Law Times

Law Times • November 17, 2008 possibility BDO could confirm bankrupt's financial ability to pay debt. Abraham (Re) (July 31, 2008, Ont. S.C.J., Kane J., File No. B1017/2008) Order No. 008/249/050 (3 pp.). Building Liens TRUST Director liable under Construction Lien Act (Ont.) for breach of trust by corporation Plaintiff sought payment from defendant and defendant's com- pany for money owing under agreement for building materials and supplies. Defendant claimed payments not properly account- ed for or that some payments received directly from principal contractor on jobs not credited to defendant. Absent credible evidence from defendant court satisfied moneys due and ow- ing. No cause of action against defendant's company which was dissolved. Plaintiff claimed against defendant in personal capacity as director. Pursuant to Construction Lien Act (Ont.), director liable if consenting to conduct he knows or ought to know amounts to breach of trust by corporation. Plaintiff satis- fied onus of showing existence of trust. Defendant received mon- eys on account of contract for project for which plaintiff sup- plied materials and was not paid. Defendant did not discharge onus of justifying expenditure of funds received by company in exchange for services and materi- als delivered to jobs. Defendant liable for breach of trust and per- sonally liable for amounts owing by company. Defendant deemed to know trust was imposed upon moneys received by company from project owners for as long as there were unpaid trades and suppliers. Dufferin Concrete v. 760660 Ontario Inc. (Sep. 16, 2008, Ont. S.C.J., Daley J., File No. CV-05-005477-00) Order No. 008/262/043 (14 pp.). Civil Procedure CLASS ACTIONS Action arising from alleged breach of Insurance Companies Act (Can.) was properly certified Lifeco and Great-West Life acquired London Insurance. Participating accounts of Lon- don Life and Great-West Life contributed portion of acquisi- tion funding. Respondents were policyholders of participating policies. Respondents allege transactions were contrary to sections of Insurance Compa- nies Act (Can.). Two actions were certified as class proceed- ings. Motions judge determined there were four common issues and that class proceeding was preferable procedure. Appeal was dismissed. Motions judge reasonably determined aggregate damages provision of Act made sense for case and class proceed- ing was preferable procedure for class members. Motions judge did not err in law. Motions judge considered all relevant factors and applied correct legal principles. Jeffrey v. London Life Insurance Co. (Sep. 3, 2008, Ont. Div. Ct., Carnwath, Aston and Swin- ton JJ., File No. 330/08) Order No. 008/253/057 (11 pp.). CONSOLIDATION Defamation actions brought by police officers were ordered consolidated Motion by plaintiff police of- ficers to consolidate defamation lawsuits and to strike out por- tions of defendant's pleading, and motion by defendants by counterclaim for order striking out counterclaim. Following protest, defendant published postings about police officers on his web site. Police officers commenced action in defama- tion. Defendant protestors com- menced action in defamation against President of Ontario Provincial Police Association claiming that police defamed them during press conference. Motions granted. Actions were ordered consolidated, and por- tions of defendant's pleading were struck. Counterclaim dis- closed no cause of action. There were likely to be many questions of fact to be determined regard- ing historical context. There were no facts pleaded to support cause of action for maintenance, abuse of process, or defamation. Lorch v. McHale (July 14, 2008, Ont. S.C.J., Lederman J., File No. 07-CV-329431PD2) Order No. 008/199/089 (10 pp.). DISCOVERY Plaintiff ordered to include transcript of discovery in affidavit of documents Defendant insured plaintiff. Plaintiff claimed statutory ac- cident benefits from defendant. Parties agreed trial was to be heard at same time as another file. Parties agreed plaintiff would attend medical examina- tion with specified doctor. Plain- tiff was ordered to provide direc- tion for Synergy Rehabilitation and Chiropractor for clinical notes and records. Production of transcript of tort action was not prohibited by Simplified Rules. Transcript was relevant. Plaintiff was ordered to include transcript of discovery of plaintiff from tort action in affidavit of docu- ments and transcript was to be produced to defendant at defen- dant's cost. Use of transcript at trial was limited to impeaching testimony of plaintiff in accor- dance with exception to deemed undertaking rule. Lacroce v. Wawanesa Mutual In- surance Co. (Sep. 2, 2008, Ont. S.C.J., Gilmore J., File No. CV-07-084251-SR) Order No. 008/249/030 (3 pp.). PLEADINGS Some of proposed amendments were allowed Motion by plaintiff for proposed amendment to statement of claim. Plaintiff was charged with sexual assault, and charge was withdrawn after complainant failed to attend. Plaintiff commenced action for damages for negligence, mali- cious prosecution, defamation, and breach of his rights under Canadian Charter of Rights and Freedoms. Motion granted in part. Leave was granted to plain- tiff to deliver fresh as amended statement of claim containing proposed amendments relating to alibi, and leave was denied with respect to balance of pro- posed amendments. Some pro- posed amendments offended rule 25.11 of Rules of Civil Procedure (Ont.). Allegations in proposed amendments constituted very CASELAW grave attacks on integrity of OPP and province