Law Times

January 9, 2017

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Ruling clarifies administrative procedures BY ALEX ROBINSON Law Times L awyers say a recent deci- sion clarifies procedures around administrative dismissals just as a poten- tial wave of dismissals is expected in the new year. In Apa Holdings Inc. v Dus- cio, Ontario Superior Court Jus- tice C.S. Glithero refused to grant an extension of time to restore an action to the trial list, as the Div- isional Court was set to hear an appeal in the case. Apa Holdings Inc. first started the action, which is a construction lien matter involving a claim for $250,000, in October 2006 and it was struck off the trial list in Sep- tember 2009. In September 2016, a motion judge dismissed Apa Holdings' motion for leave to restore the action to the trial list. The Divisional Court is set to hear Apa Holdings' appeal of that order on Feb. 6, 2017, more than a month after the mandatory ad- ministrative dismissal date of Jan. 1, 2017. Apa Holdings requested an extension to restore the action to the trial list and asked that the judge order there be no adminis- trative dismissal until 20 days af- ter a decision was rendered on the appeal. Apa Holdings argued that denying the extension would ren- der the appeal moot, but Glithero found that an extension was un- necessary given that the Division- al Court would have the authority to restore the action if the appeal is successful. "I think it unlikely that if the Divisional Court concluded that the impugned order was in error, and that the case should be re- stored to the trial list, that it would feel that such a result was thwarted by an intervening administrative dismissal order," Glithero said, in the decision. Glithero pointed to a 2015 Court of Appeal decision, Carioca's Import v. Canadian Pacific Railway Ltd., in which the STOP SHAMING TAX PLANNING Defend rights of companies to manage affairs P7 FOCUS ON Labour and Employment Law P8 See New, page 2 PM #40762529 $5.00 • Vol. 28, No.1 January 9, 2017 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M Ryan Wozniak says a recent decision closes a gap that would potentially allow a party to engage in re-litigation. CBSA OVERSIGHT? Bill to appoint independent watchdog stalls P4 BY ALEX ROBINSON Law Times A n Ontario judge has refused to recuse her- self from overseeing a dispute between two Toronto lawyers after one of them claimed the judge was biased and alleged she was linked to surveil- lance of a man involved in a per- sonal injury action. Toronto lawyer Hassan Fancy filed a recusal motion, demand- ing that Ontario Superior Court Justice Darla Wilson remove her- self as case management judge in a matter between Fancy and Jerome Morse, of Morse Shannon LLP. Fancy claimed Wilson was linked to an alleged break and en- ter at his previous client's property more than 10 years ago when Wil- son was defence counsel on a per- sonal injury action. Fancy's client was the plaintiff in that case. Fancy has claimed Wilson was linked to an alleged incident in 2005, when he said a stranger trespassed on his client's balcony, broke the screen door and shone a light into the client's room in an attempt to film them. In a letter Fancy sent to Wilson and her co-counsel in the case, he described the incident and asked whether they had retained surveil- lance agents. At the time, Wilson and her co-counsel responded to the letter saying they had not. In her decision on the recu- sal motion, Wilson said the allega- tions were without merit and that Fancy submitted them only after she did not rule in his favour. "To allege that a member of the judiciary was involved in criminal activity is a very serious allegation as is the suggestion that a judge is biased," she wrote in the decision, Morse Shannon v. Fancy. "Motions to recuse a judge ought to be brought in only the rarest of cases on a strong eviden- tiary record. In the case before me, there is not a scintilla of evidence to support any of the allegations Mr. Fancy has made." In the dispute, Fancy had re- tained Morse and his firm on two cases, but he terminated the agree- ments. Morse claims he was not paid for the work he did on the files. See No, page 2 Jerome Morse says he's troubled by allegations made by another Toronto lawyer about the actions of an Ontario judge in a personal injury case before she joined the bench. Photo: Robin Kuniski Claim relates to personal injury action more than 10 years ago Toronto lawyer alleges judge was biased www.twitter.com/lawtimes Follow & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM Integrated Legal Marketing Solutions LawyerMarketingCanada.com/solutions Put Your Digital Marketing Tactics into High Gear Untitled-1 1 2017-01-04 4:11 PM

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