The premier weekly newspaper for the legal profession in Ontario
Issue link: https://digital.lawtimesnews.com/i/50202
PAGE 14 CaseLawLaw ONTARIO CIVIL CASES Agency STOCKBROKERS There was sufficient evidence of fraud to grant summary judgment Applicants brought suit against respondent who had cash and carry trading program. Each had transferred over $1 million to account of business of respon- dent and this had disappeared according to respondent due to its deposit in United States bank where it had been stolen by a banking executive. Applicants sought summary judgment against respondent for damages incurred. Application allowed. Court held there was sufficient evidence of fraud by respondent to make summary judgment that there was no genuine issue requiring trial. There was suffi- cient evidence to conclude that respondent had been involved in fraudulent sham with inten- tion of depriving applicants of sums invested. Court con- cluded this on basis of conduct of respondent following alleged uncovering of disappearance of $10 million from United States bank. There was no evidence of deposit in United States bank. Respondent made no efforts to recover money which had allegedly been stolen and did not report alleged theft for 15 months. Bona fide trader would not act in such manner. Bruno Appliance and Furniture Inc. v. Cassels Brock & Black- well LLP (Oct. 22, 2010, Ont. S.C.J., Grace J., File No. 05-CV- 285434CM2; 05-CV-300149 PD2) 195 A.C.W.S. (3d) 305 (58 pp.). Civil Procedure CHANGE OF SOLICITOR Counsel could not act on appeal against former client Respondent brought motion for order removing counsel for appellants on appeal. Respon- dent argued counsel was re- tained by respondent in respect of same matter 11 years ago. Motion was allowed. Respon- dent retained counsel to advise respondent as to respondent's rights and remedies in respect of dispute between respondent and appellants relating to devel- opment of mall. Two retainers related to same subject matter. Counsel could not act on ap- peal against respondent who was former client. Consulate Ventures Inc. v. Am- ico Contracting & Engineering (1992) Inc. (Nov. 22, 2010, Ont. C.A., Doherty J.A., File No. M39338; C52265) 195 A.C.W.S. (3d) 331 (14 pp.). CLASS ACTIONS Crown's appeal from certification order dismissed Appeal by defendant Crown from portions of certification order. Plaintiffs alleged Crown was negligent and breached fi- duciary duty in its operation of centre for developmentally challenged. Crown objected to fiduciary duty claim for acts and events that occurred prior to passage of Proceedings Against the Crown Act (Ont.), argued fiduciary claim was not prop- erly pleaded and claim for in- adequate funding disclosure did not disclose reasonable cause of action. Appeal dismissed. Mo- tions judge conducted extensive review of Crown immunity and impact of Act and found, by virtue of s. 29(1), question was whether claim would have been permitted had Act not been en- acted. Motions judge found that fiduciary duty claims were not allowed against the Crown pri- or to the Act's passage in 1963 but law was not static and such a claim would have likely been recognized today, even without the Act. No reasons to doubt correctness of this decision and motions judge specifically dis- tinguished conflicting decisions on basis they were from other provinces, with different legisla- tion. Motions judge found fidu- ciary duty pleadings disclosed reasonable cause of action for this stage in proceedings and was in best position to do so. Motions judge found Crown was not absolved of duty of care with respect to funding and pleading was descriptive, not based on tort arising from in- adequate funding. No reason to doubt correctness of this find- ing. Plaintiffs awarded $10,000 costs. Slark (Litigation Guardian of) v. Ontario (Nov. 8, 2010, Ont. S.C.J., Herman J., File No. CV- 09-376927CP00) 195 A.C.W.S. (3d) 332 (5 pp.). Family Law ADOPTION Board's decision rescinding refusal of adoption application upheld on review Application by society for judi- cial review of decision of board rescinding decision of society refusing adoption application of foster parents. Children were placed in care of foster parents when they were 22 months old and 4 weeks old. Children became Crown wards. Society refused foster parent's adoption January 31, 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. application because there was conflict between foster parents and their own biological chil- dren. Application dismissed. Board's decision was reasonable. Decision was justifiable, trans- parent and intelligible. Effect of board's decision, namely that children be placed with foster parents for adoption, was clear. Family, Youth and Child Services of Muskoka v. M. (D.) (Oct. 28, 2010, Ont. S.C.J. (Div. Ct.), Swinton, Sachs and Nadeau JJ., File No. 500/10) 195 A.C.W.S. (3d) 424 (17 pp.). DOMESTIC CONTRACTS There was nothing in agreement that was unconscionable or otherwise unfair Parties were married 11 years and had two children. Children were in mother's custody since separation. Mother lived with new partner who had custody of two children. Father had new partner who had three children. Father called into question va- lidity of separation agreement. Father claimed father was under stress at time of signing agree- ment because of threats from mother and mother's family. Mother denied access by father to children. Father sought sole custody of one