Law Times

Law Times • November 16, 2009 ONTARIO CIVIL CASES Conflict Of Laws FOREIGN JUDGMENTS Icelandic proceedings met test of foreign proceedings Application by insolvent Ice- land-incorporated commercial bank that court recognize its Icelandic insolvency proceed- ings in Canada in order for it to conduct internationally co-ordinated plan of reorga- nization. Application granted. Recognition and stay sought was appropriate. Icelandic pro- ceedings met test of foreign proceedings under Companies' Creditors Arrangements Act (Can.), and Bankruptcy and Insolvency Act (Can.). Since assets of applicant in Canada were not dealt with under Ice- landic regime, applicant may have been prevented from fa- cilitating internationally co-or- dinated plan of reorganization and some of its assets would be exposed to creditors not bound by that regime. Straumur-Burdaras Investment Bank hf. (Re) (Aug. 11, 2009, Ont. S.C.J. (Comm. List), Campbell J., File No. CV- 09-8275-00CL) Order No. 009/260/059 (5 pp.). Constitutional Law CHARTER OF RIGHTS Funding of public schools coupled with non-funding of private religious schools immune from Charter attack Applicants attended private faith based schools but did not receive special education benefits that were provided to children in public and sepa- rate schools and they sought declaration their rights under Canadian Charter of Rights and Freedoms were violated. Applicant J.A. was diagnosed with developmental delayed language disorder. Applicant B.M. received speech therapy that did not include assistance for language delay problems. Those applicants claimed they were entitled to full speech language therapy. Application dismissed. Decision in Adler v. Ontario (1996), 140 D.L.R. (4th) 385, 66 A.C.W.S. (3d) 1057 (S.C.C.), gave constitu- tional immunity to province's decisions about public school funding. Funding of public schools coupled with non- funding of private religious schools was immune from Charter attack. With respect to speech language therapy, province was not required to structure provision of speech language therapy to school age children so as to maximize services available to students at private schools. Claims of J.A. and B.M. were not part of original application and appeal process had not been pursued. Cooper v. Ontario (Attorney Gen- eral) (Aug. 28, 2009, Ont. S.C.J. (Div. Ct.), Jennings, Pardu and Wilson JJ., File No. 26/08) Or- der No. 009/245/005 (18 pp.). Damages LIBEL AND SLANDER Circumstances of case did not support imposition of injunction Plaintiff brought action in defamation. Plaintiff claimed interim interlocutory and per- manent injunction restraining defendants from further writ- ing, publishing or commu- nicating alleged defamatory statements. Defendants were noted in default. Evidence in plaintiff's affidavit established plaintiff's entitlement to gen- eral damages and to aggravated damages. Defendants were jointly responsible. Defendants ceased efforts toward publish- ing letters defamatory of plain- tiff since defendants were served with plaintiff's notice. Circum- stances of case did not support imposition of injunction on defendants' right of expression. General damages were assessed at $20,000 and $5,000 was awarded for aggravated dam- ages. Dhillon v. Kyriakou (Sep. 30, 2009, Ont. S.C.J., Moore J., File No. 08-CV-369066) Or- der No. 009/281/036 (6 pp.). Family Law CUSTODY Not in interests of justice to grant husband extension of time to apply for leave appeal Order dismissed husband's mo- tion to set aside final order made on consent of parties granting wife custody of child and ac- cess to husband. Wife sought order dismissing husband's appeal. Husband's motion to strike wife's motion was dis- missed. Wife's motion to strike husband's appeal was allowed. Husband's route of appeal was properly to Divisional Court. Husband required leave to make appeal and was required to apply for leave to Superior Court. Husband did not apply for leave, but only for extension of time. Judge of Divisional Court could not grant leave to appeal to Divisional Court. It was not in interests of justice to grant husband extension of time to apply for leave appeal. It would be unfair to wife. There was no genuine basis on which appeal could reasonably suc- ceed. No material was advanced to conclude terms of custody and access in settlement were not in child's best interests. Zinyama-Mubili v. Mubili (Oct. 7, 2009, Ont. S.C.J. (Div. Ct.), Price J., File No. DC-09- 0040-00; 5514-08) Order No. 009/281/027 (28 pp.). Limitations INSURANCE Limitation period ran from date of discovery Defendant sought order dis- missing plaintiff's claim due to expiry of limitation period. De- fendant brought motion for de- termination of issue before trial on question of law. Defendant brought motion 26 months af- ter filing statement of defence. Motion was dismissed. Delay in bringing motion could not bar CASELAW hearing of motion. Determina- tion of issue of whether limita- tion period expired had poten- tial of disposing of entire action. Limitation period had not ex- pired. Limitation period did not necessarily run from date on which actions were deemed to have taken place. Presump- tion of s. 5(2) of Limitations Act, 2002 (Ont.), did