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PAGE 14 CaseLawLaw FEDERAL COURT Aboriginal Peoples APPLICATION OF PROVINCIAL LAW Parties could have been spared cost of litigation had sensible course of action been taken Determination of costs follow- ing successful application for ju- dicial review. Court had found that applicants were deprived of their voting rights and denied procedural fairness by respon- dents in violation of First Na- tion custom. In granting judg- ment court set aside decision of former Chief and Council to extend their terms of offi ce, re- moved Chief and Council from offi ce and ordered that election be held within 60 days. Appli- cants sought lump sum award giving them full indemnity on solicitor client basis for legal fees in amount of $258,850. Respondents contended that applicants should not be enti- tled to elevated costs as conduct of respondents or their counsel had not been reprehensible, scandalous or outrageous such as to justify exceptional award of solicitor-and-client costs. Re- spondents contended that issues were needlessly complicated in this proceeding by fact that applicants raised grounds from Canadian Charter of Rights and Freedoms when it was clear that such grounds had no foun- dation in law or facts. Relevant factors were that application was brought in interests of all of members of community, is- sues were complex and included confl icting evidence as to what constituted First Nation cus- tom, conduct of respondent Chief and Councilors and their legal counsel tended to unneces- sarily lengthen duration of pro- ceedings, steps taken by respon- dent Chief and Councilors in proceeding were improper, vex- atious or unnecessary, amount of work required to prepare for hearing, that written off er to settle was disregarded and that application was wholly success- ful. Applicants awarded costs on solicitor-client basis for ap- plication and for matters relat- ing to this order for costs, fi xed at a total of $285,000. Proceed- ing would not have been neces- sary had Chief and Council of First Nation put question of ex- tension of their terms of offi ce to membership as part of sched- uled December 2010 election. All of parties could have been spared expense of costly litiga- tion had that sensible course of action been taken. Failure of re- spondents to do so was blatant attempt to remain in power. Shotclose v. Stoney First Na- tion (Sep. 7, 2011, F.C., Mos- ley J., File No. T-2085-10) 206 A.C.W.S. (3d) 445 (11 pp.). ONTARIO CIVIL CASES Appeal STAY PENDING APPEAL Reason to doubt whether appellant could be required to secure support obligation that no longer existed Parties were married 19 years and had fi ve children. Appel- lant lost employment. Ongo- ing child and spousal support payable by appellant were sus- pended. Appellant was required to reinstate life insurance of $400,000 naming respondent as benefi ciary. Arrears of sup- December 12, 2011 • Law Times Follow on www.twitter.com/lawtimes COURT DECISIONS Untitled-3 1 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: 5/5/10 3:55:30 PM 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. port were fi xed at $56,253. In event appellant took position appellant could not aff ord pre- miums because appellant could not work, appellant was to at- tend medical examination ar- ranged by respondent. Leave to appeal was granted. Decision was open to serious debate. Th ere was reason to doubt cor- rectness of order. Th ere was reason to doubt whether ap- pellant could be required to secure support obligation that no longer existed. Th ere was basis to doubt correctness of requirement appellant travel to Ontario to attend medical ex- amination. Orders were stayed pending appeal given there was serious issue to be tried and ir- reparable harm to appellant. Feinstat v. Feinstat (Aug. 19, 2011, Ont. S.C.J., Gilmore J., File No. DC-11-00331-ML) 206 A.C.W.S. (3d) 459 (7 pp.). Highways Defendant REPAIR No evidence that would lead county to know of problems at curve operated cause of accident. Cause of ac- cident must have been result of shifting of truck's load that was not properly secured. Cause was not defendant's speed and was not nature of curve. Cause of accident was not lack of warn- ing. Th ere were suffi cient signs to warn defendant of circum- stances of curve. Defendant led no evidence that load was safe. Defendant's guilty plea to of- fence under Highway Traffi c Act (Ont.) was prima facie evidence that load was unsafe. County had system in place to moni- tor state of roads and signage in place. Th ere was no evidence of disrepair and no evidence that would lead county to know of problems at curve. County was not in breach of duty. Lancaster (Litigation Guardian of) v. Santos (Aug. 16, 2011, Ont. S.C.J., Lemon J., File No. 603/09; 510/09; 585/09) 206 A.C.W.S. (3d) 609 (65 pp.). loaded tractor trailer that tipped over and slid into oncoming traffi c. Plaintiff s suff ered injuries and losses. Plaintiff 's claims against defendants were settled. Defen- dants third partied the corpora- tion of the county. Defendants claimed losses were caused or contributed by negligence of county in failing to keep high- way in good state of repair. Claim was dismissed. County did nothing that contributed to accident. County may not have complied with parts of Manual of Uniform Traffi c Control De- vices, but failure to do so did not cause or contribute to acci- dent. Defendant failed to show SUPREME COURT OF CANADA Torts LIBEL AND SLANDER Insert of hyperlinks could not amount to publication Appellant claimed he had been defamed in various articles that appeared on Internet. Respon- dent operated web site and au- thored article that hyperlinked alleged defamatory articles. Ap- pellant took position that when hyperlinks created, respondent became publisher of impugned articles found at hyperlinked sites. Trial judge dismissed ap- pellant's action for defamation on basis that appellant failed to prove publication of defama- tory material. He found that hyperlinking did not amount to publication. Majority of Court of Appeal dismissed appellant's appeal, fi nding no basis for presumption of publication of hyperlinked articles and mere fact that respondent hyper- linked impugned sites did not make him publisher. Appeal to Supreme Court of Canada dis- missed. To prove publication element of defamation, plaintiff must establish defendant has, by any act, conveyed defama- tory meaning to single third party who has received it. Form defendant's act takes and man- ner in which it assists in caus- ing defamatory content to reach third party are, traditionally, irrelevant. Breadth of activity captured by traditional publica- tion rule vast and recent juris- prudence suggested some acts so passive they should not be held to be publication. Ques- tion is whether simple refer- ence, like hyperlink, to defama- tory information is type of act that can constitute publication. Reference to other content fun- damentally diff erent from other acts involved in publication as does not involve exerting con- trol over content. Communi- cating something distinguished from merely communicating that something exists. Hyper- links are, essentially, references. Content of secondary article often produced by someone other than person who inserted hyperlink in primary article. In- serting hyperlink gives primary author no control over content in secondary article. When per- son follows link they are leav- ing one source and moving to another. Ease with which refer- enced content can be accessed does not change fact that, by ONTARIO LAWYER'S PHONE BOOK 2012 YOUR MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. More detail and a wider scope of legal contact information for Ontario than any other source: • More than 26,000 lawyers • More than 9,300 law firms and corporate offices • Perfectbound Published December each year On subscription $72 P/C 26089 ISSN L88804-559 Multiple copy discounts available Prices subject to change without notice, to applicable taxes and shipping & handling. 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