Law Times

Law Times • OcTOber 19, 2015 Page 15 www.lawtimesnews.com for purpose of s. 193(c) of act, so appeal was as of right since amounts exceeded $10,000. It was more than arguable that s. 193(c) of act was basis for court's appeal jurisdiction and leave was not required. If leave were required, it would have been granted pursuant to s. 193(3) of act. Menzies Lawyers Professional Corp. v. Morton (Trustee of ) (Jul. 27, 2015, Ont. C.A., P. Lauwers J.A., File No. CA M44416) Leave to appeal from 244 A.C.W.S. (3d) 494 was al- lowed. 256 A.C.W.S. (3d) 265. Civil Procedure CLASS ACTIONS Class should not have been defined using arbi- trary cut-off date Plaintiffs commenced two class actions claiming that charitable lotter y licensing and administration fees collected by appellant municipalities are direct taxes and therefore ultra vires. Proposed classes consist- ed of anyone who paid licens- ing fees on or after Januar y 1, 1990. Certification judge ini- tially certified class of charities that paid licensing fees in two time periods: (1) claims aris- ing within two-year limitation period; and (2) claims pre- ser ved by transitional provi- sions of Limitations Act, 2002. Certification judge accepted municipalities' argument that claims falling outside these periods could not succeed be- cause they were time-barred. Divisional Court allowed plaintiffs' appeal and remitted matter back to certification judge. Certification judge then certified both class actions us- ing originally proposed com- mencement date, finding that impact of limitations issues should be dealt with later, rather than at certification stage, and that limitations is- sue did not make proceeding unmanageable. Divisional Court dismissed municipali- ties' appeal. Municipalities appealed further. Contentious common issues related to limi- tation periods. Municipalities argued that temporal scope of class was too wide. Appeal al- lowed in part. Class should not have been defined using arbi- trar y cut-off date. Municipali- ties proposed to limit claims to "timely" claims, but where resolution of limitation issue depends on factual inquir y, such as when plaintiff discov- ered or ought to have discov- ered claim, issue should not be decided on certification mo- tion. Temporal boundar y of class can be defined in rational way by reference to ultimate limitation period of 15 years. Concerns with respect to man- ageability can be addressed by creation of subclass for class members with presumptively time-barred claims. Com- mon issues relating to liabil- ity, defences and remedies are common to all class members. Limitations issues are subclass common issues. Representa- tive plaintiffs are able to rep- resent all class members. Sepa- rate subclass representative may become imperative at lat- er stage, but can be dealt with by case management judge. As modified, class proceeding is preferable procedure. Both li- ability and limitation period issues could be resolved rela- tively expeditiously. Although individual issues may remain after common issues resolved, this would not make proceed- ing unmanageable. Amyotrophic Lateral Sclero- sis Society of Essex County v. Windsor (City) (Aug. 12, 2015, Ont. C.A., G.R. Strathy C.J.O., H.S. LaForme J.A., and M. Tulloch J.A., File No. CA C59525, C59526) 256 A.C.W.S. (3d) 276. Conflict of Laws JURISDICTION Alberta order for return of child was contrary to public policy Mother and father had child in Alberta in 2012. In March 2013, mother left with child while fa- ther was at work and went to live with her parents in Ontar- io. Father commenced action in Alberta for return of child and for parenting time. Mother was served substitutionally and never responded. Mother was ordered to return child to Al- berta, and parties were to share parenting time. Father brought application in Ontario for rec- ognition and enforcement of Alberta order. Application dismissed on terms. Alberta order was not recognized since it was contrary to public policy, and Ontario court was to ex- ercise jurisdiction to deal with custody of and access to child. Considering that procedural steps taken by father in On- tario had been inappropriate and had caused undue delay, child could be considered to be habitually resident in Ontario pursuant to s. 22(3) of Chil- dren's Law Reform Act. In any event, requirements in s. 22(1) (b) of act had been met. Child had been physically present in Ontario since March 2013. Substantial evidence concern- ing best interests of child was available in Ontario. There was no evidence of any appli- cation for custody of or access to child pending elsewhere in light of fact that Alberta order appeared to be final. Alberta order had not been recognized by court in Ontario. Child had real and substantial connection to Ontario. On balance of con- venience, it was appropriate for jurisdiction to be exercised in Ontario. Mother's conduct in removing child from Alberta was not condoned but disrup- tion from returning matter to Alberta would not have served child's interests. Those inter- ests should not be sacrificed in order to punish mother. Guillemaud v. Geurts (Jun. 30, 2015, Ont. S.C.J., J.A.S. Wil- cox J., File No. FS-14-5723-00) 256 A.C.W.S. (3d) 312. Constitutional Law CHARTER OF RIGHTS Police impersonation of journalists did not vio- late s. 2(b) of Charter Applicants sought declaration that practice of Ontario Pro- vincial Police officers imper- sonating journalists for pur- poses of criminal enforcement and investigation violated s. 2(b) of Canadian Charter of Rights and Freedoms and could not be justified under s. 1. Ap- plication dismissed. There was evidence that OPP officers did not engage in undercover op- erations as journalists but they did engage in media-presence surveillance. There was real practice of media-presence surveillance. However, there was no practice of plainclothes OPP officers engaged in me- dia-presence surveillance to identif y themselves as journal- ists if questioned about their identity. There was no evidence of any practice of impersonat- ing journalists arising out of independent author operation or from police order. Only real and not theoretical practice that could be considered was media-presence surveillance. Pleadings were broad enough to encompass challenge to me- dia-presence surveillance and it was properly before court. Effect of media-presence sur- veillance on freedom of ex- pression was raised through correspondence with minister and OPP as soon