Law Times

Page 14 February 24, 2014 • Law Times www.lawtimesnews.com ONTARIO CIVIL DECISIONS Appeal STAY PENDING APPEAL Not in child's best interests to reinstate access with mother pending appeal Society's motion for summary judgment was granted. Child was found to be in need of protec- tion and was made Crown ward without access to either parent for purposes of adoption. Mother appealed. Mother sought to have order stayed pending appeal and permit access. Mother, aged 18, and prior to order was having su- pervised access with child. Foster parents were prepared to adopt child. Motion dismissed. Appeal did not have merit. ere was no arguable chance of success in any of grounds of appeal raised by mother. It was not in child's best interests to reinstate access with mother pending appeal. Judge's finding that continuation of access would not be beneficial to child was not challenged on appeal. Bruce-Grey Child and Family Ser- vices v. G. (T.) (Dec. 12, 2013, Ont. S.C.J., Conlan J., File No. 13-231- 00AP) 234 A.C.W.S. (3d) 543. Arbitration PROCEDURE Dispute did not concern provision of agreement but manner in which affairs of company conducted Plaintiff minority shareholder alleged defendant, 50% share- holder and operating mind of defendant company, conducting affairs of company in improper manner by, for example, using or diverting funds for personal use. Plaintiff commenced action for various forms of relief, including damages for breach of contract or oppression, and brought mo- tion for interim injunction with respect to affairs and management of company and disclosure of fi- nancial information. Motion ad- journed on terms restraining de- fendants from dissipating assets, requiring approval for payments and allowing plaintiff to oversee company's operations and ob- tain information and documents. When plaintiffs brought motion to extend terms, appoint principal as co-manager of company and obtain further disclosure, com- pany brought motion for order requiring shareholders to pursue alternate dispute resolution mech- anisms provided by shareholders' agreement. Motion denied. Dis- pute resolution provision applied to dispute on any matter arising out of provision of agreement and contemplated four distinct steps in process. First, mandatory negotiation either between par- ties directly or through solicitors. Second, mandatory negotiation with assistance of mediator if parties unable to resolve matters through direct negotiation. ird, arbitration before single arbitrator if parties agreed and fourth, court proceeding. Mediation arose only if parties attempted to resolve mat- ters through direct negotiation and unable to do so. Situation did not arise here where parties used services of solicitors and did not negotiate directly. Dispute did not, in any event, concern provision of agreement but manner in which affairs of company conducted. 829194 Ontario Inc. v. Garibotti (Sep. 18, 2013, Ont. S.C.J., David A. Broad J., File No. 13-40010) 234 A.C.W.S. (3d) 732. Civil Procedure DISCOVERY Court not satisfied relevant document omitted by refusal to produce Facebook profile Action arose out of motor vehicle accident. Plaintiff alleged she suf- fered severe and permanent per- sonal injuries. Defendant brought motion for order requiring plain- tiff to produce photographs of plaintiff from two years prior to accident to present plus photo- graphs posted on Facebook. Mo- tion was granted in part. ere should be full and complete pre- trial disclosure of relevant docu- ments. However, relief sought in respect of photographs was too broad. Plaintiff was to serve supplementary affidavit of docu- ments disclosing all photographs of herself, in her possession or control, that were relevant to mat- ter in issue for two years prior to accident and during period following accident in respect of which she was claiming damages. Court was not satisfied that rel- evant document had been omit- ted by reason of failure or refusal to produce Facebook profile. Young v. Comay (Dec. 6, 2013, Ont. S.C.J., D.A. Broad J., File No. 11-28421) 234 A.C.W.S. (3d) 589. TRIAL No prejudice to plaintiff in having jury focus on types of damages they could award Plaintiff raised concern as to whether questions that would be given to jury should be bro- ken down into constituent dam- ages. Plaintiff objected to separate questions going to jury for gen- eral, contemptuous and nominal damages. Objection dismissed. ere was no prejudice to plaintiff in having jury focus on types of damages that they could award. If jury was to be properly charged with respect to general, contemp- tuous and nominal damages then there was no reason why ques- tions posed to jury should also not reflect those different types of damages. Buck v. Morris (Dec. 9, 2013, Ont. S.C.J., M.L. Edwards J., File No. CV-09-096918-00) 234 A.C.W.S. (3d) 620. Corporations SHAREHOLDERS Conduct of respondent risked caus- ing irreparable harm to applicant In shareholders' dispute, applicant sought order pursuant to Trustee Act (Ont.), requiring respondent, who was registered owner of shares as bare trustee for applicant and his brother, to transfer shares into their names. Shares were in corporation that ran casino and other businesses. Despite request from applicant, respondent had refused to transfer shares. Ap- plicant moved, on urgent basis, for interim injunctive relief. Mo- tion was granted in part. ere was serious question to be tried as to whether respondent had discharged properly his duties as trustee. Conduct of respondent risked causing irreparable harm to applicant and his brother since he had purported to act as if they en- joyed no rights as beneficial own- ers of majority of corporation's shares. Balance of convenience also favoured applicant since ap- plication would be heard on its merits in three weeks. Interim order issued requiring parties to exchange all corporate docu- ments in their possession. Parties were to co-operate to ensure that any directions given with respect to management and operation of corporation and its related com- panies would only be in ordinary course of business. Parties were to refrain from dealing in any way with, or giving any directions re- garding, business, affairs, assets or undertaking of corporation and its related companies outside ordi- nary course of business. Carbone v. Pajak (Oct. 22, 2013, Ont. S.C.J. [Commercial List], D.M. Brown J., File No. 08-14/13) 234 A.C.W.S. (3d) 730. Damages FALSE ARREST AND IMPRISONMENT Plaintiff entitled to general damages of $50,000 and damages for lost income of $83,473 Plaintiff had successful career as cardiologist with HHS. Plain- tiff had baby and baby was ex- tremely irritable. Plaintiff became concerned for baby's health and sought medical advice. Symptoms persisted and plaintiff believed she was being labelled as anxious mother by treating physicians. Plaintiff sought to get timely refer- ral to new specialist outside circle within HHS so she requested ap- pointment with defendant, vice- president of HHS. Prior to ap- pointment defendant consulted with physicians plaintiff had seen. At appointment defendant com- pleted application for psychiatric assessment of plaintiff under s. 15 of Mental Health Act (Ont.), using form 1, which led to imme- diate and involuntary detention of plaintiff. Plaintiff was escorted out of out of defendant's office and transported to hospital for psychiatric assessment. Plaintiff was completely taken by surprise and alleged that she suffered psy- chological trauma. Plaintiff was humiliated and her work and per- sonal life suffered. Plaintiff sought damages arising from negligence and false imprisonment. Ac- tion allowed. Plaintiff was falsely imprisoned and damages were presumed. Plaintiff was entitled to general damages of $50,000, and damages of $83,473 for lost income. However, same amounts were awarded for negligence and plaintiff was not entitled to claim same amounts twice, as that would amount to double recovery. X v. Everson (Sep. 30, 2013, Ont. S.C.J., Robert B. Reid J., File No. 08-2778) 234 A.C.W.S. (3d) 769. Employment WRONGFUL DISMISSAL Unwise for defendant to terminate employment without conducting independent investigation Plaintiff worked for defendant. Defendant terminated plaintiff 's employment without notice. Plaintiff brought action for dam- ages for wrongful dismissal, ag- gravated damages, and punitive damages. 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