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PAGE 18 prisoner's death was underway and prisoner's death vitiated her consent. Respondent relied on ss. 22 and 26 respectively for denial. Applicant sought order of disclosure. Application allowed. Records were clearly personal information and ap- plicant had standing under s. 41 to bring application since it had been authorized to act on pris- oner's behalf. Section 10(b) of the Privacy Regulations (Can.), did not bar release of deceased's record except for estate admin- istration, as respondent argued, it was simply an avenue for es- tates to obtain records. Section 10(c) of Regulations was broad enough to encompass autho- rization by person no longer living so long as consent was in writing, as it was. Prisoner's consent was still valid and re- spondent's continuous refusal to disclose began at August 17, 2007, when deadline expired and prisoner was still alive. Re- spondent could not rely on lat- er suicide to refuse disclosure, when it was already out of time by August 17, 2007. There was also no R.C.M.P. investigation underway yet by that relevant date. Furthermore, onus was on respondent to demonstrate disclosure would harm inves- tigation in order to rely on s. 22 exemption. Respondent provided no reasons to sup- port s. 22 exemption claimed. R.C.M.P. investigation was no longer underway. Respondent ordered to disclose records re- quested by applicant. Canadian Assn. of Elizabeth Fry Societies v. Canada (Min- ister of Public Safety) (Apr. 29, 2010, F.C., Kelen J., File No. T-1040-09) 188 A.C.W.S. (3d) 558 (40 pp.). ONTARIO CIVIL CASES Bankruptcy And Insolvency PROPOSALS Motions judge erred in granting appellants leave to commence |action against receiver Appellant mortgagor and guar- antor of mortgage debt chal- lenged fairness of conduct of court-appointed receiver ap- pointed by mortgagee under terms of mortgage in relation to its actions pertaining to mortgaged property. Receiver issued report recommending sale and settlement of mort- gaged property and moved for court approval. Motions judge approved report and thereby sale of property to, and settle- ment of damage claim with, P.C.. Appellants were clearly unhappy with how matters per- taining to property had played out. However, issues raised on appeal involved analysis of mo- tions judge's findings of fact ap- plied to well-established legal principle applicable to exercise of his discretion. Analysis dis- closed no reviewable error on part of motion judge. Appeal dismissed. Motions judge erred in granting appellants leave to commence action against receiv- er for breach of duty relating to its recommendations. Motions judge was very clear in his rea- sons that he did not think re- ceiver had acted improperly. In granting leave, motions judge applied wrong test. Rather than applying low threshold he did, he should have been satisfied that appellants had established strong prima facie case, before granting leave. No matter what test motions judge used, grant- ing leave in these circumstances did not necessarily reflect un- certainty in his mind regarding receiver's recommendation of overall appropriateness of com- prehensive settlement. Cross- appeal was allowed. National Trust Co. v. 1117387 Ontario Inc. (May 10, 2010, Ont. C.A., Moldaver, Juriansz and Epstein JJ.A., File No. C49609; C50315) Decision at 171 A.C.W.S. (3d) 20 was re- versed in part. 188 A.C.W.S. (3d) 332 (33 pp.). Civil Procedure CONSOLIDATION Actions consolidated to avoid dupli- cated evidence and associated risk of inconsistent findings and verdicts Deceased was businessman. Deceased cohabited with ap- plicant at residential property. Deceased and applicant also entered into business arrange- ments. In will deceased named solicitor and respondent daugh- ters as estate trustees. After death of deceased serious dis- pute between applicant and re- spondent daughters gave rise to lawsuits. In first action against respondents applicant applied for support as common law spouse of deceased and for re- imbursement of costs in main- taining residence. Suit also put in question validity of will, co- habitation agreement between deceased and applicant and beneficiary designation on de- ceased's life insurance policy. In second action applicant sought damages arising from action of named defendants including re- spondent daughters in shutting down applicant's business op- erations in premises subleased from company controlled by deceased. Third action against respondents was brought by company in which applicant had interest, claiming dam- ages for breach of shareholders' agreement to which deceased was party and business inter- ruption loss. Applicant brought motion to have three actions consolidated or tried together. Motion allowed. At root of ac- tions was applicant's relation- ship with deceased. Applicant was party to first two actions and claimed interest in com- pany that commenced third ac- tion. Respondents were parties to all three actions for allegedly orchestrating events for own benefit and to detriment of ap- plicant. Actions involved com- CASELAW mon questions of law or fact and reliefs claimed arose out of same transaction or occurrence or series of transactions or oc- currences. Actions were ordered consolidated to avoid duplicat- ed evidence and associated risk of inconsistent findings and verdicts. Kilitzoglou v. Cure (May 12, 2010, Ont. S.C.J., Lauwers J., File No. CV-08-088632- 00) 188 A.C.W.S. (3d) 353 (9 pp.). Family Law CUSTODY Evidence fell short of demonstrating that child would suffer substantial psychological harm if returned to England Parties met in Toronto in April 2006 and moved to England in November 2006. They married in August 2007 and child born in November 2007. Mother brought child to Ontario for vacation in March 2009 but in June 2009 filed action in On- tario Superior Court for custo- dy. Father brought application for return of child to England pursuant to Hague Convention on the Civil Aspects of Interna- tional Child Abduction ("Con- vention"). Application judge dismissed application, finding that child not habitually resi- dent in England and returning her to England would