Law Times

Law Times • March 23, 2015 Page 13 www.lawtimesnews.com FEDERAL COURT OF APPEAL Aboriginal Peoples CROWN RELATIONSHIP Judge ought to have refused to entertain judicial review application Respondent company made request to respondent Minis- ter to consent to assignment of two easements for oil pipelines located, in part, on one of First Nation's reserves. Before Min- ister could make decision, First Nation commenced judicial re- view application seeking order prohibiting Minister from giv- ing his consent to assignment and for declaration that Minis- ter was legally bound to follow its instructions with respect to company's request. Judge held that Minister did not have ab- solute duty to refuse to consent to assignments upon being ad- vised that First Nation did not agree that consent should be given. Judge held that Minister had to re-examine whether First Nation's consent was required and whether it was in First Na- tion's and public's interest to give consent to company. Judge declared that Minster should consider First Nation's request that consent be withheld unless more favourable terms could be obtained from company. First Nation appealed and company cross-appealed. Appeal dis- missed; cross-appealed allowed. Judicial review process was pre- mature and there was no basis for Federal Court or Court of Appeal to interfere with admin- istrative process that required Minister to decide whether he should consent to assignments sought by company. Circum- stances First Nation put forward to justify its pre-emptive strike were not exceptional. There was no irreparable harm or preju- dice arising from having Minis- ter decide question before him. Judge ought to have refused to entertain judicial review appli- cation and should have allowed administrative process to run its course. Application for judicial review was dismissed. Cold Water Indian Band v. Can- ada (Minister of Indian Affairs and Northern Development) (Nov. 25, 2014, F.C.A., M. Na- don J.A., Webb J.A., and Boivin J.A., File No. A-399-13) Decision at 235 A.C.W.S. (3d) 1 was af- firmed. 247 A.C.W.S. (3d) 737. ONTARIO CIVIL DECISIONS Appeal FRESH EVIDENCE Vendor waived solicitor client privilege attaching to emails Parties entered into agreement of purchase and sale for condo- minium unit. Offer was condi- tional upon purchaser's lawyer reviewing status certificate con- cerning monthly maintenance fees and special assessments and finding it satisfactory. Clause also provided that unless pur- chaser gave notice in writing no later than 6 p.m. on third day following receipt of status certificate that condition was fulfilled, offer was null and void and the deposit was to be re- turned to her in full without de- duction. Purchaser relied upon condition but vendor would not return deposit. Purchaser suc- cessfully sued in small claims court and vendor appealed. Purchaser brought motion to introduce fresh evidence on appeal of emails exchanged be- tween vendor and his lawyer. Motion granted. While emails were privileged at trial, vendor had subsequently sued his law- yer and attached emails to his claim. Therefore, vendor waived any solicitor client privilege at- taching to those emails. Emails were relevant to issue of dead- line for condition and met test for admission of fresh evidence. Sood v. Tse (Dec. 4, 2014, Ont. S.C.J., Marrocco A.C.J.S.C., File No. 284/13) 247 A.C.W.S. (3d) 745. DISCOVERY To order evaluation would have unduly violated son's autonomy Testatrix had one son who suf- fered from various disabilities. Testatrix prepared will under which most of her estate was to become trust property for ben- efit of son. Estate trustee was to administer trust in his sole discretion during son's lifetime. Upon son's death, residue was to be distributed "to any and all worthy individuals and or causes" at trustee's discretion. Testatrix passed away some five years after making will. Son brought application for declara- tion that gift over of residue of trust assets failed for uncertain- ty of objects and for order direct- ing estate trustee to pay entire capital of trust and any interest to son. Trustee brought cross- application for order direct- ing assessment of son's capac- ity. Application granted in part; cross-application dismissed. Appointment of assessor to con- duct psychiatric examination was substantial intervention into privacy and security of in- dividual. Court lacked jurisdic- tion to order assessment under Substitute Decisions Act, 1992 (Ont.), given that no proceed- ing had been commenced under that Act. Further, there was no evidence of reasonable grounds to believe son was incapable. It was not appropriate in these cir- cumstances for court to proceed under s. 105 of Courts of Justice Act (Ont.) (CJA), to order men- tal examination of son against his will. Concerns that s. 105 of CJA sought to address, such as levelling playing field between opposing litigants, should not be at issue in proceeding of this nature. There were no concerns raised that son was party under disability and therefore in need of litigation guardian. To order evaluation would have unduly violated son's autonomy. Stoor v. Stoor Estate (Nov. 3, 2014, Ont. S.C.J., Himel J., File No. 05-64/14) 247 A.C.W.S. (3d) 978. PLEADINGS Effect of order was to require plaintiff to obtain expert opinion before pleading Defendant was obstetrician who cared for adult plaintiff dur- ing her pregnancy, hospitaliza- tion and delivery of son, child plaintiff. Plaintiffs alleged that, because of defendant's conduct, child plaintiff suffered perma- nent brain damage. Plaintiffs brought medical malpractice ac- tion. Defendant brought motion to strike out statement of claim. Motion was granted and state- ment of claim was struck out. Motion judge found that plead- ings were insufficient and that defendant must be in position to know what alleged wrongdo- ing he was required to defend. Plaintiffs appealed. Appeal al- lowed. Effect of motion judge's order was to require plaintiff to obtain expert opinion before pleading, in absence of full in- formation about case. Getting early opinion might be useful and prudent but it should not be required as condition of starting action. To strike out statement of claim in these circumstances would significantly impede ac- cess to justice. Motion judge erred in striking out statement of claim. Pleading constituted sufficient statement of material facts to enable defendant to de- liver statement of defence. Khan (Litigation guardian of) v. Lee (Dec. 11, 2014, Ont. C.A., John Laskin J.A., E.E. Gillese J.A., and G. Pardu J.A., File No. CA C58662) Decision at 238 A.C.W.S. (3d) 328 was reversed. 247 A.C.W.S. (3d) 797. Corporations SHARES Amount received by debtor for shares was clearly inadequate Debtor operated successful roofing business. Debtor owned all special voting shares of hold- ing company while family trust owned all common shares of holding company. Debtor pro- vided personal guarantees for loans made to another business. When other business started defaulting on loans, debtor had holding company redeem his special voting shares at issue price of $240.02. Judgments were registered against debtor based on personal guarantees. Creditors petitioned debtor into bankruptcy. Creditors brought action to set aside share redemp- tion transaction pursuant to s. 2 of Fraudulent Conveyances Act (Ont.). Action allowed. Amount received by debtor for shares was clearly inadequate consider- ation since actual value of shares was in vicinity of $590,000. Po- tential purchaser would have taken into account that various expenses and loan of personal nature would no longer be maintained. Fact that debtor's shares could be redeemed by company at issue price was off- set by fact that debtor had vot- ing control. Entire business had value of at least $1.24 million so special voting shares with ma- jority control and dividend en- titlement would have about half that value. Jonas v. McConnell (Oct. 28, 2014, Ont. S.C.J., Penny J., File No. CV-12-9629-00CL) 247 A.C.W.S. (3d) 757. 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. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! 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