Law Times

PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Aboriginal Peoples SELF-GOVERNMENT Judge did not give weight to all relevant considerations Application judge held that Community Panel of appel- lant Indian Band lost its legal authority to decide certain elec- tion appeals on basis that one of members of Community Panel resigned just before remain- ing members signed document evidencing their decision, bring- ing Community Panel below quorum. Although judge found that Community Panel had lost jurisdiction, he correctly recog- nized that he had discretion un- der s. 18.1(3) of Federal Courts Act (Can.), not to quash Com- munity Panel's decisions. Judge recognized certain factors against quashing Community Panel's decisions, but ultimately decided to quash them. Judge did not give weight to all relevant con- siderations. Judgment of Federal Court was set aside and applica- tion for judicial review was dis- missed, leaving in place decisions of Community Panel dismissing election appeals. Dennis v. Adams Lake Indian Band (Feb. 2, 2011, F.C.A., Sharlow, Trudel and Stratas JJ.A., File No. A-55-10) Deci- sion at 184 A.C.W.S. (3d) 872 was reversed. 198 A.C.W.S. (3d) 254 (18 pp.). Arbitration JURISDICTION Power of Pipeline Arbitration Committee to award costs premised on issuance of award Federal Court Judge erred in dismissing appeal from Pipe- line Arbitration Committee's ("PAC") determination that re- spondent was entitled to recover from appellant legal costs which he incurred in proceedings com- menced and disposed of in Alber- ta Court of Queen's Bench and in arbitration proceedings com- menced before previous panel of PAC. Costs incurred by respon- dent in Alberta litigation were not costs incurred by him "in asserting his claim for compensa- tion", pursuant to s. 99(1) of Na- tional Energy Board Act (Can.). Nor were respondent's litigation costs damages recoverable under s. 84 of Act, as costs incurred by respondent defending appellant's action in Alberta Court could not possibly be characterized as claim against appellant arising out of its activities directly related to either acquisition of lands for pipeline, construction of pipe- line, or inspection, maintenance or repair thereof. Finally, judge erred in confirming second pan- el's determination regarding costs of first arbitration proceedings, which had been nullified. Power of PAC to award costs was pre- mised on issuance of award. Also, costs incurred in first arbitration proceeding, like costs incurred in Alberta proceedings, do not fall within ambit of s. 99(1). Alliance Pipeline Ltd. v. Smith (Apr. 8, 2009, F.C.A., Noel, Na- don and Pelletier JJ.A., File No. A-56-08) 198 A.C.W.S. (3d) 268 (29 pp.). ONTARIO CIVIL CASES Appeal INTERVENTION Ontario Trial Lawyers Association granted leave to intervene as friend of court Motion by Ontario Trial Law- yers Association for leave to intervene as friend of court in application for judicial review in case involving claim of cata- strophic impairment as result of motor vehicle accident. Motion granted. Decision on interpreta- tion of catastrophic impairment has potential to have impact on many individuals. Applicant had expertise in area and could assist court by bringing broader per- spective to interpretation of leg- islative provisions and legislative scheme. No prejudice to any of parties. Terms of order required that applicant take record as it existed and not seek to augment record and that it would not re- peat or simply embellish argu- ments made by parties. Pastore v. Aviva Canada Inc. (Jan. 19, 2011, Ont. S.C.J. (Div. Ct.), Herman J., File No. 455/10) 198 A.C.W.S. (3d) 259 (3 pp.). Civil Procedure JOINDER New proposed claims were not statute-barred Appellant was mother and litiga- tion guardian of infant plaintiff who suffered severe brain injury at birth. As result, appellants brought timely action for dam- ages against number of health practitioners. Shortly before action was to go to trial, appel- lants were granted adjournment to move to add claims against number of additional defendants who were involved in infant's postnatal care, and whose poten- tial liability had just been made May 2, 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. known to appellants. Motion judge dismissed motion to add new defendants was dismissed on basis that claims against them were statute-barred. Mo- tion judge correctly concluded that real issue before him was to determine whether rules 1 or 2 of s. 24(5) Limitations Act, 2002 (Ont.), applied and that depended on whether claim was discovered or discoverable be- fore January 1, 2004. However, trial judge erred in treating issue as question of fact to be deter- mined based primarily on evi- dence of counsel for appellants of what he did and did not do, without considering s. 5(2) of Act, which essentially codifies test for determining when claim was discoverable. On consid- eration of all relevant evidence, proposed new claims were dis- coverable, and therefore, discov- ered, before January 1, 2004. As result, rule 2 of s. 24(5) applied, making former limitation period applicable. New proposed claims were not statute-barred. Macksoud (Litigation Guardian of) v. Carroll (Feb. 9, 2011, Ont. C.A., Goudge, Feldman and Watt JJ.A., File No. C52517) Decision at 190 A.C.W.S. (3d) 729 was reversed. 