Law Times

www.lawtimesnews.com Page 14 February 11/18, 2008 / Law Times ONTARIO CIVIL CASES Civil Procedure COSTS Premium disallowed after six-week jury trial Plaintiff claimed damages arising out of motor vehicle accident in which plaintiff suffered brain inju- ry of catastrophic proportion. Jury trial lasted six weeks. Partial set- tlement was approved. Damages recovery was $10,366,529. It was not appropriate to add on costs premium. There was no evidence defendant acted inappropriately. No award was made for carry- ing costs premium. Plaintiff was to recover $128,514 for disburse- ments, $258,514 less $130,000 paid pursuant to partial settlement and judgment. Ford Credit was to pay costs on partial indem- nity basis of $7,500 plus GST for application brought for stand- ing to make submissions relating to fee and disbursement issues between plaintiff and plaintiff 's counsel. Ford Credit was to pay $720,000 plus GST in satisfac- tion of remaining fees portion of plaintiff 's costs claims inclusive of substantial and partial indem- nity components. Fee portion was compromise of $20,000 for remaining costs on partial indem- nity basis and $600,000 for costs on substantial indemnity basis. Marcoccia (Litigation Guardian of ) v. Ford Credit Canada Ltd. (Nov. 29, 2007, Ont.S.C.J., Moore J., File No. 02-CV-230716 CM3) Order No. 007/339/049 (14 pp.). TRIAL Action arising from accident in Belleville was transferred to Belleville Defendant brought motion to transfer action from Toronto to Belleville. Action arose when plain- tiff was struck by bus owned by defendant city. Plaintiff opposed motion because early trial date had been secured in Toronto and quick resolution of lawsuit would be beneficial to plaintiff 's health. Defendant objected to early trial date on ground that plaintiff 's medical condition had not stabi- lized and defendants had yet to request defence medical examina- tions. Motion allowed. Interests of justice transfer of action to Belleville since that was where accident occurred and damages were sustained and factors in Rule 13.1.02 of Rules of Civil Procedure (Ont.), favored. Balance of conve- nience of parties and witnesses favoured Belleville. Rushnell v. Belleville (City) (Nov. 5, 2007, Ont.S.C.J., Master Dash, File No. 05-CV-298549PD2) Order No. 007/311/091 (9 pp.). Contempt Of Court JURISDICTION Quasi-criminal nature of contempt proceedings considered on transfer motion Applicant alleged former wife breached provision of divorce order. Applicant moved for contempt order in Toronto. Respondent resided in Ottawa and initiated application in Ottawa to vary order. Respondent argued contempt motion should be transferred. Motion transferred to Ottawa. Motions seeking to enforce custody or access generally should be brought in municipal- ity where child ordinarily resides. Contempt motions quasi-criminal in nature with possibility of hearing viva voce evidence. Requirement to travel to Toronto might dis- advantage respondent's ability to mount defence. Applicant had condominium in Ottawa to stay at during hearing. Respondent agreed to abide by divorce order until altered by court. Proulx v. Muirhead (Dec. 3, 2007, Ont.S.C.J., Brown J., File No. 05-FD 307746) Order No. 007/339/117 (4 pp.). Corporations MEETINGS Special general meeting was properly convened and conducted Applicants sought declaration special general meeting of SISCA was validly convened and con- ducted, and board of directors elected at meeting was authorized to take control of offices and affairs of SISCA and Mosque. Declarations were granted. Request portion of article in by- law was separate and distinct in that meeting could be convened on member's request of member- ship in addition to there being order of one of listed entities. Request was made under article. Notice of meeting was given to each member who was entitled to receive notice. There was no substantive evidence to sug- gest meeting was conducted in improper or inappropriate way. Somali Society of Canada v. Hassan (Nov. 26, 2007, Ont.S.C.J. Commercial List, Lederman J., File No. 07-CL-7082) Order No. 007/333/084 (9 pp.). Contracts BUILDING CONTRACTS Paving contract quote not subject to variance Parties entered paving contract. Defendant claimed