Law Times

Law Times • September 2, 2013 Environment) (May. 10, 2013, Ont. C.A., M. Rosenberg J.A., S.T. Goudge J.A., and M. Tulloch J.A., File No. CA C56382) Decision at 215 A.C.W.S. (3d) 125 was affirmed. 228 A.C.W.S. (3d) 134. Family Law CHILD WELFARE Children to have access to one another, but not to parents Parents had six children. Father was arrested in June 2010 for incest, sexual assault, and sexual interference. Father was sentenced to nine years' incarceration, and still in custody. Two children made Crown wards without access in August 2011. Approximately 17 interventions by applicant society. Society brought application for order that three children be made Crown wards without parent access. Application under Child and Family Services Act (Ont.). Sixth child not party to proceedings due to age. Society brought summary judgment motion, including for order for access amongst children. Motion granted. No triable issue warranting full trial. History of improper parenting and sexual abuse by father. Mother presented no evidence warranting trial. Assessment concluded mother unable to meet children's needs. Children would have access to one another, but not to parents. Children's Aid Society of the Niagara Region v. C. (R.) (Mar. 12, 2013, Ont. S.C.J., B.H. Matheson J., File No. St. Catharines 449/10) 228 A.C.W.S. (3d) 145. CUSTODY Hague Convention did not apply because child's habitual residence was Ontario Father brought application pursuant to Hague Convention seeking child's return to Hungary. Parties were married for eight years and had one child. Parties were originally from Hungary. Parties travelled from Hungary to Canada and arrived in Ontario on October 27, 2011. They went to shelter for refugee claimants. On October 31, 2011, father signed documentation to begin process of claiming refugee status in Canada. That same day father was arrested and charged with assault against mother. He was later charged with harassment. In November 2011, father pleaded guilty to charges. In December 2011, father was deported. He was in custody from October 2011 until he was deported. On November 1, 2011, mother and child moved into women's shelter and they now lived in apartment. Father claimed that parties came to Canada for visit only and did not intend to stay in Canada when they left Hungary in 2011. Mother claimed that parties were emigrating as family, intended to make refugee claim upon arrival in Canada and had no plan to return to live in Hungary when they left. Parties sold car and all belongings Page 19 CASELAW in Hungary and said goodbye to family and friends. Both parties quit jobs and obtained school year end certificate for child. Application dismissed. Child's habitual residence was place that was focus of her life. Child's habitual residence was determined by parents. Parents' common intentions had to be considered. There was compelling evidence that parties intended to change child's habitual residence from Hungary to Ontario. They shared joint intention to relocate child's residence to Ontario. They sold car, furnishings, arranged person to have power of attorney to deal with matters, obtained child's yearend school certificate, brought all important papers with them and began process to establish residency in Canada. Parties had settled intention of abandoning habitual residence in Hungary. Parties decided to immigrate to Canada and establish new residence in Canada with child. Once in Canada, parties separated and father decided he wanted all of them to return to Hungary. When father changed his mind about immigrating, child was already settling into new life in Ontario. Based on totality of evidence, by November 1, 2011 child's habitual residence was Ontario. There was not sufficient evidence to establish that mother breached father's right to custody of child. Father did not continue to reside with child because of his arrest, detention and deportation. Father's arrest, detention and deportation were not orchestrated by mother in plot to ensure that she could stay in Canada with child without father. Hague Convention did not apply because child's habitual residence was Ontario and she was not wrongfully retained by mother or because child had no habitual residence because she was in state of transition. Child's habitual residence was not Hungary because parents formed intention to change habitual residence and acted upon joint intention. Csoke v. Fustos (Apr. 25, 2013, Ont. S.C.J., C. Lafrenière J., File No. D 235/12) 228 A.C.W.S. (3d) 165. FAMILY RELATIONSHIPS Network could make submissions considering implications for numerous family configurations Child, aged two, was conceived using donated sperm. Child lived with mother and her wife since birth. Sperm donor brought claim for declaration of parentage and access to child. Network sought leave to intervene in trial. Network's membership included lesbian, gay, bisexual transgendered, transsexual and queer parents, potential parents, children and allies. Intervener status granted as friend of court. Network identified policy issues touching directly on those raised in pleadings. Court would benefit from network's knowledge and experience. Network could make submis- sions considering implications of case for numerous family configurations. Network would not supplement record or challenge factual findings. Network would not expand issues identified by parties. Network would avoid duplication of arguments. Network would neither seek nor receive costs. Network could file factum, appear at trial, and make submissions. W. (W.) v. X. (X.) (Mar. 19, 2013, Ont. S.C.J., Patricia C. Hennessy J., File No. 17412/11) 228 A.C.W.S. (3d) 172. Human Rights Legislation DISCRIMINATION Appellants' race and colour were factors in librarian's questioning Two lawyers were counsel in proceedings at courthouse but not gowned. Two lawyers and articling student ("appellants") are black. One lawyer and articling student have dreadlocked hair. During break, appellants went to lawyer's lounge. Librarian, with primary responsibility for enforcing policy of only permitting lawyers and law students in lounge, asked appellants, but nobody else, to produce identification. Appellants brought applications to Human Rights Tribunal of Ontario ("HRTO") alleging infringement of right to equal treatment with respect to services, goods and facilities without discrimination because of race and colour. HRTO Vice-Chair held that appellants' rights infringed and awarded each $2,000 for injury to dignity. Divisional Court quashed