Law Times

Law Times • sepTember 11, 2017 Page 19 www.lawtimesnews.com was not unreasonable in dis- missing appeal, based on fail- ure to attend. Tribunal was act- ing within its own established rules and procedures when it dismissed appeal. Court would have acted in similar way to dis- miss action, had matter been before court. Taucar v. Ontario (Human Rights Tribunal) (2017), 2017 CarswellOnt 6295, 2017 ONSC 2604, Anne Molloy J., C.J. Hor- kins J., and J. Paul R. Howard J. (Ont. Div. Ct.). Bankruptcy and Insolvency PRACTICE AND PROCEDURE IN COURTS Costs Lawyer personally liable for causing costs to be incurred unnecessarily Against lawyer personally. Mining company (bankrupt) was placed in receivership. No- tice of appeal of appointment of receiver was quashed and request for leave to appeal was refused. Receiver filed assign- ment in bankruptcy on behalf of bankrupt and trustee was appointed. Trustee refused to pursue leave motion. Lawyer purporting to act on behalf of bankrupt and its directors and officers filed materials for mo- tion to set aside bankruptcy, raise constitutional question, seek intervenor status on be- half of Aboriginal community, and to seek order prohibiting receiver from acting due to al- leged conf lict of interest. Mo- tion judge dismissed motion as res judicata, abuse of court's process and collateral attack on prior orders, and awarded each of receiver, numbered compa- ny and trustee costs of $5,000. Hearing was held to determine liability for costs. Lawyer, di- rectors and officers of bankrupt were jointly and severally liable for costs. Due to appointment of trustee, neither bankrupt, of- ficers, directors nor lawyer had authority to bring motion since all authority to do so vested exclusively in trustee. Court had discretion under s. 197(1) of Bankruptcy and Insolvency Act to award costs against non- party where there was fraud or abuse of court's process in general and bankruptcy pro- cess in particular. Motion was waste of time and money and abuse of court's process and of bankruptcy process. Bankrupt was incapable of paying costs. Lawyer's conduct fell within R. 57.07(1) and (2) of Rules of Court as he caused costs to be incurred unnecessarily and costs against him person- ally were warranted. As former director, lawyer represented bankrupt throughout bank- ruptcy and knew bankrupt was insolvent, had been assigned into bankruptcy and lacked standing to bring any motion or to instruct him to do so. As so- licitor and officer of court, law- yer knew motion was improper and that he could not receive instructions to bring motion on its behalf. Lawyer knew or ought to have known that mo- tion was frivolous and that is- sues were res judicata and that motion was collateral attack on court's decisions and abuse of court's process. Lawyer contra- vened R. 15.02 by failing to de- liver required notice informing trustee and opposing counsel of capacity in which he had stand- ing and who authorized bring- ing of motion. 2403177 Ontario Inc. v. Bending lake Iron Group Lim- ited (2017), 2017 CarswellOnt 10037, 2017 ONSC 3566, Patrick Smith J. (Ont. S.C.J.); additional reasons (2016), 2016 Carswel- lOnt 2673, 2016 ONSC 199, D.C. Shaw J. (Ont. S.C.J.). Civil Practice and Procedure CLASS AND REPRESENTATIVE PROCEEDINGS Representative or class proceedings under class proceedings legislation Action against anti-gay activists who marched in gay pride parade misconceived as class action Plaintiffs S and H were openly gay men, who participated year- ly in Toronto Pride Parade. S, who was prominent politician, organized group of political fig- ures including Prime Minister and Premier of Ontario to par- ticipate in parade. Defendant W applied to be marcher in parade, under false pretence of being supporter of parade's mission. W and defendant associates were actually anti-gay activists who handed out pamphlets at parade, denouncing "gay life- style". S and H learned of W's actions after parade took place. S and H commenced proposed class action, on behalf of what they termed "LGTBTQ2SI" community. S and H were not authorized by parade organiz- ers to commence action, and organizers were not party to action. Defendants W and wife JW were named, but other par- ticipants and purported backers of W had to be pseudo-named. S and H claimed that knowl- edge of names of associates and backers was with W, who was to provide this information. S and H brought motion for W to reveal these names, by way of Norwich order. W brought cross-motion to dismiss action, as matter could not be struck when brought in public inter- est. W alternatively claimed that action was abuse of process. S and H's motion granted. W's motion granted in part. S and H's claim was struck out with leave to amend. Action was mis- conceived as class action. There was no common law cause of action for collective to plead conspiracy, defamation, or in- tentional inf liction of mental distress. These causes of action were properly brought by indi- viduals. There was no legal right for community to plead claims, under class proceedings law. Hudspeth v. Whatcott (2017), 2017 CarswellOnt 3918, 2017 ONSC 1708, Perell J. (Ont. S.C.J.). Estates and Trusts ESTATES Passing of accounts Application to pass accounts granted despite objection of beneficiaries Deceased appointed his second wife as executor and trustee of will. Estate was insolvent with assets of $44,619 and li- abilities of $56,527, which wife said she covered with her own assets. Two beneficiaries ob- jected to assets that passed to wife outside estate and to cer- tain assets they said existed and liabilities they disputed. Wife, as executor and trustee, brought application to pass ac- counts. Application granted, subject to agreed-upon reduc- tion of $1,723 for cost of dual headstone. Deceased and wife owned condominium jointly but, prior to his death, he trans- ferred interest to her. There was no suggestion deceased lacked capacity, no basis to find he re- tained 50 per cent interest, and s. 72(1) Succession Law Reform Act did not apply as this was not dependent's relief claim. De- ceased and wife jointly owned mortgage investment, which passed to her through right of survivorship. While there was application in deceased's name alone, there was no evidence of what it related to. While account statement indicated estate was beneficiary of RRIF, contrary to other evidence, this contradic- tion was resolved by letter from financial institution stating ac- count statement was in