Law Times

Page 14 May 26, 2014 • Law TiMes www.lawtimesnews.com ONTARIO CIVIL DECISIONS Aboriginal Peoples EXEMPTION FROM TAXATION Transaction was effectively sham Lender was Aboriginal capital corporation, but was not Indian as defi ned by Indian Act (Can.). Lender loaned borrower, Indian on reserve, $125,000 for his fi sh hatchery business. Loan was structured as conditional sale of chattels. In eff ect, lender ob- tained some on-reserve chattels from borrower without paying for them and then secured its business loan on those on-re- serve chattels. Borrower made four interest installments on loan and then stopped making payments and declared bank- ruptcy. Following borrower's discharge from bankruptcy, lender seized chattels from bor- rower on reserve. Borrower sued lender for damages. Trial judge found that lender was liable for conversion. Trial judge held that lender's seizure of chattels on re- serve contravened s. 89(1) of Act and was not allowed under s. 89(2). Lender appealed. Appeal dismissed. Section 89(1) of Act prohibited Indian from granting security on any of his or her real or personal property on reserve except to another Indian. Sec- tion 89(2) of Act allowed person who had sold chattel to Indian, but retained title or right to pos- session to exercise rights against chattel even if chattel was on re- serve. Purpose of provisions was to protect Indians from being ex- ploited by non-Aboriginals and losing land or chattels on reserve to non-Indians. Transaction parties purported to enter into was merely notional because payment was notional. Trans- action purported to be sale and repurchase of borrower's equip- ment, as well as loan to him us- ing same $125,000. Transaction could not come within s. 89(2) of Act because it was eff ectively sham. Benedict v. Ohwistha Capital Corp. (Jan. 29, 2014, Ont. C.A., K. Feldman J.A., J. MacFarland J.A., and G.R. Strathy J.A., File No. CA C53282) Decision at 199 A.C.W.S. (3d) 1030 was affi rmed. 237 A.C.W.S. (3d) 278. Civil Procedure DISCOVERY Deemed undertaking rule only applied to proceedings other than one in which evidence obtained Settlement of several class actions resulted in Indian Residential Schools Settlement Agreement ("IRSSA"). Plaintiff s were claim- ants under Independent Assess- ment Process ("IAP"), established pursuant to IRSSA. Truth and Reconciliation Commission of Canada ("TRCC"), constituted under IRSSA, brought request for direction requiring defen- dant government of Canada to produce records of 1992 to 1996 Ontario Provincial Police ("OPP") investigation of assaults and other crimes against students at par- ticular residential school. Request granted. Court had jurisdiction to order Canada to honour its disclo- sure and production obligations under IRSSA. Jurisdiction derived from court's power over adminis- tration of class action settlements; plenary jurisdiction under s. 12 of Class Proceedings Act, 1992 (Ont.); and IRSSA, which includ- ed jurisdiction to enforce court's own approval and implementa- tion orders. OPP documents in Canada's possession should be produced to TRCC as they were clearly relevant to its mandate. Deemed undertaking in Rule 30.1 of Rules of Civil Procedure (Ont.), did not preclude production. Deemed undertaking rule only applied to proceedings other than proceeding in which evidence was obtained. Proceedings that culmi- nated in IRSSA included or were same as proceedings associated with order for production of OPP records to Canada. Purposes of plaintiff s in actions in which OPP documents were obtained were overtaken by purposes of their participating in IRSSA as IAP claimants. Fontaine v. Canada (Attorney General) (Jan. 14, 2014, Ont. S.C.J., Perell J., File No. 00-CV- 129059) 237 A.C.W.S. (3d) 353. Damages PERSONAL INJURY Plaintiff awarded $4.8 million after being struck by police cruiser Plaintiff was struck by police cruiser when he was riding his bi- cycle at night through pedestrian crosswalk. Before accident, plain- tiff struggled with drug abuse and had very serious emotional issues. Plaintiff had learning dis- ability and virtually no market- able skills apart from being able to perform basic labour. Plaintiff also had ongoing back and neck pain. As result of accident, plain- tiff suff ered signifi cant physical injuries and continued to suff er through ongoing psychologi- cal sequelae of collision. Plaintiff brought action for damages. Ac- tion allowed. Plaintiff was award- ed $4.8 million for cost of future care. Although plaintiff was "mess" before collision, he was still living independently. A er collision, family provided signifi - cant, if unquantifi ed, attendant care to plaintiff . Plaintiff now needed to be in residence where his basic needs were provided for him. Plaintiff needed supervision on most occasions when he was out of home. ere was no dis- pute that plaintiff would require neuro-psychological testing, as well as ongoing psychological counselling and