Law Times

lAw Times • April 6/13, 2009 practice action. Deceased was not examined by doctor against whom claim was brought. Plaintiff brought motion to cor- rect name of party incorrectly named. Defendant argued mo- tion was to add doctor which was out of time. It should have been clear naming of original doctor was mistake. Original doctor must have known it was other doctor who saw deceased. There was no prejudice alleged other than passage of time. Plaintiffs were granted leave to amend statement of claim. Ormerod v. Strathroy Middle- sex General Hospital (Dec. 30, 2008, Ont. S.C.J., Hockin J., File No. 39608) Order No. 009/005/060 (6 pp.). SUMMARY JUDGMENT No basis to permit third attempt to challenge result on motion Appellant brought Letter of Intent demonstrated parties considered themselves legally bound to terms wrongful dismissal action. Respondent brought motion for summary judgment pursuant to rule 49.09 of Rules of Civil Proce- dure (Ont.), to enforce settle- ment between parties. Motions judge held that rule 49.09 was available for pre-litigation settlement agreements and granted summary judgment in accordance with terms of settle- ment. Issue now raised on ap- peal, that motions judge had no jurisdiction to hear motion be- cause alleged settlement preced- ed litigation and was therefore not Rule 49 settlement, was not raised in subsequent rule 59.06 motion and appeals of both or- ders, all of which were unsuc- cessful. There was no basis in policy or in any provisions of Courts of Justice (Ont.), to per- mit third attempt to challenge result arrived at on initial mo- tion years ago. Donaghy v. Scotia Capital Inc. (Jan. 9, 2009, Ont. C.A., Doherty, Weiler and MacFar- land JJ.A., File No. C48734) Appeal from 167 A.C.W.S. (3d) 75 dismissed. Order No. 009/020/130 (4 pp.). Compensation For Victims Of Crime ELIGIBILITY Board erred by failing to consider proportionality between alleged conduct of victim and acknowledged criminal conduct of offenders Appeal from decision of Crimi- nal Injuries Compensation Board denying application for compen- sation. Applicant's son was shot and killed while sitting in his car. Board concluded that appli- cant's son was murdered as direct result of his involvement in ille- gal drug transactions. Appeal al- lowed. Matter was referred back to board for rehearing. Board committed error in law by deny- ing claim without consideration of proportionality between al- leged conduct of victim and ac- knowledged criminal conduct of offenders. Smith v. Ontario (Criminal In- juries Compensation Board) (Jan. 21, 2009, Ont. S.C.J. (Div. Ct.), Jennings, Bellamy and Lit- tle JJ., File No. 230/08) Order No. 009/028/016 (4 pp.). Contracts FORMATION Trial judge erred in dismissing appellant's action for enforce- ment of agreement for pur- chase and sale of respondent's business on basis that parties did not intend binding con- tractual relationship until final Share Purchase Agreement was signed. Respondent's signature on Letter of Intent evidenced intention to be bound. Further, conduct of parties after signing Letter of Intent clearly demon- strated parties considered them- selves legally bound to its terms. To suggest parties did not con- sider themselves bound would be contrary to evidence. Trial judge did not err in rejecting remedy of specific performance, but erred in limiting damages to three months at $240,000, or $80,000 per month. Dam- ages awarded for seven month period at $560,000. Wallace v. Allen (Jan. 16, 2009, Ont. C.A., Laskin, Armstrong and MacFarland JJ.A., File No. C46904) Appeal from 156 A.C.W.S. (3d) 337, 85 O.R. (3d) 88 allowed. Order No. 009/019/026 (9 pp.). Damages WRONGFUL DEATH Husband awarded $50,000 in general damages for negligence resulting in death of wife Negligence on part of cardiolo- gist Dr. S. resulted in death of L.M., aged 78. L.M.'s life ex- pectancy prior to negligent acts of Dr. S. was two years. Hus- band, now aged 80, continued to live in matrimonial home. Husband was awarded $50,000 in general damages. Husband was also awarded $15,941 as re- sult of pension loss attributable to death of his