deficien- cies in performance of contract. Plaintiff delivered quote. After original contract was negotiated parties agreed on extra to con- tract. Plaintiff carried out work. Plaintiff argued price of contract was to be adjusted on comple- tion of work. Defendant argued agreement was for fixed price contract. Defendant's evidence was accepted. There was no indi- cation that what was submit- ted in fax was quote subject to variance. There was meeting of minds that total price of job was $72,500 plus $1,700 for pav- ing of concrete pad with GST. Shortly after completion of work there were signs of deteriora- tion of asphalt. Defendant was entitled to cost of having work done by third party. Associated Paving Ltd. v. 620369 Ontario Inc. (Nov. 29, 2007, Ont.S.C.J., Lofchik J., File No. 04-15089) Order No. 007/339/029 (13 pp.). Family Law DOMESTIC CONTRACTS Examination of third party would be fishing expedition Wife argued she was clinically depressed at time of separation agreement and provisions unrea- sonable and unconscionable. Respondent husband moved to examine wife's former lawyer. Motion denied. High threshold to obtain leave to examine third par- ties. Information available through other methods. Applicant's affida- vit included lawyer's file. Lawyer could be made available at trial for questioning. Not clear whether applicant alleging inadequate legal advice or breach of solicitor's duty. Examination would be fishing expedition. Examination could delay adjudication of main issue. Not unfair to continue litigation without examination. Fawcett v. Fawcett (Nov. 13, 2007, Ont.S.C.J., Clarke J., File No. 207/07) Order No. 007/330/064 (6 pp.). Professions BARRISTERS AND SOLICITORS Clients ordered to pay for legal services reasonably charged Plaintiff claimed amount for legal services rendered to defendants. Actions included breach of trust. Defendants argued plaintiff was on notice of defendants' financial constraints. Defendants argued plaintiff made no effort to keep cost of services down. Plaintiff was granted judgment. Judgment was not granted on several basis because all three defendants retained plain- tiff and signed retainer without restricting liability. Plaintiff tried to minimize cost charged to defen- dants. Charges for internal con- sultations and discussions among lawyers at plaintiff were not redun- dant billing. There was nothing to suggest plaintiff spent unreason- able amount of time or charged excessively given nature of cases. Stockwoods LLP v. 1380526 Ontario Inc. (Nov. 29, 2007, Ont.S.C.J., Conway J., File No. 06-CV-313598SR) Order No. 007/339/046 (7 pp.). Real Property CONDOMINIUMS Change in location of furnace was fundamental change Appellants purchased condomini- um unit from plans and location of furnace was changed. Action against respondent for return of deposit was dismissed. Appeal was allowed. Respondent was ordered to return deposit. Findings of fact regarding closet had to be over- turned because trial judge fixed on wrong closet. It would add unnecessarily to expenses of litiga- tion to order new trial. Change in location of furnace constituted fundamental change. Brooker v. Independence Way Inc. (Dec. 3, 2007, Ont. Div. Ct., Carnwath J., File No. 36/07) Order No. 007/339/104 (4 pp.). Torts NEGLIGENCE No error in dismissal of negligent misrepresentation action Appellant brought claim for negligent misrepresentation and intentional interference with eco- nomic relations. Appellant argued trial judge erred in failing to find respondent liable. Appellant raised argument respondent was liable for breaches of fiduciary duty for first time. Appeal was dismissed. Court refused to depart from rule not entertain submissions with respect to cause of action raised for first time on appeal. There was ample evidence to support trial judge's conclusions on negligent misrep- resentation. Agreement entered contained entire agreement clause. It was open to trial judge to accept Street's evidence and find appel- lant failed to show respondent had intention to interfere with appel- lant's economic relations. Lucien Groulx & Son Planing & Saw Mill Ltd. v. Nipissing Forest Resource Management Inc. (Nov. 26, 2007, Ont. 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