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Law Times • February 2, 2009 CERTIFICATE OF PENDING LITIGATION Master did not err in directing Registrar to issue certificate Plaintiff claimed real estate agent was charged with selling property under power of sale belonging to plaintiff. Plaintiff claimed real estate agent breached fiduciary duty owed to plaintiff by acquiring property at significant discount off fair market value. Plaintiff claimed interest in real estate's property renovated using profit improperly obtained from subsequent sale of plaintiff's property. Master directed Registrar to issue certificate of pending litiga- tion on property. Real estate agent appealed. Appeal was dismissed. Master did not make error of law in exercise of discretion. 1017682 Ontario Ltd. v. Tanzos (Oct. 20, 2008, Ont. S.C.J., Pollak J., File No. 06-CV-324750PD2) Order No. 008/295/065 (3 pp.). Torts NEGLIGENCE Doctor not required to warn patient not to put weight on leg Plaintiff injured leg when plaintiff fell in defendant's recovery room. Plaintiff claimed doctor's assess- ment of plaintiff's leg fell below standard of care. Action was dis- missed. Doctor's assessment com- plied with reasonable standard of care. Doctor was not subject to duty to warn plaintiff not to put all weight on leg in circumstanc- es. There was small degree of risk of unascertained problem with numbness or weakness and warn- ing was not required. Plaintiff did not prove injuries were caused by act or omission of defendant. Elias v. Headache and Pain Man- agement Clinic (Oct. 16, 2008, Ont. S.C.J., Macdonald J., File No. 98-CV-162153 CM) Order No. 008/294/079 (5 pp.). Trusts And Trustees TYPES OF TRUST Re-allocation of call on three funds was not required Calls were made on three trusts to pay for living expenses of N.. Rul- ing required recourse to first be had to testamentary trust, diminishing income paid to J. and promoted growth of N.'s estate. N.'s mainte- nance and care was to be borne first by testamentary trusts. N.'s own means were to be looked to only in highly unlikely event income and capital of two testamentary trusts could not cover costs. Retrospec- tive re-allocation of call on three funds was not required. There was arguable prejudice to J.'s siblings in ruling, but they would benefit on intestacy when N. died. Recourse was to be had first to W.H.B.. Testamentary Trust to pay for N.'s maintenance and care. Barnes v. Barnes (Oct. 16, 2008, Ont. S.C.J., Langdon J., File No. 47/08) Order No. 008/295/068 (13 pp.). Wills And Estates ESTATE ADMINISTRATION Reference to "in respect of property" referred to "same property" or "same estate" Deceased made two wills including general will and real properties will. Wills named different executors. Certificate of appointment of estate trustee with will limited to assets referred to in will was issued. Sec- tion 17 of Estates Act (Ont.), did not alter common law that testator could make multiple wills naming different executors to deal with dif- ferent groups of property. Refer- ence to "in respect of property" in s. 17 referred to "same property" or "same estate". Toronto Region Estates Office was authorized to proceed to process application of executor of other will. Goushleff Estate (Re) (Oct. 8, 2008, Ont. S.C.J., Brown J., File No. 01-2725-08) Order No. 008/294/077 (5 pp.). WILLS Testator had capacity to execute codicil Testator had primary and second- ary wills. Codicil to secondary will changed wording with respect to redemption of preference shares. Issue was whether testator had testamentary capacity to execute codicil to secondary will. Testator suffered temporary delirium as- sociated with interaction of drugs. Day codicils were signed nursing notes indicated testator was alert, oriented and coherent. Testator's delirium was over and remained clear. Testator was compromised during month codicil was signed but that did not mean testator did not have testamentary capacity. On day codicils were signed testator had mental capacity necessary to execute codicil to secondary will. Kaptyn Estate (Re) (Oct. 15, 2008, Ont. S.C.J., Lederer J., File No. 05- 40/07) Order No. 008/294/060 (34 pp.). FEDERAL COURT Employment LABOUR RELATIONS Adjudicator's interpretation of "overtime" in collective agreement was reasonable This was in relation to two appli- cations for judicial review of deci- sions of Public Service Labour Re- lations Board. Employees had been working 12-hour shifts on a rotat- ing 12-week schedule or consistent schedule of eights hour shifts. In October 2002, employer unilater- ally implemented new five-week schedule that required all employ- ees to work a mix of 8-hour and 12- hour shifts. Change in schedule led to grievance. Adjudicator of board rendered three decisions with re- spect to grievance. Judicial reviews were result of third decision of ad- judicator. Employer sought judicial review of adjudicator's decision in awarding overtime premium for all hours worked outside of those em- ployer had authority to schedule. Employees sought judicial review of adjudicator's decision to deny trav- el expenses and holiday pay. Both applications for judicial review dis- missed. Adjudicator interpreted word "overtime" to include hours worked outside of usual hours. Given labour adjudicators substan- tial expertise with respect to inter- pretation of collective agreements, this interpretation was reasonable. Also within adjudicator's discretion to find employees had suffered a loss by having to work on days they would not have worked but for improperly imposed schedule. In context of award of damages and in absence of expenses beyond those incurred under previous schedule, was not unreasonable of adjudica- tor to deny travel expenses. Was not unreasonable for adjudicator to exclude possibility