Law Times

PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Administrative Law FREEDOM OF INFORMATION Attorney General erred in inter- preting order to say that if wit- ness gives consent to disclosure by counsel as contemplated in earlier order, consent must neces- sarily constitute waiver of witness' solicitor-and-client privilege. No reason to interfere with decision of application judge. Canada (Attorney General v. Can- ada (Information Commissioner) (Oct. 22, 2008, F.C.A., Evans, Sharlow and Sexton JJ.A., File No. A-492-07; A-568-07) Ap- peal from 161 A.C.W.S. (3d) 3; 316 F.T.R. 167; 73 Admin. L.R. (4th) 51 dismissed. Order No. 008/315/212 (6 pp.). Crown ARMED FORCES Dismissal of application for judi- cial review of decision regarding travel expenses upheld on appeal Judge dismissed appellant's ap- plication for judicial review of decision made by Veterans Af- fairs refusing to reimburse travel expenses incurred by appellant in relation to medical treatment offered at St. Mary's Hospital in Montreal. Judge concluded that Veterans Affair's decision that nearest appropriate treatment centre to appellant's residence was Joliette Hospital was not unreasonable. Record did not support applicant's submis- sions that his language rights under Canadian Charter of Rights and Freedoms and Offi- cial Languages Act (Can.), were violated. Judge made no error warranting intervention. Moore v. Canada (Attorney Gen- eral) (Oct. 23, 2008, F.C.A., Noel, Nadon and Trudel JJ.A., File No. A-539-07) Appeal from 161 A.C.W.S. (3d) 570; 317 F.T.R. 316 dismissed. Order No. 008/315/213 (5 pp.). Intellectual Property Industrial And PATENTS Affidavits did not improperly expand scope of notice of allegation Appeal by appellant of decision by Federal Court Judge which ordered sections of appellant's af- fidavit from doctor struck. Cross- appeal by respondent of decision of Federal Court Judge dismissing respondent's motion to strike cer- tain paragraphs from four other affidavits and for leave to file reply affidavits. Matter went to Federal Court Judge when respondent appealed decision of Prothono- tary, who dismissed respondent's motion entirely. Appeal allowed; cross-appeal dismissed. Protho- notary's decision discretionary, so Federal Court Judge should have only intervened if decision clearly wrong. Prothonotary did not err in finding doctor's affidavit did not improperly expand scope of appellant's Notice of Allega- tion ("NOA"). Doctor's affidavit simply confirmed test results al- ready reported in NOA. Federal Court Judge correct in conclud- ing Prothonotary did not err in dismissing respondent's motion to strike paragraphs of other af- fidavits. Other affidavits did not improperly expand scope of NOA since paragraphs in ques- tion were related to facts in NOA or directed to respondent's allega- tions. Dismissal of respondent's motion to file reply affidavits also not in error. Respondent had ad- equate opportunity to challenge appellant's evidence on cross-ex- amination. Apotex Inc. v. Lundbeck Cana- da Inc. (Sep. 16, 2008, F.C.A., Evans, Desjardins and Pelletier JJ.A., File No. A-336-08) Order No. 008/281/011 (9 pp.). ONTARIO CIVIL CASES Civil Procedure COMMENCEMENT OF PROCEEDINGS Test for striking out claim not met Plaintiff sought order setting aside two discharges of mortgages and declaration mortgages stood in priority to T. mortgage and H. Group mortgage. Plaintiff claimed plaintiff was defrauded as result of registration of fraudulent dis- charges of mortgages plaintiff held on land owned by First Summit. After registration of fraudulent discharges, First Summit granted mortgages to H. Group and T.. T.'s motion to strike statement of claim against T. was dismissed. Interpretation of case law was not plain and obvious. T. did not meet test for striking out claim. H. Group's motion for summary judgment was allowed. H. group was entitled to protection of legis- lation as H. Group obtained inter- est from true owner of property. Salna v. Chetti (Oct. 10, 2008, Ont. S.C.J., Pollak J., File No. 08-CV-349836PD3) Order No. 008/288/046 (4 pp.). COUNTERCLAIM Counterclaim contained triable issues Plaintiff brought motion for January 12, 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. 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 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. summary judgment for remain- ing $200,000 from defendant for unpaid promissory notes. Plain- tiff and defendant were husband and wife and shareholders in a company. Upon their separation, defendant purchased shares from plaintiff for $500,000. Defen- dant paid $150,000 on closing and wrote a series of promissory notes for the others. $150,000 had been paid into court thus far for actions commenced against promissory notes that had already been due but unpaid. Defendant counterclaimed that plaintiff had failed to enter into consult- ing agreement and deliver share certificates as required. Summary judgment awarded to plaintiff for $200,000. Notes of agreement on record and defendants did not deny owing moneys claimed so no issue for trial. Equitable set-off not a defence to plaintiff's claim. Defendants' counterclaim out- standing and contained triable issues. Enforcement of judgment for plaintiff stayed until disposi- tion of counterclaim. Defendant to pay $100,000 into court to en- courage speedy resolution. Spitzer v. Spitzer (Oct. 7, 2008, Ont. S.C.J., Gilmore J., File No. CV-05-00076835) Order No. 008/282/029 (6 pp.). SUMMARY JUDGMENT Whether plaintiff breached duty in management of property was triable issue Defendant borrowed money from plaintiff. Loan was secured by mortgage. Principal of