spouse, $14,261 for dependency claim for L.M.'s pension loss to which husband benefited from and $3,000 for lost domestic services for total loss of $33,202, plus further $17,651 in funeral costs. Son and daughter were each award- ed $20,000 for loss of their mother. Two grandchildren were each awarded $7,500 and third grandchild was awarded $12,500 for loss of their grand- mother. Madonia v. Stevens (Dec. 12, 2008, Ont. S.C.J., Coats J., File No. 2895/06) Order No. 009/015/072 (98 pp.). Employment PUBLIC SERVICE Employee's complaints not within residual jurisdiction of court and had to be arbitrated Appellant was former employee of Public Service of Canada who sought to put forward number of work-related com- plaints framed as discrimina- tion and harassment against his employer. Plaintiff alleged that his complaints about his per- sonal discriminatory treatment and his dispute with supervisors over legislation accorded him status of whistleblower and he should not have to pursue his workplace grievance in normal manner. Motion judge correctly found that appellant was not whistleblower. Appellant's com- plaints related to government's CASELAW alleged unfair treatment of him in his employment. These complaints must be arbitrated under PSSRA or PSLRA. Ap- pellant's claim did not fall with- in residual jurisdiction of court. Van Duyvenbode v. Canada (At- torney General) (Jan. 7, 2008, Ont. C.A., Laskin, MacPher- son and Armstrong JJ.A., File No. C47912) Appeal from 158 A.C.W.S. (3d) 763 dismissed. Order No. 009/008/075 (2 pp.). Family Law CHILD WELFARE Access to father not beneficial to children Children were apprehended and were in foster care. In status hearing, mother was noted in default. Father argued children should be returned to father's care subject to supervision once criminal charges were dealt with. In past eight years father lived in 13 or 14 residences. Father had drug convictions and convictions for assault and criminal harassment. Two chil- dren were ordered Crown wards without access. Finding chil- dren continued to be need in of protection was justified. Father had continuous pattern of di- sastrous relationships with part- ners who abused alcohol and/ or drugs. Father had history of significant emotional traumas and mental health disability for which father received inad- equate treatment. Father self- medicated with illicit drugs. Father had history of domestic violence and criminal activity frequently leading to incarcera- tion. Access was not beneficial to children. Children's Aid Society of North- humberland v. T. (H.) (Jan. 5, 2009, Ont. S.C.J., Lack J., File No. 36/03) Order No. 009/007/014 (22 pp.). COST Costs associated with testing left to discretion of trial judge Parties agreed they would share equally costs of assessor. Hus- band accused assessor of bias. Funds held as retainer were to be transferred to new assessor. New assessor exceeded amount of retainer. Husband suggested new assessor deal with mobility issue and to include husband's fiancée. Mobility issue was new issue. Previous order contem- plated psychological testing of parties only. Husband was to pay for all additional costs re- lating to mobility assessment and assessment of fiancée on interim basis. It was inappro- priate to order husband to pay wife costs thrown away with first assessor. Costs of psycho- logical testing for husband were greatly in excess of wife's costs. Doctor was to continue to bill husband and wife separately for time spent on each party's testing. Costs associated with testing were left to discretion of trial judge. Costs for previous motions were subject to discre- tion of trial judge. Lavallee v. Lavallee (Dec. 15, 2008, Ont. S.C.J., Ricchetti J., File No. FS-06-58286- 00) Order No. 008/358/101 (19 pp.). SUPPORT www.lawtimesnews.com Wife to pay spousal support for husband who became unable to work after divorce Parties were married 23 years and had three children. Two younger children, aged 21 and 17, lived with wife. Both par- ties worked during marriage. At time husband prepared answer husband was unemployed and claimed spousal support. By time of trial husband