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Page 14 January 13, 2014 Law Times • caselaw S.C.C., McLachlin C.J.C., Fish J., Abella J., Rothstein J., Cromwell J., Moldaver J., and Wagner J., File No. 34951) Decision at 102 W.C.B. (2d) 219 was affirmed. 109 W.C.B. (2d) 555. ONTARIO CIVIL DECISIONS Appeal STAY PENDING APPEAL Ruling compelling primary care parent to move was of questionable validity Mother moved for stay pending appeal of order requiring her to relocate primary residence of her two children to Waterloo Region from Lindsay, where she currently resided with children. Her appeal was scheduled to be heard in either October or November 2013. There was some urgency because children were scheduled to begin school in September in Lindsay. Motion granted. There was serious question to be tried. It was at least arguable that ruling that compelled primary care parent to move to access parent's community in order to preserve her primary care rights without consideration of all custodial criteria mandated by Children's Law Reform Act (Ont.), was of questionable validity. There was also concern that conversion of mother's three-year-old obligation to simply seek employment in Waterloo Region into obligation to obtain employment and to live in unspecified community in Waterloo Region was not warranted by wording of order, may exceed powers of court and might not even benefit father since mother was unprepared to live in Cambridge, where father wanted her to live. Mother would suffer irreparable harm because she would have to give up her job in Lindsay and move with children, and then move back if successful on appeal. Balance of convenience favoured mother. Jones v. Jones (Aug. 21, 2013, Ont. S.C.J., D.J. Taliano J., File No. FS 656-13) 232 A.C.W.S. (3d) 576. Civil Procedure CONSOLIDATION Combining two cases permitted proportionality between litigation costs and amount in dispute Defendant moved for consolidation or trial together of this action with second action between parties, and for adjournment of trial of this matter currently scheduled for August 29, 2013. In this action, plaintiff claimed damages of $1,800 for accident benefits pursuant to Statutory Accident Benefits Schedule (Ont.) ("SABS"). Plaintiff was involved in motor vehicle accident on September 8, 2011, for which defendant was applicable first-party insurer. Second action commenced more recently than first claim, plaintiff claimed damages of $5,457 for accident benefits arising from same accident. Motion granted. Insureds had de facto option and ability to commence separate court proceedings for separate SABS claims arising from same accident and involving same insurer. However, court was not compelled to permit separate actions to proceed to separate trials. Combining two cases permitted better proportionality between litigation cost and amount in dispute, which in turn promoted access to justice. Actions were to be tried together or heard one after other as trial judge may direct. Trial was adjourned to date in November 2013. Oberbichler v. State Farm Mutual Automobile Insurance Co. (Aug. 27, 2013, Ont. S.C.J., J. Sebastian Winny D.J., File No. Kitchener 2021/12) 232 A.C.W.S. (3d) 591. DISCOVERY Consent examination was analogous to court-ordered examination Motion by plaintiff for order compelling defendant city to produce defence vocational assessment report which was in its possession and control. On October 20, 2008, plaintiff sustained serious and permanent injuries, including traumatic and severe brain injury, as result of motor vehicle collision. Experts retained by plaintiffs concluded plaintiff would be competitively unemployable in his own or any field. In response, city retained vocational rehabilitation expert to conduct assessment of plaintiff. Plaintiffs consented to examination. Despite numerous requests by plaintiffs, city refused to produce report. Motion granted. If examination by health practitioner was ordered under s. 105 of Courts of Justice Act (Ont.), then subsequent report had to be disclosed to parties pursuant to Rule 33.06 of Rules of Civil Procedure (Ont.). While vocational rehabilitation expert in this case was not health practitioner, court had inherent jurisdiction to exercise its discretion to order production of reports of non-health practitioners. In addition, consent examination in this case was analogous to court-ordered examination and as such was subject to same obligations under Rule 33.06. City was to produce copy of vocational assessment report to plaintiff. McHardy (Litigation Guardian of) v. Ball (Sep. 5, 2013, Ont. S.C.J., DiTomaso J., File No. Barrie 090138) 232 A.C.W.S. (3d) 611. Assessment could provide functional evaluation of alleged limitations Defendant sought order compelling plaintiff to submit to examination for discovery by occupational therapist. Plaintiff 's occupational therapist had done future care cost analysis to support plaintiff 's claim for damages for future care. Application granted. Plaintiff put functional limitations in issue. Assessment by occupational therapist could provide functional evaluation of alleged limitations in plaintiff 's shoulder and arm in relation to allegations regarding future care needed for housekeeping. Plaintiff would be presenting future care analysis. Fairness dictated that defendant should be in position to present evidence on that part of case. Court should have available best and relevant evidence in order to do justice. Lo Faso v. Guarantee Co. of North America (Sep. 4, 2013, Ont. S.C.J., P.H. Howden J., File No. CV-08-088682-00) 232 A.C.W.S. (3d) 613. Debtor and Creditor ENFORCEMENT Comments could not be construed as waiver of rights under promissory note Application by plaintiffs for summary judgment on promissory note. In May 2010, company owned by defendant agreed to purchase assets of business from plaintiffs for $558,740. Agreement provided for purchase price to be secured by promissory note, collaterally secured by general security agreement, with payments of $17,235 per month for three years. Agreement required promissory note to be personally guaranteed by defendant. On closing, company delivered promissory noted signed by both company and defendant. Company made payments from June 2010 to October 2012, when defendant asked for time to obtain further financing. In December 2012, plaintiffs seized certain assets without giving notice of default. In January 2013, company commenced proceeding for injunction to restrain disposal of wrongfully seized assets. Interlocutory injunction granted by consent, but later dissolved on ground consent obtained by misrepresentation regarding payment of debt. Plaintiffs commenced action on promissory note against defendant and brought within application. Defendant claimed several issues required trial including default, seizure of assets and accounting. Application allowed in part. No evidence plaintiffs agreed to provide time to obtain further financing. Comments could not be construed as waiver of rights under promissory note or forbearance to sue. Defendant obliged to "put best foot forward" and failed to provide evidence regarding improper seizure and sale of assets. Accounting of amount owing under promissory note remained to be determined. Plaintiffs entitled to judgment on promissory note with amount of judgment to be determined at trial. 