child. Father's application was dismissed. Mother's claim was allowed in part. Specified provisions of separation agreement were var- ied. There was no reason to in- validate separation agreement. Mother's employment pension was not significant asset and failure to disclose its value was not material failure so as to en- gage s. 56(4)(a) of Family Law Act (Ont.). Father did not ex- plain why father feared reprisals at time of signing agreement but was not afraid now. Fact father did not read agreement was re- sult of father's own carelessness. There was nothing in agreement that was unconscionable or otherwise unfair. Father's acqui- escence subsequent to signing agreement served to ratify pro- visions. Father did not explain one-year delay in applying to set aside separation agreement. There was no evidence father was victim of fraud or material misrepresentation. There was no inequality of bargaining power. There was no basis on which to consider altering status quo of custody of children and separat- ing children. Separation agree- ment was varied so as to give sole custody of children to mother. Access provisions of agreement were changed for younger child to spend time with father. Alien- ation of older child from father was so severe it was in best in- terests of older child not to or- www.lawtimesnews.com der or enforce access by father. Total arrears of child support amounted to $19,920. Mother's parental-alienation behaviour was evil. Spousal support to which mother was otherwise entitled was reduced to one dol- lar per month. Bruni v. Bruni (Nov. 29, 2010, Ont. S.C.J. (Fam. Ct.), Quinn J., File No. 384/07) 195 A.C.W.S. (3d) 446 (45 pp.). Interest PREJUDGMENT Plaintiff entitled to 3% prejudgment interest from date of loss Plaintiff claimed interest from February 18, 2004, the date C. was informed L.'s would not pay his losses. Plaintiff wanted 3% interest, based on average of rates over the years. Plaintiff submitted bill of costs and dis- bursements. Defendant sought reductions since plaintiff was not entirely successful, caused delay and included excessive claims for lawyers and flying witnesses in. Plaintiff entitled to 3% prejudgment interest from date of loss, February 18, 2004. Given interest rate rose as high as 4.8% during trial, plaintiff's averaging was reasonable. Plain- tiff was not entirely successful and award was reduced for con- tributory negligence. However, majority of 13-day trial was spent on liability, not quantum of damages. Neither party was clearly responsible for adjourn- ment. Plaintiff's outline of costs and disbursements was appro- priate and flying in witness for $12,000 was within realm of possibility. Some reductions made with respect to fees of ju- nior lawyers and time spent on pleadings. CIA Inspection Inc. v. Dan Law- rie Insurance Brokers (Nov. 23, 2010, Ont. S.C.J., Whitten J., File No. CV-04-014315-00) 195 A.C.W.S. (3d) 344 (7 pp.). Real Property CONDOMINIUMS Trial judge erred in award of damages against third- party caulking company Plaintiff owned condominium unit. Plaintiff claimed she was unable to use condominium unit for five years because of continuous water leaks. Plain- tiff sought damages for breach of contract and negligence against Condominium Corpo- ration. Plaintiff obtained judg- ment against Condominium Corporation. Condominium Corporation issued third party claim seeking contribution and indemnity from London Caulking. London Caulking was ordered to pay $916,452 to Condominium Corpora- tion. London Caulking's appeal was allowed. It was open to trial judge to find London Caulking liable for breach of contract. Tri- al judge erred in award of dam- ages against London Caulking. London Caulking's responsibil- ity was fixed at 3 months out of total 60-month delay resulting in award of $50,913 on account of damages. Trial judge's finding of liability based on negligent misrepresentation could not stand. Trial judge's findings in main action precluded finding of reasonable reliance. Corchis v. Essex Condominium Corp. No. 28 (Nov. 22, 2010, Ont. C.A., Moldaver, Sim- mons and Gillese JJ.A., File No. C50032) 195 A.C.W.S. (3d) 583 (15 pp.). ONTARIO CRIMINAL CASES Appeal GROUNDS Accused did not establish ineffective assistance of counsel Accused appealed conviction for possession and trafficking from marijuana cultivation. Primary ground of appeal was ineffec- tive assistance of counsel due to counsel advising her not to testi- fy. Accused also alleged that she was not given proper translation by interpreter. Appeal dismissed. Accused failed to establish mate- rial facts necessary to support al- legation of ineffective assistance of counsel. Neither accused nor any member of her family raised issue regarding quality of trans- lation services. R. v. Qiu (Nov. 3, 2010, Ont. C.A., Feldman, Lang and La- Forme JJ.A., File No. C51403) 91 W.C.B. (2d) 321 (13 pp.). SENTENCE APPEAL Parole ineligibility period of 18 years for first-degree murder upheld on appeal Accused and co-accused charged with first degree murder. Plea was struck where accused pleaded guilty to second degree murder and co-accused pleaded guilty to manslaughter. Both accused have to plead guilty otherwise there would be trial against them. Accused brought motion to have his plea struck on basis of fresh evidence. Fresh evidence sought to be adduced was statutory declaration from co-accused that exonerated ac- cused. Trial judge dismissed motion and imposed sentence