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PAGE 18 Motion for summary judg- ment on demand promissory notes. Liability admitted, but defendants claimed right to set off damages claimed as a result of collection activities amount- ing to harassment, trespass and nuisance. Summary judgment granted. Doctrine of equitable set-off not available in action brought on promissory notes. Right of set-off under s. 181 of Bills of Exchange Act (Can.), in- applicable. These notes not sat- isfying definition of "consumer note" in act. Argiris v. Farley (Feb. 24, 2009, Ont. S.C.J., Brown J., File No. CV-08-0358274-0000) Order No. 009/056/079 (4 pp.). Evidence HEARSAY Introduction of hearsay not automatically a reviewable error Appeal by doctor of finding of professional misconduct by Col- lege of Physicians and Surgeons of Ontario ("CPSO"). CPSO held doctor had failed to meet standard of practice by con- templating use of thrombolytic drug in absence of accepted clinical criteria and instructing others to that effect. Appellant submitted that DC had relied upon expert report containing highly prejudicial inadmissible hearsay evidence. Report sum- marized conversation between two doctors regarding patient. One of doctors in conversation not called to testify. Appeal dis- missed. Independent counsel's instructions regarding use of hearsay evidence at DC hearing at best unclear and, if suggest- ing that it could be relied upon as proving truth of its content, incorrect at law. But, introduc- tion of hearsay not automati- cally a reviewable error. Where expert opinion relies on hearsay evidence, question is weight to be attributed to opinion, not its admissibility. DC had not relied upon hearsay evidence. Yar v. College of Physicians and Surgeons of Ontario (Jan. 13, 2009, Ont. S.C.J. (Div. Ct.), Wilson, Swinton and Bellamy JJ., File No. 167/07) Order No. 009/019/055 (14 pp.). Family Law ADOPTION Adoption not required to solidify non-biological parent's legal parenthood Applicants lived together as couple. Applicants were lesbian custodial parents of child. One applicant was child's biological mother. Respondent was biolog- ical father who donated sperm. Respondent exercised access to child and had relationship with child. Parties had agreement. Applicants brought joint ap- plication for adoption of child. Respondent was unwilling to lose status as legal parent and refused to consent to adoption. Applicants were not entitled to order dispensing with respon- dent's consent to adoption of child. Respondent's claims to greater access seemed reason- able. Adoption was not required to solidify non-biological par- ent's legal parenthood. Non- biological parent was custodial parent pursuant to agreement that could be incorporated into custody order. Agreement could not be relied on as indication of parties' intentions regarding adoption. Respondent was not mere sperm donor. C. (A.M.) v. K. (M.) (Jan. 27, 2009, Ont. C.J., Cohen J., File No. FA-07-11254) Order No. 009/034/306 (25 pp.). PROPERTY Trust funds from husband's father to be deducted from net family property Parties were married 17 years and had three children. Wife sought equalization of net fam- ily property. Husband's father died before marriage. Hus- band's father set up trust in will to pay income from real prop- erty to husband. There was no provision for residue of estate. Agreement provided residue of estate would be divided equally between husband and aunt. Trustees wound up trust and paid husband $86,000 which was spent on family needs. All that was left was coin collection worth $2,100. $86,000 was to be deducted from husband's family property. Amount was owing to husband before mar- riage. Husband's pension was evaluated on basis husband would retire at age 55. Husband owed wife equalization pay- ment of $33,560. Wife was to stay in matrimonial home. Hus- band was to convey matrimo- nial home to wife and pay wife $4,535. Access was to be any time by agreement and weekend visits on specified dates. Moore v. Moore (Jan. 29, 2009, Ont. S.C.J., Ramsay J., File No. 8785/08) Order No. 009/035/082 (10 pp.). Financial Institutions CHEQUES Defendant strictly liable for honouring forged cheques Defendant honoured forged cheques on plaintiff's account by plaintiff's employee. Plain- tiff brought action. Defendant