of statutory pre- miums for employees even though CASELAW were denied premium pay. Nitschmann v. Canada (Treasury Board) (Oct. 24, 2008, F.C., Snid- er J., File No. T-1831-07; T-1842- 07) Order No. 008/315/057 (14 pp.). Immigration IMMIGRATION OFFICIALS Challenge to decision of immigration official statute-barred by s. 7(1) of Public Authorities Protection Act (Ont.) Defendant brought motion to strike plaintiff's Amended State- ment of Claim. Plaintiff arrived in Canada in 1987 claiming refugee protection. Plaintiff now Cana- dian citizen. Plaintiff claimed dam- ages in the amount of $1,000,000 from defendant. Claim arose from belief was not treated fairly or eq- uitably by Immigration Canada officials throughout immigration process. Claim focused on events which occurred in 1991. Amended Statement of Claim also detailed other events in 1990's which he claimed delayed his immigration application. Amended Statement of Claim struck. Any claims aris- ing from events are statute-barred. Under s. 7(1) of Public Authori- ties Protection Act (Ont.), a six- month limitation period applies to decisions of Immigration officials. Plaintiff's claim also fails because no judicial review was taken of immigration decisions. Follow- ing principles outlined in Grenier v. Canada (2005), 145 A.C.W.S. (3d) 618, 262 D.L.R. (4th) 337 (F.C.A.), litigant must proceed by way of judicial review in order to have decision invalidated. Finally, plaintiff's claim also fails because no private law duty of care is owed by Immigration Canada officials to plaintiff. Bassij v. Canada (Minister of Citi- zenship and Immigration) (Sep. 29, 2008, F.C., Aalto Prothonota- ry, File No. T-2256-07) Order No. 008/315/182 (8 pp.). Real Property EASEMENTS Arbitration Committee erred in compensation determination Board approved appellant's pipe- line. Appellant's pipeline crossed over respondent's land. Arbitra- tion Committee issued decision setting out compensation amount. Appellant argued committee took into account irrelevant factors. Respondents claimed committee should have ordered appellant to pay annual fee rather than lump sum. Appeal was allowed in part. Respondent's appeals were dis- missed. Committee erred in deter- mination of compensation payable to three respondents. Committee should have considered factors in s. 97(1) National Energy Board Act (Can.), determining appro- priate amount of compensation. Committee's awards relating to Grand Prairie and Strate's land were not unreasonable. With re- spect to awards for respondents in Fort Saskatchewan and Pederson Committee automatically added $500 fee without having pattern of dealings to go by and issue of compensation had to go back to committee for fresh determina- tion. Committee's decision with respect to lump sum was not un- reasonable. Alliance Pipeline Ltd. v. Balisky (Sep. 26, 2008, F.C., O'Reilly J., File No. T-521-07) Order No. 008/309/001 (22 pp.). www.lawtimesnews.com ONTARIO CRIMINAL CASES Charter Of Rights TRIAL WITHIN REASONABLE TIME Accused suffered prejudice from deterioration of mental health during delay period Accused brought application pur- suant to s. 11(b) of the Charter to have his trial stayed after a 23 month delay. Application granted. By the commencement of the pre- liminary hearing the accused had been incarcerated for 11 months. It was obvious at the preliminary hearing that the accused had de- teriorating mental health, yet the Crown took no steps to expedite the 6 month hearing. The accused had been in custody for a total of 2 years at the time of the applica- tion. The actual prejudice suffered as a result of his incarceration was enhanced because of his serious mental disorder. The fact that his trial did not proceed earlier resulted in a situation where, at the present time, the trial could not proceed as the accused was now unfit. This was the ultimate prejudice some- one accused of a crime could suf- fer as a result of a delay. If the trial was not stayed and the accused remained unfit, he would likely remain incarcerated for an indefi- nite period of time. R. v. Flowers (Nov. 20, 2008, Ont. S.C.J., Spies J.) Order No. 008/329/097 (49 pp.). Total delay in assault case not unreasonable Accused charged with domestic PAGE 19 assault. Accused applied for stay of proceedings based on unreason- able delay. First such application had been dismissed. Trial had to be adjourned on second day. Accused found guilty over four months after first trial date. Total state delay was thirteen and a half months. Appli- cation dismissed. Delay from ad- journment was due to busy court schedule and thus attributable to state. Total delay not unreason- able. Reasonable efforts made to accommodate parties. Accused's al- legations of prejudice largely due to charges themselves or exaggerated. R. v. Bedoyan (Nov. 25, 2008, Ont. S.C.J., Pringle J.) Order No. 008/340/008 (4 pp.). Sentence ASSAULT Officers' attack on prisoner akin to breach of trust Crown appealed accused's condi- tional sentences ranging from 45 to 90 days for assault. Accused court officers handcuffed, shack- led and beat prisoner in holding cells and attempted cover-up. Appeal allowed. Insufficient weight given to general deter- rence and denunciation. Sen- tences demonstrably unfit. At- tack was akin to breach of trust. Fact that officers of justice sys- tem assaulted defenceless victim whose safety they were obliged to protect called for more severe sentence than that appropriate for layperson. Additional terms of custody ranging from 30 to 60 days imposed. R. v. Feeney (Nov. 10, 2008, Ont. C.A., Sharpe, Lang and Ep- stein JJ.A., File No. C47806) Ap- peal from 74 W.C.B. (2d) 642 al- lowed. Order No. 008/318/018 (3 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. 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