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PAGE 18 Superior Court and a Case Manage- ment Master. Plaintiff's complaints arise from defendants' involvement in civil proceeding she was pursu- ing before Superior Court of Justice in Toronto. Amended Statement of Claim struck without leave and action dismissed. Plaintiff's action is barred by principle of judicial immunity. Pleading of bad faith or deliberate excess of jurisdiction cannot defeat principle of judicial immunity. Action also dismissed on basis it constitutes collateral attack on orders made in another action and therefore an abuse of process. Plaintiffs allegations were efforts to re-litigate matters finally determined in another action. Other others were not appealed and cannot be attacked collaterally. Baryluk v. Campbell (Oct. 30, 2008, Ont. S.C.J., Hackland R.S.J., File No. 07-CV-39852) Or- der No. 008/308/064 (12 pp.). JURISDICTION Application struck for want of jurisdiction Applicant was advised mortgage was being withdrawn as result of contamination from adjoining property. Site was to form part of new facility owned and oper- ated by Federal Government. Site was not yet transferred to Federal Government. Applicant sought declaration Ministry violated En- vironmental Protection Act (Ont.), before and during property trans- action. Respondents sought order dismissing application. Applica- tion was struck. Review of decision to reconstruct facility and relief concerning decision was within exclusive jurisdiction of Federal Court. Declaration would be moot as no direct recourse would be available because of passage of limitation period. Bailey v. Canada (Attorney Gen- eral) (Oct. 15, 2008, Ont. S.C.J., Harvison Young J., File No. CV- 08-003556867-0000) Order No. 008/294/071 (4 pp.). Education TEACHERS Board's conclusion that union entitled to request psychiatric assessment was reasonable Judicial review of decision of La- bour Relations Board ("LRB"), which dismissed applicant's complaint that Ontario English Catholic Teacher's Association ("OECTA") had breached its duty of fair representation. Applicant was employed with York Catholic District School Board ("YCDSB") from 1989 to 2003. In 2003 she resigned and was placed on oc- casional teacher's list. Following her subsequent removal from the occasional teacher's list, applicant filed complaint against OECTA. OECTA agreed to investigate if grievance could be filed. As part of recommendation concluded re- quired psychiatric assessment of ap- plicant. LRB concluded OECTA's request for psychiatric assessment was reasonable. Application for judicial review dismissed. Evidence supported reasonableness of LRB's conclusion that OECTA entitled to request psychiatric assessment and that applicant failed to co-operate with assessment process. Applicant suffered from depression and been disabled from employment due to stress and depression. Applicant caused ongoing delay in obtaining psychiatric assessment. Horochowski v. Ontario English Catholic Teachers' Assn. (Oct. 27, 2008, Ont. S.C.J. (Div. Ct.), Lederman, Swinton and Baltman JJ., File No. 188/07) Order No. 008/308/049 (4 pp.). Employment WRONGFUL DISMISSAL Progressive Discipline Policy did not form part of employment contract Plaintiff employed with defendant as machine operator. Terminated for cause after almost 14 years of employment. Cause relied on by defendant was unsatisfactory work performance. Plaintiff alleged wrongful termination. Sometime after commencing her employ- ment, plaintiff given copy of Em- ployee Handbook. Contained in handbook was defendant's Progres- sive Discipline Policy ("PDD") applicable to unsatisfactory work performance. For first ten years of employment plaintiff operated a grinder machine. Plaintiff was subsequently assigned to assembly department. Plaintiff received four disciplinary notices regarding her work performance in twelve month period contrary to PDD. Fourth disciplinary notice resulted in her termination. Plaintiff subsequently found part-time employment. Court held plaintiff's employment was wrongfully terminated. Plain- tiff entitled to damages for breach of employment contract. PDD did not form part of employment contract. PDD could not be used to discharge employee without rea- sonable notice or pay in lieu of. In any event, defendant failed to fol- low its own PDD when deciding to terminate plaintiff's employ- ment. Mistakes made by plaintiff over three month period did not amount to misconduct sufficient to justify summary dismissal after almost 14 years of employment. In all circumstances defendant unable to establish plaintiff failed to take adequate steps to secure alternate employment. Defendant failed to follow own PDD fairly by fail- ing to conduct and independent or objective review of plaintiff's dismissal. Fair and reasonable employer should be expected to investigate cause of problem and attempt to assist employee to improve performance. Plaintiff