Law Times

Page 14 August 19, 2013 • LAw times www.lawtimesnews.com nation created hostile environ- ment and coloured appreciation of evidence. Varga v. Canada (Minister of Citi- zenship and Immigration) (May. 10, 2013, F.C., Donald J. Rennie J., File No. IMM-8539-12) 227 A.C.W.S. (3d) 1135. ONTARIO CIVIL CASES Agency REAL ESTATE AGENTS AND BROKERS Where contract was illegal, no action could be brought Plaintiff claimed amount of $21,000 for introducing defen- dants to buyers who purchased defendants' home. Defendants denied liability asserting they never agreed to pay any fee or commission to plaintiff and any arrangement contravened Real Estate and Business Brokers Act, 2002 (Ont.). Plaintiff held herself out as mortgage agent. She was not registered real estate broker under Act. Plaintiff had female defendant sign fee agreement which provided for payment of commission on sale of house. Male defendant did not sign agreement. Action dismissed. Plaintiff was trading in real estate, and therefore came under terms of Act. Plaintiff could not recover introduction fee or any remu- neration without first being regis- tered under Act. Any contract or arrangement upon which plain- tiff based her claim was prohib- ited, and therefore illegal. Where contract was illegal, no action could be brought and party to such contract could not recover even on unjust enrichment or quantum meruit. Plaintiff 's claim was statute-barred under Act. Moore v. Morad (Apr. 17, 2013, Ont. S.C.J., J. Prattas D.J., File No. Toronto SC-11-123025-00) 227 A.C.W.S. (3d) 917. Associations RELIGIOUS ASSOCIATIONS Court had to circumscribe extent to which it became involved in affairs of religious organization Application for interlocutory in- junction preventing respondents church and elders, from holding church meeting and for manda- tory order requiring respondents to admit additional persons to church membership. Church elders called meeting to discuss and vote on whether to termi- nate senior pastor. Senior pastor called his own meeting following church service to oppose his ter- mination and invite those pres- ent who were not members and wished to support him to attend members meeting at which time membership applications would be processed. Elders met prior to senior pastor's meeting and decided they would not recom- mend admission to membership any person who had not already applied and been interviewed by elders. Elders believed their pro- cess for membership would result in fair and appropriate process in order to avoid unmanageable process designed to introduce new members so as to materially change membership composi- tion in order to affect decision on whether to terminate senior pastor. Applicants acknowledged church constitution required three-step process for admission to membership but submitted they were trying to ensure spirit of church constitution and guid- ing principles, including general fairness were observed. Applica- tion granted in part. In consid- ering whether to interfere in re- ligious affairs of church or other religious organizations, courts must be sensitive to "interplay between civil law and internal law of religious organization" and should only interfere where process was unfair and did not meet rules of natural justice. Had elders simply le decision as to whether senior pastor should be terminated or not to member- ship, court would have no juris- diction to intervene. However, elders decided to add additional 12 members, thereby increas- ing church membership by 20% which was significant, consider- ing no more than five new mem- bers had been added in any given year and traditionally new mem- bers were not presented until an- nual meeting. Process adopted by elders was unfair. Elders not per- mitted to proceed with meeting to vote on pastor's termination. Twelve people in issue were enti- tled to submit names for consid- eration as members. Court had to circumscribe extent to which it became involved in internal affairs of religious organization. Order ensured that court provid- ed level playing field that was fair to everyone, such that ultimate decision with respect to future of senior pastor would be made by members and not court. Diaferia v. Elliott (Mar. 7, 2013, Ont. S.C.J., M.L. Edwards J., File No. CV-13-113333-00) 227 A.C.W.S. (3d) 1149. Injunctions INTERLOCUTORY RELIEF Respondent attempting to use possession of information to secure re-instatement Motion by applicant physician for ex parte order requiring re- spondents to transfer to inde- pendent solicitor control over e- mail accounts in order to retrieve personal health information of patients. Applicant operated nar- cotics treatment centre. Respon- dent worked as administrative assistant. Following her termina- tion, respondent and her boy- friend threatened to bring regula- tory and civil proceedings against applicant if respondent was not reinstated. Respondents claimed to possess patient health infor- mation obtained during respon- dent's employment, which had been sent through her personal e-mail account. Motion granted. Applicant sought relief akin to Anton Piller order. Applicant sat- isfied first three elements of test for Anton Pilller order. Although respondent obtained personal health information during course of her employment, she no longer had any employment-related jus- tification to possess such infor- mation. Respondent attempting to use possession of information to secure re-instatement of her employment was not authorized use of information. Respondent was not "health information custodian" within meaning of s. 3 of Personal Health Informa- tion Protection Act, 2004 (Ont.), or agent of one. Applicant made strong prima facie case respon- dent would misuse information. While facts did not fall squarely into Anton Piller framework, they justified granting manda- tory injunctive order requiring respondent to deliver informa- tion to independent solicitor. In- tegrity of information would be preserved and its further use sub- ject to court's supervision. It was appropriate to bring ex parte mo- tion, as respondent's whereabouts were unclear. Garber v. Robinson (Mar. 7, 2013, Ont. S.C.J. [Commercial List], D.M. Brown J., File No. CV-13-475557) 227 A.C.W.S. (3d) 1148. Insurance AUTOMOBILE INSURANCE Applicant acting under genuinely mistaken belief that licence still valid Application for declarations that respondent insurance company owed duty to indemnify appli- cant and to defend third party action against applicant. Respon- dent denied coverage on ground that applicant was in breach of statutory