Law Times

PAGE 4 NEWS December 12, 2011 • Law Times Ruling raises matters ripe for SCC: lawyer Continued from page 1 In Flesch, the matter involved a dispute claiming unlawful com- petition. Defendants William Flesch, James Searle, and their companies sought a motion for a summary judgment. Th ey didn't call any evidence from representa- tives of the third-party company they'd allegedly engaged in unfair competition with. Th e motions judge ordered oral evidence from the representative during a cross- examination restricted to one is- sue, a move that was a point of contention for the plaintiff s. Th e appeal panel ruled that the motions judge didn't err in fi nding that the third-party company wasn't "a same or simi- lar business" to and didn't com- pete with the plaintiff Com- bined Air. Th e panel also found the motion judge didn't err in exercising his power to order the presentation of oral evidence. In Mauldin v. Cassels Brock & Blackwell LLP, the appeal court dismissed Robert Hryn- iak's appeal from the summary judgment granted in favour of the plaintiff s known as the Mauldin group. But it allowed his appeal from the summary judgment granted in favour of the plaintiff in Bruno Appliance and Furniture Inc. v. Cassels Brock & Blackwell LLP. Th e case involved a summary judgment motion related to two civil claims of fraud brought by the Mauldin group and Bruno against Cassels Brock, Gregory Peebles, and Hryniak. Th e mo- tions judge dismissed the motions for summary judgment against Cassels Brock and Peebles and sent the matte rs to trial but found Hryniak liable for fraud in each case, a decision he later appealed. Sarit Batner, a partner at Mc- Carthy Tétrault LLP and coun- sel for Hyrniak in Mauldin and Bruno, says the decision raises a number of questions. "Th e cen- tral question appears to be, do you have the right kind of case?" she says. "Th e judgment appears to provide guidelines on how to sort that out but it also raises the question, is it possible to have full appreciation?" According to Batner, her cli- ent will be seeking leave to ap- peal from the Supreme Court of Canada. "Th e court said in respect to the Bruno case: these are the cases that shouldn't be tried by summary judgment. Yet there's a contradiction there because even though the court concluded they couldn't delve into the case, that it was meant for trial, they tried the case by summary judgment anyway. "What they did there, and it's really more of a general question not specifi cally related to the case, is, although the court set a new power, they didn't apply it. So the question to the Supreme Happ y Holidays This is the last print issue of Law Times for this year, as your favorite weekly legal newspaper will be on annual hiatus. We will return on Jan. 9, 2012. Meanwhile, enjoy fresh content on our web site at: www.lawtimesnews.com Register Now INSTITUTE 2012 www.oba.org/Institute2012 Continuing Professional Development February 9–10 Westin Harbour Castle Conference Centre February 11 Criminal Justice Only The Conference Centre at the OBA 24 CPD Programs 6 Special Events Court would be, can a court of appeal decline to apply a new common law to cases before it?" Th e ruling also makes it dif- fi cult for alleged victims of fraud, say David Alderson and Javad Heydary, who represented the re- spondents in Mauldin and Bruno. "Th e two cases were almost identical, but we received two diff erent judgments," says Hey- dary. "Now Bruno has to go through an extensive and ex- pensive trial." "He is getting older and after seven to eight years of proceed- ings, it really is a concern for those who do business in To- ronto," says Alderson. But another lawyer says the fl uid nature of the new guide- lines is sometimes necessary. "If you begin with hard and fast rules, it can be very limiting," says Tamara Ramsey, an associ- ate at Chitiz Pathak LLP who represented the respondents in Flesch. "In cases where there is a genuine issue, it's good that the courts have tools like this to move those cases along to trial." Allan Rouben, amicus curiae for the Ontario Trial Lawyers As- sociation in the appeal court case, believes the new ruling, while interpreted by some as overly broad, is actually very specifi c. "Th e motions judges will have to look to this for guidance as to what may be suitable," he says. "It's trying to say that certain cas- es are not really suitable for sum- mary judgments if they deal with credibility issues or facts that may be in dispute, for example. It's ul- timately trying to give guidance as to when the powers under Rule 20 should be exercised." McLeish Orlando top law firm so far Continued from page 1 the winter months," says Sarah Anderson, commu- nications director at the food bank. "We certainly couldn't do it without them stepping up to the plate." Tough economic times and decreased donations during the charity's fall drive also make the law fi rm challenge particular- ly important to the food bank this year, Th omas adds. According to Anderson, fall drive the food bank's fell short by $85,000 and more than 60 kilograms of food. "We supply the city with more than 60,000 hamper boxes of food every month, so even a small donation would make a signifi - cant impact," says Th omas. "Every bit helps." From April 2010 to March 2011, 908,000 people visited the food bank, according to its data. Th irty-six per cent of the visitors were children. Each year, the food bank spends more than $1 million buying food to stock its shelves. For roughly $25, it can feed a family of four for two days with one hamper box. If the law fi rm challenge reaches its goal, the result could be more than 11,200 hamper boxes of food. For some fi rms, getting interest in the challenge has been quite easy. "We actually surpassed our goal on the fi rst day," says Amanda Berloni, an articling student at Wildeboer Dellelce LLP. "We had no idea how giving people would be or that they would donate so much. We haven't set a goal now — it was $500 — because people have been really involved and excited about the challenge, so we felt it wasn't needed at that point." To keep the momentum going until the end of the challenge, articling students at the fi rm have also circulated e-mails, set up cans around the offi ce to collect donations, placed boxes for non- perishable items in the lunchroom, and encouraged people to give what they can online, she adds. "We have a really good team here and everyone has been really receptive," says Berloni. Despite being a small fi rm of roughly 50 people, Berloni says it's still very much a part of the competition. "I get texts from other articling students at the other law fi rms all the time saying they're ahead or we better watch out. But I think the good thing about the law fi rm challenge is that it's a really good way to get all the law fi rms together and challenging each other for a good cause." According to the food bank's web site, McLeish Orlando's team was leading the challenge as of Dec. 5 with donations of $13,457. Heenan Blaikie LLP's team was second with $5,976 in donations. Fraser Milner Casgrain LLP's team, meanwhile, had brought in $1,950 in donations. Untitled-1 1 www.lawtimesnews.com 11-12-06 10:01 AM Claudia San Martin, Natalie Robichaud, and Eryn McGlynn get into the holiday spirit at McLeish Orlando LLP.

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