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Page 18 November 12, 2018 • Law Times www.lawtimesnews.com INCOME TAX Losses Must be presumed that parties intended to be bound by minutes given time and effort invested Taxpayer corporation was succes- sor to several other corporations that were amalgamated from 1999 to 2006. In 2007, taxpayer was involved in yet another amal- gamation with several other relat- ed corporations, which resulted in two taxation year-ends in 2007. In its income tax returns for each of taxation years in 2007, tax- payer deducted non-capital loss in computing income, which tax- payer claimed were incurred by its predecessors in prior years and available for carry-forward. Min- ister reassessed non-capital losses available to taxpayer at much low- er amounts and remaining non- capital loss amounts were denied on basis that such amounts were less than reported by taxpayer. Notice of appeal was filed and taxpayer's counsel delivered of- fer to Minister and after eight months of negotiations between parties, they executed minutes, and same day Minister informed court that parties had reached set- tlement. Five weeks after minutes were signed, Minister informed taxpayer that mistake of fact had been found and that no non-cap- ital losses were available for carry- forward to 2007 years. Taxpayer brought motion to enforce terms of Minutes of Settlement. Motion granted. Non-capital losses ex- isted and were available for carry- forward to 2007 taxation year, having f lowed from pool from years prior to 2007 years that had been reassessed by Minister. It was found that there was no mis- take regarding non-capital losses in minutes, as it was determined that parties' agreement centred on reallocation of established pool of non-capital losses and support for reallocation was contained in lan- guage used in offer and in min- utes. Accordingly, agreed facts in minutes, that taxpayer's proposed amount for non-capital loss was available, was grounded in objec- tive reality. Parties had entered into minutes and invested time and effort, therefore it must be presumed that parties intended to be bound by minutes as written. CBS Canada Holdings Co. v. The Queen (2018), 2018 Car- swellNat 5238, 2018 TCC 188, K. Lyons J. (T.C.C. [General Procedure]). Ontario Civil Cases Civil Practice and Procedure COSTS Costs of particular proceedings Time and preparation by counsel justified given importance of case to parties and its factual and legal complexity Plaintiff commenced tort action for damages for injuries suffered in motor vehicle accident and action against insurer for statu- tory accident benefits which were both settled before trial. Plaintiff subsequently commenced action against defendants for inducing breach of contract by unlawful means, deceit and negligence. Defendant S Inc. provided and arranged independent medical assessments through network of independent health professionals. Plaintiff alleged that certain doc- umentation produced by S Inc., in part voluntarily and in part pur- suant to court order, contained evidence that S Inc. interfered in expert opinions contained in ac- cident benefits file, which in turn were relied on by tort insurer in tort action. S Inc. brought suc- cessful motion to stay action for breach of deemed undertaking rule and plaintiff brought unsuc- cessful cross-motion for leave to use documentation. Parties made submissions on costs. Plaintiff was ordered to pay partial in- demnity costs to S Inc. in amount of $46,525 plus HST for total of $52,573. S Inc. was successful on motions and was entitled to party and party costs on partial indem- nity basis. Case was important to parties, was factually and legally complex, and time and prepara- tion put into matter by S Inc.'s counsel was justified. Burwash v. Dr. Sheldon Levy (2018), 2018 Carswel- lOnt 15690, 2018 ONSC 5655, Charles T. Hackland J. (Ont. S.C.J.); additional reasons (2018), 2018 CarswellOnt 4777, 2018 ONSC 682, Charles T. Hackland J. (Ont. S.C.J.). PLEADINGS Application for particulars Plaintiff included witness statements from report in amended statement of claim so production ordered It was alleged that defendant law firm was involved in falsifying and submitting documentation in support of personal injury accident insurance claims made against plaintiffs, resulting in unjustified insurance payments. Defendants brought motion for full particulars respecting details