Law Times

Page 18 September 30, 2013 Law Times • caselaw A.C.W.S. (3d) 498 was affirmed. 229 A.C.W.S. (3d) 644. SETTLEMENT Plaintiff had no evidence of duress as opposed to litigation stress Motion by defendant for summary judgment. In May 2001, plaintiff commenced action on individual disability insurance policy issued by defendant's predecessor. Both parties represented by counsel and, in October 2011, executed minutes of settlement under which defendant agreed to pay $325,000 to plaintiff and plaintiff agreed to surrender policy, dismiss action on without costs basis and execute release. In September 2012, almost 11 years later, plaintiff commenced action seeking to rescind settlement and assert new claim under surrendered policy. Defendant submitted plaintiff raised no genuine issue for trial. Plaintiff had commenced several actions between 2006 and 2012, including one against former counsel alleging, among other things, incompetence and professional misconduct. Action had been dismissed by consent, without costs. Plaintiff had also commenced action against insurer under group disability policy alleging settlement reached in 2002 result of negligence, fraud, conspiracy and legal incompetence. Action had been dismissed at trial. Motion granted. As in action against group disability insurer, plaintiff attempting to relitigate issues that gave rise to original claim. Plaintiff had no evidence of duress, as opposed to litigation stress, and no evidence of mistake or fraudulent non-disclosure. New action not appropriate forum for claim of inadequate legal representation. Action statute-barred in any event. Plaintiff had no real chance of success. Hunt v. RBC Life Insurance Co. (Jul. 5, 2013, Ont. S.C.J., Stanley J. Kershman J., File No. Napanee CV-12-121-0000) 229 A.C.W.S. (3d) 685. Conflict of Laws CHOICE OF LAW Court may transfer proceedings to "most substantially connected" jurisdiction Father applied to vary October 2009 consent order respecting primary residence of parties' daughter, aged six. Mother moved to transfer variation application from Ontario to Manitoba. Mother had moved to Manitoba with child shortly after separation. She commenced divorce proceedings in Ontario because she did not meet residency requirements to proceed in Manitoba. If child was "most substantially connected" to proposed jurisdiction, court may consider exercising its discretion to transfer proceedings to that jurisdiction. Question was whether transfer was in best interests of child and whether transfer would impede proper administration of justice. Appli- cation granted. Child was most substantially connected to Manitoba. Child had lived in Manitoba for almost her entire life. Her mother, her mother's family, her teachers, her healthcare professionals and her friends lived there. It was in child's best interests if application were transferred to Manitoba. While Ontario courts had history with family, Manitoba courts could verse themselves in this history as easily as fresh judge in Ontario. It would not impede proper administration of justice to transfer case to Manitoba. Agnew v. Violo (Jun. 26, 2013, Ont. S.C.J., D.L. Corbett J., File No. Brampton FS-06-56958-00) 229 A.C.W.S. (3d) 779. JURISDICTION Canadian court not to adjudicate matter relating to imposition of taxes in United States Plaintiffs brought proposed class action against airline claiming airline unlawfully charged United States transportation taxes on airline ticket purchases. Airline brought motion to dismiss or permanently stay action on basis court did not have jurisdiction over dispute and on basis of forum non conveniens. Motion as it related to claim with respect to tickets paid for in Canada was dismissed. Motion as it related to claim with respect to tickets paid for in United States was allowed. Claim with respect to tickets paid for in United States was stayed. Court had jurisdiction to adjudicate claim. Court had presence based jurisdiction. There was real and substantial connection between claim and Ontario such that court could assume jurisdiction. Revenue rule did not broadly restrict court from adjudicating any matter that might concern or involve foreign tax laws. Revenue rule did not prevent court from determining whether airline properly collected amounts from customers on ticket purchases. Airline did not show that United States courts were clearly more appropriate forum in which to resolve issues with respect to charges on tickets paid for in Canada. Canadian court was not to adjudicate matter relating to imposition and collection of taxes on transactions occurring in United States. Prince v. ACE Aviation Holdings Inc. (Jun. 26, 2013, Ont. S.C.J., Conway J., File No. CV-13472215) 229 A.C.W.S. (3d) 707. Constitutional Law CHARTER OF RIGHTS Determining where individuals sat in courtroom fell within jurisdiction of judicial officer Applicant was licensed paralegal. Applicant was agent for counsel on two criminal cases. Justice of Peace reminded applicant that agents were to remain behind bar until cases were called because area in front of bar was reserved for lawyers and law students. Justice of Peace referred to Crown having oppor- tunity to call matters in order of protocol by elder counsel first. Applicant sought orders quashing orders of Justice of Peace. Applicant sought declaration that Barristers Act (Ont.), was not mandatory and was subject to power of court to control own process. Application was dismissed. Justice of Peace did not exceed jurisdiction or breach principles of natural justice in ordering only lawyers to sit in front of bar when court was in session. Determining where individuals sat in courtroom fell within jurisdiction of judicial officer to maintain order in courtroom and dignity of proceedings. To extent comments made by Justice of Peace implied Justice of Peace was directing Crown counsel to call list in accordance with Act and to call matters on which lawyers attended ahead of those on which paralegals appeared, Justice of Peace did not breach principles of natural justice or otherwise exceed jurisdiction. Because Act referred to "members of bar" it necessarily excluded licensed paralegals from its application. Act did not prevent judicial officer from controlling process in own court. It was open to Justice of Peace to direct Crown to call matters on which lawyers were appearing first based on seniority of counsel with matters on which paralegals were attending to follow. There was no breach of s. 7 of Canadian