condition in automo- bile insurance policy at time of accident because her driver's licence had expired. Applicant failed to renew her licence when it expired in September 2011. In February 2012, she was involved in accident with motorcyclist in Florida. Immediately following accident applicant returned to Canada where she renewed her licence without difficulty. Appli- cant was sued by motorcyclist in Florida. Application granted. In Ontario, every automobile insur- ance policy contained statutory condition 4(1), which provided that no insured shall drive auto- mobile unless authorized by law. Judge did not agree that applicant was not authorized to drive at time of accident. Driving while licence was expired was strict liability offence. erefore, de- fence of due diligence was avail- able to applicant. Applicant took envelope containing information required to renew licence plates to car dealership. She did not re- alize that envelope also contained licence renewal forms. Applicant was acting under genuinely mis- taken belief that her licence was still valid. Respondent owed a duty to defend applicant under her automobile policy. Applicant was also entitled to order that respondent pay all costs she in- curred to date both here and in United States in defending that action. Kozel v. Personal Insurance Co. (May. 9, 2013, Ont. S.C.J., T.M. Wood J., File No. CV-12-102-00) 227 A.C.W.S. (3d) 1154. Judgments and Orders SETTING ASIDE Defendant not to benefit from own wilful acts Plaintiff claimed commercial lease was breached. Parties ex- ecuted minutes of settlement at settlement conference. De- fendant did not make payment required. Defendant did not at- tend to explain. Defence was struck out and judgment granted in favour of plaintiff. Judgment amount was three times amount of settlement. Defendant brought motion to set aside order strik- ing out statement of defence and granting judgment. Motion was dismissed. Motion was not brought as soon as reasonably possible. Defendant did not pro- vide reasonable explanation for default. It was not in interests of justice to set aside orders. Defen- dant was not to benefit from own willful acts. Defendant breached settlement agreement and agree- ment made aer plaintiff in good faith lied writ. Defendant took no action to set aside orders and led plaintiff to believe judgment would not be assailed. 2272546 Ontario Inc. v. Garnett (Mar. 20, 2013, Ont. S.C.J., Donald J. Lange D.J., File No. Bracebridge SC-11-380-0000) 227 A.C.W.S. (3d) 993. Mental Health ADMISSION AS PATIENT Imperative for appellant to receive treatment before appeal heard Appellant was involuntary pa- tient at hospital. Hearing before board confirmed appellant's involuntary status and held appellant was not capable of consenting to treatment with anti-psychotic medication and laboratory investigations to monitor safety and compli- ance. Appellant did not perfect appeal. Respondent brought motion for order authorizing treatment of appellant pending appeal. Appellant did nothing to move appeal forward. Mo- tion was allowed. It was im- perative for appellant to receive treatment before appeal was heard. ere was evidence of appellant's rapid deterioration of appellant's mental and physi- cal health. Medical evidence was that medication treatment recommended would likely im- prove appellant's condition and evidence showed appellant's condition would not improve without it. Oral medication was least intrusive treatment for ap- pellant's condition. L.H. v. Hastings (Apr. 24, 2013, Ont. S.C.J.[Estates List], Greer J., File No. 03-139/12) 227 A.C.W.S. (3d) 1167. Planning HERITAGE DESIGNATION City had jurisdiction to order production of engineer's report Application by city for order re- quiring engineering expert re- tained by respondent to provide copy of report related to building to city's chief building official. Re- spondent was owner of histori- cal building which he wanted to demolish. Respondent let build- ing fall into disrepair and pro- vided city with engineer's report recommending that building be demolished. City refused request for demolition permit and or- dered respondent to remedy un- safe premises. Order required re- spondent to provide peer review of engineer's report by heritage structural engineer on ability to remediate building. Respondent retained heritage structural engi- neer, but refused to provide copy of his report to city on ground of litigation privilege. Applica- tion granted. City had reasonable grounds to believe that heritage structural engineer had prepared peer review of engineer's report with view to remediation in ac- cordance with Ontario Heritage Act. If such report was prepared and was in possession of heritage structural engineer, provided it was not subject to litigation privi- lege, then city had jurisdiction to order its production. Report was prepared in response to order from city and not in reasonable anticipation of litigation. Heri- tage structural engineer was to provide city with copy of report. Ottawa (City) v. Lauzon (May. 8, 2013, Ont. S.C.J., Robert J. Smith J., File No. 13-56924) 227 A.C.W.S. (3d) 1179. Professions BARRISTERS AND SOLICITORS Disputes regarding validity or effect of retainer agreement should be determined by judge is was appeal of decision re- fusing to set aside consent order referring matter to assessment officer. Client retained law firm to represent her in pursuing claim against insurer arising out of denial of long-term disability benefits. Law firm delivered ac- count to client for services ren- dered under alleged contingency fee agreement. Client contested account and obtained order on consent referring matter to as- sessment officer. Before assess- ment took place law firm raised argument that assessment officer did not have jurisdiction to deal with matter because there was dispute about nature of retainer agreement entered into, whether or not it was valid contingency fee agreement. Law firm applied for order setting aside consent order that directed assessment. Motion judge refused to set aside order. Appeal allowed. Issue was whether assessment officer had jurisdiction to assess solicitor's account where there was under- lying dispute between solicitor- and-client about nature and validity of retainer agreement. Assessment officer had no inher- ent jurisdiction. ere might be circumstances in which it was appropriate for judge, when re- ferring solicitor's bill for assess- ment, to delegate such decisions to assessment officer pursuant to caselaw

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