argued plaintiffs did not notify defendant of forgeries within time-limit specified in contract. Clause was not worded so as to exempt defendant from liabil- ity under s. 48 of Bills of Ex- change Act (Can.). Defendant was strictly liable. Defendant was not negligent in cashing cheques. Plaintiff proved forged cheques in amount of $186,488 and was entitled to judgment in that amount. SNS Industrial Products Ltd. v. Bank of Montreal (Feb. 5, 2009, Ont. S.C.J., Ramsay J., File No. CV06-574) Order No. 009/040/146 (9 pp.). Injunctions BREACH OF CONTRACT Use of confidential information breached agreements Respondent launched hostile take-over bid for applicant. Re- spondent obtained confidential information about applicant under terms of two non-disclo- sure agreements between parties before launching bid. Applicant CASELAW claimed use of confidential in- formation breached agreements. Applicant sought for respondent to be permanently enjoined from taking steps to advance bid. Application was allowed. Use of confidential information provided pursuant to agree- ments breached agreements. Respondent was enjoined from taking steps to advance hostile take-over bid launched. Clauses were negative covenants. There was presumption in favour of permanent injunctive relief. Interpretation and validity of covenants was determined on merits in application. Applicant was not required to establish ir- reparable harm. Damages were inadequate remedy. Certicom Corp. v. Research in Motion Ltd. (Jan. 19, 2009, Ont. S.C.J., Hoy J., File No. CV-08-7914-00CL) Order No. 009/028/048 (21 pp.). Insurance AUTOMOBILE INSURANCE Dispute resolution provisions in Insurance Act (Ont.) did not oust court's jurisdiction Application by defendant for stay of action on basis that court had no jurisdiction or that Fi- nancial Services Commission of Ontario ("FSCO") was more appropriate forum. Defendant in receipt of weekly indemnity benefits from insurer plaintiff following January 2002 motor vehicle accident. Benefits were discontinued, then ordered re- instated by FSCO, decision un- successfully appealed by plaintiff who then sought judicial review. After defendant was awarded Canada Pension Plan ("CPP") disability benefits retroactive to November 2003, plaintiff sued to recover overpayment of week- ly indemnity benefits, relying on entitlement to retroactively deduct CPP benefits received. Defendant's application for stay dismissed. Plaintiff entitled to pursue claim for overpayment of statutory income replacement benefits in this court. Dispute resolution provisions under ss. 279 to 289.1 of Insurance Act (Ont.), not ousting court's juris- diction in cases where overpay- ment the result of something other than fraud or error. State Farm Mutual Insurance Co. v. Ramalingam (Jan. 27, 2009, Ont. S.C.J., Shaughnessy J., File No. 55966/08 SR) Order No. 009/029/062 (6 pp.). LIABILITY INSURANCE Insurers had concurrent duties to defend Parties had mutual client in Florida who operated hotel on ocean front property. Guest of mutual client drowned. Appli- cant sought order requiring re- spondent to contribute to costs applicant incurred in defending action brought against mutual client. Both policies contained covenants obliging parties to de- fend actions. Respondent's duty to defend became concurrent with applicant's when respon- dent learned damages might ex- ceed limit of applicant's policy. Ontario law applied to inter- pretation of policy. There was www.lawtimesnews.com no satisfactory evidence law of Quebec was differed from law of Ontario. Respondent was required to share costs incurred in providing defence for mutual client during time parties were concurrently obliged to provide defence. American Home Assurance Co. v. Temple Insurance Co. (Jan. 22, 2009, Ont. S.C.J., MacDon- nell J., File No. 07-CV-339558 PD) Order No. 009/028/063 (22 pp.). Limitations GENERAL Application of limitation period depended on findings of fact Plaintiff was senior employee. Plaintiff advised employer plaintiff was pregnant and in- tended to take maternity leave. Employer advised position was dissolved because of re-organi- zation eleven days later. Plain- tiff was terminated without cause. Plaintiff was given five months' pay in lieu of notice. Few months later younger male employee was promoted to per- form