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PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Admiralty CARRIAGE OF GOODS Respondents entitled to benefit of waiver of subrogation Action brought for damages re- sulting from loss of logs that were being transported from British Columbia to California on deck of barge. Application judge cor- rectly held that insurer was pre- cluded from asserting subrogated claim against time charter of barge and tug, owner of barge and its employees, and owner of tug and its employees. Cargo of logs was not "goods" as defined in Hague-Visby Rules, and there- fore contract was not governed by Hague-Visby Rules, and waiver of subrogation clause in contract of insurance was not invalidated by Hague-Visby Rules. In any event, it was sufficiently clear that appel- lant waived right to make claim against all of named respondents for loss of cargo of logs, bringing them all within general waiver of subrogation section of contract of insurance. All of named respon- dents were entitled to benefit of waiver of subrogation. Timberwest Forest Corp. v. Pa- cific Link Ocean Services Corp. (Apr. 17, 2009, F.C.A., Decary, Sharlow and Ryer JJ.A., File No. A-363-08) Appeal from 168 A.C.W.S. (3d) 232 dis- missed. Order No. 009/124/104 (19 pp.). Police DISCRETION Appellants failed to establish "flagrant impropriety" in exercise of discretion not to lay charges Application judge dismissed ap- pellants' application for judicial review of R.C.M.P. decision not to lay charges against PFRA and SWA as result of flooding of ap- pellants' lands. Appellants were members of two First Nations occupying reserve lands. Appli- cation judge correctly stated law and applied it properly to many questions parties put before him. R.C.M.P.'s decision was made honestly and transparently and for legitimate reason, namely evi- dence did not support charges. Appellants failed to establish "fla- grant impropriety" in R.C.M.P.'s exercise of discretion not to lay charges. Honour of Crown was not engaged at all on these facts. Exercise of police discretion ex- ists in different legal context from obligations of Crown with respect to aboriginal peoples. Ochapowace First Nation v. Can- ada (Attorney General) (Apr. 24, 2009, F.C.A., Evans, Pelletier and Ryer JJ.A., File No. A-464- 07) Appeal from 168 A.C.W.S. (3d) 93, 78 W.C.B. (2d) 352 dis- missed. Order No. 009/124/102 (19 pp.). Taxation INCOME TAX Judge erred in concluding that funds were "advances" Tax Court Judge erred in finding that $1.1 billion in funds received by ADP should be included in its "taxable capital" and "taxable capital employed in Canada" as "advances" under s. 181.23(3) (c) of Income Tax Act (Can.), for 2001 taxation year. Judge erred in concluding that funds were "advances" because they turned out to represent significant finan- cial resources available to ADP. $1.1 billion was not due to ADP. What were due to ADP were fees for processing services rendered by ADP. $1.1 billion was not advance on $130 million paid in fees for processing services. $1.1 billion was expenditure of clients of ADP, not expenditure of ADP. Under contract for services, ADP acted as facilitator and conduit to ensure that sums due by its clients to their employees and to fiscal authorities were paid on time. Nature of services provided by ADP implied processing and transfer of clients' funds to those to whom they were due and who were intended recipients. Funds were goods to be transferred; they were not "advances" to ADP be- cause they were neither payment made to ADP before it was due, nor amount to be applied against price of service, paid before ser- vice was rendered, nor amount paid to ADP for expenditure of ADP. ADP Canada Co. v. Canada (Apr. augusT 10/17, 2009 • Law Times COURT DECISIONS ainmaker_LT_June2_08.indd 1 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. 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 Single or multiple copies of the full text of any case digested in this issue can be obtained by calling CaseLaw's photocopy department at (905) 841-6472, or (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. 17, 2009, F.C.A., Letourneau, Nadon and Pelletier JJ.A., File No. A-293-08) Appeal from 168 A.C.W.S. (3d) 439 allowed. Or- der No. 009/124/106 (19 pp.). ONTARIO CIVIL CASES Civil Procedure SUMMARY JUDGMENT Novel legal issue raised required complete evidentiary record Motion by city for summary judgment of action by plaintiffs for negligence, malfeasance and bad faith conduct against city as result of city having closed two zoning applications submitted by plaintiffs. Plaintiffs submitted two applications for re-designa- tion of 100-acre parcel of land from agricultural to rural resi- dential for future development. Motion dismissed. There were number of genuine issues in dis- pute requiring trial. There were significant disputes over mate- rial factual issues with respect to closing of