of plaintiffs' audit and investiga- tion. Master ordered release of audit, statements of witnesses, and other communications on ground of implied waiver. Plain- tiff appealed. Appeal allowed in part. Master erred in finding implied waiver of solicitor-client privilege. While there had been no waiver of privilege list of doc- uments alleged to be fraudulent and details of fraudulent nature were not legal advice and not subject to solicitor-client privi- lege. Report prepared by investi- gator was prima facie subject to litigation privilege, but plaintiff had included witness statements from report in amended state- ment of claim so Master correct in ordering production. To ex- tent Master ordered production of additional material including solicitor-client privileged com- munications order set aside. TTC Insurance Company Ltd. v. MVD Law Professional Corporation (2018), 2018 Car- swellOnt 16837, 2018 ONSC 5050, Schreck J. (Ont. S.C.J.); re- versed (2018), 2018 CarswellOnt 6928, 2018 ONSC 2611, Master D.E. Short (Ont. S.C.J.). Commercial Law TRADE AND COMMERCE Competition and combines legislation Requiring subclass for umbrella purchasers did not conf lict with non-umbrella purchasers Plaintiffs alleged defendants con- spired to fix price of lithium ion battery cells and commenced ac- tions for certification, including unlawful means conspiracy and statutory cause of action under s. 36 of Competition Act for breach of s. 45 (statutory claim). Plaintiffs alleged since defendants held ma- jority of market share, increase in prices caused non-conspirators to also raise prices and purchas- ers of non-conspirators' products were umbrella purchasers. Un- lawful means conspiracy claim for certification was refused, but, statutory claim was granted only in relation to non-umbrella pur- chasers as defendants would be exposed to indeterminate liabil- ity. Plaintiffs appeal was allowed in part resulting in certification of unlawful means conspiracy claim but no error was found respecting judge's concern over indetermi- nate liability. Further, plaintiffs failed to plead requisite elements relating to umbrella purchasers, establish common issues for um- brella purchasers. Plaintiffs ap- pealed. Appeal allowed. Principle of indeterminate liability did not apply to statutory claim or un- lawful means conspiracy claim. Cause of action required only proof of defendants conspiring and that it caused plaintiffs' inju- ries. With respect to sufficiency of pleadings, although statement of claim lacked particulars, it was worded broadly enough to en- compass harm to umbrella pur- chasers. While expert evidence on commonality did not specifically identify umbrella purchasers and was limited on threshold question of establishing harm, it was suffi- cient to establish reasonable pros- pect of establishing loss on class- wide basis. Although plaintiffs' expert's conclusions left room for debate over whether non-conspir- ators would need to raise prices as result of conspiracy, it allowed for inferences as to causal link be- tween non-conspirators' pricing and umbrella purchasers' injury. Based on statement of claim and expert reports, quantification of aggregate damages could not be certified as common issue and umbrella purchasers were to form subclass as aggregate damages were treated in manner limiting quantification to losses suffered by non-umbrella purchasers and leaving no way to establish rea- sonable likelihood of proving damages for umbrella purchas- ers. Purchasers had same interest to demonstrate existence of con- spiracy and increase in prices and requiring subclass for umbrella purchasers did not conf lict with non-umbrella purchasers. Class proceeding was preferable proce- dure and would achieve judicial economy. Shah v. LG Chem Ltd. (2018), 2018 CarswellOnt 17002, 2018 ONCA 819, Paul Rouleau J.A., L.B. Roberts J.A., and Fair- burn J.A. (Ont. C.A.); reversed (2017), 2017 CarswellOnt 6145, 2017 ONSC 2586, Kiteley J., Nordheimer J., and LeMay J. (Ont. Div. Ct.). Estates and Trusts GIFTS Miscellaneous Deceased lost trust in plaintiff and was concerned her wishes for use of gift of property would not be respected Deceased, who owned condo- minium, moved to retirement residence. Deceased wished to give property to defendant JM, who was involved with chari- table works. JM had taken vow of poverty and could not take any property. Deceased gave condo to plaintiff on terms giving JM con- trol