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PAGE 14 to new wholly owned subsid- iary of C.P.. C. contended that transfer of assets and business of N. to transferee was neces- sary for survival of N. as going concern. Issue whether trans- fer of assets of business of N. was subject to requirements of s. 36 of Act. Motion granted. Business of N. and C.P. entities were highly integrated and in- terdependent. Business struc- ture predated insolvency of moving party. Transition and reorganization was internal re- organization transaction that was designed to realign shared services and assets within C.'s corporate family so as to ratio- nalize business structure and to better reflect appropriate business model. Realignment of shared services and transfer of assets and business of N. to publishing side of business were steps in larger reorgani- zation of relationship between C. and L.. There was no ability to proceed with either shared services agreement or N. tran- sition agreement alone. Transi- tion and reorganization agree- ment provided framework for C. entities and L. entities to restructure their inter-entity arrangements for benefit of re- spective shareholders. It would be commercially unreasonable to require C. entities to engage in third party sale process con- templated by s. 36(4) and offer N. for sale to third parties be- fore permitting them to realign shared services arrangements. In these circumstances s. 36 was inapplicable. Canwest Global Communi- cations Corp. (Re) (Nov. 12, 2009, Ont. S.C.J. (Comm. List), Pepall J., File No. CV- 09-8241-OOCL) Order No. 009/320/030 (15 pp.). Civil Procedure CLASS ACTIONS Action against Crown arising from construction of housing was certified Representative plaintiff com- menced class action by mem- bers of First Nations group for damages against Crown for failure to construct hous- ing free of toxic mould. Crown moved residential commu- nity from one part of Reserve to another in order to build houses. Plaintiff alleged that Crown failed to properly assess suitability of location and that members of group were ex- posed to unsafe levels of toxic mould and developed range of illnesses. Application granted. Class proceeding was prefer- able procedure for resolving common issues. Most of class members did not have finan- cial and emotional resources to initiate proceedings against Crown. Grant v. Canada (Attorney General) (Dec. 4, 2009, Ont. S.C.J., Cullity J., File No. 04- CV-263007 CP) Order No. 009/342/014 (31 pp.). Action arising from alleged misrepresentations in takeover bid circular was certified Plaintiff claimed damages on behalf of shareholders as result of alleged misrepresentations in take-over bid circular. Plain- tiff sought to certify action as class action. Order was granted certifying action as class pro- ceeding. Claims met cause of action test. Class definition was clear, objectively defined, reasonable in scope and ratio- nally connected to common is- sues. Common issues pertain- ing to auditors and WeirFoulds contained some ambiguity. Words were to be deleted and appropriate language was to be inserted. Class action would be fair, efficient and manageable method of advancing claims. Allen v. Aspen Group Resources Corp. (Dec. 4, 2009, Ont. S.C.J., Strathy J., File No. 02-CV-241587CP) Order No. 009/341/031 (42 pp.). COSTS Unusual circumstances justified departure from usual rule that costs followed event This was to determine costs of proceedings leading to granting of Norwich order. Appeals were allowed setting aside Norwich order granted to respondent GEA. Appellants FNG, VG and TG were awarded costs. Through inadvertence court failed to confirm decision to set aside motion judge's order from which appeals formally were launched (December or- der). Application dismissed. Unusual circumstances of case justified departure from usual rule that costs followed event. FNG necessarily delayed and prolonged already complex proceedings. Matters raised on appeals marked significant shift in appellants' positions and in focus of attacks on Nor- wich order. Key issues raised by appellants involved ques- tions of unsettled law in On- tario. FNG had been found to have breached contractual ob- ligations to GEA and remained indebted to GEA. Factors militated against awarding any of appellants costs of proceed- ings below. As Norwich order was unnecessary and should not have been granted no costs should be awarded to GEA. GEA Group AG v. Ventra Group Co. (Dec. 11, 2009, Ont. C.A., Weiler, Cronk and Blair JJ.A., File No. C49842; C49855) Supplementary reasons to 312 D.L.R. (4th) 160, 181 A.C.W.S. (3d) 255. Order No. 009/348/028 (6 pp.). Communications Law BROADCASTING Not appropriate that court intrude on CRTC's jurisdiction Motion by defendants for or- der for stay pending disposi- tion of plaintiffs' complaints by CRTC. Plaintiffs complained to CRTC that defendants were failing to distribute their chan- nel in manner comparable to competing channels and by conferring undue preference on competing channels. Plain- tiffs commenced action for CASELAW claim for specific performance of marketing support agree- ment and damages. Motion granted. It was not appropriate that court intrude on CRTC's jurisdiction. Allarco Entertainment 2008 Inc. v. Rogers Communications Inc. (Dec. 8, 2009, Ont. S.C.J. (Comm. List), Pepall J., File No. 09-CV-373389) Order No. 009/343/034 (19 pp.). Compensation For Victims Of Crime PROCEDURE Board lacked authority to compel police officers to provide material requested Applications for judicial re- view of failure of Criminal Injuries Compensation Board to provide applicants with certain disclosure they had sought from board. Board had requested that investigating police officer complete ques- tionnaire identifying victim, cause of injury, whether or not victim co-operated with police and attended court as required, and to provide details of inci- dent, details of offender, and outcome of prosecution if any. Questionnaires were disclosed to applicants and investigat- ing officers were summoned by board to give evidence at applicants' hearings. Summons also required officers to bring relevant notes, statements or documents. Applicants re- quested that board provide to them prior to hearings, identi- fication of any