to facilitate efficient and effective resolution of issues encountered in implementing pan-Canadian settlement agreement reinforced by general supervisory powers conferred by Class Proceedings Act, 1992 (Ont.). Court should exercise discretion to hold hearing outside home province sparingly but interests of justice may entitle, or even require, court to exercise jurisdiction to hold hearing outside home province. In determining location of hearing in context of class proceeding, goals of achieving judicial economy and enhancing access to justice relevant. Settlement agreement requires that for order extending deadline to take effect, courts of Ontario, British Columbia and Quebec must issue and enter orders without material difference. Holding single hearing would save expense and valuable resources and would facilitate process of rendering consistent judgments. Parsons v. Canadian Red Cross Society (May. 24, 2013, Ont. S.C.J., W.K. Winkler C.J.O., File No. 98-CV-141369, 98-CV146405) 228 A.C.W.S. (3d) 33. COSTS Motion judge should have focused on Ontario litigation Appellant appealed costs award. Respondent claimed that he entered into agreement with appellant, through agent, to purchase painting. Appellant refused to deliver painting claiming that person who purported to sell painting on his behalf had no authority to do so. Respondent commenced action for specific performance in New York, relying on forum selection clause in contract. Appellant brought motion in New York proceedings challenging court's jurisdiction. New York court declined to decide jurisdiction as preliminary matter and ordered appellant to file answer. Both parties brought motions for summary judgment. In appellant's motion he claimed action should be dismissed because he was not party or bound by contract that contained forum selection clause. Appellant also advanced several arguments that went to substantive merits of respondent's claim. Appellant's summary judgment motion was dismissed and respondent's motion for summary judgment was granted. Judgment was entered in New York court in favour of respondent. Respondent brought motion in Ontario seeking order recognizing and enforcing New York judgment in Ontario and for order direction that painting be released to him. Motion was granted. Respondent was awarded costs on substantial indemnity basis. Appeal allowed. Respondent was successful on motion and was entitled to costs. However, scale of costs should not have been determined by reference to appellant's conduct in New York proceeding. Motion judge erred in principle in imposing costs on substantial indemnity basis because of view of appellant's conduct in New York litigation. Motion judge should have focused on Ontario litigation. Respondent was entitled to costs on partial indemnity basis. Van Damme v. Gelber (Jun. 12, 2013, Ont. C.A., Doherty J.A., E.A. Cronk J.A., and P. Lauwers J.A., File No. CA C56358) Decision at 222 A.C.W.S. (3d) 384 was affirmed. 228 A.C.W.S. (3d) 91. Insurance company that sold peace of mind should not try to exploit person in need This was to determine costs. Plaintiff was bricklayer who injured back and left shoulder and was unable to work. He had disability insurance policy with defendant. Defendant made monthly payments from when plaintiff applied for benefits in June 2005 to July 2005. Plaintiff brought lawsuit. It was found that plaintiff was unable to work at any occupation for which he was reasonably suited. Defendant was required to pay plaintiff monthly benefits to date of trial. Plaintiff suffered mental stress as result of plaintiff 's failure to pay him and he was awarded aggravated damages. Plaintiff was also awarded punitive damages for manner in which defendant handled claim. Application granted. Plaintiff was faced with harsh and unreasoning opposition from insurer whose policy he purchased for peace of mind and protection in event he became disabled from working. Insurance company that sold peace of mind should not try to exploit person in need. Plaintiff should be fully indemnified. Defendant was ordered to pay costs to plaintiff of $212,131. Fernandes v. Penncorp Life Insurance Co./La Co. D'Assurance-Vie Penncorp (May. 14, 2013, Ont. S.C.J., P.B. Hambly J., File No. C-754-07) 228 A.C.W.S. (3d) www.lawtimesnews.com 237. TRIAL Errors raised serious doubts as to validity of jury verdicts on apportionment of liability Driver and passenger drinking at bar. Both seriously intoxicated when they climbed into driver's car. Driver, driving at excessive speed, lost control. Passenger suffered serious injuries. Passenger sued driver, as driver, and bar on basis it over-served driver, thereby causing or contributing to cause of accident. Bar agreed to settle liability on basis it