Law Times

PAGE 14 CaseLawLaw ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Settlement represented fair and reasonable compromise Defendants changed health bene- fits program for salaried employees and retirees. Retirees commenced class action. Parties sought ap- proval of settlement agreement. Parties sought certification for purposes of settlement. Each of criteria for certification was sat- isfied. Pleadings disclosed cause of action for breach of contract and unjust enrichment. There was identifiable class. Claims raised common issues. Single trial would achieve judicial economy. Proposed representative plaintiffs would fairly and adequately repre- sent interests. Test for settlement approval was met. Settlement represented fair and reasonable compromise of claims. Fees were fair and reasonable. Plaintiffs' le- gal fees, disbursements and costs were approved at $400,000 in- cluding disbursements and GST. Smith v. Labatt Brewing Co. (Jan. 14, 2009, Ont. S.C.J., Lax J., File No. 07-CV-335404CP) Order No. 009/015/066 (7 pp.). DISCONTINUANCE Master erred in refusing to set aside dismissal order Plaintiff's wife committed sui- cide using his rifle. Plaintiff was charged with first degree murder, but charges were subsequently withdrawn. Plaintiff commenced two actions claiming damages for negligent investigation, malicious prosecution and breach of plain- tiff's Charter rights. First claim was dismissed as abandoned. Second action had been notified, but had not been pursued. Master erred in refusing to set aside regis- trar's dismissal order. Master erred in law finding she had no discre- tion to extend time under rule 37.14 of Rules of Civil Procedure (Ont.). Master further made pal- pable and overriding error in fail- ing to set aside orders based on contextual approach. While there was little explanation as to why delay occurred, in circumstances, with early notice of claim and no evidence of actual prejudice, ulti- mate balancing of all of factors fa- voured plaintiff. Appeal allowed in part, there being no need to revive first action. Wellwood v. Ontario Provin- cial Police (Jan. 21, 2009, Ont. S.C.J. (Div. Ct.), Ferrier J., File No. 04CV272058CM3) Ap- peal from 167 A.C.W.S. (3d) 62 was allowed in part. Order No. 009/023/020 (17 pp.). Compensation For Victims Of Crime AMOUNT OF AWARD Board entitled to reduce award based on failure to report incident Appeal from decision of Crimi- nal Injuries Compensation Board reducing amount awarded to ap- pellant based on failure to report incident to police. Appellant had been kicked in head by unknown person and was taken to hospital in ambulance. Appellant did not report incident to police. Appel- lant applied for compensation under Compensation for Vic- tims of Crime Act (Ont.). Board reduced amount awarded from $8,000 to $5,000 based on fail- ure to report incident. Appeal dismissed. Board had broad dis- cretion under s. 17(2) of Act to reduce award and it made no er- ror of law. Board had ample evi- dence to support conclusion that appellant's injuries would not have affected his ability to assist police. Board was entitled to rely on hearsay evidence. Liendo v. Ontario (Criminal Inju- ries Compensation Board) (Nov. 18, 2008, Ont. S.C.J. (Div. Ct.), Swinton, Hennessy and Karakat- sanis JJ., File No. 31/08) Order No. 009/019/061 (4 pp.). Conflict Of Laws JURISDICTION Husband attorned to Ontario's jurisdiction Parties were married 19 years and had two children. Husband moved to Alberta two months be- fore wife's application for divorce and corollary relief. Husband did not comply with disclosure ordered. Husband was not ordi- narily resident in Ontario for one year immediately preceding com- mencement of divorce proceed- ing. Court did not have jurisdic- tion to hear claim for divorce and corollary relief. It did not mean court did not have jurisdiction to hear claims under Family Law Act (Ont.). Husband attorned to Ontario's jurisdiction by de- livering answer and claim and participating in case conference and settlement conferences. Wife was permitted to amend applica- tion. Husband was permitted to amend answer-claim. Claims for divorce and corollary relief were dismissed for want of jurisdic- tion. Trial on issues under Fam- ily Law Act (Ont.) to proceed. Husband was to deliver sworn financial statement and net fam- ily property statement by speci- fied time failing which husband's answer-claim was to be struck. Lajoie v. Woito (Jan. 12, 2009, Ont. S.C.J., Shaw J., File No. FS-07-0206) Order No. 009/019/051 (15 pp.). April 20, 2009 • 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: ainmaker_LT_June2_08.indd 1 5/28/08 10:43:29 AM 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. Contracts BUILDING CONTRACTS Contractor acted in accordance with contract Action by contractor for payment of amount owing under contract. Developer hired contractor to provide roads and related ame- nities for housing development. Part of contract involved remov- ing good quality fill from one area and replacing it with lesser quality fill. Contractor substantially com- pleted this part of contract. Plans then changed such that developer wanted some lesser quality fill to be replaced with good quality fill. Developer did not expressly agree to pay extra but it was agreed that cost would be sorted out later. Action allowed. Contractor had acted in accordance with contract and developer's consultant's in- structions up to time that plans changed. Contractor had not erred in using lesser quality fill at outset so subsequent work could not be considered remedial. If developer did not intend to pay for extra work then it should have said so instead of agreeing to sort things out later. Contractor's rates were fair and reasonable. Brantford