Law Times

Page 14 January 26, 2015 • Law Times www.lawtimesnews.com ONTARIO CIVIL DECISIONS Civil Procedure CONSOLIDATION Consolidation would result in delay where plaintiff in serious financial need Plaintiff suffered injuries in mo- tor vehicle accident and alleged that individual was responsible for accident. At time of accident plaintiff was insured by defen- dant. Plaintiff commenced action against individual seeking dam- ages for personal injuries and eco- nomic loss. Plaintiff brought this action against defendant seek- ing same damages as in action against individual but based on uninsured, unidentified and un- derinsured coverage provisions of policy. Defendant applied to con- solidate proceedings. Application dismissed. Actions shared com- mon questions of fact and law and relief claimed arose out of same occurrence. Factors in favour of consolidation order and militat- ing against order were considered. On balance, it was not appropriate for court to exercise its discretion and order consolidation. First ac- tion was scheduled for trial next month and consolidation would result in delay in circumstances where plaintiff was in serious fi- nancial need and should be per- mitted to pursue relief. Da Costa v. TD Home and Auto Insurance Co. (Oct. 17, 2014, Ont. S.C.J., Douglas J., File No. Brace- bridge CV-14-0265) 245 A.C.W.S. (3d) 782. DISCOVERY Examination of second representative would not avoid further undertakings Plaintiffs were hedge fund and customer of defendant's prime brokerage unit. In absence of plaintiffs being able to meet mar- gin requirements for accounts, defendant seized them and sub- sequently liquidated them. Plain- tiffs alleged that defendant's ac- tions resulted in significant loss and they brought this action. Plaintiffs examined representa- tive of defendant. Plaintiffs sought order granting them leave to ex- amine for discovery second rep- resentative of defendant. Motion dismissed. Plaintiffs had not met test for leave to examine second representative. Court was not satisfied that plaintiffs had not been able to obtain satisfactory answers through undertakings. Fact that there were numerous undertakings did not establish that first representative failed to properly inform himself of is- sues. Defendant took long time to answer undertakings but there were many undertakings that involved many individuals. Ex- amination of second represen- tative would not avoid further undertakings. Examination of second representative would not expedite action. Silvercreek II Ltd. v. Royal Bank of Canada (Oct. 24, 2014, Ont. S.C.J. [Commercial List], L.A. Pattillo J., File No. CV-11-9538- 00CL) 245 A.C.W.S. (3d) 799. SUMMARY JUDGMENT Discovery transcripts and responses to requests from other proceedings generally not admissible Plaintiff was driving vehicle manufactured by defendant cor- poration with driver's seat sup- plied by defendant after-market company. When plaintiff reacted to vehicle sliding on ice, back of seat collapsed rearward. Plaintiff lost control of vehicle and suffered catastrophic spinal cord injury. Part of seat that failed had been provided to after-market com- pany by another company. Plain- tiff commenced action against defendants for damages for negli- gence. Plaintiff served jury notice. After-market company brought motion for summary judgment dismissing action as against it. Motion dismissed. Plaintiff had exercised fundamental substan- tive right when he served jury no- tice. Removal of that substantive right required relevant admis- sible and compelling evidence. In present case, most evidence that after-market company relied upon was not admissible. Evi- dence that would not be admis- sible at trial should generally not be considered admissible on mo- tion for summary judgment. In particular, expert reports should be introduced through affidavit from expert rather than affidavit from counsel. Similarly, evidence of parties should not be in form of transcripts from examina- tions for discovery in absence of consent. Discovery transcripts and responses to requests to ad- mit from other proceedings were generally not admissible. Fact that after-market company had not designed or manufactured part of seat that failed did not preclude drawing inferences of negligence from facts. Ordering mini-trial would effectively usurp fact-find- ing role of jury. Mitusev v. General Motors Corp. (Aug. 22, 2014, Ont. S.C.J., M.L. Edwards J., File No. 48118/98) 245 A.C.W.S. (3d) 815. Courts PUBLICITY Information mother sought to seal had been available to public since 2005 In family law proceedings, moth- er brought motion for sealing order related to certain informa- tion her partner had disclosed regarding his immigration and related status. Partner had dis- closed information in relation to custody dispute between mother and father regarding their daugh- ter. Essence of the request for seal- ing order was that partner acted at unknown time as state agent in investigation of suspected do- mestic terrorist. If that informa- tion became part of public record suspected terrorist may learn of partner's involvement and seek revenge or retribution against him and, by extension, parties' daughter. Motion judge denied motion. She concluded on facts that there was no public compo- nent in interest mother sought to protect, and no "necessity" for sealing or non-publication order in terms of law to be applied to claim. Mother appealed. Appeal dismissed. There was no public interest in mother's claim. There could be no risk to proper ad- ministration of justice or ability to have fair trial since case was al- ready concluded and final order made. Mother had had full access to court process without any seal- ing order in place. Information mother sought to seal had been available to the public since part- ner's immigration appeal in 2005 in Federal Court. There was no reason to interfere with decision of motion judge. De Paula v. Brass (Oct. 15, 2014, Ont. S.C.J., Mesbur J., File No. FS-13-8594) 245 A.C.W.S. (3d) 842. Family Law CUSTODY Mother could not unilaterally change child's habitual residence by wrongful act Parties were married three years and had one child. Parties ini- tially resided in Ontario. Parties then resided in England where child was born. Father returned to Ontario. Mother and child came to live in Ontario with father. Mother and child travelled to Pakistan. Father later travelled to Pakistan and family returned to Ontario. Parties agreed to move to Pakistan on temporary basis to enable father to expand his business there. Parties planned to return to Ontario. Mother and child left Pakistan and went to