1758704 Ontario Inc. v. Priest (Aug. 21, 2013, Ont. S.C.J., J.P.L. McDermot J., File No. CV-130356) 232 A.C.W.S. (3d) 681. Requirement for secured party to conduct itself in commercially reasonable manner related settling claims In 2004 and 2006, plaintiff bank lent money to two companies ("debtors"). Each debtor executed agreement giving security for loans over various assets, including accounts receivable. In 2009, loans went into default. In September 2010, debtors entered www.lawtimesnews.com management agreement with defendant, Canadian company, who agreed to pay monthly management fees of $150,000 and $100,000. In July 2012, plaintiff gave notice of intention to exercise rights under security agreement and take assignment of accounts receivable. From August 2012 to August 2013, defendant failed to remit management fees of $250,000 per month to plaintiff as required. Plaintiff commenced action to enforce payment. Defendant claimed plaintiff acting contrary to Uniform Commercial Code of Virginia ("UCC") by failing to act in commercially reasonable manner, in particular by attempting to intercept funds essential to debtors continued operations when it could enforce other security such as that over real property whose value far exceeded indebtedness. Plaintiff applied for summary judgment. As of April 2013, debtors owed plaintiff more than $6.5 million. Application allowed. Clear from expert evidence that provision in UCC requiring secured party to conduct itself in commercially reasonable manner related only to settling and compromising of claims, and accounting to debtor for any deficiency or surplus. Requirement only arose once secured party sent notice to account debtor. Requirement did not apply to secured party's decision to collect account receivable. Accordingly, defendant did not raise any issue requiring trial. Plaintiff entitled to judgment for $3 million and order requiring defendant to pay to plaintiff all amounts owed to debtors after August 2013 until such time as indebtedness repaid. Wells Fargo Bank N.A. v. Best Theratronics Ltd. (Sep. 12, 2013, Ont. S.C.J. [Commercial List], L.A. Pattillo J., File No. CV-1310062-00CL, CV-13-484741) 232 A.C.W.S. (3d) 682. Employment WRONGFUL DISMISSAL Plaintiff 's rejection of defendant's offer of re-employment was unreasonable Plaintiff appealed trial judge's dismissal of action. Plaintiff was constructively dismissed from employment as manager with defendant. Defendant purported to lay off plaintiff in erroneous belief it was entitled to do so due to poor financial performance of facility. Within two weeks of lay-off, plaintiff sued defendant for damages for wrongful dismissal. Five days after action was commenced, defendant recalled plaintiff to work at same location, with same duties and at same salary and benefits. Plaintiff declined to return to work. Defendant did not dispute that plaintiff had been constructively dismissed. Trial judge found that, by declining opportunity to return to work, plaintiff failed to mitigate his damages as he was obligated to do, with result that damages in lieu of notice were nil. Appeal dismissed. It was open to trial judge to make credibility based factual findings he did. Trial judge did not err in assessment of reasonableness of plaintiff 's decision not to return to work. Trial judge considered factors relevant to assessment of reasonableness of decision. There was no basis to interfere with trial judge's ruling that, in circumstances and viewed objectively, plaintiff 's rejection of defendant's offer of re-employment was unreasonable. Trial judge did not make any palpable and overriding error in making key factual findings that were adverse to plaintiff. Chevalier v. Active Tire & Auto Centre Inc. (Sep. 5, 2013, Ont. C.A., E.A. Cronk J.A., R.A. Blair J.A., and G.R. Strathy J.A., File No. CA C55919) Decision at 218 A.C.W.S. (3d) 99 was affirmed. 232 A.C.W.S. (3d) 685. Family Law CHILD WELFARE Father's proposal would result in continued uncertainty for child Father appealed order making child Crown ward with no access. Father sought order placing child in care of third party under 12-month supervision order subject to certain conditions. Trial judge found third party would not be able to handle parents' access to child. Appeal dismissed. There was ample evidence to support trial judge's finding that placement with third party would not be in best interests of child. She had serious health concerns and had experienced difficulty in raising her own children. Trial judge found that father had anger control and management issues. Access by father would put child at risk. Father's proposal would result in continued uncertainty for the child, which was contrary to his best interests. Children's Aid Society of the Districts of Sudbury and Manitoulin v. B. (C.) (Aug. 27, 2013, Ont. S.C.J., Patricia C. Hennessy J., File No. C-197-11) 232 A.C.W.S. (3d) 692. Mother's failure to attend access visits demonstrated ambivalence In January 2010, applicant child welfare authority became involved with respondent mother and three children, born in 1998, 2002 and 2006, as result of serious concern about mother's alcohol use. Two youngest children were placed in applicant's care in April 2010 and oldest in January 2011. Mother offered supports and services to address alcohol abuse, history of domestic violence and past issues of trauma, but failed to follow through. In April 2012, children found to be in need of protection and made wards of applicant on temporary basis. Mother's attendance at access visits began to decline in November 2012 and subsequently cancelled. Mother had difficulty maintaining stable housing and applicant currently unaware of her whereabouts. Assessment indicated children had special needs and required stable, consistent and predictable parenting environment, and caregiver that

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