as applicants became aware of issue, in appli- cation record before court and was fully addressed by respon- dents. Evidence did not estab- lish practice of OPP posing as journalists through police order or independent author operation and they were not proper constitutional issues to be considered by court. Con- stitutionality of those issues was also not raised in applica- tion and it would cause preju- dice to respondents to have court make findings on issues in absence of pleading. None of impugned conduct violated s. 2(b) of Charter. Evidence did not establish that media-pres- ence surveillance had chilling effect on freedom of expres- sion. Evidence did not establish direct link or causal connec- tion between media-presence surveillance and restriction on freedom of expression. It was not common sense or self-evi- dent that journalists would be in increased danger as result of media-presence surveillance. Connection between media- presence surveillance and re- stricting f low of information from journalistic sources or increasing danger to journal- ists was not indisputable. Ap- plicants failed to establish that media-presence surveillance violated s. 2(b) of Charter. Canadian Broadcasting Corp. v. Ontario (Attorney General) (Jul. 23, 2015, Ont. S.C.J., Glustein J., File No. CV-10- 409382) 256 A.C.W.S. (3d) 314. Limitations TORT Action by plaintiff arising from wife's transmission of HIV was statute-barred Plaintiff 's wife came to Can- ada from Thailand on work visa. Plaintiff claimed wife was aware that she had HIV when she came to Canada and failed to disclose her HIV status to him in intentional fraud or- chestrated to secure immigra- tion sponsorship into Canada by marriage. Plaintiff claimed Attorney General of Canada k new or ought to have k nown wife was HIV-positive and negligently or intentionally failed to warn plaintiff prior to accepting application for sponsorship and was vicari- ously liable for alleged negli- gent actions of defendant doc- tor. Plaintiff claimed defen- dant club was vicariously lia- ble for actions of employees by allowing wife to work as exotic dancer without imposing re- strictions on her with respect to goal of guarding against spread of HIV. Plaintiff was diagnosed as HIV-positive. Wife was deported after being convicted of assault causing bodily harm for transmitting HIV to plaintiff without advis- ing him that she tested positive for HIV in Thailand. Husband brought action four years after he discovered he was HIV-pos- itive. Defendants brought mo- tion for summar y judgment. Motion was granted. Motion judge concluded that action was statute-barred pursuant to ss. 4 and 5 of Limitations Act, 2002. Plaintiff appealed. Appeal dismissed. Plaintiff raised ss. 10 and 16(1)(h) of act for first time on appeal. Plaintiff 's argument that he was incapable of commencing proceeding within meaning of s. 10 of act was foreclosed by motion judge's finding that plaintiff had sufficient facts upon which to base claim by March 2004 or July 2004 at lat- est. Finding was reasonable on evidence. It would be contrary to interests of justice to enter- tain plaintiff 's argument for first time on appeal respecting possible application of s. 16(1) (h) of act. There was no caus- al link established between plaintiff 's sponsorship under- taking given to government of Canada or decision to grant wife permanent resident status and his infection with HIV. Whiteman v. Iamkhong (Jun. 22, 2015, Ont. C.A., John Laskin J.A., G. Pardu J.A., and David Brown J.A., File No. CA C57975) Decision at 235 A.C.W.S. (3d) 803 was af- firmed. 256 A.C.W.S. (3d) 435. Real Property CONDOMINIUMS Conveyance obligation did not constitute executory contract Appellant condominium cor- porations were part of large condominium complex com- prising dwelling units, recre- ational facilities and clubhouse, all developed by Blue Shores. Blue Shores gave purchasers disclosure statement providing for conveyance of clubhouse to appellants within 120 days af- ter date Blue Shores no longer owned any lands within project (conveyance obligation). From outset, Blue Shores owned and operated clubhouse. Pursuant to easement and cost sharing agreement, each condominium corporation required to sub- mit clubhouse membership fees collected from unit owners which Blue Shores used for its own purposes and refused to account. Although conveyance obligation had not yet been triggered, appellants registered notice of unregistered estate, right, interest or equity against title to clubhouse and applied for declaration that they owned clubhouse and that mortgage over it granted to respondent, Duca Financial Services, was void or subordinate to their in- terests. Application judge dis- missed application. Appellants' appeal dismissed. Conveyance obligation did not constitute executory contract. One pur- pose of disclosure statement is to enable potential purchas- ers to have full understanding of rights and obligations but it does not, of itself, constitute en- forceable contract. Disclosure statement expressly indicated that interest in clubhouse was not being conveyed. Since dis- closure statement did not con- stitute executory contract, ap- pellants did not have equitable interest in clubhouse and had no rights capable of registra- tion under Land Titles Act. As owner, Blue Shores was entitled to mortgage the clubhouse. There was no prohibition and so long as Blue Shore could comply with terms of convey- ance obligation, it was entitled to deal with clubhouse as it saw fit. In condominium docu- ments, Blue Shores preserved for itself the right to operate clubhouse almost entirely free of constraint. In particular, Blue Shores had right to permit members of public, on user- fee basis, to use clubhouse and had no obligation to account to condominium corporation. Condominium Act, 1998, per- mits court to make order to rec- tify conduct that is or threatens to be oppressive or unconscio- nably prejudicial. Blue Shores did not breach this standard. It did not violate appellants' contractual or property rights nor did appellants demonstrate any unfair conduct that under- mined their reasonable expec- tations. Simcoe Vacant Land Condo- minium Corp. No. 272 v. Blue Shores Developments Ltd. (May. 27, 2015, Ont. C.A., J. MacFarland J.A., H.S. LaFor- me J.A., and P. Lauwers J.A., File No. CA C58302) Decision at 237 A.C.W.S. (3d) 801 was affirmed. 256 A.C.W.S. (3d) 467. LT CASELAW

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