place her in intolerable situation. Father's appeal allowed. By incorporat- ing Convention into Ontario law, legislature adopted rules it set out and endorsed goal of contracting states to have those rules interpreted and applied uniformly. Trial judge erred in considering factors not strictly relevant to analysis. Her find- ings cannot be supported by ordinary meaning of terms of Convention as interpreted by courts in Canada and in other contracting states. Article 3 of Convention provides that Con- vention applies to any child habitually resident in contract- ing state immediately before any breach of custody or access rights. Habitual residence in- volves intention to stay in place whether temporarily or perma- nently for particular purpose. Facts arising after child wrong- fully removed irrelevant. Evi- dence clearly established that at time child's wrongful retention began, she was habitually resi- dent in England. Mother may not have been happy in Eng- land but she was residing there as well. Convention does apply. Article 13(b) of Convention creates exception that child be returned to country of habitual residence where there is "grave risk" of physical or psychologi- cal harm or otherwise placing child in "intolerable situation". Provision sets high threshold. Evidence fell short of demon- strating that child would suffer substantial psychological harm if returned to England. Not sufficient to demonstrate that returning to England would be intolerable for mother. www.lawtimesnews.com Wentzell-Ellis v. Ellis (May 13, 2010, Ont. C.A., Goudge, MacFarland and LaForme JJ.A., File No. C51392) Decision at 181 A.C.W.S. (3d) 955 was re- versed. 188 A.C.W.S. (3d) 476 (20 pp.). Labour Relations JUDICIAL REVIEW Arbitrator's analysis fundamentally flawed Employer had imposed disci- plinary suspensions of two em- ployees because of irregularities in receipts they had submitted to claim reimbursement for meals. Both employees grieved. Employer subsequently discov- ered third employee had also obtained reimbursement for meals on numerous occasions based on fake receipts. All three employees were dismissed. All three filed grievances. Two sus- pension grievances and three termination grievances were heard together. Arbitrator sub- stituted five-day suspension, without loss of seniority. Em- ployer's application cial review allowed. for judi- Standard of review was reasonableness. Arbitrator's analysis so funda- mentally flawed and tainted by unreasonable and unsup- portable conclusions that it could not be said to reason- ably justify decision reached. Arbitrator erred with respect to constituent elements of fraud, incorrectly placed onus on em- ployer to prove that employees had not incurred any expense to support fabricated receipts, unreasonably discounted Code of Conduct and minimized employees' conduct in various ways. She also ignored and im- properly distinguished directly applicable cases, and misinter- preted and misapplied cases she herself considered to be ap- plicable. Arbitrator's decision was unreasonable, both with respect to process of getting to result and result itself. Utilities Kingston v. I.B.E.W., Local 636 (Apr. 1, 2010, Ont. S.C.J. (Div. Ct.), Jennings, Mc- Combs and Molloy JJ., File No. 107/09) Application for judicial review from 94 C.L.A.S. 290 was reversed. 188 A.C.W.S. (3d) 530 (20 pp.). Professions BARRISTERS AND SOLICITORS Solicitor's failure to disclose was egregious in extreme Defendant's solicitor brought successful ex parte motion va- cating certificates of pending litigation on two properties December 2009. Defendant's solicitor had not disclosed to motions judge that: he had brought same motion, opposed by plaintiff, before a master in December 2009, but that mo- tion adjourned at his request to January 2010; plaintiff had offered to remove certificates to allow defendant to obtain financing, and; deceased's will, pursuant to which solicitor's July 12, 2010 • law Times client obtained properties, was being challenged on grounds of undue influence. Estate trustee under prior will moved to set aside December 2009 order vacating certificates. Motion allowed. Defendant's solicitor's failure to disclose was egre- gious in extreme. Defendant solicitor's conduct sufficiently reprehensible as to warrant full indemnity costs. Costs fixed at $13,6783 inclusive. Solicitor personally liable for costs, not jointly and severally with own client, within 30 days. Petersen v. Petersen (Apr. 29, 2010, Ont. S.C.J., Newbould J., File No. 07-CV-331953 PD1) 188 A.C.W.S. (3d) 569 (10 pp.). ONTARIO CRIMINAL CASES Evidence PRIVILEGE All efforts had to be made to protect solicitor-client privilege circumstances Accused was lawyer charged with possession of child por- nography. Court had to de- termine which protocol to follow in regards to searching accused's computers so as to not to violate privilege for accused's solicitor-client clients. Crown sought that computers be stored at police station. Law Society proposed that indepen- dent examiner store computers at courthouse or at Examiner's National Discovery Centre in another city. Accused offered no preference. Computers to be stored at centre in other city. General public would be less likely to lose confidence in ad- ministration of justice than if computers were stored at police station. Court must take care to protect interests of criminal cli- ents of accused. Court accepted this was unusual case and that "all efforts" should be made to protect solicitor-client privilege in these circumstances. Ontario (Attorney General) v. Law Society of Upper Canada (Apr. 20, 2010, Ont. S.C.J., Hennessy J.) 88 W.C.B. (2d) 76 (16 pp.). Mischief DEFENCES Defence of colour of right failed because judge did not accept that accused had honest belief Accused appealed conviction for mischief. Accused threw red paint on shared laneway and piled concrete debris weigh- ing several hundred pounds on laneway to prevent other owner from using it. Violation notice was issued which required that obstruction be removed and when it was not accused was charged with mischief. Accused argued that use of laneway as driveway by other owner was not lawful use, as it was not