The premier weekly newspaper for the legal profession in Ontario
Issue link: https://digital.lawtimesnews.com/i/50199
PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Customs And Excise DUMPING Injury from dumped goods was substantial, notwithstanding undumped goods Application for judicial review of injury determination made by Canadian International Trade Tribunal ("CITT"). Tribunal determined that dumping of certain mattress innerspring units originating in or exported from People's Republic of China had caused injury to Canadian domestic industry producing like goods in Canada. Tribunal concluded that imports from China obtained market share gain of five percentage points during period of inquiry, which corresponded exactly to market share losses experienced by domestic industry. Evidence indicated that increase in market share was substantially result of dumped goods and following extensive analysis regarding volume and prices of subject goods tribunal concluded that injury caused by dumped goods was substantial. Applicant contended that tribunal erred in failing to distinguish between effect of undumped goods and dumped goods. Application dismissed. It was reasonable for tribunal to conduct inquiry with respect to subject goods and to draw conclusions regarding effects of dumped goods based on data sets which covered subject goods provided that consideration was given to undumped goods. Fair reading of tribunal's decision was that it was satisfied, notwithstanding possible effect of undumped goods that such effect would not alter its finding that dumped goods had caused injury to domestic market. Its reasons read in totality, led to conclusion that injury from dumped goods was substantial, notwithstanding undumped goods. Conclusion was reasonably open to tribunal. Owen & Co. v. Globe Spring & Cushion Co. (Oct. 28, 2010, F.C.A., Nadon, Layden-Stevenson and Mainville JJ.A., File No. A-515-09) 194 A.C.W.S. (3d) 487 (8 pp.). Taxation APPEAL Judge not obliged to accede to request for adjournment Appeal from judgment of Tax Court Judge dismissing tax appeal. Appellant had requested adjournment two days before hearing and Crown had not opposed request. At hearing, appellant's representative explained that request for adjournment was being renewed because he did not have necessary information to present appellant's case. However, no explanation was offered as to why appellant had not sought necessary information on timely basis. Judge denied request for that reason and for appellant's lack of diligence. Appeal dismissed. Judge was not obliged to accede to party's request for adjournment even if other party consents. Generally, once matter was set down for hearing, parties must be prepared to proceed at scheduled time or risk losing their case. Decision of trial judge to grant or deny adjournment was discretionary. Appeal court will not intervene in absence of error of law or principle. Appellant's contention that problems were result of various failures by his representatives to pursue his appeals with appropriate diligence was not basis upon which court could reverse decision of Tax Court Judge. Rupolo v. Canada (Oct. 28, 2010, F.C.A., Blais C.J., Evans and Sharlow JJ.A., File No. A-84-10) 194 A.C.W.S. (3d) 667 (4 pp.). ONTARIO CIVIL CASES Arbitration APPOINTMENT OF ARBITRATOR Ontario's loss transfer scheme applied to at-fault driver's insurer Application judge correctly ordered appointment of arbitrator in respect of loss transfer dispute between Primmum and Allstate pursuant to s. 275 of Insurance Act (Ont.). Resident of Ontario was injured in car accident while driving in North Carolina. Primmum, Ontario insurer, paid his statutory accident benefits as required under standard Ontario insurance policy. Other driver was at fault and was insured by Allstate under policy in issue in North Carolina. Ontario's loss transfer scheme applied to Allstate. Issue was resolved by Supreme Court of Canada in Unifund Assurance Co. of Canada v. Insurance Corp. of British Columbia (2003), 227 D.L.R. (4th) 402, 124 A.C.W.S. January 17, 2011 • Law Times COURT DECISIONS 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. CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. (3d) 61 (S.C.C.). Primmum Insurance Co. v. Allstate Insurance Co. (Nov. 10, 2010, Ont. C.A., Rosenberg, MacPherson and LaForme JJ.A., File No. C51818) Decision at 186 A.C.W.S. (3d) 16 was affirmed. 194 A.C.W.S. (3d) 710 (3 pp.). Building Liens ACTION Plaintiff architectural designer entitled to judgment against defen- dants for balance owing under building contract Plaintiff architectural designer was hired by defendants to design and build addition to their cottage and to design free standing guest house. Plaintiff provided draft contract to defendants outlining his terms, however, contract was never signed by defendants. Regardless, contractual arrangement was such that plaintiff was to complete construction in accordance with architectural drawings and specifications and defendants would pay plaintiff on cost-plus 20% basis. Project continued until plaintiff's services were terminated by defendants. Defendants instructed plaintiff to cease work on September 8, 2006, and no further work was conducted