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PAGE 14 CaseLawLaw ONTARIO CIVIL CASES Bankruptcy And Insolvency ARRANGEMENTS Not appropriate to use Companies' Creditors Arrangement Act (Can.) for sole purpose of pre-empting proceedings by tribunal Applicant sought protection un- der Companies' Creditors Ar- rangement Act (Can.). Applicant established it was insolvent. No creditor took any proceedings to have applicant adjudged bank- rupt or to enforce rights. Purpose of application was to seek stay of licensing proceedings before tri- bunal. Hearing was to consider applicant's objection to notice to revoke registration. Application was dismissed. Applicant did not provide evidence order would have practical significance apart from delaying tribunal hearing. There was no evidence of rea- sonable possibility of additional financing. Refinancing would not cure issues with respect to behaviour of sole shareholder in past giving rise to notice. It was not appropriate to use Compa- nies' Creditors Arrangement Act for sole purpose of pre-empting proceedings by statutory tribunal. Court did not have jurisdiction under Companies' Creditors Ar- rangement Act to make order. Realtysellers (Ontario) Ltd. (Re) (Feb. 1, 2008, Ont. S.C.J., Wil- ton-Siegel J., File No. 08-CL- 7385) Order No. 008/037/034 (4 pp.). Building Liens RELATED REMEDIES Claim for breach of assignment failed A. was unable to collect on judg- ment obtained against their cus- tomer DMS. A. sought to collect from E., who was general con- tractor on project and who hired DMS as subcontractor to do con- crete work. A. claimed as assign- ees of chose in action and/or as beneficiaries of constructive trust. Specifically, A. claimed DMS ex- ecuted irrevocable direction re- quiring E. to pay A. from money E. then owed DMS. A failed to prove that it or DMS gave notice of any kind of assignment to E. and that such notice was actually received by E. before two pay- ments were made by E. to DMS. Oral notice relied upon did not specify amount assigned and thus was insufficient at law. Claim for breach of assignment failed. Amherst Concrete Pumping Ltd. v. Eastern Construction Co. (Feb. 1, 2008, Ont. S.C.J., Master Sandler, File No. 05-CV-291848 SR) Order No. 008/037/025 (87 pp.). Contracts DAMAGES Award of punitive damages in commercial case set aside Trial judge correctly concluded that appellant's conduct pre- cluded insistence by it on sale to it by respondents of monitor- ing accounts in issue or recovery by it of damages on account of respondent's retention, for their own benefit, of relevant accounts. However, trial judge's award of $50,000 punitive damages must be set aside. Punitive damages are rarely awarded in commercial cases and could not be based on finding that conduct merely ap- proached required standard. Fur- ther, trial judge made no explicit finding of independent actionable wrong. Protectron Inc. v. Henderson Secu- rity Solutions Inc. (Jan. 28, 2008, Ont. C.A., Sharpe, Cronk and Gillese JJ.A., File No. C46919) Appeal from 156 A.C.W.S. (3d) 96 was allowed in part. Order No. 008/035/118 (3 pp.). Corporations RECEIVERS Action against receiver was not struck out Defendant was appointed re- DD LT GRLBBH-02 Online bw 2/4/08 5:49 PM Page 1 ceiver of commercial building and property owned by plaintiff. Receiver was discharged to allow owner to reacquire title and right to manage property. Discharge was without prejudice to claims against receiver. Plaintiff brought action alleging gross negligence and breach of fiduciary duty against receiver and individual defendant personally. Plaintiff contested fees charged. Plaintiff brought motion for declaration APRIL 14, 2008 / LAW TIMES COURT DECISIONS 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: 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. leave was not required to com- mence action. Receiver brought motion to strike claim. Leave was required. Receivership was not completed because receiver's third report was not finally approved. Leave was granted nunc pro tunc. Issues raised in action were never ruled on by Court in receivership proceeding. Action was not frivo- lous and vexatious. Action was not without possible foundation. Allegations could not be found to be without merit. Plaintiff was not estopped from commencing action. Action was to be consoli- dated with receivership action. Receiver's cross-motion to strike statement of claim was dismissed. 