Law Times

Page 14 June 16, 2014 • Law Times www.lawtimesnews.com one specie. Application grant- ed. Declaration was granted declaring Ministers' failure to include proposed recovery strategies for four species in public registry within statutory time periods set out in Act to be unlawful. Achievement of consensus amongst stakehold- ers was not legislative require- ment for recovery strategy. Consensus was not to be pur- sued at expense of compliance with Minister's statutory obli- gations. Recovery strategy was to be science-based not con- sensus-based. Ministers made conscious decisions to delay or defer preparation of pro- posed recovery strategies for four species. There was enor- mous systemic problem within Ministries given respondents' acknowledgment that there re- mained 167 species at risk for which recovery strategies were not yet developed. Bad faith was not shown. It was simply not acceptable for Ministers to continue to miss mandatory deadlines and it was necessary and appropriate to grant de- claratory relief as expression of judicial disapproval of current situation and to encourage fu- ture compliance with statute. Application for mandamus was dismissed insofar as it related to proposed recovery strate- gies because proposed recovery strategies were published for all four species. Applications for mandamus were adjourned as they related to mandamus compelling posting of final re- covery strategies for three spe- cies. Request for mandamus in relation to final recovery strategies for three species was premature. Timelines in s. 43 of Act were triggered only when proposed recovery strategy was included in public registry. Timelines were not yet expired and there was currently no public legal duty for Ministers to post final recovery strategies. Western Canada Wilderness Committee v. Canada (Minister of Fisheries and Oceans) (Feb. 14, 2014, F.C., Anne L. Macta- vish J., File No. T-1777-12) 238 A.C.W.S. (3d) 223. ONTARIO CIVIL DECISIONS Civil Procedure AFFIDAVITS Principles of openness and transparency to be balanced against protecting children Father got mother pregnant in 1998. Around time of child's birth, mother and father ex- ecuted agreement pursuant to which father paid lump sum in full satisfaction of his child support obligations. Agree- ment provided father would have no contact with mother and child. Father was cur- rently lawyer who was married and had three other children. Child learned identity of fa- ther when she was 13 years old. Child commenced application against father for child support. Father commenced motion for order sealing court file, allow- ing parties to use initials in lieu of names, and restraining child from contacting father's family. Father filed affidavit in which he included views of child psy- chotherapist. Child brought motion for order striking out this part of affidavit. Motion dismissed. It was not improper for father to make reference to views of child psychotherapist in his affidavit in support of his motion for sealing order. This was not case of father stating, without further evidence, what someone else had told them. In this case, father had set out his understanding of child psy- chotherapist's concerns and included letter from her. No determination was being made as to whether child psycho- therapist met requirements for admission of expert evidence at trial. Principles of openness and transparency of courts had to be balanced against protect- ing children who might be ad- versely affected by litigation. M. (C.M.) v. C. (D.G.) (Jan. 24, 2014, Ont. S.C.J., Darla A. Wilson J., File No. FS-13-18928) 238 A.C.W.S. (3d) 59. Contempt of Court GROUNDS Having corporation pay for car and cellphone did not violate provisions of court order Husband, who owned his own real estate firm, was in arrears of support payments in excess of $150,000 and had long his- tory of attempting to avoid obligations under court or- ders. Current contempt mo- tion arose from order made on Jan. 2, 2013, after husband lost motion to change quantum of his spousal support obligation. Order provided that husband was prohibited from receiving any income other than salary income from any corporation or business in which he held interest when he was in default of any support order and was prohibited from declaring or receiving any dividend income, receiving shareholder loans, receiving any commission in- come or receiving any other benefits from any corporation or business in which he had interest when he was in default of any support order. In sup- port of yet another motion to change, husband subsequently filed financial statement in which he claimed his car, ex- tended medical and life insur- ance benefits and his cell phone as benefits paid on his behalf by his company. In this motion for contempt, wife alleged that these items were benefits from husband's corporation in vio- lation of order that prevented husband from receiving "any other benefits" from any corpo- ration or business in which he had interest while in default of any support order. Wife's mo- tion for contempt dismissed. Having his corporation pay for his car and cell phone, items that counsel for wife acknowl- edged husband required for operation of his business, did not violate provisions of court order. Freedman v. Freedman (Feb. 21, 2014, Ont. S.C.J., Bonnie R. Warkentin J., File No. FC-08- 1285) 238 A.C.W.S. (3d) 76. Corporations MEETINGS Company did not hold special meeting to seek approval of sale Individual parties were share- holders in company. Property was listed for sale. Purchase and sale agreement was signed without further notice to ap- plicant. Applicant learned of sale after purchase and sale agreement was signed. Appli- cant sought injunction to pre- vent sale of property. Applicant sought mandatory injunction for respondents to return his personal chattels that were still on property. Sale fell through, but parties still wished ruling. Sale was set aside and injunc- tion granted. Company did not hold special meeting of shareholder to seek approval of sale as required for sale out of ordinary course of business. Sale was out of ordinary course of business. Applicant was en- titled to ten days' notice of spe- cial meeting for consideration of sale of assets. Denying appli- cant right to appropriate notice, deprived him of dissent rights and right to be paid fair value for his shares. Application