was "at least 1% liable" and passenger would limit damages claim. Following 13-day trial, jury found passenger 15% contributorily liable, bar 1% liable for over-serving him and driver 84% liable. Jury assessed future income loss at $0. Bar ordered to pay damages of $141,378. Both driver and bar ordered to pay costs of $150,000. Bar appealed. Passenger cross-appealed, arguing if appeal allowed, jury's verdict should be set aside and new trial ordered. Appeal and cross-appeal allowed in part. Questions put to jury on apportionment of liability flawed in law. Jury needed to clearly understand differences between liability for accident and liability for passenger's damages. Passenger's liability flowed from having "willingly" accepted ride with driver when he knew driver impaired. If that drunkenness caused in part by bar, bar could be found to share responsibility for passenger's actions. Bar's liability flowed from over-serving driver and over-serving passenger. Jury should have been instructed: (1) to apportion liability for causing or contributing to accident between driver, for driving while intoxicated; and bar, for overserving driver; and (2) to apportion liability for causing or contributing to passenger's damages among driver, for driving while intoxicated, passenger, for accepting ride from driver, and bar, for over-serving both driver and passenger. Instructions to jury did not cure errors in jury questions as they replicated errors in questions. Errors raised serious doubts as to validity of jury verdicts on apportionment of liability. New trial would not serve interests of justice. Court should perform apportionment task if parties unable to resolve apportionment issues. McLean v. Knox (May. 31, 2013, Ont. C.A., M. Rosenberg J.A., E.E. Gillese J.A., and Paul Rouleau J.A., File No. CA C54865) 228 A.C.W.S. (3d) 87. Contracts PERFORMANCE AND BREACH Failure of management not directed toward employee but toward company itself Defendant was wholesaler and distributer and plaintiff was sales representative with income on commission basis. Defendant had National Standing Offer ("NSO") in order to sup- ply equipment to Borden that was historically renewed on annual basis. Defendant failed to renew NSO. NSO slipped through cracks. Plaintiff was former employee of defendant. Employment contract did not guarantee specific levels of sales to Borden. Defendant and plaintiff lost Borden sales for nine months. Plaintiff claimed loss of income during specified period. Plaintiff claimed negligence of defendant's management caused plaintiff losses. Action was dismissed. Failure to renew contract NSO was not breach of contract by defendant. Failure of management was not directed toward employee but toward company itself. Where loss was to profitability of employer, it would take some argument to convince court to extend employer's duty of care to employee. Plaintiff did not adequately prove losses. Lochran v. Duro-Test Canada Co. (Jan. 31, 2013, Ont. S.C.J., E.M. Morgan J., File No. 06-CV324305PD1) 228 A.C.W.S. (3d) 297. Environmental Law ENFORCEMENT Evidence others at fault for spill irrelevant to whether order should be revoked Appellant appealed decision of Divisional Court. Fuel oil spill occurred on residential property owned by individual respondents. Property was adjacent to road allowance owned by appellant city, which was adjacent to shore of lake. Respondent delivered fuel oil. Following spill, fuel oil migrated onto appellant's property and into lake. Ministry of Environment ("MOE") ordered appellant to remediate adverse effects of spill on its property. Appellant unsuccessfully appealed. Tribunal prevented appellant from calling evidence to show who was at fault for spill. Tribunal found that environmental protection objective of Environmental Protection Act (Ont.), took precedence over polluter pays principle. Divisional Court found that tribunal was correct. Appeal dismissed. Appellant was innocent of any fault for spill. Evidence that others were at fault for spill was irrelevant to whether order against appellant should be revoked. Order was no fault order. It was based on need to serve environmental protection objective of Act and not on finding fault on part of appellant. Tribunal had to determine whether revoking order would serve objective of legislation and deciding whether others were at fault for spill was of no help. Evidence of fault of others did not say anything about how environment would be protected and legislative objective served if order was revoked. Tribunal correctly excluded evidence and Divisional Court was correct to uphold tribunal's procedural order. Kawartha Lakes (City) v. Ontario (Director, Ministry of the

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