80 Aberdeen Street Ltd. v. Surge- son Carson Associates Inc. (Jan. 28, 2008, Ont. S.C.J., Smith J., File No. 06-CV-35454) Order No. 008/035/135 (14 pp.). Employment WRONGFUL DISMISSAL Two and half months' notice appropriate for employee dismissed without cause after five and a half months Plaintiff was hired as result of responding to advertisement for job. Defendant terminated plain- tiff 's employment because of reorganization and downsizing. Plaintiff was given two weeks sev- erance pay. Length of service was five-and-one-half months. Plain- tiff brought action for wrongful dismissal. There was no induce- ment of plaintiff by defendant from other employment. Plaintiff was not dismissed for cause. Ap- propriate notice period was two and a half months. It was inap- propriate to require defendant to pay for plaintiff's business expens- es and capital start up costs when plaintiff declined to account for revenues earned in mitigation. Gingerich v. Kobe Sportswear Inc. (Jan. 25, 2008, Ont. S.C.J., Low J., File No. 06-CV-317864 SR) Order No. 008/037/036 (6 pp.). Family Law CHILD WELFARE Appellate judge erred by substituting factual findings for those of placement judge Infant boys were subjected to extreme physical abuse by their father in weeks immediately fol- lowing their birth. Twins were ap- prehended by Children's Aid So- ciety. Placement judge concluded that mother, with assistance, was capable of caring for and meet- ing needs of children and or- dered them returned to her care on graduated basis and subject to terms of supervision. Appellate judge set aside order of placement judge and directed that both boys be made wards of Crown without access and committed to care and custody of Children's Aid Society. Appellate judge erred by substi- tuting his own factual findings for those of placement judge and in determining issue not before him. New placement hearing before different judge of first instance ordered. Children's Aid Society of the Dis- tricts of Nipissing and Parry Sound v. S. (S.) (Jan. 18, 2008, Ont. C.A., Winkler C.J.O., Cronk and Epstein JJ.A., File No. C47351) Appeal from 145 A.C.W.S. (3d) 454 allowed. Order No. 008/022/062 (6 pp.). Insurance AUTOMOBILE INSURANCE Threshold for damages award was met Plaintiff brought claim for dam- ages in respect of motor vehicle accident claiming plaintiff suf- fered chronic back pain since date of accident. Plaintiff sought ruling plaintiff sustained perma- nent and serious impairment of important physical, mental or psychological function. Chronic back pain played major role in plaintiff's health, general well- being and way of life. Function was important physical one and evidence established chronic pain was permanent. Impairment at- tributable to accident was serious one. Threshold was met. Plain- tiff was entitled to judgment for amount of damages as awarded by jury. Tulloch v. Akogi (Jan. 25, 2007, Ont.S.C.J., Quigley J., File No. C22114/00) Order No. 008/015/057 (7 pp.). Police DISCIPLINE Commission's findings were On-line Office Products at your fingertips. Choose from over 10,000 Office Products. Check out this month's flyer and coupons. Create lists of your favourite products to streamline your ordering. With security features you can organize and control your office products purchasing. Request your user name and password today. www.dyedurhambasics.ca C OFFICE & FURNITURE PRODUCTS dyedurhambasics.ca • 1-888-393-3874 • Fax: 1-800-263-2772 Choose Dye& Durham your ONE source supplier www.lawtimesnews.com unreasonable Appellants were police officers. Appellants arrested respondent during wife's trial on traffic viola- tion. Respondent filed complaint. At disciplinary hearing appellants were exonerated. On appeal com- mission revoked decision of hear- ing officer. Appellants were found guilty of unlawfully or unneces- sarily exercising authority. Ap- peal was allowed. Commission's finding of facts that cast doubt on hearing officer's findings were unreasonable. Hearing officer ar- rived at right answer. Parker v. Niagara Regional Po- lice Service (Jan. 16, 2008, Ont. Div. Ct., Carnwath, Kiteley and Murray JJ., File No. 294/05) Order No. 008/017/063 (9 pp.). LIABILITY IN TORT Defendant liability for warrantless entry and arrest and improper use of force Constable entered into plaintiff's residence without her permission and arrested and handcuffed her. Provisions of s. 495(2) of Crimi- nal Code (Can.), required con- stable to have warrant before ar- resting plaintiff. Constable knew or should have known that none of conditions under s. 495(2)(d) and (e) existed at time of incident. Provisions of s. 25 of Criminal Code could not save defendants from liability in this matter for assault perpetrated on plaintiff by constable. Constable was trespass- ing and attempted arrest was un- lawful. Defendant was vicariously liable for any damages flowing from warrantless arrest and war- rantless entry and for improper exercise of force by its employee constable. Berketa v. Niagara (Regional Mu- nicipality) Police Services Board (Jan. 21, 2008, Ont. S.C.J., Turn- bull J., File No. 455479/04) Or- der No. 008/035/143 (34 pp.). Professions BARRISTERS AND SOLICITORS Motions judge confirmed error of assessment officer in failing to quantify adjustment Appellant solicitor appealed from order dismissing his motion to oppose confirmation of report and certificate of assessment of- W e ' r e a y C a n a p d i m a n o a n

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