198 A.C.W.S. (3d) 729 (12 pp.). TRIAL Defendant's motion for change of venue from Welland to Toronto dismissed Plaintiff slipped and fell on prop- erty owned by defendant in To- ronto. Defendant was located in Toronto. Plaintiffs brought action in Welland. Defendant brought motion to change venue of action from Welland to To- ronto. Motion was dismissed. Matter had substantial connec- tion to Toronto. Matter had limited connection to Welland. Defendant did not prove there would be negative impact on de- fendant's ability to participate in action if trial were conducted in Welland. Unexplained delay in bringing motion weighed heav- ily against defendant. Defendant did not prove it was desirable in interests of justice to change ven- ue of action. Hagar v. Toronto Transit Commis- sion (Feb. 17, 2011, Ont. S.C.J., Henderson J., File No. 9306/08) 198 A.C.W.S. (3d) 338 (7 pp.). Crown ACTIONS AGAINST CROWN Defendant's correspondence advising there might be litigation between defendant and city did not consti- tute notice of claim against Crown Motion by Crown for order dis- missing defendant's counterclaim www.lawtimesnews.com for defendant's failure to comply with Proceedings Against the Crown Act (Ont.). City com- menced action against defen- dant for damages for alleged fail- ure to comply with agreement to disburse funds received from city in accordance with pay eq- uity scheme. Defendant coun- terclaimed for injunctive relief and damages against city and Crown. Motion granted. Crown was removed as party to coun- terclaim. Defendant failed to give sufficient notice to Crown, pursuant to s. 7(1) of Act. De- fendant's correspondence advis- ing that there might be litigation between defendant and city did not constitute notice of claim against Crown. Toronto (City) v. Longbranch Child Care (Jan. 24, 2011, Ont. S.C.J., Perell J., File No. CV-08-349484) 198 A.C.W.S. (3d) 352 (9 pp.). Education COLLEGES AND UNIVERSITIES Inability of applicant to cross- examine not considered so manifestly unfair as to amount to violation of rules of natural justice Applicant was involuntarily withdrawn from program at uni- versity. Applicant had difficulties with practicum course. Appli- cant took x-rays of patient's arm out of sling which was contrary to hospital protocols to remove sling. Application for judicial re- view was dismissed. Inability of applicant to cross-examine could not be considered so manifestly unfair as to amount to violation of rules of natural justice. Ap- plicant did not show applicant was treated with such manifest unfairness that there was flagrant violation of rules of natural justice with respect to academic evalua- tions of program. Committee did not fail to take applicant's evi- dence into account. Committee reasonably applied test and made credibility finding that incident happened. Decision could be rationally support based on evi- dence before committee. Reasons provided ample justification for conclusion reached. Decision was reasonable. Deng v. University of Toronto (Feb. 8, 2011, Ont. S.C.J. (Div. Ct.), Brown R.S.J., Molloy and Her- man JJ., File No. 164/09) 198 A.C.W.S. (3d) 367 (12 pp.). Family Law CUSTODY Child's difficulties in school not an unforeseeable change in circumstances Motion by mother for varia- tion of order continuing two- week rotating basis regarding child. Arrangement continued notwithstanding fact that order meant that child would attend school both in Toronto where mother resided and in Bar- rie where father resided. Child presently at junior kindergarten level. Motion dismissed. No adequate evidence to indicate why child struggling with school as outlined in correspondence from child's teacher in Toronto. Child's difficulties in school not an unforeseeable change in cir- cumstances. Court foresaw dif- ficulties. Imperfect solution that was obviated by mother's insis- tence that child should be reg- istered in school without discus- sion with father and her decision to arbitrarily register child in Toronto and to terminate shared custody arrangement. Baker v. Rego (Feb. 17, 2011, Ont. S.C.J., McDermot J., File No. FC-10-1297-00) 198 A.C.W.S. (3d) 417 (6 pp.). Professions BARRISTERS AND SOLICITORS Plaintiff did not establish defendant breached fiduciary duty Defendant failed to pay neces- sary fees to United States Pat- ent and Trade-mark Officer to maintain two United States pat- ents owned by plaintiff. Patents were no longer valid in United States. Defendant admitted that it was negligent and breached contract with plaintiff. Issue was quantum of damages. Issue was whether defendant knew it failed to pay fees and patent ex- pired, failed to advise plaintiff and thereby breached fiduciary duty to plaintiff. Plaintiff did not establish defendant breached fiduciary duty. There was no evi- dence and it was not plausible that C. was aware maintenance fees had not been paid and in- tentionally did not disclose fact. Damages of approximately $1 million were awarded to plain- tiff. Damages included expenses related to attempted reinstate- ment of patents, expenses in- curred by plaintiff to strengthen remaining United States patent portfolio, estimated expense of prosecuting divisional patent application in Untied States, and amount equal to plaintiff's total cost of acquiring underly- ing rights from Russian inves- tors plus amount plaintiff spent in respect of patents in United States before plaintiff discovered patents had lapsed. PreMD Inc. v. Ogilvy Renault LLP (Dec. 31, 2010, Ont. S.C.J., Hoy J., File No. 05-CV- 293347 PDA1) 198 A.C.W.S. (3d) 528 (41 pp.). Digital LT.indd 14 4/29/11 11:28:58 AM

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• Jury Hunt
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• Focus On Personal Injury Law