error. Vehicle in deceased's posses- sion was leased, and there was no evidence lease had value and nothing improper about paying $1,600 to terminate lease early. There was no evidence about value of furniture in condomin- ium or apartment, or who pur- chased it, and it was presumed to be jointly owned with right of survivorship. There was no evidence to support allegation deceased owned valuable jew- elry or any other bank account. Deceased's business was sole proprietorship that was losing money when he became ill and ceased operations, and there was no evidence it had any as- sets. Objectors objected to $888 payment to caterer and $750 to waiter, but these were reason- able expenses for funeral servic- es that were attended by family. It was not clear who caused er- ror to headstone so wife was not personally liable for correction costs. Whether or not wife used deceased's credit cards, they were his liabilities. There was no reason to adjust accountant's fee for tax returns. Frilegh Estate v. Rudman (2017), 2017 CarswellOnt 4390, 2017 ONSC 1450, H.J. Wilton- Siegel J. (Ont. S.C.J.). Human Rights DUTY TO ACCOMMODATE Miscellaneous Employer acted reasonably in seeking additional information by way of independent medical exam Employer's right to request inde- pendent medical exam. Employee was superintendent of schools for employer school board. Employee was on extended leave of absence due to depression. When employ- ee's psychiatrist cleared him to re- turn to work, employer required employee to attend independent medical examination (IME) before resuming duties. Parties agreed to IME doctor but, after employee learned employer had sent letter to IME doctor, employ- ee refused to attend IME, claim- ing letter was prejudicial and gave doctor misleading information. Employee resigned and brought unsuccessful complaint to Hu- man Rights Tribunal. Tribunal held that employer met duty to accommodate, did not act in bad faith, made reasonable efforts to satisfy duty, acted reasonably in seeking additional information by way of IME, and did not act unreasonably or in conf lict with parties' agreement in providing IME doctor with background information. Tribunal found that substantive aspect of duty to ac- commodate was not triggered be- cause employee ultimately failed to participate in reasonable re- quest for IME. Employee brought application for judicial review. Application dismissed. Tribunal's decision to not permit post-appli- cation evidence was reasonable and required as part of duty of procedural fairness owed to em- ployer. Finding that employer was justified in requesting IME with- out seeking further information from employee's psychiatrist was reasonable in light of legitimate concern about adequacy and reli- ability of information previously received from psychiatrist. Al- though court might have found differently on potentially preju- dicial material employer provided to IME doctor, it was open to tri- bunal to find that employer acted reasonably in providing such material. Tribunal's finding that accommodation process broke down as result of employee's fail- ure to attend IME was within range of acceptable outcomes de- fensible in respect of facts and law. Bottiglia v. Ottawa Catholic School Board (2017), 2017 Car- swellOnt 7627, 2017 ONSC 2517, Marrocco A.C.J.S.C., Heeney R.S.J., and Ellies J. (Ont. Div. Ct.); application for judicial review refused (2015), 2015 Carswel- lOnt 20617, 2015 HRTO 1178, Eric Whist Adjud. (Ont. Human Rights Trib.). PRACTICE AND PROCEDURE Commissions, tribunals and boards of inquiry Without individualized analysis, conclusion that unfairness would result rendered decision unreasonable Respondent was young black male whose car was stopped by police officers. In course of in- vestigation, it was discovered that respondent was driving without insurance and respon- dent's car was impounded and inventoried before being towed. Traffic stop and subsequent in- vestigation resulted in charges being laid against respondent under Provincial Offences Act. When respondent appeared for trial, charges were not on docket and Crown did not proceed. In December 2011, officer re-laid two charges under Compul- sory Automobile Insurance Act. Prior to charges being re-laid, re- spondent had made freedom of information request for officers' notes of events. In May 2012, respondent commenced ap- plication under Human Rights Code against officers alleging discrimination and alleging re- prisal. Tribunal deferred hearing of Code application pending dis- position on outstanding charges and in April 2013 respondent was convicted in absentia of charges. In June 2013 he suc- cessfully sought further deferral of his Code application in order to appeal conviction, conviction was overturned, and trial was ordered. At trial, respondent ap- plied to exclude evidence on ba- sis of Canadian Charter of Rights and Freedoms and as part of ap- plication, respondent filed notice of constitutional question setting out alleged actions of officer said to have violated respondent's Charter rights. Charter applica- tion proceeded as blended voir dire and justice of peace found that no racial profiling had oc- curred, Charter application was dismissed, and respondent was convicted (OCJ decision). Re- spondent's request to re-activate deferred Code application was granted. Applicant police ser- vices board and officer unsuc- cessfully requested order asking tribunal to dismiss Code appli- cation because its substance had been appropriately dealt with in OCJ proceedings. Applicants ap- plied for judicial review. Applica- tion granted. There were excep- tional circumstances warranting determination of application for judicial review despite inter- locutory nature of decision. To preclude any review of tribunal's decision would defeat purpose of s. 45.1 of Code. It was unrea- sonable for tribunal not to have determined whether OCJ dealt with issue relating to plate check. Tribunal did not engage in case specific analysis of why decision dismissing allegations in Code application that had been dealt with in another forum would work injustice or unfairness to respondent. Without that indi- vidualized analysis, conclusion that unfairness would result based on generalized public safe- ty concerns rendered decision unreasonable. Toronto Police Services Board v. Briggs (2017), 2017 CarswellOnt 5098, 2017 ONSC 1591, Swinton J., Nordheimer J., and McKelvey J. (Ont. Div. Ct.). CASELAW

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