Vice-Chair's decision but appellants appeal allowed. Divisional Court set out test for discrimination including requirement to establish "causal nexus" between arbitrary distinction based on prohibited ground and disadvantage suffered. Traditional definition requires applicants to show they have characteristic protected from discrimination; they experienced adverse impact; and that protected characteristic was factor in adverse impact. Word "nexus" acceptable; all that is required is "connection" between adverse treatment and ground of discrimination. Attaching "causal" to "nexus" not acceptable; it elevated test beyond what law required. Divisional Court erred by applying incorrect and stricter test of discrimination. Divisional Court erred by failing to distinguish between burden of proof and evidential burden and by finding that shifting of evidential burden puts respondents in position of trying to prove negative; respondents rather put in position of having to call affirmative evidence on why they made particular decision or took particular action. ViceChair properly took all evidence into account and entitled to discount possible explanations that did not come from librarian herself and properly emphasized larger context of www.lawtimesnews.com incident. He did not err in finding that librarian questioned all three appellants as to right to be in lounge. Tribunal needs to exercise care in taking judicial notice of social science not introduced in evidence before it but no unfairness resulted from reference to racial profiling social science which did not affect disposition of main issue. Evidence provided ample basis to support inference that appellants' race and colour were factors in librarian's questioning. Decision fell within range of possible outcomes and Divisional Court erred in concluding it did not. Peel Law Assn. v. Pieters (Jun. 13, 2013, Ont. C.A., E.A. Cronk J.A., R.G. Juriansz J.A., and S.E. Pepall J.A., File No. CA C55734) Decision at 213 A.C.W.S. (3d) 729 was reversed. 228 A.C.W.S. (3d) 204. Insurance LIABILITY INSURANCE Appropriateness of Stonewall Principle controversial and far from settled law Between 1969 and 1973, appellant exported industrial gasket material containing asbestos to United States. When extensive asbestos-related litigation erupted in United States in 1970s and 1980s, appellant named as defendant in multitude of lawsuits in which plaintiffs claimed damages for injuries allegedly caused by exposure to asbestos over many years ("U.S. Claims"). Canadian property and casualty insurers issued occurrence-based insurance policies to appellant between 1969 and 1980, providing 'all sums' liability coverage for occurrences of bodily injury happening during various policy periods ("policies"). Typical coverage grant stated: "The [Insurer] will indemnify the Insured for all sums which the Insured will be legally obligated to pay for damages and expenses ... caused by or arising out of each occurrence happening during the policy period". Policies contained "per claim" deductibles, obliging appellant to pay deductibles for defence costs and indemnity before policies required to respond. Appellant called upon Canadian insurers to defend and indemnify it in respect of U.S. Claims. For years 1980 to 1985, appellant fully self-insured, transferring insurance coverage to insurance program of parent company in United States and Canadianbased policies contained United States territorial exclusion. Parties could not agree on appropriate allocation of liability for asbestos injuries occurring after 1985. Appellant argued it was unable to obtain insurance coverage at commercially reasonable rates from 1985 onward for United States asbestos-related liability due to coverage cut-off by insurers and, therefore, Canadian insurers responsible, pursuant to Stonewall Principle, for asbestos injuries occurring after coverage cut-off. Motion judge declined to adopt Stonewall Principle. Appellant's appeal dismissed. Language of covering grants evinced unambiguous expression of parties' intentions regarding scope of cover which limited insurer's duty to indemnify losses caused by or arising out of each occurrence happening during "policy period". No contractual support for assertion insurers agreed to assume liability for damages occasioned by bodily injuries sustained after expiration of policies. Stonewall Principle inconsistent with express terms of policies, particularly coverage grants and application would oblige insurers to compensate for bodily injuries sustained long after expiry of policies. Appropriateness of principle controversial and far from settled law. Public policy considerations weighed against acceptance of Stonewall Principle in Ontario; parties should generally be held to commercial bargains. Goodyear Canada Inc. v. American International Cos. (Jun. 13, 2013, Ont. C.A., John Laskin J.A., E.A. Cronk J.A., and Alexandra Hoy J.A., File No. CA C54440) Decision at 207 A.C.W.S. (3d) 67 was affirmed. 228 A.C.W.S. (3d) 236. Torts ASSAULT AND BATTERY Minor scrapes and abrasions not indicative of unreasonable force Defendant police service held August 2010 biker enforcement initiative, including road blockades. Plaintiff was stopped at blockade. Discussion and scuffle followed discovery plaintiff 's emergency brake did not work. Plaintiff was charged with obstructing police and four Highway Traffic Act (Ont.), offences. Plaintiff was acquitted of criminal charges. Plaintiff pled guilty to Act charge regarding emergency brake. Remaining Act charges were withdrawn. Plaintiff sued police service and two officers for $25,000 in: assault and battery; false imprisonment; trespass to chattels; and malicious prosecution. Action dismissed. Allegation of assault and battery dismissed. Officer had reasonable cause to arrest plaintiff under s. 495 of Criminal Code (Can.), based on charge under s. 129(a). Officers were permitted to use reasonable force in effecting arrest under s. 25. First officer did not strike out or injure plaintiff. Plaintiff 's evidence unclear and inconsistent. In hindsight, debatable whether necessary for second officer to ground plaintiff. Hindsight should not eclipse real time events. No mention of personal injuries in formal written complaint. Minor scrapes and abrasions not indicative of unreasonable force. Skoyles v. Waterloo Regional Police Service (Mar. 17, 2013, Ont. S.C.J., J. Sebastian Winny D.J., File No. Kitchener 2594/11) 228 A.C.W.S. (3d) 295. LT

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