not ap- ply as date of discovery was proved by admission of parties in pleadings. Limitation period ran from date of discovery. Lloyd's Underwriters, represent- ing Syndicate Number 963 (Crowe) v. Acuret Underwrit- er Inc. (Sep. 15, 2009, Ont. S.C.J., MacLeod-Beliveau J., File No. 560/06) Order No. 009/273/025 (10 pp.). Professions BARRISTERS AND SOLICITORS Defendant was negligent in failing to register mortgage on three parcels of land Defendants acted for plaintiff in commercial loan transaction. Application to rectify mortgage was dismissed. Ruling was made that mortgage was to be reg- istered against one parcel and not three. Defendants failed to obtain proper security for loan. Borrowers defaulted. Plaintiff claimed it suffered losses for which defendants were respon- sible. Defendants disputed loss occurred. Defendants were li- able for damages sustained by plaintiff. Defences of res ju- dicata and issue estoppel were not available to defendants. Is- sue that was previously before court was not same as issue currently before court. Previous action disposed of rectification issue only and not issue of de- fendants' negligence. Parties to proceeding were not same. De- fendant was negligent in failing to register mortgage on all three parcels of land. Damages award was calculated beginning with outstanding balance of loan plus expenses incurred by plaintiff in effort to recover loan. Deducted from amount were insurance proceeds and property sale pro- ceeds. Royal Bank of Canada v. Slopen (Oct. 6, 2009, Ont. S.C.J., Kelly J., File No. 04-CV-269934CM) Order No. 009/281/022 (20 pp.). Public Health GENERAL Premises fell within definition of "enclosed public place" Appellant purported to oper- ate sports bar as private club for people who paid monthly membership fee to avoid pro- visions of Smoke-Free Ontario Act. Appellant was convicted of five offences under Act related to use of premises for smok- ing by patrons. Appeal was dismissed. Premises fell within definition of "enclosed public place". Definition of "enclosed public place" was not general, vague, ambiguous or uncertain in scope and application. Kennedy v. Leeds, Grenville and Lanark District Health Unit (Sep. 28, 2009, Ont. C.A., www.lawtimesnews.com Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 6/10/09 10:43:52 AM Doherty, Armstrong and Jurian- sz JJ.A., File No. C49015) Or- der No. 009/272/008 (19 pp.). ONTARIO CRIMINAL CASES Appeal GROUNDS Trial judge did not subject accused's evidence to higher standard of scrutiny than that of complainant Appeal by the accused from his conviction for sexual interfer- ence. Complainant was the 11- year old daughter of his former common law spouse. Appeal dismissed. Trial judge did not subject the accused's evidence to a higher standard of scrutiny than she applied to the evidence of the complainant. Judge did not indulge in speculation. She properly instructed herself on the applicable law, thoroughly considered inconsistencies and unlikely aspects of the com- plainant's evidence and drew reasoned conclusions in relation to the weight to be attached to them in assessing the reliability and credibility of the complain- ant's evidence. Judge did not misapprehend the accused's evi- dence. There was no error in the manner that she assessed credi- bility. Judge seized the substance of the issue and recognized and dealt with the contradictions. R. v. O. (O.G.) (Sep. 15, 2009, Ont. S.C.J., Clark J., File No. SCA208/07) Appeal from 75 PAGE 15 W.C.B. (2d) 403 dismissed. Order No. 009/278/010 (8 pp.). Charter Of Rights ENFORCEMENT OF RIGHTS Appellants should have been granted intervener status Appeal from a decision that de- nied the appellants leave to in- tervene as a friend of the court in an application brought by the respondents. Respondents sought a declaration that certain sections of the Criminal Code, that criminalized activities re- lated to prostitution, violated the Canadian Charter of Rights and Freedoms. Appeal allowed. Appellants had a real, substan- tial and identifiable interest in the subject matter of the ap- plication and an important perspective different from the parties. Motion judge, however, erroneously concluded that the appellants would not be able to make a useful contribution to the resolution of any of the outstanding issues. Basis for the decision was flawed and it could not stand. Given the is- sues at stake and the appellants' proposed position, they were granted intervener status as they could make a useful contribu- tion to the application without causing injustice to the imme- diate parties. Bedford v. Canada (Attorney General) (Sep. 22, 2009, Ont. C.A., Goudge, Cronk and Ep- stein JJ.A., File No. C50823) Appeal from 178 A.C.W.S. (3d) 569 allowed. Order No. 009/266/055 (5 pp.). LT Find the best in… eREPORTS included for no extra charge CANADA LAW BOOK's law reports and case summaries are no longer available on Quicklaw LexisNexis. Find them, instead, in BestCase, a web-based research service containing Canada's leading law reports and renowned case summary services as well as a comprehensive collection of unreported decisions dating back to 1977, and a case citator feature. 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