Law Times

PAGE 14 CaseLawLaw ONTARIO CIVIL CASES Civil Procedure COSTS Plaintiff awarded $675,000, including taxes and disbursements Application by plaintiff for costs. Defendant law fi rm failed to pay fees required for plaintiff 's two US patents, causing plaintiff to lose them. Defendant conceded liability. Following two-week trial, plaintiff was awarded $1 million damages plus prejudg- ment interest. Plaintiff made of- fer to settle for $10 million plus interest and costs. At trial, plain- tiff sought between $6 million and $21 million plus interests. Plaintiff was successful on neg- ligence and breach of contract but not on breach of fi duciary duty claim. Defendant off ered $1.2 million, including interest. Including interest, plaintiff re- ceived just $16,955 more than defendant's off er at trial. Plain- tiff argued it was entitled to costs on partial indemnity basis. De- fendant argued parties should bear their own costs since its of- fer to settle was so close to award and would have been closer had it been able to review invoices earlier. Plaintiff argued rule 49.10(2) of Rules of Civil Pro- cedure (Ont.), should be strictly applied. Application allowed in part. Both parties made off ers to settle, participated in mediation and two pretrials. Neither party had invoices to review prior to trial. Outcome of trial depended largely on testimony from wit- ness who appeared under sum- mons. Plaintiff was party and there was no reason to depart from usual rule of award- ing partial indemnity costs. Liti- gation was complex and amount of costs incurred by plaintiff was not unexpected. Liability was not conceded until just months before trial. Th at amount plain- tiff recovered was much lower than what it sought, and close to defendant's off er justifi ed re- ducing quantum of costs. Plain- tiff 's unsuccessful breach of fi - duciary duty claim lengthened trial. Plaintiff claimed costs of $563,497 up to off er to settle and $220,000 thereafter. Plain- tiff awarded $675,000, includ- ing taxes and disbursements. PreMD Inc. v. Ogilvy Renault LLP (Mar. 11, 2011, Ont. S.C.J., Hoy J., File No. 05-CV-293347 PDA1) 199 A.C.W.S. (3d) 716 (9 pp.). Contracts DAMAGES Employee awarded damages for breach of promise successful Action by employee for damages for breach of promise to transfer corporate stock to him. Employ- ee was terminated without cause from his senior management po- sition. Employee submitted that he was promised one percent of company stock. Action allowed. Employer was ordered to pay employee damages in amount of $70,000. Specifi c agreement to transfer 1% of company stock to employee could not be found. However, it was intention of both parties that employee be compensated in some fashion for his discounted starting sal- ary. Common interest centered on employee ownership plan equivalent to approximately $40,000 per year. Hemingway v. Desire2Learn Inc. (Mar. 2, 2011, Ont. S.C.J., Fly- nn J., File No. C-229-07) 199 A.C.W.S. (3d) 778 (14 pp.). Insurance June 6, 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. GENERAL Decision of director's 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. delegate that arbitrator bound by Liberty Mutual Insurance Co. v. Fernandes was reasonable Application for judicial review of order of director's delegate reversing arbitrator's ruling on basis of decision of Court of Appeal in Liberty Mutual Insurance Co. v. Fernandes (2006), 273 D.L.R. (4th) 495, 151 A.C.W.S. (3d) 109 (Ont. C.A.), that dispute resolution scheme in ss. 279 to 283 of In- surance Act (Ont.), constituted complete code and that insur- ers can have recourse to dispute resolution process in Act but could not challenge CAT DAC decisions in court. Application dismissed. Decision of director's delegate that arbitrator bound by Liberty Mutual Insurance Co. v. Fernandes was reason- able. Court of Appeal intended to provide guidance. Court of Appeal of necessity determined that ability to review such a de- cision was provided for in the complete code. Integral part of Court of Appeal's decision and not obiter. Shaughnessy v. Aviva Canada Inc. (Mar. 8, 2011, Ont. S.C.J. (Div. Ct.), Jennings, Gray and Ram- say JJ., File No. DC000010700) 199 A.C.W.S. (3d) 946 (4 pp.). Planning ZONING Use of post-recycling residual materials not permissible use under municipal by-law Application for declaration that burning of post-recycling re- sidual materials in its cement plan was not land use controlled by by-law, or in alternative was accessory use permitted under by-law. Municipality informed applicant that incineration of residual materials was not permitted use under zoning by- law because it was tantamount to operation of waste disposal area. Application dismissed. Use of residual materials was not permissible use on applicant's site under municipal by-law. For purposes of by-law, materi- als constituted industrial waste. Applicant would be operating waste disposal area on its site, which was not permitted use. St. Mary's Clement Inc. v. Clar- ington (Municipality) (Mar. 11, 2011, Ont. S.C.J., Stinson J., File No. 09-CV-375276) 199 A.C.W.S. (3d) 984 (9 pp.). Torts CONSPIRACY Corporate veil provided little protection where illegal activities with conspiratorial and fraudulent intent alleged Two individual defendants, also directors of corporate defen- dant, brought motion to remove themselves as defendants in per- sonal capacity from statement of claim. Claim alleged conspir- acy. Claim alleged defendants knowingly provided false net worth and income statements in support of guarantees in loan application. Motion denied. Suffi cient facts pleaded to sup- port claim against defendants personally. Whether defendants personally liable not determin- able on motion. Corporate veil provided little protection where illegal activities with conspira- torial and fraudulent intent al- leged. Possible to fi nd that de- fendants had constructive inten- tion to injure the plaintiff s, even where predominant intention of alleged conspiracy was to in- jure non-plaintiff bank. Court refused, despite plaintiff 's ad- mission to having misled bank, to strike out claim on basis of ex turpi causa. Applicability of CANADIAN LAW LIST 2011 YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Inside you will find: an up-to-date alphabetical listing • • • and judges in Canada; contact information boards, commissions and Crown corporations; legal and government contact information of more than 58,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related offices of importance. MORE THAN A PHONE BOOK Hardbound • Published February each year • On subscription $146 • L0084-8573-26084 • One-time purchase $162 • L0084-8573 • ISSN 0084-8573 Visit canadalawbook.ca or call 1.800.387.5164 for a 30-day no-risk evaluation Prices subject to change without notice,to applicable taxes and shipping & handling. CANADA LAW BOOK® www.lawtimesnews.com CLL - 1-4 page - 5X.indd 1 5/25/11 9:38:07 AM doctrine properly determined on fuller record. Mirza v. Estra Flooring Inc. (Mar. 24, 2011, Ont. S.C.J., Annis J., File No. 10-0100851- 00) 199 A.C.W.S. (3d) 1014 (7 pp.). SUPREME COURT OF CANADA Appeal POWERS OF APPELLATE COURT Interests of justice require access to forensic tests to formulate leave application Accused seeking leave to appeal decision of Court of Appeal dis- missing appeal from conviction for fi rst degree murder. Accused moving for an order releasing trial exhibits for delivery for forensic testing. Exhibits per- taining to alleged post-off ence conduct of accused Court of Appeal found to provide power- ful inference of guilt in dismiss- ing unreasonable verdict appeal. Exhibits not previously tested as prior counsel unaware of avail- ability of tests. Motion to release exhibits granted. Power to make an order releasing trial exhibits for appeal extends to Supreme Court considering application for leave to appeal. Given impor- tance placed on trial evidence by Court of Appeal, interests of justice require access to forensic tests to formulate leave applica- tion to Supreme Court. R. v. Hay (Nov. 18, 2010, S.C.C., Binnie, Abella and Cromwell JJ., File No. 33536) 93 W.C.B. (2d) 589 (3 pp.). Charter Of Rights

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