Law Times

Law Times • November 10, 2008 real estate management and re- quested proposals for purchasers of properties in question. Mus- queam raised concerns regarding proposed sale and requested con- sultation process. Government and Musqueam representatives met for informational meeting. Government promised to review material related to aboriginal in- terests prior to making decision. Musqueam delivered two expert reports referring to Musqueam's occupation and general historical use of downtown Vancouver area but not supporting arguments about serious land shortage or pointing to any unique attach- ment to properties in particular. Appellant Minister announced decision to sell properties and advised Musqueam that Crown had fulfilled legal obligation to consult. Musqueam applied for judicial review of decision to sell and obtained interlocutory injunction restraining Canada from transferring properties pending hearing of judicial re- view application. Canada's ap- peal allowed. Motions judge made palpable and overriding error of fact in basing finding of irreparable harm on assumption that only land available to Mus- queam was land owned by fed- eral government. He also erred by failing to consider nature of properties and how they were of specific relevance to Musqueam and by failing to substantiate precisely how award of dam- ages could not compensate Mus- queam in event of disposition of properties. Evidence insufficient to establish irreparable harm. Appeal allowed and injunction set aside. Musqueam Indian Band v. Cana- da (June 13, 2008, F.C.A., Sexton, Desjardins and Evans JJ.A., File No. A-454-07) Appeal from 161 A.C.W.S. (3d) 179 allowed. Order No. 008/260/001 (31 pp.). CROWN RELATIONSHIP Crown met duty to consult respecting transfer of land Applicants, three communities of Sto:lo Nation, had Indian Re- serves within municipal bound- aries of City of Chilliwack close to former Canadian Forces Base ("CFB") at Chilliwack. Respon- dent Canada Lands Company, wholly owned subsidiary of Can- ada Lands Company ("CLC"), Crown corporation and agent of Crown, purchased properties at fair market value from fed- eral government for purpose of improving, managing or selling properties in order to achieve optimal financial and commu- nity value for both local commu- nities and Crown. Lands at issue were two parcels of former CFB Chilliwack. In 1999 Canada rejected applicants' claim assert- ing that CFB Chilliwack formed part of two Indian Reserves. Fol- lowing announcement of pend- ing closure of CFB Chilliwack, applicants filed statement of intent to negotiate treaty with respect to traditional territo- ries which included all of CFB Chilliwack. Despite meetings between Canada and applicants, no agreement reached. Disposal strategy for former CFB Chilli- wack lands approved by Treasury Board and substantially all of re- maining CFB Chilliwack lands conveyed to CLC. When appli- cants learned that CLC planned to sell land to Chilliwack School District they sought consulta- tion with CLC. CLC stated it would not consult as it under- stood that Treasury Board satis- fied with extensive consultation that occurred prior to approval of transfer. Applicants' judicial review application of Treasury Board decision dismissed. Scope and content of duty to consult proportionate to preliminary as- sessment of strength of case sup- porting existence of right or title, and to seriousness of potentially adverse effect upon right or title claimed. Applicants put forth evidence of pre-sovereignty use and occupation but evidence not clear that applicants occupied lands with sufficient regularity and exclusivity to claim title. Al- though decision to convey rep- resented infringement of poten- tial Aboriginal title, damage was compensable. Crown's duty to consult more than minimal and required good faith consultation and process aimed at addressing applicants' concerns. Canada engaged in significant consulta- tion with applicants which rose at times to level of deep con- sultation. Canada attempted to address Aboriginal concerns. Although no agreement reached, process consistent with mainte- nance of Crown's honour. Un- necessary to decide whether CLC agent of Crown bound to consult with applicants as court did not have jurisdiction over CLC. Tzeachten First Nation v. Cana- da (Attorney General) (July 30, 2008, F.C., Tremblay-Lamer J., File No. T-754-07) Order No. 008/253/124 (37 pp.). ONTARIO CIVIL CASES Bankruptcy And Insolvency CREDITORS Bank entitled to funds arising from sale of bankrupt's real property Action by bank for proceeds from sale of real estate. Bank and bankrupt entered into series of agreements to provide ongo- ing financing for bankrupt's op- erations. Bank and bankrupt's parent company signed post- ponement agreement and prior- ities agreement. After bankrupt filed for bankruptcy, real estate was sold. After mortgage was paid, amount of $611,463.92 was held in trust. Action al- lowed. Post- ponement agreement provided that all debts owing to parent company by bankrupt would be postponed to payment of all in- debtedness of bankrupt to bank. Priorities agreement was not sufficient to displace postpone- ment agreement. Bank of Nova Scotia v. Phatas Inc. (Aug. 20, 2008, Ont. S.C.J., Gray J., File No. 44300/04; C-775-03; 44920) Order No. 008/238/076 (41 pp.). Civil Procedure COSTS Court had discretion to grant costs to unrepresented party Plaintiff obtained judgment for more than what had presented Bank was entitled to funds held