applications and ques- tion of damages that could only be resolved on assessment of full evidentiary record at trial. It was not plain and obvious that s. 20 of Oak Ridges Moraine Conser- vation Act, 2001 (Ont.), consti- tuted bar to actions. Plaintiffs' claim of malfeasance and abuse of public office and city's claim of immunity raised novel legal issue that required complete eviden- tiary record. Rizmi Holdings Ltd. v. Vaughan (City) (May 20, 2009, Ont. S.C.J., O'Marra J., File No. 08-CV-35363PD2) Order No. 009/145/009 (19 pp.). TRIAL Counsel's opening remarks improper but did not undermine fairness of trial Motion for mistrial in action for damages for personal injury. Plaintiff brought action against defendants for damages for in- juries sustained when he slipped and fell on outside walkway. De- fendant alleged that counsel's for plaintiff opening remarks were so defective that they warranted mistrial. Motion dismissed. Cor- recting instructions was used to WRONGFUL DISMISSAL Employee's conduct was within realm of conduct he had been warned about before Action by employee for damages for wrongful dismissal. Employee was married man with two adult children. Employee had worked his way up from machine op- erator to senior management position. Employee was demoted address defects. Effective correc- tive instruction to jury could be given. Transgressive statements of counsel were not sufficiently serious to undermine fairness of trial. Statements were not deliv- ered with special emphasis or inflection. Jury was relatively so- phisticated. Trypis (Litigation Guardian of) v. Lavigne (May 21, 2009, Ont. S.C.J., Lauwers J., File No. CV-06-081325-00) Order No. 009/145/003 (10 pp.). Corporations SHAREHOLDERS Debt obligation created by directors was payable within reasonable period after demand for payment Dividends were paid by means of credit to shareholders' advance account. Plaintiff sought order for defendant to pay $1,780,805 to plaintiff. Claim was allowed. Directors intended to payout all shareholders' accounts at un- specified time in future when di- rectors thought it was financially prudent to do so. Debt obliga- tion created by directors was pay- able within reasonable period of time after demand for payment was made. Unequivocal precise demand for repayment was made three weeks before matter com- menced. Eighteen months passed since demand. Reasonable period of time elapsed. If shareholders' advance account issue had been before judge previously, future application would not have been precluded because whether rea- sonable time elapsed was con- tinuing question. Animal House Investments Inc. v. Lisgar Development Ltd. (May 13, 2009, Ont. S.C.J., Marrocco J., File No. 07-CL-7317) Order No. 009/139/044 (22 pp.). Employment when employer learned he was involved in intimate relation- ship with subordinate co-worker. About six years later, employer received complaints about in- appropriate conduct on part of employee. Employer warned employee that he could be termi- nated if such conduct happened again. About 14 months later, employee commenced intimate relationship with second subordi- nate co-worker. Second co-work- er's husband reported relationship to employer and employee was suspended. Employee agreed not to contact second co-worker but then met with her and husband to try to have complaint with- drawn. Employee was terminated after situation was given due con- sideration. Action dismissed. Em- ployer had just cause to terminate employee. Second co-worker was in somewhat vulnerable position. Employee's conduct was within realm of conduct he had been warned about before. Employee's contact with second co-worker during suspension was flagrant breach of legitimate direction and attempt to subvert investigation. Employer was rightly concerned about exposure to civil liability and potential for violence. Cavaliere v. Corvex Manufac- turing Ltd., a Division of Lina- mar Corp. (May 8, 2009, Ont. S.C.J., Herold J., File No. 103- 07 SR) Order No. 009/160/015 (37 pp.). Family Law CHILD WELFARE No unusual circumstances permitting review of access Child was made Crown ward. Child was in foster care since 1998 and was in same foster home since 2000. Motion brought mo- tion for permission to bring status review. Mother wished to apply for access. Child was turning 16 years of age. There was no talk of adoption for child. There was no true relationship between mother and child. Mother was involved in criminal matters regarding younger children. Other children were living with others as result of temporary supervision orders. Child had developmental prob- lems. Child did not seem to care about contact with mother. Mo- tion was dismissed. There were Your best legal move may be the one you haven't considered. SMSS.COM CHARLOTTETOWN Untitled-1 1 FREDERICTON www.lawtimesnews.com HALIFAX MONCTON SAINT JOHN ST. JOHN'S 8/6/09 9:00:44 AM

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