Law Times

Page 13 Law Times • January 6, 2014 caselaw CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. FEDERAL COURT Aboriginal Peoples CROWN RELATIONSHIP Potential adverse impact on Aboriginal rights non-appreciable and speculative in nature Ratification of Agreement between Government of Canada and Government of People's Republic of China for Promotion and Reciprocal Protection of Investments ("CCFIPPA") was pending. Applicant sought declaration that Canada was required to engage in process of consultation and accommodation with First Nations including applicant prior to ratification or taking other steps that would bind Canada under CCFIPPA. Application was dismissed. Potential adverse impact applicant claimed CCFIPPA might have on Aboriginal rights due to changes CCFIPPA might bring about to legal framework applicable to land and resource regulation in Canada were nonappreciable and speculative in nature. Applicant did not establish causal link between potential adverse impacts and CCFIPPA. Same was true with respect to potential adverse impacts applicant claimed CCFIPPA might have on scope of self government it could achieve. Ratification of CCFIPPA by Government of Canada without engaging in consultations with applicant would not contravene principle of honour of Crown or Canada's duty to consult applicant before taking any action that might adversely impact on applicant's asserted Aboriginal rights. Hupacasath First Nation v. Canada (Minister of Foreign Affairs) (Aug. 26, 2013, F.C., Paul S. Crampton J., File No. T-153-13) 232 A.C.W.S. (3d) 283. Contracts PERFORMANCE AND BREACH Plaintiff had responsibility to understand full scope of project Plaintiff brought action for alleged illegal improper termination of contact. Plaintiff was hired to perform hazardous material abatement and demolition work on decommissioned heating plant building located on Department of National Defence base. Public Works & Government Services Canada ("PWGSC") was contracting authority and manager of project. Plaintiff was to perform work from December 17, 2001 to September 23, 2002. On August 9, 2002, PWGSC advised plaintiff that work completed to date was unsatisfactory and it issued written notice that it would take steps to take work out of plain- tiff 's hands in six days pursuant to contract. PWGSC formally terminated contract on September 5, 2002. Contract was terminated as result of persistent concerns by PWGSC about plaintiff 's progress in demolishing building. PWGSC withheld $9,596 of plaintiff 's $80,000 security deposit for cost of re-tendering contract and paid balance of deposit to plaintiff 's creditors. Plaintiff sought damages for negligent misrepresentation and breach of contract. Action dismissed. Hazardous material survey that was provided with tendering documents was only meant to serve as guide. Correspondence between PWGSC and plaintiff made it clear that it was plaintiff 's responsibility to ensure that it understood full scope of project. There was no evidence that PWGSC negligently made representations that were untrue, inaccurate or misleading. Claim for negligent misrepresentation could not succeed. Evidence given by plaintiff to explain delays was inconsistent. PWGSC was justified in its concerns regarding delays. There were numerous delays that were primarily caused by plaintiff. Following deliberation and appropriate notice, PWGSC exercised its rights pursuant to contract to take work out of plaintiff 's hands and to terminate contract and it was entitled to do so. PWGSC was entitled to convert security deposit and withhold amount to cover its re-tender costs. Remainder of deposit was properly paid to plaintiff 's creditors pursuant to contract. There was no breach of contract by PWGSC. Plaintiff was not entitled to damages for costs associated with delays and standby time. Contract specifically stated that plaintiff was responsible for all such delay costs. Plaintiff was not entitled to payment for standby costs, testing expenses or payment for additional asbestos removal work, as there was no evidence to justify award. Plaintiff was entitled to payment of $5,500 for removal of caustic soda, as it removed caustic soda and was not paid for work. There was no basis to award punitive or exemplary damages. Envireen Construction (1997) Ltd. v. R. (Aug. 13, 2013, F.C., Michael D. Manson J., File No. T-583-06) 232 A.C.W.S. (3d) 371. Police GENERAL Opinions of treating physicians could not be side-stepped in ways attempted by board Application by employee for judicial review of decision of Veterans Review and Appeal Board finding employee's complications from diabetes had not arisen out of or were not directly connected with his service with employer. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. Employer was Royal Canadian Mounted Police. Employee had worked for employer since 1980. Employee was diagnosed with Type 1 insulin-dependent diabetes in 1992. Not maintaining blood sugar levels within normal range could lead to complications. Employee developed number of complications, including nerve damage and feeling of numbness in his extremities and aneurysms in eyes. Employee applied for disability pension on grounds that, inter alia, development of complications was directly connected to his service with employer. Veteran Affairs Canada allowed application relating to other conditions but denied application related to diabetes. Employee unsuccessfully appealed to Entitlement Review Panel and board. Application granted; matter remitted for reconsideration. Board had not reasonably applied s. 39 of Veterans Review and Appeal Board Act (Can.). Board failed to consider what was basically uncontradicted evidence from employee's two treating physicians that deleterious consequences of employee's disease had arisen out of, or had been directly connected with, employee's service with employer. Opinions of both treating physicians could not be side-stepped in