Law Times

Law Times • June 10, 2013 Officer responded immediately, stating letter was being reviewed and had been sent to Ministers of Foreign Affairs and Citizenship. Seven days later, applicant filed this application. Applicant argued situation was urgent and Canada had duty to respond to his request. Applicant referred to s. 7 of Canadian Charter of Rights and Freedoms and International Covenant on Civil and Political Rights and its Optional Protocol. Respondent argued applicant had already received response to his letter and Canadian government had no duty to act. Application dismissed. Applicant's request in his letter was that Canadian government express concern to Chinese authorities; he now sought order of mandamus compelling response to letter. Applicant did not ask for response to letter, and had received a prompt response anyway, nor was there any evidence he had tried to follow up. If applicant was really seeking mandamus compelling government to make representations on his behalf, this was not what he requested in his mandamus application, nor was there any public duty on government to make such representations. Applicant's removal from Canada was completely legitimate and he had no rights in Canada. Applicant's situation was no different than that of any foreign national living in their own country and facing legal proceedings there. As applicant had been lawfully removed from Canada, he was no longer subject to any of the legislation he cited. Zeng v. Canada (Attorney General) (Jan. 31, 2013, F.C., James Russell J., File No. T-811-12) 225 A.C.W.S. (3d) 1095. ONTARIO CIVIL CASES Agency INSURANCE AGENTS Insured failed to establish he would have purchased optional coverage Action by insured against insurance broker for damages for negligence. Insured had arranged his automobile insurance through broker for many years. Insured's latest policy renewal included only standard minimum amount of income replacement benefits that had been included in prior years. Insured was allegedly not advised about optional coverage for higher amounts of income replacement benefits. Insured was involved in serious motor vehicle accident that left him permanently disabled. Insured would have been entitled to higher amount of income replacement benefits if he had obtained optional coverage. Action dismissed. Broker owed duty of care to insured but insured failed to establish breach of standard of care. Evidence indicated broker had followed its Page 13 caselaw invariable practice of explaining optional benefits and asking whether basic benefits would be sufficient in event of injury. Broker had accepted insured's decision to decline option coverage. Uncontradicted opinion of broker's expert indicated broker had met standard of care. This was not case in which court could reach contrary conclusion in absence of expert evidence from insured. In any event, insured failed to establish that he would have purchased optional coverage. Godina v. Tripemco Burlington Insurance Group Ltd. (Feb. 12, 2013, Ont. S.C.J., Robert B. Reid J., File No. 07-28760) 225 A.C.W.S. (3d) 897. Competition Law OTHER REMEDIES Reasonable for judge to attribute misrepresentations to appellant Appellant appealed imposition of administrative monetary penalty against him. Respondent brought application for relief under Competition Act (Can.). It arose out of alleged misleading business practices by number of companies and individuals associated with companies, including appellant. Judge made various orders on basis of finding that companies were part of common enterprise engaged in business practices contrary to Act. Judge ordered administrative monetary penalty of $500,000 against appellant. Appeal dismissed. Appellant was not deprived of fair hearing. No concerns were raised at hearing about state of evidence and no adjournment was requested on behalf of appellant. Judge's finding of liability against appellant was unassailable. Appellant knew companies were making false and misleading representations and was aware of prior efforts to obtain specific compliance with consumer legislation elsewhere. Appellant was responsible for significant portion of activities undertaken by companies. It was reasonable for judge to attribute misrepresentations to appellant. Findings that appellant was integral to scheme were correct. Judge did not commit error in determining quantum of administrative monetary penalty. Ontario (Commissioner of Competition) v. Yellow Page Marketing B.V. (Feb. 4, 2013, Ont. C.A., Gloria Epstein J.A., Pepall J.A., and Tulloch J.A., File No. CA C55403) Decision at 216 A.C.W.S. (3d) 881 was affirmed. 225 A.C.W.S. (3d) 976. Damages PERSONAL INJURIES Defendant knew lot being used by pedestrians as shortcut Plaintiff sought damages for personal injuries she sustained in fall while walking through defendant's parking lot. Plaintiff allegedly tripped and fell over black asphalt curb in parking lot and sustained injury to right shoulder. Plaintiff alleged that due to lack of lighting in parking lot she was not able to see double curbs with gap between them, which caused her to trip and fall over second curb. Defendant claimed that plaintiff was trespasser and she willingly assumed risk of entering premises. Judgment for plaintiff. Plaintiff was not aware that walking through defendant's parking lot was not authorized. Signage defendant posted was not visible at each point of access to premises. Plaintiff did not willingly assume all risks. Defendant was subject to duty of care set out in s. 4(1) of Occupiers' Liability Act (Ont.). Parking lot was poorly lit. Defendant had knowledge that lot was being used by pedestrians as shortcut. Replacing light bulbs and painting curbs different colour was not great expense or onerous task. Defendant failed to take reasonable care to ensure that persons were reasonably safe while on premises. Defendant breached duty of care owed to plaintiff. Plaintiff was awarded $15,000 in general damages, after taking into account 25% reduction for contributory negligence. Revoy v. Beaux Properties (Jan. 20, 2012, Ont. S.C.J., Bocci D.J., File No. SC-10-110755-00) 225 A.C.W.S. (3d) 1179. Civil Procedure COMMENCEMENT OF PROCEEDINGS Where service must be effected through Convention, plaintiff cannot circumvent requirement Canada is signatory to Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Ontario