police witnesses together with numerous other documents. Applicants con- tended that s. 5.4(1) of Statu- tory Powers Procedure Act (Ont.), provided board with authority to compel police of- ficers to make disclosure of materials they sought in ad- vance of their hearings. Board determined that it did not have power to order disclosure of requested documents prior to hearing. Applications for ju- dicial review dismissed. Board lacked authority to compel po- lice officers to provide material requested by applicants. Only power to require production of documents and information possessed by board found in power to summons in s. 8.1(1) of Criminal Injuries Compen- sation Board Rules of Proce- dure. No broader power can be found in Statutory Powers Procedure Act. Section 5.4(1) of Act did not provide board with power to order disclosure sought by applicants. Section 5.4(1) was designed to require that parties to tribunal hearing exchange information prior to hearing and was designed for adversarial hearings. Nothing in that provision gave jurisdic- tion to board to make orders compelling third parties or witnesses to make pre-hearing disclosure of information or documents to party to a pro- ceeding before board. Sole power of board to compel wit- ness to provide information or produce documents was power www.lawtimesnews.com to summons. Board could not provide applicants documents they sought because it did not have them, had no power to get them and should not be responsible for getting them in any event. Jocko v. Ontario (Criminal Inju- ries Compensation Board) (Nov. 4, 2009, Ont. S.C.J. (Div. Ct.), Whalen, Dambrot and Swin- ton JJ., File No. 49/08) Order No. 009/330/024 (8 pp.). Contracts RECTIFICATION Applicant satisfied test for rectification Application for rectification of numerous contracts. Appli- cant manager of mutual funds sought rectification of man- agement agreements, distri- bution agreements, and dec- larations of trust that it and its predecessor signed with respondents. In 2003 Canada Revenue Agency reassessed ap- plicant and its predecessor on ground deferred sales charges were being paid by mutual fund (not by investor) for ser- vices provided by applicant and its predecessor and GST was payable. Language of con- tracts stated that mutual fund was paying applicant and its trustee for services and there was exchange of moneys from mutual fund to fund man- ager or distributor. Applicant contended that it was entitled to rectification on ground contracts contained mistake because they did not express intention of contracting par- ties that certain moneys were received by applicants to re- imburse it for payment that it made on behalf of investors. Applicant contended that lan- guage of contract bore mean- ing that receipt of moneys was payment for services by appli- cant to mutual fund when in truth receipt of moneys was reimbursement. Applicant contended that it was inten- tion of it, its predecessor and respondents that investor and not mutual fund that would pay deferred sales charges. Applicant contended that it was this intention that inves- tor should ultimately pay for broker's remuneration and not any intention to avoid tax that was relevant intent that underlay claim for rectifica- tion. Respondents and its pre- decessor were all members of same family of companies and did not oppose application. Application was opposed by Attorney General of Canada who had been granted stand- ing as intervener. Attorney General submitted that appli- cant was not seeking to correct mistake in expression of agree- ment but rather rectification was being sought to correct mistake in agreement itself. Attorney General contended that contracts attracted GST tax liability and applicant was trying after fact to avoid this liability by characterizing contracts as being mistaken. February 8/15, 2010 • Law Times Motion granted. Evidence was sufficient to establish that contracting parties to mutual fund documents consistently intended that fund manager or fund distributor would pay commission that investor owed to its broker and that contracting parties intended that fund manager or fund dis- tributor would be reimbursed in whole or in part when in- vestor withdrew his or her investment from fund. Con- tractual documents did not express above intention and as such contracts mis-stated con- tracting parties' pre-existing contractual intent. Accord- ingly applicant satisfied test for rectification. AIM Funds Management Inc. v. AIM Trimark Corporate Class Inc. (Nov. 10, 2009, Ont. S.C.J., Perell J., File No. 07-CV-346058PD3) Order No. 009/320/044 (14 pp.). Labour Relations ARBITRATION Essential character of dispute arose from matter governed by collective agreement Plaintiff claimed defendants failed to prevent harassment of plaintiff in workplace. Defen- dants argued claims arose out of employment relationship that was governed by collective agreement and Police Services Act (Ont.). Defendants brought motion to dismiss claim on ba- sis court had no jurisdiction over subject matter. Essential character of dispute between parties arose from matter gov- erned by collective agreement. Discipline was governed by collective agreement. Matters related to working conditions that fell within provisions of labour dispute arrangements effected in collective agree- ment and under Act. Arbitra- tor had exclusive jurisdiction over claims brought by plain- tiffs subject to arbitrator ac- cepting arbitrator had jurisdic- tion to hear matter and subject to arbitrator finding arbitrator had jurisdiction to grant relief sought by plaintiff. Action was stayed pending determination of grievance process and Hu- man Rights process. It could not be determined if there was gap in remedies available to plaintiffs between those sought in action and in arbitration un- til result of grievance procedure was known. Defendants would not be prejudiced in substan- tive way. Jane Doe Eleven v. Hamilton Police Services Board (Dec. 14, 2009, Ont. S.C.J., Turnbull J., File No. 08-7756) Order No. 009/350/013 (22 pp.). Municipal Law ACTIONS AGAINST MUNICIPALITY Landfill not currently causing any substantial interference with developer's property Action by developer against municipality for injunctive re- lief and damages for nuisance.