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Page 14 February 2, 2015 • Law Times www.lawtimesnews.com removal would not constitute undeserved or disproportion- ate hardship. With respect to best interest of child, officer found that child would be able to integrate into Filipino school system, in spite of her lack lan- guage skills. While separation from her family in Canada may be emotionally straining, officer found that these rela- tionships could be maintained electronically and through oc- casional visits. Foreign national applied for judicial review. Ap- plication granted. Officer in present case had plenty of evi- dence about impact of moving on child herself, and failed to conduct appropriate analysis. In rejecting H&C, officer failed to give sufficient consideration to BIOC. Decision was therefore unreasonable and this issue was determinative of application. Bautista v. Canada (Minister of Citizenship and Immigration) (Oct. 22, 2014, f.c., Alan S. Diner J., File No. IMM-2673-13) 246 A.C.W.S. (3d) 167. SUPREME COURT OF CANADA Interception of Private Communications PRODUCTION OF EVIDENCE Application judge appropriately limited scope of order to protect privacy interests Competition Bureau obtained judicial authorizations to inter- cept private communications in price-fixing investigation. Respondents filed class ac- tion lawsuit relating to alleged price-fixing. Application judge ordered disclosure of inter- cepted communications to re- spondents. Application judge ordered screening of commu- nications before disclosure to protect privacy of third parties. Court of Appeal dismissed ap- plication for leave to appeal. Appeal dismissed. Neither Competition Act nor Criminal Code precluded disclosure of intercepted communications in civil proceedings. Applica- tion judge appropriately limited scope of order to protect privacy interests. Jacques c. Pétroles Irving inc. (Oct. 17, 2014, s.c.c., McLach- lin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Mol- daver J., and Wagner J., File No. 35226, 35231) Decision at 110 W.C.B. (2d) 184 was affirmed. 116 W.C.B. (2d) 618. FEDERAL COURT OF APPEAL Human Rights Legislation APPEALS Commission's dismissal of complaint was unreasonable Applicant purchased home and secured mortgage from respon- dent bank. Bank later called in mortgage. Applicant alleged that bank discriminated against him on basis of physical disabil- ity and that bank only called in loan after learning that can- nabis grew in home. Cannabis was being grown in home un- der federal licence for medical reasons. Applicant complained to Human Rights Commission that bank engaged in discrimi- nation contrary to Canadian Human Rights Act. Commis- sion dismissed applicant's com- plaint under s. 41 of Act. Appli- cant applied to quash commis- sion's decision. Federal Court Judge found that commission's decision was reasonable and dismissed application for judi- cial review. Applicant appealed. Appeal allowed. Federal Court Judge reviewed commission's decision as if proper investiga- tion had been conducted and assumed no further investiga- tion was required. Real issue was whether it was reasonable for commission to determine that it was plain and obvious that complaint must fail. There was live contest in record be- fore commission, which could not be resolved until it was fur- ther investigated under s. 43 of Act. Commission must have engaged in weighing process, which it could not do during s. 41 of Act stage. Only after in- vestigating matter under s. 43 of Act could commission as- sess evidence and determine whether inquiry was warrant- ed. Commission's dismissal of complaint under s. 41 of Act was unreasonable. McIlvenna v. Bank of Nova Sco- tia (Sep. 17, 2014, f.c.a., Na- don J.A., Trudel J.A., and David Stratas J.A., File No. A-306-13) Decision at 229 A.C.W.S. (3d) 826 was reversed. 246 A.C.W.S. (3d) 159. ONTARIO CIVIL DECISIONS Appeal LEAVE TO APPEAL Endorsement did not address criteria for when party should be added to proceeding Plaintiff was involved in mo- tor vehicle accident on June 9, 2009, in which she was injured. She sought entitlement to and recovery of long-term disability benefits from defendant insurer under insurance policy where she was insured. Defendant insurer denied those benefits alleging that plaintiff did not meet applicable test under its policy. Non-party insurer was plaintiff 's accident benefits in- surer and had been paying her income replacement benefits arising from their acceptance that she was unable to return to work due to injuries she sus- tained in accident. Non-party insurer moved to be added as defendant on grounds that it was necessary party to ac- tion because it had interest in, and may be adversely affected by, outcome of action. Motion judge granted motion on Jan. 30, 2014. Defendant insurer sought leave to appeal order. Leave to appeal granted. Endorsement of motion judge did not sat- isfactorily address criteria for when party should be added to proceeding. It was not entirely clear how motion judge reached his decision, and while his deci- sion was deserving of deference, because parties themselves were unable to conclude with cer- tainty basis for decision, court was satisfied that decision was open to serious debate. Because of that, court found that there was good reason to doubt cor- rectness of motion judge's de- cision. Court was also satisfied that appeal raised matters of general importance. Atwi v. Manufacturers Life Insurance Co. (Oct. 20, 2014, ont. s.c.J., B.R. Warkentin J., File No. Ottawa 11-51297) 246 A.C.W.S. (3d) 11. Civil Procedure SUMMARY JUDGMENT Settlement funds had to be repaid and mediation must fail before court proceeding commenced Plaintiff was injured in single motor vehicle accident. Defen- dant insured plaintiff under no-fault policy for accident ben- efits. Plaintiff applied for statu- tory accident benefits, which defendant paid. Defendant then terminated plaintiff 's income replacement benefits. Plaintiff signed full and final release that released defendant from any ob- ligation to pay accident benefits to plaintiff. In exchange, defen- dant made lump sum payment of $3,000 to plaintiff. Plaintiff claimed that release was nullity and defendant breached its duty of good faith and caused her mental distress by unlawfully