was em- ployed. Husband chose not to pursue spousal support claim. Three years after divorce hus- band claimed spousal support. Wife was ordered to pay $500 per month in interim spousal support. Husband was unable to work because of severe health problems that came into exis- tence after divorce. Husband re- ceived $500 per month in CPP benefits. Wife's income after business expenses was $50,000 per year. Wife retained matri- monial home. Order for spousal support was appropriate. Wife was ordered to pay spousal sup- port of $800 per month. Order was not made retroactive. Hus- band's child support obligations were ordered terminated on ba- sis of undue hardship and ar- rears were rescinded. Jagtiani v. Jagtiani (Dec. 22, 2008, Ont. S.C.J., Fuerst J., File No. FC-02-13738- 00) Order No. 009/005/051 (21 pp.). TAX COURT OF CANADA Taxation INCOME TAX Interest is "payable" when there PAGE 15 is obligation to pay in present Appeals from reassessments made under Income Tax Act (Can.). Taxpayers obtained mortgage for construction of apartment building. Appellants had difficulty meeting their ob- ligations, and in 1993 negotiat- ed settlement agreement result- ing in new mortgage. During years under appeal, total unpaid interest amounts owing under original mortgage were added to loan. Amount of interest did not have to paid in years under appeal. Appeals allowed to ex- tent of Minister's concessions. Interest was not due nor was it required to be paid in years in which it was sought to be deducted. Word "payable" in s. 20(1)(c) of Act means that interest must be required to be paid or due as opposed to ow- ing. Interest is payable when there is obligation to pay in present as opposed to obliga- tion to pay in future. Collins v. Canada (Jan. 23, 2009, T.C.C., Miller J.T.C.C., File No. 2001-2844(IT)G) Order No. 009/034/197 (25 pp.). Case Image filler 12/20/06 11:23 AM Page 1 Appellant entitled to deduct fine Appellant was in business of manufacturing and installing glass. Appellant's employee was killed while working on con- struction site. Appellant was charged with offence under Oc- cupational Health and Safety Act (Ont.). Fine was imposed as result of workplace accident. Appellant sought deduction of $212,500 for fine. Appeal was allowed. Appellant was entitled to deduction in computing in- come for fine incurred. Ferguson-Neudorf Glass Inc. LT Obtain Copies of Judgments Your 24/7 connection to copies of original decisions caseimage.ca is an online database of both unreported and reported court and tribunal decisions — www.caseimage.ca $12.50* per case CaseLaw on Call • rates Single or multiple copies of the full text of any case digested in this issue can be supplied at the rates shown. Via E-mail Cost per case $17.50* sales@canadalawbook.ca Via Mail Cost per page $0.60* Minimum charge $10* Plus postage Via FAX Via Courier Cost per page $2.50* Minimum charge $10* Cost per page $0.60* Minimum charge $10* Plus courier charges CaseLaw on Call • order form Attention: Photocopy Service: CaseLaw, 240 Edward St., Aurora, ON L4G 3S9 Please send the full text of the following judgments. Orders must provide the case name, case order number (9 digits) and number of pages. Please enclose payment unless you have a VISA, MasterCard, AMEX or Canada Law Book account number. Cheques are to be made payable to Canada Law Book Case Name Please send via: [ ] E-mail [ ] Mail [ ] Fax [ ] Courier Case Order Number (9 digits) No. of pages Attn.:_______________________________Firm: ________________________ Address: ________________________________________________________ City/Prov.: ________________________________Postal Code:______________ Canada Law Book Account # __________________________________________ VISA/MasterCard/AMEX # ____________________________________________ Expiry Date: ___________________ Signature: __________________________ Print Name on Card: ________________________________________________ Rush orders can be called in at: 1.800.263.3269 Fax orders can be sent to: 905.841.5085 *Add 14% PST & GST on all orders

• Cover
• Family Court Warning
• The Dirt
• Focus On Class Actions