and were not sup- ported on facts. Some proposed amendments were barred by Limitations Act, 2002 (Ont.). Jourdain v. Ontario (July 11, 2008, Ont. S.C.J., Shaw J., File No. CV-05-0247) Order No. 008/199/090 (30 pp.). Conflict Of Laws CHOICE OF LAW Massachusetts was obvious forum conveniens for family law proceedings Motion by father for judgment with respect to custody in accor- dance with arbitrated parenting plan, and order severing divorce from corollary issues, and cross- motion by mother to stay case. Parties were citizens of United States. Parties married in Instabul, had two children, and separated while in Canada. Court proceed- ings concerning all issues were currently before Massachusetts court. Motion dismissed, and cross-motion granted. Case was stayed. Massachusetts was obvious forum conveniens. To not grant stay would result in multiplicity of proceedings and greater expense to parties. This was not appropriate case for severance of divorce from corollary issues. Requirement that reasonable arrangements be made for support of children was not satisfied. Parenting agreement was not meant to be final. Struck v. Struck (July 15, 2008, Ont. S.C.J., Czutrin J., File No. 07-FD-325863FIS) Order No. 008/199/087 (13 pp.). FORMATION Plaintiff and defendant entered into contract for engineering services Action for amount of services rendered pursuant to contract. Principal for defendant tele- phoned principal for plaintiff to request services. Services were performed. No payments were made toward accounts. Action allowed and counter-claim dis- missed. Plaintiff was awarded damages in amount of $12,000. Plaintiff and defendant entered into contract for engineering ser- vices with offer by plaintiff and acceptance by defendant, and with terms regarding payment. Venneri Ltd. v. Pede (June 19, 2008, Ont. S.C.J., Allen J., File No. 06-CV-319533SR) Order No. 008/177/150 (5 pp.). Courts ABUSE OF PROCESS Action was abuse of process Appeal from decision dismiss- ing defendant's cross-motion seeking to have plaintiff's action dismissed as disclosing no rea- sonable cause of action. Appeal allowed. Plaintiff 's action was dismissed. Plaintiff 's action was abuse of process and disclosed no reasonable cause of action. Plaintiff 's claims were identical to those decided in earlier pro- ceedings. Judge erred in failing to apply correct test in determining whether plaintiff's claim consti- tuted novel tort. Paquette v. Children's Aid Society for County of Lanark and Smith Falls (July 15, 2008, Ont. Div. Ct., Cunningham A.C.J.S.C., Cusinato and Valin JJ., File No. 07-DV-1293) Order No. 008/199/080 (4 pp.). www.lawtimesnews.com Employment WRONGFUL DISMISSAL Plaintiff was not independent contractor Plaintiff worked for defendant for five and half years. Plaintiff sought damages for wrongful dis- missal and bad faith. Defendant argued plaintiff was not employee, but was independent contractor. Plaintiff worked on price per job basis and worked without direct supervision. Plaintiff had con- siderable freedom in position. Plaintiff's deadlines and priorities were dictated by sales leads. Area plaintiff worked was controlled by defendant because defendant gave out majority of sales leads. Sales- person could work elsewhere. De- fendant paid WSIB premiums on plaintiff's behalf. Defendant re- tained control over most of plain- tiff's remittances. Plaintiff was dependent contractor and was ter- minated without cause. Plaintiff was entitled to five months notice. Additional two months' notice was awarded. Ross v. 413554 Ontario Ltd. (June 11, 2008, Ont. S.C.J., Gilmore J., File No. 78005/05) Order No. 008/249/004 (14 pp.). Family Law COSTS Applicant entitled to portion of costs on substantial indemnity basis Trial took two weeks. Applicant was successful at trial. Appli- cant's position or behaviour in proceedings was not unreason- able. Applicant made formal of- fer that was more favourable to respondent than result at trial. Respondent made offer to set- tle. Issues at trial were not sim- PAGE 15 ple. Respondent did not make full and frank financial disclo- sure. Applicant was entitled to costs on substantial indemnity basis for period after specified date and to costs on partial in- demnity basis for period prior to date. Costs were fixed at $54,883 plus GST. Boomhour v. Huskinson (Aug. 27, 2008, Ont. S.C.J., Boswell J., File No. 1166/06) Order No. 008/249/033 (5 pp.). PROPERTY Allegation of adultery was improper consideration on application for support and equalization of property Case Image filler 12/20/06 11:23 AM Page 1 Parties were married. Wife claimed parties separated in 2005. Hus- band claimed parties separated in 1996. Husband sought spousal support and division of family property. Husband brought mo- tion for order requiring wife to re-attend examination for discov- ery and answer questions relating to respondent's adultery. Husband sought answers to establish date of separation. Order went for wife to re-attend as requested. Wife was not to manipulate pleadings so as to preclude husband from discovering information that was otherwise relevant to determina- tion that had to be made. Acts of adultery had no bearing on ques- tion of entitlement to support or equalization of property. It was improper for court to consider allegation of adultery as factor in application for support and equal- ization of property. Action was not instituted in consequence of adultery. Brazeau v. Brazeau (July 3, 2008, Ont. S.C.J., Hennessy J., File No. FA 10,981/06) Order No. 008/253/097 (7 pp.). 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