Law Times

Law times • august 25 / SEPTEMBER 1, 2008 of costs awarded to each defen- dant was set out in the assess- ment of costs. All of defendants requested that costs be awarded on a substantial indemnity basis against plaintiff. Defendant ar- gued that the contested motions brought by plaintiff involved se- rious unsubstantiated allegations of improper conduction that had no merit. Costs were not ordered on a substantial indemnity basis, but were awarded on a partial indemnity scale. Conduct had not reached the level that would justify an award of costs on a sub- stantial indemnity basis, however plaintiff's allegations had cumula- tive effect that caused significant prejudice to defendants which resulted in increasing legal costs of many of defendants. Nelson Barbados Group Ltd. v. Cox (Apr. 16, 2008, Ont.S.C.J., Shaughnessy J., File No. 07- 0141) Order No. 008/112/101 (18 pp.). Employment DUTIES OF EMPLOYER Enticement of employee significantly impacted length of appropriate notice period Action was for damages for fail- ure to provide reasonable notice of termination of employment. Employee had worked her entire life in series of car dealerships as "business manager". Before working for employer she had been employed at another deal- ership. After working for em- ployer for just over two years her employment was terminated and she was given two weeks' pay, use of company car for another two weeks, and vacation. Action al- lowed. Reasonable notice period was eight months. Damage to be reduced by 15% due to lack of mitigation. Employee had been enticed to leave secure employ- ment for new position by repre- sentation of employer's general business manager. This signifi- cantly impacted on length of appropriate notice period. Em- ployee's failure to make efforts to find employment in Ontario was interpreted as a failure to make reasonable efforts to miti- gate her loss, but this was exac- erbated by employer's refusal to provide a reference letter or out placement services. Deplanche v. Leggat Pontiac Buick Cadillack Ltd. (Apr. 15, 2008, Ont.S.C.J., Gray J., File No. 365/05) Order No. 008/112/124 (27 pp.). Insurance LIABILITY INSURANCE Duty to defend arose, even though pleadings included claims that could be outside the policy coverage Insured brought an application against Insurer for a declaration that there was a valid insurance policy binding the parties and that as a result the insurer had a duty to provide it with a defence in action for damages where it was a defendant. Insured was a real estate company that operated mall properties and was a defen- dant in two actions for damages by plaintiffs seeking compensa- tion for personal injuries arising from separate incidents of falling on ice or snow in the mall park- ing lots. Insured had contract with a snow removal company to provide snowplowing and winter maintenance for the parking lots. Term of contract was that snow removal company was required to maintain insurance and name the insured. Insurer argued that contract of insurance was restrict- ed to claims arising from work performed under the contract. Application allowed. Duty to defend arose, even though plead- ings included claims that could be outside the policy coverage. Riocan Real Estate Investment Trust v. Lombard General In- surance Co. (Apr. 16, 2008, Ont.S.C.J., Hennessy J., File No. 11299/07; 11,313) Order No. 008/112/094 (10 pp.). Injunctions INTERLOCUTORY RELIEF Ex parte "Anton Piller" order set aside Motion was granted setting aside an ex parte "Anton Piller" order authorizing search of an indi- vidual defendant's home. Plain- tiff was in breach of its duty to make proper inquiries before resorting to application for An- ton Piller order. Order infringed the privacy of defendant's home. Plaintiff had been authorized to search for paper documents and electronic data only and had not abided by order. Factor Gas Liquids Inc. v. Jean (Apr. 8, 2008, Ont.S.C.J., Ham- bly J., File No. C-1292-06) Or- der No. 008/112/133 (24 pp.). Judgments And Orders SETTING ASIDE Motion to set aside order dismissing action as abandoned was dismissed Motion by plaintiff to set aside order of registrar made pursuant to Rule 76.06(1) of Rules of Civil Procedure (Ont.), dismissing ac- tion as abandoned. Plaintiff al- leged that he was assaulted by po- lice officer during course of arrest on October 31, 2004. Statement of claim was issued October 27, 2006. Plaintiff 's solicitor received from registrar Notice of Action Dismissal dated February 26, 2007 and action was dismissed by Registrar May 2, 2007. There was no evidence of any steps taken by plaintiff or his solici- tor to serve statement of claim or otherwise advance litigation until statement of claim was served. No statements of defence were re- ceived and no attempt was made to note defendants in default. No motion was made to extend time-limits under Rule 76.06(1) to prevent dismissal by registrar. Motion dismissed. Although defendant had not established prejudice if action were allowed to proceed, plaintiff failed to sat- isfy each of first three branches of Reid test. Litigation delay from institution of action until dead- line under Rule 76.06(1) was not adequately explained. There was no evidence that deadline was missed due to inadvertence. Most importantly after dismissal came to attention of plaintiff's solici- tors they did not move promptly to set it aside. Gagne v. Yee (Apr. 18, 2008, Ont.S.C.J., Master Dash, File No. 06-CV-321202SR) Order No. 008/114/056 (13 pp.). REAL PROPERTY Start of limitation period for action against landlord should be extended CASELAW Action by tenant against