in trust arising from sale of real property owned by bankrupt plus interest. CASELAW under a formal offer to settle and had also been successful on an interlocutory injunction appli- cation. by legal counsel for the major- ity of the pretrial litigation and unrepresented at trial, now seek- ing costs under the rules for all steps including those when un- represented. Plaintiff granted costs on a partial indemnity ba- sis to date of offer of judgment and substantial indemnity basis from date of offer of judgment to end of trial. Court has dis- cretion to grant costs, including an allowance for a counsel fee, to an unrepresented party who has expended time beyond what a litigant would have to spend if represented and thereby forgone remunerative activity. Mega Wraps B.C. Inc. v. Mega Wraps Holdings Inc. (July 24, 2008, Ont. S.C.J., Harvison Young J., File No. 04-CV- 268061CM2) Order No. 008/211/047 (6 pp.). Corporations SHARES Valuator acted as valuator, not as arbitrator Application for order declar- ing valuation of shares null and void and for order setting aside award by valuator. Plaintiff was shareholder of defendant com- pany. Plaintiff was bought out by other shareholders under share purchase agreement. Valu- ator was appointed and valued shares. Valuator was not acting as arbi- trator. not breach obligations said to be owed by arbitrator. Application dismissed. Therefore, valuator did It was clear valuator was acting as valuator. Cummings v. Solutia SDO Ltd. (Aug. 19, 2008, Ont. S.C.J. (Comm. List), Newbould J., File No. 06-CL-6438) Order No. 008/240/044 (19 pp.). Mortgages FORMALITIES Foreclosure granted on summary judgment motion Ex-wife sought foreclosure by summary judgment application on mortgage registered, pursuant to a divorce judgment, against deceased ex-husband's home. Deceased ex-husband's lawyer prepared mortgage, witnessed the deceased ex-husband and his spouse sign the mortgage, and gave title opinion to ex-wife. Deceased ex-husband's widow alleged triable issue as to en- forceability of mortgage because she did not get independent legal advice. Foreclosure granted on summary judgment. Widow not required to have independent legal advice. Fact ex-husband's lawyer gave title opinion to ex- wife was not enough to render that lawyer an agent for ex-wife. Hedmann v Hedmann (July 22, 2008, Ont. S.C.J., Wood J., File No. 338/04) Order No. 008/211/040 (7 pp.). Family Law CUSTODY Child's difficulties would increase if custody order not varied Application by father to vary joint custody order. Father sought sole custody of child. Re- www.lawtimesnews.com Plaintiff unrepresented lationship between parties one of high conflict. Father steadily employed and in new relation- ship with woman fully involved in child's care. Mother in new marriage with high conflict. Mother failed to co-operate with Children's Aid Services. Social worker recommended sole cus- tody to father. Child in counsel- ling to deal with family conflict. Application allowed. Mother gave no plausible reason why she could suddenly provide stable home. Evidence overwhelming child's difficulties would increase if custody order not varied. Re- duction of conflict in best in- terests of child; sole custody to father accomplished that goal. Mother granted access on alter- nate weekends and holidays and ordered to pay guideline amount of child support. Vanderstelt v. Vanderstelt (June 26, 2008, Ont. S.C.J. (Fam. Ct.), Arrell J., File No. D10602/02) Order No. 008/184/057 (6 pp.). Insurance LIABILITY INSURANCE Policy did not cover insured's indem- nity for legal fees Action by insured for reimburse- ment of legal fees by insurer. Plaintiff mid-wife had group insurance for period of one year. Two years after lapse of policy, plaintiff received complaint al- leging misconduct that had transpired during policy period, but not in relation to birth of complainant's child. Plaintiff incurred legal fees in defending complaint. Insurer refused to re- imburse plaintiff on basis that no notice of any occurrence was giv- PAGE 15 en to them before policy lapsed. Action dismissed. Policy did not cover insured's indemnity for legal fees. Allegation against plaintiff was liability inducing event, not occurrence that gave rise to complaint. No expense to insured arose unless or until complaint of professional mis- conduct was made. Assn. of Ontario Midwives v. Temple Insurance Co. (Aug. 25, 2008, Ont. S.C.J., Aston J., File No. 07-CV-334108PD3) Order No. 008/240/037 (5 pp.). Wills And Estates ESTATE ADMINISTRA- TION Trustee had not failed to properly administer estate Case Image filler 12/20/06 11:23 AM Page 1 Application for order to pass ac- counts and for order appointing plaintiff as estate trustee. Defen- dant sister had power of attorney for period of four years prior to testator's death and made all of testator's financial decisions. Defendant was appointed estate trustee in testator's will. Applica- tion granted with respect to pass- ing of accounts, and application dismissed with respect to ap- pointment of estate trustee. De- fendant was ordered to produce financial records in her posses- sion for period in question. De- fendant was required to account given her extensive involvement in testator's finances. Evidence did not establish that defendant failed to properly administer es- tate. McAllister Estate v. Hudgin (Aug. 27, 2008, Ont. S.C.J., Pattillo J., File No. 05-70/07) Order No. 008/241/063 (8 pp.). 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