entitled to ten months' notice at $3,423.33 per month for total of $34,233 damages. Dawson v. FAG Bearings Ltd. (Oct. 7, 2008, Ont. S.C.J., Taylor J., File No. 06-4045-SR) Order No. 008/308/059 (17 pp.). Motions in constructive dismissal action adjourned pending appointment of conciliation officer Motion by defendants Niagara Re- gional Police Service and Niagara Regional Police Association to dis- miss action for want of jurisdiction over subject matter. Plaintiff was civilian employee of Police Service. Plaintiff brought action against defendants claiming damages fol- lowing his alleged constructive dismissal from employment and harassment. Plaintiff filed com- plaint in 2001 alleging harassment, intimidation and other abusive treatment by supervisor. Com- menced medical leave in 2003 due to stress and anxiety. External third party investigation substantiated plaintiff's allegations. Defendants did not provide plaintiff with copy of report. Following report, de- fendant police service reassigned supervision of plaintiff to another manager. With organizational changes in place plaintiff returned CASELAW to work. Plaintiff advised in 2006 would have to report again to pre- vious supervisor. Plaintiff fearful and intimidated about working under supervisor again. Plaintiff did not return to work. Plaintiff argued prior to alleged constructive dismissal not advised by defendants of right to independently seek re- dress, pursuant to ss. 123 and 124 of Part VIII, Labour Relations, of Police Services Act (Ont.). Po- lice Association agreed to adjourn motion sine die to allow plaintiff to file request for appointment of conciliation officer pursuant to s. 123 of Act. Court held motion of Police Services should be similarly adjourned. Plaintiff had claimed defendants were "jointly and sev- erally liable". Dismissing action as against only one defendant creates risk of inconsistent dispositions. Wrong to dismiss action against Police Services only with nature and availability of relief against that defendant under ss. 123 and 124 of Act as yet being untested. Because motion of Police Services to be adjourned, no need for court to consider whether court has ju- risdiction over subject matter of action. Hayden v. Niagara Regional Police Service (Oct. 28, 2008, Ont. S.C.J., Quinn J., File No. 49730/07) Order No. 008/308/051 (15 pp.). Family Law PROPERTY Order necessary for preservation of property pending final resolution Parties were married 44 years and had five children. Applicant brought proceeding to obtain prop- erty entitlement from respondent. Applicant sought unequal division. Respondent failed to comply with court orders. Respondent needed to be removed from day-to-day management of corporations and to have respondent's voting rights taken away in respect of shares in all corporations, so assets of corpo- rations could be properly managed and preserved. Respondent was not to be able to access moneys from sale of real properties owned by respondent or corporations. Order was necessary for preservation of property pending final resolution of matter given respondent's wilful and damaging conduct. Both v. Both (Oct. 3, 2008, Ont. S.C.J., Horkins J., File No. 07-FA-14695-FIS) Order No. 008/295/093 (11 pp.). SUPPORT Wife's remarriage did not constitute material change Parties were marred 16 years and had one child. Husband's income was $318,000 and wife's was $67,000. Husband was to pay wife spousal support of $4,912 per month. Wife was involved with new partner at time of trial and testified to issue on cross-exami- nation. Three weeks after minutes were signed wife and new partner jointly purchased property. Wife and new partner were married and had child. Husband sought to suspend spousal support claiming wife's marriage was material change in circumstances. Husband sought to reduce child support because wife did not require nanny because wife ceased working. Husband's acceptance of language in minutes was recognition that remarriage would not entitle husband to re- duce support. Wife's remarriage did not constitute material change. www.lawtimesnews.com Husband was to pay for one-half of nanny costs which allowed wife to return to work and recognized nanny cared for both children. Bhupal v. Bhupal (Oct. 17, 2008, Ont. S.C.J., Baltman J., File No. FS-08-577-00) Order No. 008/294/072 (14 pp.). Insurance AUTOMOBILE INSURANCE Insurer not liable where accident did not result from unloading vehicle Child was killed when vehicle in parking lot backed over child. Fa- ther and grandfather were unload- ing vehicle in parking lot when accident happened. Claims were settled. Parties allocated 70% re- sponsibility to driver and 30% to father and grandfather. Father and grandfather claimed insurer of father's vehicle was responsible for costs of defending cross-claim and for indemnifying father and grandfather for 30% contribution. Action was dismissed. Accident did not result from