England. Father immediately sent written notice of child's ab- duction to mother, her parents, National Missing Children's Ser- vices of RCMP and British High Commission in Islamabad. Fa- ther returned to Ontario. Mother obtained prohibited steps order pursuant to U.K. legislation that provided father was not to remove child from England and Wales or mother's care without mother's or court's consent. Father brought motion for temporary custody and return of child to Ontario. Motion granted. Father was to have temporary custody of child. Mother was to return child to fa- ther in Ontario by specified date. Mother wrongfully removed child from Pakistan in breach of father's rights of custody. Child was habitually resident in Paki- stan when he was wrongfully re- moved and at commencement of father's application. Convention did not apply because Pakistan was not contracting state. Court relied on parens patriae jurisdic- tion. Application of parens patriae did not conf lict with Children's Law Reform Act (Ont.). Mother could not unilaterally change child's habitual residence by her wrongful act of removing child to another place. Child was not habitually resident in U.K. There was real and substantial connec- tion between parties and child and Ontario. Parties' intention was to return to Ontario and evi- dence needed to consider child's best interests was in Ontario. Habib v. Amin (Sep. 15, 2014, Ont. S.C.J., C. Lafrenière J., File No. H3234/14) 245 A.C.W.S. (3d) 878. Professions BARRISTERS AND SOLICITORS Counsel should have resolved issue without court intervention Lawyer acted for husband in family law proceedings. Hus- band retained new counsel who directed release of file. Lawyer refused to release file, asserting solicitor's lien result- ing from nonpayment of his account. Husband moved for order directing delivery of file and transfer of trust funds to new counsel. Lawyer brought motion for inter alia, funds held in trust pursuant to court order, less amount of his outstanding account, to be paid into court. Both motions dismissed. Hus- band did not establish prejudice if lawyer allowed to enforce lien on client documents. Wife en- titled to have her interest pro- tected. Counsel for husband should have resolved issue in manner satisfactory to counsel for wife without court interven- tion. Lawyer was to continue to comply with order that it hold net proceeds of sale in trust. Knowles v. Lindstrom (Oct. 10, 2014, Ont. S.C.J., Kiteley J., File No. FS-12-18006) 245 A.C.W.S. (3d) 951. Sale of Land MISREPRESENTATION Duty of care not precluded by any specific term of contract Plaintiff purchased hobby farm from defendant in 1998. At time of purchase defendant did not disclose to plaintiff that under- ground waterline originating from spring on farm supplied water to farm and to proper- ties of some neighbours and that neighbours believed they were entitled to continue to re- ceive water from underground waterline. Plaintiff learned of underground waterline in 2007 when one of neighbours re- ported receiving contaminated water. Trial judge concluded that shared waterline was latent defect and that defendant was liable for negligent misrepre- sentation. Plaintiff was awarded damages of $25,500. Defendant appealed. Appeal dismissed. Court of Appeal had jurisdic- tion to entertain appeal. De- fendant's statutory declaration contained false statement and was delivered as part of clos- ing documents and was clearly contemplated by agreement of purchase and sale. False state- ment was not excluded by entire agreement clause contained in agreement of purchase and sale. Defendant's duty of care was not precluded by any specific term of contract and did not exclude concurrent liability in tort. De- fendant knew or ought to have known that representation in statutory declaration that was executed under oath was false. Defendant failed to exercise rea- sonable care and was negligent. There was ample evidence that defendant had direct financial interest in transaction, that he had special knowledge of under- ground shared waterline, that he deliberately made representa- tion in statutory declaration and that he provided statutory dec- laration in response to specific request from plaintiff. In cir- cumstances, plaintiff 's reliance on statutory declaration was reasonable. Trial judge adopted very reasonable approach to as- sessing plaintiff 's damages aris- ing from defendant's negligent misrepresentation. There was evidence capable of supporting calculation and there was no basis to interfere with damages award. Hanisch v. McKean (Oct. 14, 2014, Ont. C.A., J.C. MacPher- son J.A., Janet Simmons J.A., and E.E. Gillese J.A., File No. CA C57191) Decision at 227 A.C.W.S. (3d) 1187 was af- firmed. 245 A.C.W.S. (3d) 963. FEDERAL COURT OF APPEAL Aboriginal Peoples CROWN RELATIONSHIP Appellant's main duty to distribute estate properly and efficiently Appellant was appointed admin- istrator of estate of uncle, Indian, who died intestate and whose main assets included two undi- vided parcels of land on reserve. Sixteen years after appellant's appointment, estate and land re- mained undivided among heirs. Minister ordered appellant's re- moval under s. 43 of Indian Act (Can.), for failure to fulfill duties. Appellant appealed Minister's decision. Federal Court judge dismissed appeal. Appellant ap- pealed. Appeal dismissed. Federal Court judge carefully assessed facts of case including right of beneficiaries to be in possession of their share of estate and length of appellant's administration before his removal. Record supported finding of Federal Court judge that Minister had done his best to assist and support appellant. Minister received several com- plaints from heirs that appellant was aware of. Appellant's main duty was to distribute estate prop- erly and efficiently. It was reason- able for Minister to conclude that appellant was not discharging his duties and to order his removal as administrator. Longboat v. Canada (Attorney General) (Oct. 7, 2014, F.C.A., Jo- hanne Trudel J.A., Webb J.A., and Boivin J.A., File No. A-425-13) Decision at 234 A.C.W.S. (3d) 816 was affirmed. 245 A.C.W.S. (3d) 739. Employment Insurance ENTITLEMENT Violence in workplace cannot be sanctioned by entitlements to benefits Respondent slapped co-worker after she insulted members of his family. Respondent lost employ- ment. Umpire found that mis- conduct did not exclude respon- dent's entitlement to employment insurance. Arbitrator confirmed decision. Employment Insurance Commission applied for judicial review of arbitrator's decision. CASELAW

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