Charter of Rights and Freedoms. Applicant's economic interest was not interest protected by s. 7. Lippa v. R. (Jun. 26, 2013, Ont. S.C.J., M.K. Fuerst J., File No. null) 229 A.C.W.S. (3d) 725 Financial Institutions ACCOUNTS Banks not required to provide explanation for termination Motion by plaintiff for interlocutory injunction to restrain defendant bank from ending its banking relationship with plaintiff pending outcome of underlying trial or alternatively outcome of decision by Federal Court of Appeal, whichever occurred earlier. Plaintiff was not-for-profit organization incorporated in Ontario in 1997, which had banking relationship with defendant since 2001. Plaintiff had two accounts with defendant. Plaintiff 's activities involved providing financial support and other assistance to people in conflict torn areas of Middle East. Plaintiff received donations through defendant's bank services. Defendant was Schedule I bank that offered type of services that met plaintiff 's banking needs, one such service being electronic wiring services. In 2004 and 2010, Canada Revenue Agency ("CRA") conducted audits of plaintiff. In January 2010, CRA advised of its intention to suspend plaintiff 's receipting privileges. That decision was under appeal before Federal Court of Appeal. On March 15, 2013, defendant www.lawtimesnews.com sent letter to plaintiff giving notice of its intention to terminate its banking services in 60 days, on May 15, 2013. No reason was given for termination. Termination date was extended to July 15, 2013. Defendant's decision to terminate accounts was influenced by information it acquired from investigation alleging involvement by plaintiff in supporting alleged Palestinian terrorist organization. Motion dismissed. Banks were entitled to terminate banking relationship on reasonable notice. Banks were not required to provide explanation for termination so long as reasonable notice was given. Plaintiff failed to show that four-month notice period was not reasonable period to allow it to organize its affairs and find new bank. Plaintiff did not satisfy test for interlocutory injunction. Plaintiff failed to establish strong prima facie case or that it would suffer irreparable harm if injunction was not granted. Damages were appropriate remedy for plaintiff claiming loss as result of bank failing to give sufficient notice before terminating services. It followed that balance of convenience favoured defendant. International Relief Fund for the Afflicted and Needy (Canada) v. Canadian Imperial Bank of Commerce (Jul. 5, 2013, Ont. S.C.J., Allen J., File No. CV-13-479658) 229 A.C.W.S. (3d) 848. Insurance PROPERTY INSURANCE Respondent entitled to enforce lease to defend claim Tenants appealed motion judge's dismissal of action. Tenants were tenants in shopping centre. Landlord contracted with respondent, independent contractor, to perform construction work at mall. Vandal opened fire hose located in vacant third floor area of mall that landlord permitted respondent to use for its office and storage. Tenants' premises suffered $7 million in water damage. Leases required tenants to take out and maintain insurance covering water damage to leased premises and tenants' property within premises. Lease provided that tenant waived all claims against landlord and those for whom landlord was in law responsible with respect to occurrences required to be insured against by tenant. Tenants sued respondent. Respondent brought motion for summary judgment arguing that tenants waived claims against it pursuant to lease as landlord was in law responsible for it within meaning of lease and benefit extended to respondent and tenants were barred from suing respondent. Motion judge found that respondent was entity for which landlord was responsible in law and that benefit of lease extended to it. Appeal dismissed. Landlord was responsible in law for respondent within meaning of words in lease and benefit in lease ex- tended to respondent. Ordinary meaning of phrase "in law responsible" was liable, accountable in law or legally responsible and ordinary meaning was not necessarily limited to legal responsibility arising through vicarious liability. Manner in which phrase was used in lease did not restrict its ordinary meaning. Landlord specifically made itself legally responsible for respondent. Landlord was generally in law responsible to tenant for respondent within meaning of lease. Parties intended benefit to extend to respondent. Activities performed by respondent were activities contemplated as coming within scope of lease. Respondent was entitled to enforce lease to defend claim. Williams-Sonoma Inc. v. Oxford Properties Group Inc. (Jun. 26, 2013, Ont. C.A., K.M. Weiler J.A., E.E. Gillese J.A., and Alexandra Hoy J.A., File No. CA C56194) Decision at 221 A.C.W.S. (3d) 67 was affirmed. 229 A.C.W.S. (3d) 865. Mental Health MENTAL INCOMPETENCY PROCEEDINGS No evidence that without treatment appellant's psychosis would continue unabated Appellant appealed appeal judge's decision dismissing appeal from finding of incapacity. Appellant was admitted to hospital because of effects of physical illness, lupus. Medical team that was treating appellant asked respondent for psychiatric consultation. Respondent described treatment appellant was given based on assumption she suffered from psychosis. Respondent testified that appellant had schizophrenia. Appellant testified that she was suffering from dementia, but not schizophrenia and that medications were giving her symptoms. Consent and capacity board upheld finding of incapacity made by respondent. Board found that appellant was incapable because she was not able to appreciate that there was possibility that she was affected by manifestation of condition. Board found that illness had taken away insight into condition and she was unable to appreciate ongoing symptomatology that was linked directly to illness. On appeal, appeal judge found that corroboration requirement in s. 14 of Evidence Act (Ont.), had been met. Appeal judge found that there was evidence to support finding of incapacity. Appeal allowed. Standard of review was reasonableness. Two key findings made by board focused on benefits of treatment. Findings depended on evidence that treatment with antipsychotic drug would provide benefit to appellant but there was no evidence to support such finding. There was unchallenged evidence from appellant about side effects of treatment. Respondent offered no evidence of

• Cover