many of same functions plaintiff performed. Plaintiff brought wrongful dismissal ac- tion. Defendant's motion to determine whether action was statute-barred by expiration of limitation period was dis- missed. Factual assessment was required to determine whether unconscionable conduct oc- curred at time of dismissal but only discovered later. It was not appropriate case to be decided under Rule 21 of Rules of Civil Procedure (Ont.). Application of limitation period depended on findings of fact. There were genuine issues for trial. Dis- crimination was not pleaded as independent cause of action but in support of wrongful dismissal claim. Allegations of discrimina- tion were not struck. Motion to strike claim for aggravated, ex- emplary and punitive damages was dismissed. Whether circum- stances of dismissal amounted to bad faith conduct warranting compensatory damages or rep- rehensible conduct deserving of punishment was left to court on full evidentiary record. Andrachuk v. Bell Globe Media Publishing Inc. (Feb. 4, 2009, Ont. S.C.J., O'Marra J., File No. 06-CV-306-384 PD3) Order No. 009/040/119 (12 pp.). REAL PROPERTY Applicant had valid possessory interest in lands Parties owned abutting lands. Applicant used property as seasonal summer cottage. Re- spondent lived on property year round. Applicant claimed to be owner by adverse possession of strip of land owned by respon- dent. Declaration was made that applicant had valid possessory interest in lands. Applicant and family enjoyed open, notorious, constant and continuous use of disputed lands from 1963 to 1996. Maintenance and use of property was exclusive to appli- cant's family and adverse to use by others. Applicant and prede- cessors had actual possession of disputed lands for at least ten May 11/18, 2009 • Law TiMes years. Inference was drawn that applicant intended and did ex- clude all others including own- ers from lands. Cruickshank v. Hutchinson (Feb. 2, 2009, Ont. S.C.J., Turnbull J., File No. 55/08) Order No. 009/035/083 (28 pp.). Mental Health INCOMPETENT PERSONS Psychiatrist ordered to resume treatment Motion by treating physician for direction that P.S.'s attend- ing psychiatrist resume treat- ment with anti-psychotic medi- cation without order under s. 19 of Health Care Consent Act, 1996 (Ont.). P.S. diagnosed with schizoaffective disorder and found incapable with re- spect to treatment by Consent and Capacity Board ("CCB") in 2005. Treatment via injection of risperidone consta, an atypical antipsychotic medication, per- sisted until May 2008. In April 2008, P.S. applied for six-month review of CCB's incapacity finding under s. 32(5) of Act. In anticipation of quick deter- mination of P.S.'s appeal treat- ment was suspended. Hearing not held until September 2008. CCB's finding confirmed. P.S. appealed and appeal remains pending. P.S. untreated since May 2008. Condition has de- teriorated to extent of rehospi- talization. P.S. opposed motion on basis that treatment can not be resumed pending final dis- position of appeal, and without order under s. 19 of Act. Mo- tion granted. Section 18 of Act does not prohibit resumption of treatment in absence of order under s. 19, where treatment suspended pending hearing of six-month review brought by patient and where doctor now wishes to resume same treat- ment. Starson v. Pearce (Jan. 5, 2009, Ont. S.C.J., Brown J., File No. 03-71/08) Order No. 009/008/041 (14 pp.). Municipal Law ACTIONS AGAINST MUNICIPALITY Injunction exempting applicant from application of sign bylaws was refused Motion for an interim and in- terlocutory injunction exempt- ing applicant from application of city's sign bylaws pending disposition of its application for declaration that bylaws were of no force and effect. Applicant carried on business of erect- ing and displaying fascia signs from 2004. Bylaws in issue had been in effect between 14 and 20 years. Applicant had ap- plied for permits in respect of signs it had erected and sought variances where required under said bylaws. Applicant became frustrated with respondent's permit and variance processes and began erecting signs with- out obtaining permits. Respon- dent issued notices of violation to applicant where signs were erected without a permit. Ap- plicant responded by commenc- ing its application, but did not