as owner and decision maker. Plaintiff disputed these terms, and property was transferred back to deceased. Deceased gifted prop- erty to defendant CIDM, con- trolled by JM. CIDM sold prop- erty, and deceased died follow- ing year. Plaintiff brought action alleging that defendants forged deceased's signature on docu- ments and defrauded plaintiff of gift. Defendants brought motion for summary judgment. Motion granted; action dismissed. It was clear that deceased intended that JM be owner of property, empow- ered to make decisions so that her gift could be used for charitable purposes. Deceased was content to transfer property to plaintiff respecting JM's vow of poverty, so long as JM had overriding control of ownership including all deci- sions related to property, includ- ing its sale and disposition of pro- ceeds of sale. There was letter out- lining conditional gift to plaintiff. Inference from facts was that de- ceased lost trust in plaintiff, and was concerned that her wishes for use of gift of property would not be respected. Allegations of plain- tiff had not been proved; there was no forgery, theft or fraud. If there was photocopy of signature, it was more likely than not done by representative of plaintiff with intention of challenging validity of letter confirming JM's owner- ship and control of property. Saint-Michel v. Morawa (2018), 2018 CarswellOnt 10664, 2018 CarswellOnt 10665, 2018 ONSC 3875, 2018 ONCS 3875, J. Wilson J. (Ont. S.C.J.). Evidence WITNESSES Miscellaneous Possibility witness would leave jury with more favourable initial impression not sufficient reason to interfere with preferred course of presentation Order of witnesses. Plaintiff was injured in accident involving de- fendants' vehicle and was treated by physiotherapist. Plaintiff brought action against defen- dants for damages for negligence, and defendants admitted liability. Issue of damages was to be tried before jury. Plaintiff intended to call physiotherapist as her first witness, subject to plaintiff being excluded from courtroom, com- plying with terms of exclusion order, and being called as sec- ond witness. Defendant objected to having any witness testify- ing before plaintiff. Plaintiff was permitted to call physiothera- pist as her first witness on terms she proposed. Circumstances did not justify interfering with plaintiff counsel's desire to call physiotherapist as plaintiff 's first witness and plaintiff as second witness. Plaintiff 's counsel was requesting only relatively modest deviation from usual practice of having plaintiff in personal injury case testify first. Physiotherapist would be testifying as "participat- ing expert" rather than "litigation expert". Defendants had been provided with ample indications of what physiotherapist intended to say, as well as facts on which she had based her opinions and recommendations while treating plaintiff. Physiotherapist might provide jury with organized ini- tial overview of plaintiff 's broader treatment experience, thereby helping jury to place subsequent witnesses and testimony in prop- er context. Possibility that phys- iotherapist would leave jury with more favourable initial impres- sion of plaintiff and/or plaintiff 's case was not in itself sufficient reason to interfere with counsel's preferred course of presentation. Ismail v. Fleming (2018), 2018 CarswellOnt 16778, 2018 ONSC 5978, I.F. Leach J. (Ont. S.C.J.). Family Law DOMESTIC CONTRACTS AND SETTLEMENTS Validity Knowledge of agent is imputed to principal Parties married in 1996, sepa- rated in 2009, signed separation agreement in 2012, and varied agreement in 2014. In 2016, wife brought application against hus- band and his father, S, seeking to set aside agreement based on lack of disclosure concerning family trust of which husband was beneficiary. Husband and S brought motions for summary judgment dismissing applica- tion. Husband's application was dismissed, S' application was par- tially granted insofar as he was not required to produce affidavit of documents, and partial sum- mary judgment was granted in wife's favour, though not request- ed, finding that husband deliber- ately failed to disclose his interest in trust. Husband and S appealed. Appeals allowed in part. Trust indenture was provided to wife's counsel, and it described nature of husband's interest. Knowledge of agent is imputed to principal, CASELAW

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