on this project by plaintiff after that date. Plaintiff commenced action under Construction Lien Act (Ont.), for balance owed of $148,470. Defendants counterclaimed for $288,262. Plaintiff and experts called on its behalf readily agreed with defendants' position that project was not completed in August 2006 and that there were number of items that required rectification and completion. Plaintiff did not breach its obligations by failing to complete project by end of August 2006. This date, while desirable, was unrealistic given complexities of project and special circumstances under which project was undertaken. Just as plaintiff underestimated timeline to complete project, he similarly underestimated cost to complete project. Nonetheless, because this was not established price, but rather "cost plus" arrangement for project, plaintiff could not be held to budget he produced, budget that had been prepared before final plans were completed and which did not include ongoing changes to scope of project. Plaintiff was expected to and did use his judgment regarding management of project and as such outstanding invoices totalling $148,470 were properly owed by defendants to plaintiff www.lawtimesnews.com for his services. Defendants counterclaim for deficiencies in workmanship was allowed in sum of $32,851. Plaintiff was entitled to order for personal judgment against defendants for $115,618. 3925308 Manitoba Inc. v. Hoffer (Oct. 15, 2010, Ont. S.C.J., Warkentin J., File No. CV-06- 165) 194 A.C.W.S. (3d) 728 (20 pp.). Civil Procedure CLASS ACTIONS Not appropriate case to allow certi- fication decision to be reconsidered on jurisdictional grounds Certified class action was brought with respect to pension plan and use of its surplus. Defendant was sponsor and administrator of plan. Motion brought for approval of proposed settlement of certified class action was allowed. Settlement was fair and reasonable and in best interests of class. Motion for approval of counsel fees was allowed. Counsel fee arrangements were fair and reasonable. Counsel fees of $325,590 and disbursements of $15,280 were approved. Cross-motion of SCRC for intervener status in class action was dismissed. SCRC argued court did not have jurisdiction to approve proposed settlement because plan arose out of collective agreement over which arbitrator had exclusive jurisdiction. SCRC argued doctrine of res judicata applied. Doctrine of res judicata did not apply. Subject matter of grievances and within action were not same. Certification decision determined court had jurisdiction to hear matter and issue was now res judicata. It was not appropriate case to allow certification decision to be reconsidered on jurisdictional grounds. It was abuse of process and there was no justification for court to exercise discretion to allow what would be collateral attack. Stay was not granted because relief was only open to defendant and prejudice required to justify stay was not shown. Waterston v. Canadian Broadcasting Corp. (Oct. 25, 2010, Ont. S.C.J., Pollak J., File No. 04-CV- 278718CP) 194 A.C.W.S. (3d) 771 (18 pp.). Landlord And Tenant EVICTION Definition of "landlord" not restricted to owner of rental unit Respondent landlord was sole shareholder and officer of corporation that owns property consisting of commercial space and two residential units. He carried out all responsibilities of landlord. Appellant tenant occupied one of residential units and paid rent to corporation. Landlord and Tenant Board allowed landlord to evict tenant on ground that landlord required premises for own residential occupation. Divisional Court affirmed decision and further appeal dismissed. Section 48 of Residential Tenancies Act, 2006 (Ont.), provides that "[a] landlord may, by notice, terminate a tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation by, (a) the landlord". Definition of "landlord" not restricted to owner of rental unit and clearly contemplates there may be more than one "landlord": "'landlord' includes, (a) the owner of a rental unit or any other person who permits occupancy of a rental unit, other than a tenant who occupies a rental unit in a residential complex and who permits another person to also occupy the unit or any part of the unit". Sole shareholder and officer clearly directing mind of corporate owner and therefore "landlord" within definition of Act as person who permits occupancy of unit. Section 202 of Act which obligates board to ascertain true substance of transactions, activities and good faith of parties when making findings on application, relevant to determination of s. 48 application. Slapsys v. Abrams (Oct. 19, 2010, Ont. C.A., Goudge, Lang and Karakatsanis JJ.A., File No. C51279) 194 A.C.W.S. (3d) 969 (6 pp.). ONTARIO CRIMINAL CASES Assault ASSAULT CAUSING BODILY HARM Punch thrown by accused was proportionate and reasonable in circumstances Accused youth charged with assault causing bodily harm. Complainant was older student who attended same school and assault occurred in school hallway during lunch breach. Defence admitted facts with respect to punch to face which split lip of complainant and required stitches. Defence alleged that accused had been bullied, humiliated and embarrassed