land- lord for damages for negligence and for failure to provide quiet enjoyment. Defendant F. was sole shareholder and director of landlord corporation, D.. Land- lord had contracted in May 2004 for renovation work in residen- tial units above tenant's com- mercial premises. Water leaked from residential unit causing damage to some of tenant's merchandise. F. had purchased premises in 1999. Tenants were advised by landlord's solicitors on April 18, 2006 that premises had been sold. D. was not owner of premises when plaintiffs com- menced claim. Tenants con- ducted corporate and registry searches in February 2007 that confirmed transfer. Tenants suc- cessfully brought motion in Feb- ruary 2007 to amend statement of claim to add F. as defendant personally and F. was added as party. At trial defendants con- tended that tenants had exceed- ed two year limitation period for adding F. as party and that limitation period was triggered in May 2004. Judgment for plaintiff. Facts allowed finding that start of limitation period should be extended to April 18, 2006. As statement of defence contained assertion that D. was owner of premises, tenants had no reason to suspect this was not case. However tenants ought to have been alerted by landlord's solicitor's letter April 18, 2006 that premises had been sold previous year. Limitation pe- riod was therefore engaged from April 18, 2006 and tenants were in time commencing their claim against F. Liu v. Donya Enterprises (Apr. 15, 2008, Ont.S.C.J., Allen J., File No. 05-CV-292018SR) Order No. 008/119/067 (10 pp.). ONTARIO CRIMINAL CASES Charter Of Rights ENFORCEMENT OF RIGHTS Ontario Review Board not a "court of competent jurisdiction" Accused appealed Ontario Re- view Board's ("ORB") dismissal of his application for absolute discharge under s. 24(1) of Char- ter. Accused detained for 24 years after being found not guilty by reason of insanity on charge of sexual assault with weapon. Ac- cused claimed that living and disciplinary conditions of his de- tention infringed various Charter rights. ORB dismissed applica- tion on ground that it was not "court of competent jurisdiction" under s. 24(1). Appeal dismissed. Per Armstrong J.A. majority: ORB not court of competent jurisdiction because it had no ju- risdiction to grant remedy sought here. ORB lacked structural com- petence to engage in balancing exercise required to grant abso- lute discharge as Charter remedy. Parliament intended for ORB to have only limited remedial ac- cess to absolute discharges where accused not significant threat to public safety. Only circum- stance in which not criminally responsible accused would ever need to invoke Charter to re- www.lawtimesnews.com ceive absolute discharge is one in which such remedy not available because ORB has found him to be significant threat. ORB sim- ply lacked resources to properly hold remedial jurisdiction under s. 24(1). (Lang J.A. dissenting in part). Canadian Charter of Rights and Freedoms, s. 24(1). C. (P.) v. Ontario (Apr. 29, 2008, Ont. C.A., Simmons, Armstrong and Lang JJ.A., File No. C46249) Order No. 008/121/019 (36 pp.). Contempt Of Court GROUNDS Disobedience of order requiring testimony at inquiry was open, continuous and flagrant Commissioner of public inquiry applied for order finding re- spondent in criminal contempt for failing to testify at inquiry as ordered. Respondent had vi- tal information and questions to be asked clearly relevant. Re- spondent found guilty of civil contempt for refusing to testify and ordered to appear to give evidence. Respondent failed to appear before Commission and made public statements to me- dia indicating reasons for refusal to testify and discussing matters about which he was summoned. Respondent failed to surrender voluntarily and arranged for public presence at his arrest. In court, respondent again refused to testify. Application allowed. Respondent's disobedience of order was open, continuous and flagrant. By publicizing inten- tion to disobey order, respondent attacked integrity of Commis- sion and brought administration of justice into disrepute. Penalty deferred until completion of PAGE 15 sentence for civil contempt. Ontario (Cornwall Public Inquiry, Commissioner) v. Dunlop (Mar. 5, 2008, Ont. Div. Ct., Ferrier and Swinton JJ., File No. 515/07) Order No. 008/077/190 (12 pp.). Courts JURISDICTION Superior Court has inherent jurisdiction to set fees for amicus curiae Accused granted leave to bring "faint hope" clause application and was representing himself. Crown applied for appoint- ment of counsel as amicus cur- iae. Crown produced draft order including clause setting rate of pay at legal aid rates. Trial judge refused to sign order because he thought amicus candidate should have opportunity to make submissions regarding appropri- ate fees. Matter adjourned for further submissions. On return date, Crown filed Application Record asserting that court had no jurisdiction to determine fees to be paid to court-appointed state-funded counsel, in spite of draft order prepared by Crown. Application allowed and fees set by court. Superior court has inherent jurisdiction to appoint amicus to assist court. Implicit in jurisdiction is authority to set fees for amicus. In this case, legal aid rates were appropriate. Legal Aid Ontario was asked to provide list of two counsel who would be prepared to accept ap- pointment and Court would se- lect one of those two as amicus. R. v. Cairenius (May 30, 2008, Ont. S.C.J., Durno J., File No. 3183/92) Order No. 008/168/093 (51 pp.). 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 13% PST & GST on all orders

• Cover