Law Times

Law Times • January 19, 2009 R. v. F. (J.) (Oct. 31, 2008, S.C.C., McLachlin C.J.C., Binnie, Deschamps, Fish, Abella, Charron and Rothstein JJ., File No. 32203) Appeal from 74 W.C.B. (2d) 679 dis- missed; cross-appeal allowed. Order No. 008/308/132 (62 pp.). FEDERAL COURT Administrative Law NATURAL JUSTICE Administrator owed appellant duty of procedural fairness This was appeal from decision of respondent administrator of- fering appellant compensation of $20,000 for clean up and disposal of tugboat. In 1998 tugboat was towed after it was found drifting. Vessel was de- tained. It had to be pumped dai- ly to stay afloat. Survey was con- ducted where it was found that fuel tanks were corroding. In 1999 water and oil were found in vessel. In 2004 vessel caught fire and was severely damaged. It was determined that, in in- terests of public and maritime safety, imminent action to re- move and dispose of vessel was necessary. During course of dismantling vessel significant amount of oil was found in tug- boat. Demolition and clean up were completed in 2005 at cost of $223,544. Appellant applied to administrator for compensa- tion. Administrator found that appellant had been negligent in manner in which it dealt with pollution. Administrator offered appellant $20,000 for cleanup and disposal of tugboat. Administrator refused appel- lant's request for disclosure of survey report that he relied on to arrive at amount of $20,000. Appeal allowed. Decision was reviewable on standard of rea- sonableness. Appellant's lengthy delay before sending out re- moval order and disposing of contaminants on vessel was unreasonable in circumstances. Appellant had knowledge, ex- pertise and statutory powers to destroy vessel and its content long before it did to prevent pollution damage from vessel. Administrator owed appellant duty of procedural fairness. It was unreasonable for admin- istrator not to disclose results of investigation and provide appellant with opportunity to respond. Administrator should have disclosed survey report to appellant. Canada v. Ship-Source Oil Pollution Fund (Oct. 3, 2008, F.C., Beaudry J., File No. T-875- 06) Order No. 008/315/183 (26 pp.). ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Class action not preferable procedure to resolve common issues Plaintiff proposed a product liability class action. He al- leged defect in door latch for four models of certain Ford trucks manufactured between November 1995 and April 2000. He claimed that a weak spring negligently installed in vehicles allows door handles to come open during rollover or side impact accident, creat- ing potential for occupant to be ejected. Plaintiff was pro- posed representative plaintiff. He purchased used 1997 Ford and continued to drive it with- out incident. Motion judge dis- missed plaintiff 's certification application. Plaintiff 's appeal dismissed. Purported common issues included duty of care is- sues, standard of care issues and damages issues. Motions judge did not err in finding that only common issues related to dam- ages. Given that proposed com- mon issues on liability not ac- cepted common damages issue did not merit certification. In absence of evidence demonstrat- ing real and subsisting group of persons desirous of having common complaint determined through class proceeding, class proceeding properly found not to be preferable procedure for resolution of common issues. Motion judge made no palpable or overriding error in conclud- ing plaintiff not appropriate representative plaintiff as he had only negligible role in liti- gation. Poulin v. Ford Motor Co. of Canada Ltd. (Oct. 22, 2008, Ont. S.C.J. (Div. Ct.), Cunningham A.C.J.S.C., Carnwath and MacDougall JJ., File No. DC-06-0124) Appeal from 153 A.C.W.S. (3d) 30, 35 C.P.C. (6th) 264 dismissed. Order No. 008/302/021 (14 pp.). Insurance POLICY LIMITS Cases of multiple fraud against single victim captured by aggregate limit Real Estate Council of Ontario held insurance policy to cover losses of consumer deposits that provided limit of liability of $100,000 for each claim. Aggregate liability for each "occurrence" or "series of relat- ed occurrences" was $500,000. Issue was whether claims con- stituted separate occurrences and, if so, whether any of oc- currences were part of series of related occurrences. Applicant was court-appointed receiver of accused and acted on behalf of victims of real estate deposit scheme put in place by accused and her company. Scheme in- volved purported purchase and sale of real property. Accused stole 25 deposits from 22 different victims (3 victims claimed twice). Accused also solicited money from indi- viduals to "invest" in "interim occupancy mortgages" and used misappropriated depos- its to fund mortgage scheme. Thefts constituted separate occurrences but transactions unrelated. Each of 25 deposit thefts was separate occurrence. That deposit thefts were part of scheme did not make them single occurrence. Facts clearly indicated series of occurrences but definition of relatedness turned upon identity of client given intentions of parties to protect consumers. Twenty- two of 25 transactions unrelat- CASELAW ed, involving different victims and