ways attempted by board. Board's finding that earlier medical documentation had not spoken to deleterious consequences of employee's employment failed to take into account that this had not been purpose of earlier documentation. Purpose of earlier documentation had been to determine at particular points in time whether employee could discharge duties assigned to him. Opinion from employee's first treating physician was specifically directed at deleterious consequences of employee's employment. Employee had provided direct evidence from co-workers confirming difficult conditions under which employee had to work and impact this had on his ability to manage his diabetic condition. Board did not indicate why this evidence should be left out of account. Board should have addressed this evidence. There was no evidence that employee could have managed his condition in way that would have prevented deleterious effects. Board failed to provide sufficient reason for rejecting clear medical opinion from employee's second treating physician that employee would still continue to suffer consequences of years with inadequate glycemic control. Roach v. Canada (Attorney General) (Aug. 9, 2013, F.C., James Russell J., File No. T-1333-12) 232 A.C.W.S. (3d) 521. www.lawtimesnews.com ONTARIO CIVIL DECISIONS Administrative Law JUDICIAL REVIEW Decision for disbursement of public funds within sole authority of legislature Applicant sought judicial review of respondent's decision denying application to second career program. Application was denied on basis that skills training program requested must lead to one of occupations listed in guidelines and that did not include education program applicant intended to pursue. Application sought judicial review on urgent basis because program was to start in September 2013. Application dismissed. Applicant failed to establish that delay required for application to Divisional Court was likely to involve failure of justice. Application was without merit. Respondent's decision was not reviewable and was reasonable. Decision of respondent to define who was eligible for program was not decision that was subject to judicial review because it was decision for disbursement of public funds and was within sole authority of legislature. Criteria for program was reasonable and applicant did not meet requirements. Kuki v. Ontario (Ministry of Training, Colleges, and Universities) (Sep. 3, 2013, Ont. S.C.J., Patrick Smith J., File No. 13-1946) 232 A.C.W.S. (3d) 285. Civil Procedure COMMENCEMENT OF PROCEEDINGS Owner of vehicle leased to stranger should be expected to ensure transmission brake worked Plaintiff was mechanic. Plaintiff confirmed vehicle was in parked position and proceeded to go under vehicle to complete repair. Plaintiff cut manual brake line and without warning vehicle began to roll because transmission brake was not functioning. Plaintiff 's left arm and hand were crushed by tire of vehicle causing serious and permanent injuries. Plaintiff argued defendant knew or should have known of defect but failed to place adequate warning on vehicle or to bring it to plaintiff 's attention. Defendant brought motion to strike out allegations of negligence against it. Motion was dismissed. Defendant would have or should have known and it was foreseeable that vehicle would roll if renter of vehicle did not engage parking brake and relied instead on transmission brake. If plaintiff established defendant leased vehicle with knowledge that transmission brake on vehicle did not work, there was rea- sonable chance court would find requisite proximity. There were ample reasons to find there were sound policy reasons for finding owner of vehicle that leased vehicle to stranger should be expected to ensure transmission brake worked, failing which there should have been warning not to rely on transmission brake. Pelletier v. U-Haul Co. (Canada) Ltd. (Jun. 13, 2013, Ont. S.C.J., E.J. Koke J., File No. Sault Ste. Marie 2435/08) 232 A.C.W.S. (3d) 325. DISCOVERY Cause and circumstances of accident were related to issues in dispute Appellant appealed master's decision ordering questions to be answered. Appellant's charter aircraft was involved in accident when it veered off runway. Several passengers, pilot and co-pilot were injured. Aircraft was damaged beyond repair. Appellant made claim against respondents under insurance policy but it was denied coverage. Appellant commenced action against respondents. Two other actions were commenced and all three actions were ordered to be tried one after other. Master made order respecting refusals and questions taken under advisement by appellant on its discoveries. Master ordered certain questions to be answered. Appeal dismissed. Applicable standard of review was correctness. Master made no error of law. Master was case management master and was more familiar with facts and circumstances. His decision deserved deference. Questions asked and not answered were relevant. Cause and circumstances of accident were related to issues in dispute. Public interest in administration of justice outweighed importance attached to statutory privilege claimed. Jetport Inc. v. Global Aerospace Underwriting Managers (Canada) Ltd. (Sep. 5, 2013, Ont. S.C.J., Greer J., File No. CV08-00357295, CV-10-412252, CV-11-438633-00A1) Decision at 224 A.C.W.S. (3d) 98 was affirmed. 232 A.C.W.S. (3d) 342. SETTLEMENT Structured settlement would allow for continuation of provincial disability benefits Motion by plaintiff through his litigation guardian for order approving settlement and his solicitors' fees. Plaintiff was assaulted while being held in custody in jail. Plaintiff suffered serious closed head injury. Plaintiff commenced action against provincial Crown and jail for damages for negligence. Plaintiff 's guardian of property was appointed as his litigation guardian. Crown and jail agreed to settle for $750,000

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