with respect to chattels was dis- missed. Determination of cred- ibility could not be made on paper record. It was not known and could not be determined if items belonged to applicant. Luxon v. Roy's Northland Camp Ltd. (Feb. 28, 2014, Ont. S.C.J., Lemon J., File No. 587/13) 238 A.C.W.S. (3d) 86. Debtor and Creditor EXECUTION Commercially sensitive information kept confidential to protect integrity and fairness of sale Prior to receivership, debtor had offered primary asset, two manufacturing facilities on some 13 acres of property, for sale for $10.9 million. Follow- ing appointment in November 2012, receiver listed property for sale for $9.95 million. In January 2013, receiver reduced listing price to $8.2 million. After five months of market- ing, receiver received only one offer which was for far below asking price. In June 2013, not- ing appraised value less than January listing price, receiver reduced listing price further to $6.8 million. Prospective pur- chaser made offer and receiver entered agreement for purchase and sale. Purchaser unable to waive conditions and agree- ment came to end. After reject- ing several other offers due to either price or conditions, re- ceiver accepted offer from new purchaser and executed agree- ment in December 2013. Re- ceiver brought motion for court approval of sale, fees and distri- bution of net proceeds to prior- ity claims and secured creditor. Debtor objected on basis re- ceiver had used improperly low listing price, resulting in im- provident bargain, and treated it unfairly by refusing to dis- close purchase price and other relevant information. Receiver refused to disclose information unless debtor signed confiden- tiality agreement disavowing any intention to bid on prop- erty. Motion granted. Com- mercially sensitive information kept confidential in order to protect integrity and fairness of sale process by ensuring that competitors or potential bid- ders did not obtain unfair ad- vantage. Receiver acted reason- ably in refusing to disclose such information without execution of confidentiality agreement. On evidence, no question re- ceiver had exposed property to market in reasonable fashion and for reasonable period of time. Accepted offer below ap- praised value, but superior to others received in last quarter of 2013. Therefore, appraised value clearly over-estimated market value of property. GE Canada Real Estate Financ- ing Business Property Co. v. 1262354 Ontario Inc. (Feb. 24, 2014, Ont. S.C.J. [Commer- cial List], D.M. Brown J., File No. CV-12-9856-00CL) 238 A.C.W.S. (3d) 101. Insurance LIABILIT Y INSURANCE Impossible to determine true nature and substance of claim from pleadings Plaintiff sued applicant univer- sity and company that provided inf latable amusement rides af- ter she allegedly tripped and fell on metal stake at event on applicant's property, and sus- tained serious injuries. Com- pany provided applicant with certificate of insurance naming applicant as additional insured with respect to liability arising from operations of named in- sured. Policy, which was pro- vided by respondent group of insurance companies, provid- ed coverage for bodily injury claims arising from company's negligence, but did not provide coverage for applicant's negli- gence. Application by univer- sity for declaration respondent was obligated to provide de- fence for it in underlying ac- tion. Application dismissed. Premises in statement of claim was whole of applicant's prop- erty, but company's operation only occupied part. Plaintiff claimed she fell on stake near inf latable without defining dis- tance. Allegations were joint and several and true nature of claim could not be said to arise from company's operations. Object of injury was defined, but not connected to compa- ny's negligence. Impossible to determine true nature and sub- stance of claim from pleadings, so would be inappropriate to order respondent to defend on applicant's behalf. If company was ultimately found solely li- able, applicant would recover its costs via cross-claim. University of Waterloo v. Scot- tish & York Insurance Co. (Feb. 24, 2014, Ont. S.C.J., D.J. Gor- don J., File No. C-742-13) 238 A.C.W.S. (3d) 211. Police BOARDS OF COMMISSIONERS OF POLICE Any damage experience by plaintiff caused by plain- tiff 's inaction and not by negligence of defendants Plaintiff was employed at wom- en's shelter as crisis counsellor, providing support and coun- selling for abused women and their children. On July 6, 2009, plaintiff was assisting woman to change her rooms in shelter when she was pierced by un- capped needle that was loose in one of woman's bags. Woman admitted to having hepatitis C, but denied being HIV positive. Plaintiff went to hospital and received tetanus shot and injec- tion for hepatitis A and B. After being discharged from hospi- tal, plaintiff called police. Con- stable was assigned to case and investigated over next several days. Plaintiff, who was mar- ried to police officer, wanted woman charged with criminal negligence. Police did not ar- rest woman or charge her with crime. Plaintiff was declared out of danger by August 2010. Plaintiff commenced action against police for negligent in- vestigation. Plaintiff claimed that failure of police to test nee- dle left her unaware that needle presented no medical dangers. Plaintiff also claimed that she suffered post-traumatic stress disorder as result of failure of police to charge woman with criminal negligence or analyze blood in needle. Defendants brought motion for summary judgment to dismiss plaintiff 's action on basis that there was no genuine issue requiring trial. Motion granted. There was no section of Mandatory Blood Testing Act, 2006 (Ont.), which permitted police to com- pel woman to provide blood sample. Applicant could have applied under act to medical officer to have blood in needle analyzed. However, act did not permit police to make such ap- plication. Any damage experi- enced by plaintiff due to failure to promptly analyze contents of needle was caused by plaintiff 's inaction and not by negligence of defendants. Plaintiff 's claim was dismissed. Cochrane v. Kawartha Lakes (City) Police Services Board (Mar. 3, 2014, Ont. S.C.J., Marrocco A.C.J.S.C., File No. 040/11) 238 A.C.W.S. (3d) 228. Real Property CO-OWNERSHIP No evidence that change of heart came about by daughter's undue influence CASELAW

• Cover