Engineering and Con- struction Ltd. v. 1562772 On- tario Inc. (Jan. 13, 2009, Ont. S.C.J., Arrell J., File No. CV-05- 465) Order No. 009/015/081 (13 pp.). Employment PUBLIC SERVICE Exceptional case justified court's refusal to defer to grievance process Respondent constable with R.C.M.P. alleged he was harassed by certain of his superiors within R.C.M.P. He claimed that his su- periors deemed his political views and his political participation in- compatible with discharge of his duties. In this regard, he asserted that appellants employed aggres- sive and intimidating means to silence him including: punitive transfers, circulating rumours about his conduct and integrity, and manifesting atmosphere de- signed to isolate and humiliate him. Respondent commenced action seeking declaratory relief. AGC and other defendants moved to strike out claim and to dismiss action on basis that court should defer to grievance process set out in Royal Canadian Mounted Po- lice Act (Can.). Motion judge cor- rectly dismissed motion. Motion judge was entitled to find that this was exceptional case such that court should not give deference to statutory regime. She applied cor- rect test and committed no errors in her reasons for dismissing ap- pellants' Rules of Civil Procedure (Ont.), Rule 21 motion. www.lawtimesnews.com Merrifield v. Canada (Attorney General) (Feb. 10, 2009, Ont. C.A., Gillese, MacFarland and LaForme JJ.A., File No. C49092) Appeal from 168 A.C.W.S. (3d) 318 dismissed. Order No. 009/042/168 (3 pp.). Landlord And Tenant AGREEMENT FOR LEASE Judge correctly granted specific performance of option to lease agreement Application judge correctly grant- ed specific performance of op- tion to lease agreement ("OLA") between M. and G.. In doing so, application judge granted M. pos- session of premises owned by G. in priority over pre-existing lease between G. and its tenant which was numbered company. G. and tenant were related corporations, with same sole directors and offi- cers. Having induced M. to grant franchise to tenant by executing OLA, G., tenant and their mu- tual directors and officers were acting in concert to frustrate M.'s attempt to enforce OLA. Appli- cation judge was fully justified in making those findings of fact, in finding that equities warranted order requiring G. to perform its obligations under OLA, and in declaring that lease between ten- ant and G. was terminated. Midas Realty Corp. of Canada Inc. v. Galvic Investments Ltd. (Jan. 26, 2009, Ont. C.A., Gillese, MacFarland and LaForme JJ.A., File No. C49054) Appeal from 168 A.C.W.S. (3d) 398, 70 R.P.R. (4th) 261 dismissed. Or- der No. 009/029/053 (4 pp.). Railways LIABILITY Failure to carry out night-time inspections of rural railway crossing was negligent Respondent was seriously injured when his motorcycle collided with CPR freight train at rural railway crossing. Trial judge did not err in finding appellants CP and engineer 75 negligent and as- sessed respondent's contributory negligence at 25 per cent. It was open to trial judge to find that CP's failure to carry out night- time inspections of this rural crossing was negligent. While appellants seemed to have met in- dustry standards in that overhead lighting was not in use anywhere in Canada at rural crossings, trial judge found, in absence of any other measures, failure to illumi- nate this crossing was negligent because motorist travelling at expected speed would not have been able to stop in time. It was open to trial judge, based on evi- dence, to draw common sense inference that had crossing been illuminated, accident could have been avoided. While 25 per cent assessment of responsibility to respondent may have been some- what excessive, there was no cross- appeal by respondent. Zsoldos v. Canadian Pacific Rail- way Co. (Jan. 21, 2009, Ont. C.A., Rosenberg, Gillese and Blair JJ.A., File No. C47045) Ap- peal from 156 A.C.W.S. (3d) 237, 46 C.C.L.I. (4th) 294, 45 M.V.R. (5th) 188 dismissed. Order No. 009/023/017 (18 pp.). SUPREME COURT OF CANADA Conflict Of Laws JURISDICTION Section 11 of Court Jurisdiction and Proceedings Transfer Act (B.C.), is complete codification of common law test for forum non conveniens Insured mining company sued insurers in United States for coverage in relation to environ- mental damage alleged to have occurred in United States down- stream from its British Colum- bia smelter site. Insurers com- menced parallel proceedings in British Columbia seeking de- claratory orders regarding duty to defend. Each party took steps to obtain jurisdictional rulings in order to have insurance cov- erage issue adjudicated in their preferred court. United States District Court denied insurers' applications to dismiss insured's claims on basis of forum non conveniens. British Columbia Supreme Court denied insured's application to stay proceedings. Court of Appeal upheld deci- sion. Further appeal to Supreme Court of Canada dismissed. Section 11 of Court Jurisdic- tion and Proceedings Transfer Act (B.C.), is complete codifi- cation of common law test for forum non conveniens. All rel- evant factors listed in s. 11 must be considered when determin- ing whether stay of proceedings warranted. Prior assertion of ju- risdiction by foreign court does not oust s. 11 inquiry nor is it overriding and determinative factor in s. 11 analysis. Avoid- ance of multiplicity of proceed- ings one factor among others to be considered. Chambers judge carefully considered all s. 11 fac- tors and did not err in dismissing insured's motions to stay British Columbia proceedings. Desire to avoid parallel proceedings cannot overshadow objective of forum non conveniens analysis which is to ensure, if possible,

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