defen- dant personally guaranteed loan. Loan went into default. Lands were sold for less than amount owing. Plaintiff brought action for deficiency. Motion for sum- mary judgment was dismissed. There was triable issue of whether plaintiff breached duty to act in reasonably prudent fashion in management of property while standing as mortgagee in pos- session. Trial was required to determine whether plaintiff's ac- tions were reasonable in view of circumstances prevailing at time of sale. Issues raised in pleadings were to proceed to trial except de- fendant's claim plaintiff wrong- fully interfered with defendant's economic relationship with ten- ant and breached terms of mort- gage by financing Algoma's pur- chase of alternate premises. Standard Life Assurance Co. of Canada v. Gunadin Investment Ltd. (Oct. 3, 2008, Ont. S.C.J., Boswell J., File No. 8447/01) Order No. 008/288/043 (10 pp.). Conflict Of Laws JURISDICTION Court declined jurisdiction over family law proceedings www.lawtimesnews.com in favour of Mexico Parties lived together for five years and then were married. Parties entered cohabitation agreement. Parties agreed to keep property separate and waived claims of support. Parties lived in home registered in husband's name. Property was transferred to hus- band and wife as joint tenants. Wife had exclusive possession of Home in Mexico by way of pro- ceedings in Mexico. Parties lived in Mexico for four years until sep- aration. Husband argued parties agreed Mexico property would pass to husband's children. Parties entered amendment to cohabita- tion agreement. Wife brought application in Ontario claiming divorce and support. Wife com- menced divorce proceedings in Mexico. Husband sought to have Ontario proceeding stayed and to participate in proceedings in Mexico. Husband's motion was granted staying application and cross-application. Wife's motion for order requiring husband to sign arbitration agreement was dismissed. Wife's motion for husband to produce file of law- yer on cohabitation agreement was dismissed. Court exercised forum non-conveniens discre- tion to decline jurisdiction in favour of Mexico. Owers v. Owers (Sep. 16, 2008, Ont. S.C.J., Hambly J., File No. 39241-06) Order No. 008/269/144 (16 pp.). Courts STAY OF PROCEEDINGS Equities favoured temporary stay of proceedings Applicant filed complaint in New York seeking to set aside consent solicitation. Respondent brought motion to dismiss complaint on substantive and jurisdictional grounds. Applicant brought ap- plication in Ontario and brought motion to discontinue New York complaint. Applicant's motion to discontinue New York com- plaint was allowed. Trustee com- menced New York Action against applicant. Respondent sought order permanently staying ap- plication because of proceed- ing commenced in New York. Applicant asserted cross-claims against respondent in New York Action. Application was stayed on temporary basis pending de- termination of New York Action. Stay would not result in injustice to applicant. Equities favoured temporary stay. Decision of New York Court would render ap- plication substantially moot or substantially reduce issues to be determined by Ontario Court. Catalyst Fund Limited Partner- ship II v. IMAX Corp. (Sep. 26, 2008, Ont. S.C.J., Hoy J., File No. 07-CL007163) Order No. 008/275/064 (7 pp.). Family Law CUSTODY Custody of child granted to aunt with access to father Aunt and father sought custody of child. At time of child's birth, neither parent was in position to assume role of primary parent, even though parents and child lived under same roof. Mother was simply not motivated to par- ent at all and father's work hours (60 and 70 hours per week) made him unavailable for child care. Child's maternal great aunt moved into home to care for in- fant. When parents separated two and one-half years later, mother, great aunt and child moved to aunt's home on Manitoulin Is- land. Both parents acquiesced to aunt's de facto custody of boy and, even though she was co-op- erative on access, parents visited child infrequently. When aunt sought to formalize her status by applying for custody, father countered with custody claim of his own. Court found that child's predominant attachment relationship was now to aunt. Certainly, during first two and one-half years when parties and child lived under same roof, child may have attached to both par- ents, but their diminished pres- ence over past years weakened that bond. If father had promptly filed custody claim at time of sep- aration, his case would have been strong, but he had done nothing. Mere fact that father is child's natural parent does not necessar- ily give him custodial right that is superior to that of someone like aunt who was effectively child's psychological parent. Child's bond with father was now weak and it would not serve child's best interest to be ripped out of security of aunt's home and to endure uncertainties of being placed with father. Father was author of his own problem by having chosen to continue work- ing long work hours instead of cutting back to standard 40-hour week that would have allowed for meaningful involvement with his son. Instead, he allowed aunt to intervene and never complained about it, even after separation. Court granted custody to aunt with access to father. Pheasant v. Idowu (Sep. 9, 2008, Ont. C.J., Keast J., File No. D-0031/07) Order No. 008/280/106 (13 pp.). PROPERTY Constructive trust declared in applicant's favour given her contribution to property Applicant sought order declar- ing she owned 50% interest in matrimonial home and order

• Cover
• M&As Alive
• Union Fines
• Focus On Insurance Law