unloading vehicle. Child was safely out of vehicle and had left vicinity of vehicle. Duties owed to child by father and grand- father were owed as guardians of children and not as motorists. Kopas v. Western Assurance Co. (Oct. 15, 2008, Ont. S.C.J., Cor- bett J., File No. CV-06-00168-00) Order No. 008/294/081 (14 pp.). LIABILITY INSURANCE Economic damages awarded in United States fell within exclusion Plaintiff supplied bottled water products to grocery retailer in United States. Assembly of com- ponents into finished products took place at Cynar. There were problems involving contamina- tion of finished products. Gro- cery retailer terminated business with plaintiff for supply of water emanating from Cynar plant. Plaintiff brought action in Unit- ed States. Plaintiff was awarded damages of USD$1,449,792. There was jury verdict on liability and damages issues. Plaintiff tried to realize on United States judg- ment. Plaintiff claimed it was entitled to recover outstanding balance flowing from defen- dant insurance companies. Ac- tion was dismissed. Exclusion applied. Economic damages awarded in United States fell within exclusion. Unique Labeling Inc. v. Gerling Canada Insurance Co. (Oct. 16, 2008, Ont. S.C.J., Moore J., File No. 03-CV-251154 CM2) Order No. 008/295/048 (32 pp.). Judgments And Orders SETTING ASIDE Delay in action was inexcusable Case began in 1993. Plaintiffs claimed damages for breach of fiduciary duty and negligence arising from purchase of nursing home. Counsel did not file notice of change of solicitor through in- advertence. Parties claimed they did not receive notices for call-over. Action was dismissed. Plaintiffs claimed plaintiffs were unaware case was dismissed. Plaintiffs brought motion to set aside order dismissing action for delay. Motion was dismissed. There was evidence of actual prejudice for defendants if case were allowed to proceed. De- lay was inexcusable. Ferguson v. Pinnock (Oct. 28, 2008, Ont. S.C.J., Himel J., File No. 97-CU-121623) Order No. February 2, 2009 • Law Times 008/308/055 (7 pp.). Landlord And Tenant RENT Writ of possession issued to landlord where tenant in default of lease Tenant claimed landlord permit- ted tenant to store boxes in another unit. Landlord argued permission was not given. Landlord requested plaintiff to remove boxes. Tenant removed boxes and landlord sought pro-rated rent. Landlord locked plaintiff out of premises. Tenant obtained ex parte order allowing tenant back into premises on pay- ment of outstanding rent. Land- lord terminated tenancy because of non-payment of rent. Tenant men- tioned only insufficient insurance coverage in affidavit in support of application for relief from forfei- ture. Tenant deliberately omitted to mention non-payment of rent or of forcible re-entry. Landlord al- lowed tenant back into possession. Order was set aside. Tenant did not pay rent as ordered. Landlord brought application to enforce ter- mination of lease. Tenant's motion was dismissed. Landlord's mo- tion was allowed. Lease was ter- minated forthwith. Writ of pos- session issued to landlord. Tenant remained in default of lease and in non-compliance of order. Five Star Brands Distribution Ltd. v. Streit (Kenderry) Ltd. (Oct. 10, 2008, Ont. S.C.J., Price J., File No. CV-08-3483-00) Order No. 008/295/054 (18 pp.). Limitations GENERAL No limitations issue arose as plaintiffs simply sought to correctly name defendants, not add them as parties Appellant physicians appealed from order granting respondent plaintiffs' motion to add them as defendants on basis that limita- tion period expired. Motion judge held case was one of misnomer so limitation period had not expired. Deceased passed away while being treated in hospital. In statement of claim issued a year later plaintiffs named hospital and Doctors A.B., C.D., E.F., G.H.. Plaintiffs claimed that appellants were doctors A.B., and C.D.. Motion to substitute brought after discoveries, more than two years after date of death. Plaintiffs claimed it was only after discoveries and disclosure of ad- ditional medical record they were able to identify appellants as sur- geons involved in alleged negligent treatment of deceased. Physicians' appeal to Ontario Court of Appeal dismissed. Plaintiffs simply sought to correctly name appellants, not add them as parties so no issue of expiry of limitation period arose. Motion judge correctly held that statement of claim identified the appellants. As surgeons involved in deceased's treatment appellant physicians would have known that their conduct was at issue. Same result followed if s. 21 of Limita- tions Act, 2002 (Ont.), applied. Section 21(1) precludes adding person as party but in case of mis- nomer person not being added. Spirito Estate v. Trillium Health Centre (Nov. 14, 2008, Ont. C.A., Rosenberg, Gillese and Blair JJ.A., File No. C47840) Appeal from 161 A.C.W.S. (3d) 407 dismissed. Order No. 008/323/037 (6 pp.). Real Property