terminating benefits. Plain- tiff brought action. Defendant brought motion for summary judgment on basis that claim was statute-barred. Plaintiff brought motion for partial sum- mary judgment. Motion judge found that plaintiff 's claim was subject to mandatory mediation and she was obligated to repay settlement funds and proceed to mediation before she could commence litigation. Plaintiff 's motion for summary judgment was dismissed and defendant's motion was allowed and ac- tion was dismissed. Plaintiff appealed. Appeal dismissed. Settlement funds had to be re- paid and mediation must fail before court proceeding could be commenced. Plaintiff had not fulfilled statutory precon- ditions to commencement of court proceeding. Claims as- serted by plaintiff all f lowed from denial of benefits and there were no independent causes of action. Motion judge did not make any error of law in analysis and there was no basis to interfere with decision to grant defendant's motion for summary judgment. All of plaintiff 's claims were properly dismissed on defendant's sum- mary judgment motion. Madder v. South Easthope Mu- tual Insurance Co. (Oct. 21, 2014, ont. c.a., C. William Hourigan J.A., K.M. Weiler J.A., and G. Pardu J.A., File No. CA C57494) Decision at 230 A.C.W.S. (3d) 393 was affirmed. 246 A.C.W.S. (3d) 81 Damages PERSONAL INJURIES Absence of business valuation did not prevent trial judge from making loss of income award Defendant drove her car into back of plaintiff 's stopped ve- hicle. Defendant admitted li- ability. Plaintiff suffered spinal injury in collision. Plaintiff was awarded damages for injuries. Defendant appealed. Appeal dismissed. Trial judge found that plaintiff 's ability to work had been seriously impaired by accident and it was reason- able for trial judge to infer that company she worked for lost business and plaintiff suffered loss of earning capacity. Infer- ences were reasonable because plaintiff was one of two part- ners responsible for growth of company. Absence of business valuation did not prevent trial judge from making substantial loss of income or loss of earning capacity award. Such valuation was not necessary, as claim was for plaintiff 's loss of earning capacity and not loss in poten- tial sale value of company. Trial judge made no palpable and overriding error in finding that per quod claim was available to company. Damages award should not be interfered with. Fulcher v. Conklin (Oct. 20, 2014, ont. c.a., G.R. Strathy C.J.O., Paul Rouleau J.A., and C.W. Hourigan J.A., File No. CA C57009) Decision at 228 A.C.W.S. (3d) 586 was affirmed. 246 A.C.W.S. (3d) 102. Family Law AFFILIATION Respondent had obligation to pay child support and could not seek repayment Parties met in early 1997. Re- spondent was in process of sep- arating from her husband. In April 1997, parties commenced casual sexual relationship. Child was born on Nov. 13, 1997. Ap- plicant understood birth to have been several weeks prema- ture. She informed respondent that he was child's biological father. Both signed statement of live birth. Parties never cohab- ited and respondent paid child support for child since his birth. In 2013, applicant brought mo- tion to change, seeking substan- tial increase in child support. In response, respondent requested DNA paternity test and termi- nation of support order and re- payment of all moneys paid to applicant since 1998, if he was found not to be father of child. DNA paternity test excluded respondent as biological father. Consent order made in April 2014 terminated respondent's child support obligation and rescinded any support arrears. Order granted. Applicant hon- estly believed that respondent was child's father. Situation changed in 2000. Child did not physically resemble respondent. Both parties had suspicions re- garding paternity and had suf- ficient information to question correctness of their prior belief. Yet neither took any steps to address issue of paternity for 14 years. While there was not strong relationship between child and respondent, there was sufficient contact and involve- ment, along with payment of child support and belief in be- ing child's father, to conclude respondent had settled inten- tion to treat child as his son. In these circumstances, respon- dent had obligation to pay child support, as he did, and could not now complain or seek re- payment. Day v. Weir (Oct. 28, 2014, ont. s.c.J., D.J. Gordon J., File No. F1662/13) 246 A.C.W.S. (3d) 127. SUPPORT Father responsible to pay child support as he was in loco parentis to her Mother brought motion for interim child support and ex- traordinary expenses for her 14-year-old daughter from De- cember 2012 to present. Father agreed that he stood in loco parentis to child, who was four years of age when parties com- menced cohabitation. Parties resided together from June 2002 to Sept. 1, 2011, when they sep- arated. Mother suffered from numerous health issues and was on social assistance. Child had been diagnosed with At- tention Deficit Disorder, mild Asperger's Syndrome, as well as autism spectrum disorder. She had medical needs especially for cost of prescription drugs which were quite expensive. Mother had lived with child in her parents' home since at least June 2013. Father claimed he should not pay child support for child because she was liv- ing in her maternal grandpar- ents' home and they were pay- ing for special expenses needed by child. Motion granted. Fact that maternal grandparents were voluntarily assisting their daughter to provide required support for her daughter did not mean that father was not required to pay child support. He was responsible to pay child support for child as he was in loco parentis to her and was joint custodial parent. Court set father's income at $90,000 for interim support purposes. He was ordered to pay inter- im child support of $801 per month and amount of $600 for child's special expenses. Order was made without prejudice to father's right to argue that contribution be made towards child support and special ex- penses by child's natural father, and that income should be im- puted to mother. Lefebvre v. Gowan (Oct. 24, 2014, ont. s.c.J., Robert Smith J., File No. FC-12-1739-1) 246 A.C.W.S. (3d) 152. CASELAW

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