occupational therapy. Plaintiff also required physiotherapy, massage therapy, gym membership, housekeeping allowance, medications, plastic surgery, certain equipment, and case management. Pelletier v. Ontario (Nov. 7, 2013, Ont. S.C.J., Boswell J., File No. CV-10-098341-00) 237 A.C.W.S. (3d) 554. Evidence OPINION EVIDENCE Counsel's practice of review- ing draft reports should stop Plaintiff suff ered high impact fracture to right wrist and other minor injuries, and was taken to emergency department at hospi- tal. Defendant doctor applied full circumferential cast a er partially successful closed reduction. Next day, plaintiff went to emergency department at another hospi- tal, complaining of increased pain, swelling, and that cast was too tight. Plaintiff was seen by emergency room physician, and orthopedic surgeon performed emergency surgery for compart- ment syndrome that had devel- oped. Plaintiff had lasting perma- nent injuries to his right arm as result of compartment syndrome and its a ermath. Trial held con- cerning issue of defendant's liabil- ity in applying full circumferen- tial cast to plaintiff 's injury. Issue arose concerning whether it was appropriate for counsel to review experts' dra reports. Purpose of Rule 53.03 of Rules of Civil Procedure (Ont.), was to ensure independence and integrity of expert witness. Expert's primary duty was to court. In light of this change in role of expert witness under new rule, counsel's practice of reviewing dra reports should stop. ere should be full disclo- sure in writing of any changes to expert's fi nal report as result of counsel's corrections, sugges- tions, or clarifi cations, to ensure transparency in process and to ensure that expert witness was neutral. Moore v. Getahun (Jan. 14, 2014, Ont. S.C.J., J. Wilson J., File No. 06-CV-321339PD3) 237 A.C.W.S. (3d) 530. Family Law CUSTODY Father's change of heart about home schooling tied to concerns about payment of spousal support Parties had one child. Mother homeschooled child and wished to continue to do so. Father pro- posed to live in paternal grand- parents' home although he took over matrimonial home. Child currently lived with mother and her new partner. Father preferred for child to be enrolled in more traditional community school and sought primary residence of child to facilitate such attendance in vicinity of home of paternal grandparents. Mother sought primary residence under joint custody arrangement. Parties were to have joint custody with primary residence remaining with mother. Mother was to have some weekend time with child as well as father. Father was to pay child support of $854 per month based on income of $96,825.31. Complete change was not in child's best interests. Mother was individual primarily responsible for all decisions relating to child's health, dental and educational care. Father was comfortable with initial decision to home school child. ere was concern that father's change in heart about home schooling was tied to con- cerns about payment of spousal support/fi nancial circumstances. System appeared to be working well for child. Annual review by educational counsellor was to include discussion/proposal for transition to more traditional school system. Kriyachanda v. Dajka (Feb. 5, 2014, Ont. S.C.J., J.A. Milanetti J., File No. Welland D23231/11) 237 A.C.W.S. (3d) 450. Municipal Law ACTIONS AGAINST MUNICIPALITY Reasonable driver could have travelled over area without loss of control Plaintiff driver was driving car owned by second plaintiff down gravel country road. Plaintiff driver lost control of vehicle, which became airborne and then hit ground and rolled over. Plaintiff driver suff ered very seri- ous injuries as result of accident. Plaintiff s commenced action against defendant municipality, alleging that municipality failed to keep road in safe and proper condition, and free from present and known dangers that caused plaintiff 's accident. Parties agreed on assessment of damages in amount of $950,000. Trial was held to determine liability. Plain- tiff driver was 100 per cent liable. ere was no question that plain- tiff driver was simply going too fast. Plaintiff driver was not only exceeding speed limit, but she also was travelling closer to cen- tre of unlit gravel road, at night, approaching hill that obstructed her view of oncoming traffi c. Condition of road was entirely reasonable. Reasonable drivers, adjusting to character of road and prevailing conditions, eas- ily could have travelled over area and potholes in question, with- out loss of control. McLeod v. General Motors of Canada Ltd. (Jan. 6, 2014, Ont. S.C.J., I.F. Leach J., File No. Lon- don 47039) 237 A.C.W.S. (3d) 512. TAXATION Appellant was tenant and liable for municipal realty taxes Appellant provided foreign cur- rency exchange, insurance and other travel-related serves from 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. 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