incorporated Convention through Rule 17.05(3). Article 1 of Convention provides it shall apply in all cases where there is occasion to transmit judicial or extrajudicial document for service abroad. Each contracting state designates "central authority" to receive requests and arrange for service according to laws of that jurisdiction, but may refuse to effect service, pursuant to article 13 of Convention, "if it deems that compliance would infringe its sovereignty or security". Appellants, Ontario corporation and its subsidiaries, engaged in uranium exploration and development. Respondents were Russian company in which Russian State Atomic Energy Corporation had controlling interest, and its subsidiaries. Parties entered into joint venture to develop uranium mining property in Mongolia. Appellants commenced action against respondents in Ontario, claiming Russian government, through respondents, sought to deprive them of interest in uranium mining property. Appellants tried to serve respondents in Russia, but Russian designated central authority refused service. Appellants chose not to apwww.lawtimesnews.com peal but rather brought motion in Ontario Superior Court for order substituting or dispensing with service or validating service. Master granted motion to validate service but judge of Superior Court granted respondents' appeal and set aside master's order, finding courts in Ontario have no discretion to substitute, dispense with, or validate service where Convention applies. Appellants' appeal dismissed. Convention purposes to give defendant in another jurisdiction notice of legal proceeding and to improve system of giving notice by establishing uniform procedure in contracting states. Appellant's suggestion that Rule 17.05(3) provides prima facie means of service in contracting state but does not oust court's discretion to substitute, dispense with or validate service in appropriate circumstances would undermine latter objective. Mandatory language of Rule 17.05(3) clearly implies it is intended to provide complete code for service in contracting states. Interpreting Rule 17.05(3) as complete code consistent with principle that domestic law should be read, where possible, to comply with Canada's international legal obligations. Ontario case law establishes that where service must be effected through Convention, plaintiff cannot circumvent requirement even if defendant has actual notice. Khan Resources Inc. v. Atomredmetzoloto JSC (Apr. 2, 2013, Ont. C.A., J.I. Laskin J.A., M. Rosenberg J.A., and M. Tulloch J.A., File No. CA C55360) Decision at 212 A.C.W.S. (3d) 905 was affirmed. 225 A.C.W.S. (3d) 922. and giving children necessaries of life. Parties' respective family units had equal permanence. Parents performed parenting duties on roughly equal basis over children's lives and each was equally capable of acting as parent. In circumstances, giving mother sole custody would create real risk that father's involvement with children would be minimized. Giving father sole custody might marginalize mother's role in children's lives. Parties displayed too high level of conflict and communication and collaborative decision-making skills were insufficient to support order for joint custody. Both parents consistently played significant role in children's lives on all levels. Neither parent was clearly more competent, responsible or attentive than other to justify sole custody. Neither parent had demonstrated conduct that was calculated to alienate children. However, father's demeaning attitude toward mother and level of blame he directed to her raised concern that he might engage in alienating conduct as children got older. Children's best interests required measures that would ensure that both parents were actively involved in their lives and parallel parenting arrangement would best accomplish that. Parenting schedule was set out. Mother was to have ultimate decision-making authority over children's education and healthcare. Father was to have ultimate decisionmaking authority over children's extra-curricular activities. Hoffman v. Hoffman (Jan. 23, 2013, Ont. S.C.J., Price J., File No. Milton 34608/12) 225 A.C.W.S. (3d) 1056. Family Law Insurance CUSTODY Neither parent clearly more competent, responsible or attentive Mother sought custody of children. Parties were married for four years and had two children. Mother worked as executive assistant. Father worked as cargo pilot. Mother suffered from post-partum depression after birth of older child. Mother claimed that father was demeaning and disrespectful to her and he failed to support her during her depression. After parties separated they continued to reside in matrimonial home for over one year. Mother bought home in Milton, which was approximately half hour drive from matrimonial home in Acton. Older child currently attended school in Acton. Younger child was in daycare. Mother wanted to enrol child at school in Milton. Children currently resided with each parent for half of time. Application granted in part. Both parents loved children and children had emotional ties with both of them. Children were too young to take views into account. Both parents were equally capable of providing guidance for children AUTOMOBILE INSURANCE Jury did not accept plaintiff 's injuries were of great consequence Plaintiff suffered injuries in first motor vehicle accident. Jury rendered verdict finding defendant 100% liable for plaintiff 's injuries in second motor vehicle accident. Jury assessed plaintiff 's general damages at $7,500 and claim for future care costs at $7,500. Jury made no award for future loss of income and housekeeping expenses. Plaintiff was treated with narcotic patch for lower back pain. Medical records indicated plaintiff made no complaint of lower back pain for nearly four years. Evidence before second accident confirmed plaintiff suffered permanent disability and permanent limitations to right shoulder. Defendants brought threshold motion seeking declaration plaintiff 's injuries did not meet statutory threshold and plaintiff 's entitlement to recover damages for non-pecuniary loss was barred. Plaintiff 's injuries did not fall within exception to threshold. Plaintiff would make no recovery against defendants. There was no causal connection between plaintiff 's present

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