different properties. Cases of multiple fraud against single victim captured by aggregate limit since thief and victim were same and type of occur- rence causing loss was same. Simpson (Receiver of ) v. Lloyd's Underwriters (Oct. 8, 2008, Ont. S.C.J. (Comm. List), Lederman J., File No. 07-CL- 7122) Order No. 008/288/103 (10 pp.). Municipal Law BYLAWS Respondents had to remove or demolish shed and garage Applicant claimed respondent located two sheds and garage on property without building permit and contrary to zon- ing by-law. Respondent stored trailers and boat on property contrary to by-law. Respondent operated commercial parking lot on property contrary to by- law. Applicant sought order for respondent to remove or de- molish sheds and garage and to remove trailers. Applicant sought injunction prohibit- ing respondent from operating commercial parking lot. Garage and shed could not be erected because there was no principal building. There was no dwell- ing unit on lots and none of vehicles, structure or equip- ment could be stored or parked on property. Respondents con- travened by-law. Applicants were entitled to order that re- spondents remove or demolish within 30 days shed and garage. Mandatory order was made di- recting respondents to remove trailers and boat. Interim and permanent injunction issued prohibiting respondents from operating parking lot and from carrying on business. Ramara (Township) v. Caster (Oct. 6, 2008, Ont. S.C.J., DiTomaso J., File No. 08- 0665) Order No. 008/281/074 (8 pp.). Professions BARRISTERS AND SOLICITORS Lawyer breached contract to purchaser Purchaser refused to close real estate transaction on advice of lawyer. Lawyer made requisi- tions going to title. Vendor sold land to someone else at loss. Vendor refused to return deposit to purchaser. Purchaser brought action. Vendor counterclaimed for damages. Lawyer was negli- gent and in breach of contract to purchaser in keeping relevant information from client and pre- venting client to assess obliga- tions under agreement. Lawyer was responsible for liability de- termined owing by purchaser's failure to close to repay deposit with interest. Vendor's counter- claim was dismissed. First requi- sition was appropriate and was appropriately answered. Former right-of-way did not encum- ber vendor's title to land and was not valid objection to title. Requirement of release of right- of-way and non-production did not entitle purchaser to rescind agreement. Evidence pointed to its termination or abandon- ment. Vendor had valid title to convey. Vendors failed to miti- gate damages. www.lawtimesnews.com Phinny v. Macaulay (Sep. 19, 2008, Ont. S.C.J., Kane J., File No. 20190/A0) Order No. 008/267/052 (51 pp.). FEDERAL COURT OF APPEAL Civil Procedure COSTS Award of costs against intervener upheld on appeal Appellant granted intervener status in two actions requiring determination whether salaries paid to certain employees of Native Leasing Services exempt from income tax. Intervention permitted on basis of certain conditions, including that in- tervener not entitled to costs but could be held liable for costs. Trial judge dismissed ac- tions and required intervener to pay defendant costs plus dis- bursements incurred solely in addressing intervener's submis- sions. Appellant unsuccessfully argued that as party intervening in public interest it should not have been required to pay costs. Although issues involved in case were matters of public interest, they were also of pecuniary in- terest to appellant. Appellant aware it was at risk of being held liable for costs and award sufficiently justified. No error of law or failure to give suffi- cient weight to relevant consid- erations justifying interference with judge's exercise of discre- tion in awarding costs. Horn v. M.N.R. (Oct. 1, 2008, PAGE 15 F.C.A., Decary, Sexton and Sharlow JJ.A., File No. A-507- 07; A-508-07) Appeal from 161 A.C.W.S. (3d) 511, 286 D.L.R. (4th) 524, 319 F.T.R. 94, 2007 D.T.C. 5589, [2008] 1 C.T.C. dismissed. Order No. 008/316/017 (5 pp.). Wills And Estates DEPENDANTS' SUPPORT No credible evidence that deceased provided support to applicant immediately before death Deceased left estate to children and grandchildren. Applicant sought dependant's support. Applicant cohabited with de- ceased for 14 years prior to deceased's death and was sup- ported by deceased. Applicant sought $25,000 from estate to cover interim legal costs. Respondents were stepchildren of deceased disputed applicant cohabited with deceased or was supported by deceased. Motion for interim support was dis- missed. Estate was required to pay mediator's costs on forth- coming mediation. There was credible evidence to conclude deceased and applicant co-habit- ed at time of deceased's death and for at least three years prior to deceased's death. Record did not contain credible evidence to conclude deceased was provid- ing support to applicant imme- diately before death of deceased. There was no credible evidence applicant lacked means to meet applicant's needs. Perkovic v. Marion Estate (Oct. 14, 2008, Ont. S.C.J., Brown J., File No. 01-3195-07) Order No. 008/289/117 (12 pp.). 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