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PAGE 14 CaseLawLaw FEDERAL COURT Administrative Law JUDICIAL REVIEW Notice of application was struck out Health Canada issued authoriza- tion to process dried marihuana for medical purposes to G.. G. was patron of R.'s restaurant. R. alleged G. displayed marijuana to restaurant patrons and of- fered marijuana to others. G. was barred from restaurant. R. com- menced application for judicial review. Prothonotary refused to strike R.'s notice of application. Appeal was allowed. Notice of application was struck out. Pro- thonotary erred in law by exercis- ing discretion based on misun- derstanding of legislative scheme and misapprehension of facts. It was plain and obvious applica- tion could not succeed because R. lacked standing. Application was improper. Only benefit of dec- laration to be derived by R. was to assist in R.'s defence in human rights proceeding against R. and in any future potential proceed- ings under Ontario liquor laws. Ridgeview Restaurant Ltd. v. Canada (Attorney General) (May 10, 2010, F.C., Mactavish J., File No. T-561-09) 189 A.C.W.S. (3d) 5 (26 pp.). Crown LIABILITY Government liable to plaintiffs in negligence and breach of contract in relation to construction of timber processing mill in the Yukon Action by plaintiffs against fed- eral government for damages for negligence and breach of con- tract. Plaintiff L Inc. was joint venture participant in plaintiff S Corp.. L Inc. wanted to construct timber processing mill in Yukon Territory. Annual allowable cut for area at that time was 350,000 cubic metres. L Inc. estimated mill would require 200,000 cubic metres of timber per year to be feasible. Government supported L Inc.'s plans and provided assur- ances that sufficient timber would be available. During particular meeting, government assured L Inc. it would have no problem obtaining 200,000 cubic metres of timber per year. S Corp. was incorporated to construct mill. Government had been issuing small volume commercial timber permits ("CTP's") but had not yet established process for issu- ing high volume timber harvest agreements ("THA's"). Govern- ment experienced problems issu- ing CTP's. Government reduced annual allowable cut for area to 128,000 cubic metres. Mill com- menced operations in October 1998 but was shut down in De- cember 1998 due to inadequate supply of timber. Internal govern- ment documents cast plaintiffs in negative light but government persuaded plaintiffs not to relo- cate mill. Mill reopened in April 1999 and had sufficient supply of timber for about six months. Mill then faced shortfall in supply of timber due to government's fail- ure to finalize process for issuing THA's. Mill was closed for good in August 2000. Action allowed. Government made representa- tion that, when acted upon by plaintiffs, gave rise to contract be- tween parties. Government rep- resented that there was existing commitment and ability to pro- vide long-term adequate volume of timber to whoever built mill. Consideration in this case was construction of mill in exchange for adequate supply of timber. Government was to receive po- litical and financial benefits from construction of mill. Plaintiffs proceeded to construct mill based on government's representation. Government's commitment be- came binding once plaintiff's completed mill. Government was not entitled to fail to take neces- sary steps to complete contract. Absence of written agreement was not fatal. Government could not rely on Statute of Frauds, 1677 (Eng.), 29 Car 2, c. 3, where oral contract had been partially performed. Essential elements of agreement could be determined with certainty. Annual volume of timber was to be 200,000 cubic metres. Term was 20 years in light of surrounding circumstances. Other essential terms were sup- plied by existing legislation, regu- lations, or government policies. Prudence of government mak- ing bargain when certain matters might have been beyond its con- trol was not matter for court to decide. Upon completion of mill, plaintiffs were entitled to be dealt with fairly but were not. Govern- ment owed plaintiffs duty of care. Sufficient proximity existed since parties had direct relationship and not merely indirect relationship arising from regulatory context. This was not casual relationship between disinterested govern- ment department and mere po- tential licensee. Parties had close relationship with aligned and intertwined interests. Injury to August 23, 2010 • LAw times COURT DECISIONS ainmaker_LT_June2_08.indd 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: 5/28/08 10:43:29 AM 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. plaintiffs was foreseeable. Gov- ernment knew what plaintiff was building as well as when, where, and why. Government was aware mill would require supply of wood substantially greater than had been available. Negligent delays in issuing CTP's and estab- lishing process for issuing THA's would have clearly harmed plain- tiffs. Actual harm came to light after first mill closure. Govern- ment failed to establish any policy reasons for not imposing duty of care. Alleged negligence did not relate to policies themselves but rather implementation of poli- cies. Inordinate delays could not be matter of policy. There was no risk of indeterminate liability in light of very specific nature of specific representation. In any event, government had acted in bad faith. Government was aware supply would be limited but said nothing. One particular govern- ment employee unjustifiably ma- ligned plaintiffs and tried to cast blame on them. South Yukon Forest Corp. v. Canada (May 5, 2010, F.C., Heneghan J., File No. T-2012- 01) 189 A.C.W.S. (3d) 105 (397 pp.). ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Class counsel fees of $1,487,195 were approved Motion was brought for ap- proval of fees and disbursements of class counsel with respect to partial settlements reached in action. Fee agreement complied with s. 32(1) of Class Proceed- ings Act, 1992 (Ont.). Fee rep- resented 25% of portion of settlement amount allocated to Ontario and British Columbia settlement classes and was less than 30% permitted by retainer agreement entered into with plaintiffs in Ontario action and British Columbia action. There was jurisdiction to make interim fee award and it was appropri- ate to do so. It was permitted by retainer agreement. Partial settlement was excellent result for class. It was legally and fac- tually complex litigation. Issues raised concerns of public impor- tance. There was no opposition from class. Class counsel fees in amount of $1,487,195 were ap- proved. Osmun v. Cadbury Adams Canada Inc. (May 13, 2010, Ont. S.C.J., Strathy J., File www.lawtimesnews.com No. 08-CV-347263PD2) 189 A.C.W.S. (3d) 33 (10 pp.). Conflict Of Laws JURISDICTION Defendant did not displace plaintiff 's choice of forum Motion by defendant for order staying action brought under Simplified Procedure Rules for damages for breach of contract for non-payment for personal flotation jackets manufactured by plaintiff on basis proper and more convenient forum British Columbia. Defendant luxury fishing lodge in British Columbia and had no assets or any presence in Ontario. Motion dismissed. Facts showed real and substantial connection to Ontario and real question whether court should assume jurisdiction on basis On- tario more convenient forum. Defendant alleged that testimony on complaints relating to late de- livery, improper colour and design combinations and malfunction- ing of jackets would come from 29 witnesses, half of whom were employees of defendant. Defen- dant had never set out amount of damages or set-off that it would claim and court left in dark as to how many of its proposed witnesses were key to defence of set-off. Defendant's complaints about quality and appearance of jackets or their late delivery only began after plaintiff started press- ing for payment. Plaintiff small local manufacturer and would suffer financial hardship if On- tario action stayed. No evidence defendant could not afford to bring some or all of witnesses to Ontario. Court not satisfied viva voce evidence of all those witness- es would be necessary to defence given amount of claim and type of proceeding. Court not satisfied defendant had displaced plain- tiff's choice of forum and clearly established British Columbia more appropriate forum. Salus Marine Wear Inc. v. Queen Charlotte Lodge Ltd. (May 26, 2010, Ont. S.C.J., Flynn J., File No. 09-4655-SR) 189 A.C.W.S. (3d) 82 (6 pp.). Corporations OPPRESSION Motion by defendants for interim relief akin to Mareva injunction was dismissed Motion by defendants for in- terim relief for immediate, full and complete access to financial records of corporate plaintiff and non-party corporation, order requiring corporate plaintiff to hold annual general meeting at offices of its accountants with attendance by corporation's ac- countant to answer questions, order restraining plaintiffs from paying out management bo- nuses, salaries and dividends without regard to defendant P.'s alleged shareholder status and accounting of any such pay- ments since November 2005 and order restraining plaintiffs and non-party corporation from disposing of assets pending trial and certificate of pending litiga- tion on property. Motion dis- missed. Not possible to vet even cursorily in context of short mo- tion documents provided and to make realistic determination of what might be outstanding. Demands in respect of annual general meeting excessive and defendants not entitled to that relief on interim basis. Motion for order restraining payment of management bonuses, salaries and dividends akin to Mareva injunction and defendants had failed to prove entitlement to this extraordinary remedy. Evi- dence of asset disposal vague at its highest. Defendants not en- titled to order restraining dispos- al of assets in absence of better proof. Defendants not entitled to certificate of pending litiga- tion. Fact that counterclaim did not claim such relief probably fatal to request. Defendants had no interest in subject land and no demonstrated basis on which to pierce corporate veil. No evi- dence plaintiffs were disposing of or encumbering property. No evidence order for damages would not suffice to redress any wrongs done. No undertaking offered in respect of damages that might flow from granting of certificate of pending litigation. Dee Ferraro Ltd. v. Pellizzari (May 24, 2010, Ont. S.C.J., Parayeski J., File No. C-36-08) 189 A.C.W.S. (3d) 95 (5 pp.). Professions BARRISTERS AND SOLICITORS Motion for order removing respondent's counsel for conflict of interest was dismissed Motion by applicant for order removing respondent's counsel for conflict of interest. Parties separated after 30-year marriage. Both parties required Mandarin interpreter and counsel. Ap- plicant disposed that she paid respondent's lawyer $100 for telephone consultation in which her daughter spoke on her behalf and respondent retained counsel

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