Law Times

Page 16 April 20, 2015 • lAw Times www.lawtimesnews.com ONTARIO CIVIL DECISIONS Civil Procedure PLEADINGS Limitations defence was not advancement of new claim Plaintiff operated private school. It accepted school- related payments from its stu- dents by way of credit cards and debit. Defendant PC was retained by plaintiff to provide merchant services for process- ing and settling of debit and credit transactions. Plaintiff alleged that some $91,000 in American Express transac- tions were not properly cred- ited to its bank account, due either to fault of Amex Bank or PC, or both. Plaintiff 's ac- tion was commenced on July 8, 2010. Only defendant Bank of Montreal advanced limitations defence. Discoveries were con- ducted in September 2013, and action was set down for trial in February 2014. At pre-trial in October 2014, Amex Bank and PC indicated their inten- tion to amend their pleadings to include limitations defence. Amex Bank and PC moved for leave to amend their respective statements of defence. Motion granted. Limitations defence was not advancement of new claim. Right to advance de- fence based on passage of time was not claim to remedy injury, loss or damage. It was defence against such claim. There was absence of evidence of actual prejudice. Discoveries had al- ready covered limitations issue and would not need to be con- tinued. 1309489 Ontario Inc. v. BMO Bank of Montreal (Feb. 17, 2015, Ont. S.C.J., C. Boswell J., File No. CV-10-99670-00) 250 A.C.W.S. (3d) 230. Inmate's statement of claim was struck out in its entirety with leave to amend Plaintiff was inmate in federal penitentiary serving two con- current sentences of life impris- onment for shooting of two in- dividuals. Plaintiff was self-rep- resented. Defendants brought motion to strike out paragraphs of statement of claim. Defen- dants sought order dismissing claims against individual defen- dants. Motion granted. State- ment of claim was struck out in its entirety with leave to amend in accordance with directions set out. Required amendments were so extensive as to require new pleading. Much of claim was evidence, opinion and argu- ment and was therefore improp- er. Torts pleaded lacked some or all of necessary factual elements to constitute those torts. Claim for trial by jury was struck out because Crown Liability and Proceedings Act (Can.), barred trial by jury against Crown. No facts were pleaded to support allegation of bad faith for tort of misfeasance in public office. For claim of false imprison- ment plaintiff had to plead facts showing how his freedom of movement was completely and unlawfully restricted as result of action of prison officials. For claim of defamation plaintiff was required to concisely ar- ticulate what he said was de- famatory, how defamation was published and what damages he said resulted to his reputation and standing in community. Psychiatric harm could not be assumed or inferred with re- spect to claim for metal suffer- ing. Pleading for claim of assault was deficient in that there was no pleading that plaintiff was subjected to imminent appre- hension of harmful or offensive physical conduct. Paragraph pleaded with respect to cruel and unusual punishment was not about excessive punishment and was to be struck out. Jordan v. Canada (Attorney Gen- eral) (Feb. 20, 2015, Ont. S.C.J., Charles T. Hackland J., File No. Kingston CV-14-419) 250 A.C.W.S. (3d) 233. Education BOARDS OF EDUCATION Plaintiff granted judgment against school board in accordance with jury's verdict Plaintiff student sexually as- saulted by another student in school washroom. Student and family members' commenced action against defendant school board alleging board had failed to properly supervise students. They also alleged board's post- incident acts or omissions had resulted in adverse effects. Dur- ing course of jury trial, parties agreed jury should be asked if board had breached standard of care and, if so, how, specifically way or ways in which board had failed to act as careful or pru- dent parent. Jury found board had breached standard of care after incident and referred to s. 2.6 of Safe Schools Policy and s. 12 of Safe Schools Procedure to explain how. Jury awarded damages to student, mother and grandmother but not broth- ers or grandfather. Counsel for plaintiffs sought judgment in accordance with verdict pursu- ant to s. 108(5)(b) of Courts of Justice Act (Ont.) and R. 52.09 of Rules of Civil Procedure (Ont.). Board opposed, claiming jury had misunderstood and failed to comply with court's instruc- tions. Board submitted there was no evidence of breach of s. 2.6 of Policy and no evidence that breach of s. 12 of Procedure had caused any damage. Judg- ment for plaintiffs. Standard of review of civil jury verdict exceptionally high. Verdict to be broadly interpreted. From that verdict, it appeared jury had agreed with at least one of plaintiffs' theories, namely that board had responded in- adequately to incident and that inadequate response had caused damage to student, mother and grandmother. Evidence sup- ported those findings. Court not entitled to usurp jury's role or weigh reasonableness of evi- dence. Court not in position to disregard verdict. Prentice v. Thames Valley Dis- trict School Board (Jan. 30, 2015, Ont. S.C.J., A.D. Grace J., File No. 1467/10) 250 A.C.W.S. (3d) 244. Employment WRONGFUL DISMISSAL Plaintiffs were dependent contractors and entitled to notice Plaintiffs were husband and wife who worked for defendant for 32 years and 25 years. Plaintiffs were foremen and supervisors of installers and were defendant's employees until 1987, when de- fendant advised they would be- come independent contractors. Under new arrangement, plain- tiffs were responsible in paying installers from money received from defendant, at rates set by defendant. Contract stated plaintiffs were to devote full- time attention to defendant, and they worked exclusively for de- fendant until 2007 when work slowed down and defendant turned blind eye to them doing side work for competitor. Plain- tiffs considered themselves loyal employees throughout, received employee discounts and had company business cards and clothing. Defendant terminated plaintiffs' contract without no- tice. Action for 26 months' pay in lieu of notice. Action allowed. There was high level of exclusiv- ity as plaintiffs did not feel free to work for anyone else and did not do so until it became an eco- nomic necessity and defendant acquiesced. Defendant set rates, dictated work, set deadlines and provided instructions and legal support. Plaintiff supplied tools but had also done so as employ- ees, and defendant provided pagers, phones and office space. Plaintiffs had no genuine risk of profit or loss. Business arrange- ment was established almost entirely for defendant's benefit. Plaintiffs were dependent con- tractors and entitled to notice. Plaintiffs worked as team and 26 months' notice appropriate given length of service, so plain- tiffs awarded $124,484.04. Keenan v. Canac Kitchens Ltd. (Jan. 21, 2015, Ont. S.C.J., Graeme Mew J., File No. CV-11- 420147) 250 A.C.W.S. (3d) 261. Insurance AUTOMOBILE INSURANCE Plaintiff failed to bring action within exceptions to statu- tory immunity in s. 267.5(5) of Insurance Act (Ont.) Plaintiff brought action for damages as result of pedestrian- motor vehicle accident which occurred on October 28, 2010. He was pushing shopping cart across parking lot when he was struck by defendant's car. On February 7, 2015, following 11- day trial, jury awarded plaintiff $43,000 for general damages, $6,000 for past loss of income and zero for future loss of in- come. Jury found defendant 80 percent responsible for accident and plaintiff 20 percent liable. Defendant brought motion for declaration that plaintiff 's claim for non-pecuniary loss was barred on basis that his injuries did not fall within exceptions to statutory immunity in s. 267.5(5) 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. 2015 COMPENSATION SURVEY law departments grow. partnerships evolve, change, Salaries canadianlawyermag.com/surveys Managing partners and law department leaders, share what's happening in your organization. Survey closes May 4, 2015 Untitled-3 1 2015-04-08 9:59 AM

• Cover