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Law Times • OcTOber 19, 2009 locutory decision was entitled to high degree of deference and should not be interfered with unless issues in dispute were clearly material to just disposition of litigation and ruling was fundamentally fl awed. Here applicants had not discharged burden to show that prothonotary's order was clearly wrong on either material before prothonotary or court. Parties could always ask pro- thonotary to reconsider scheduling order that two applications be heard concurrently on ground that appli- cants now indicated that they were taken by surprise at hearing and had relevant evidence and reasons to present to prothonotary as to why two applications should not be heard concurrently. Prothonotary had discretion to review scheduling order at any time for good and sub- stantial reasons. Janssen-Ortho Inc. v. Apotex (Sep. 1, 2009, F.C., Kelen J., File No. T-775- 09) Order No. (6 pp.). 009/252/082 ONTARIO CIVIL CASES Contempt Of Court GROUNDS Respondents in contempt for barring representatives from gaining access to property T Inc. leased portion of property to respondent company. After T Inc. ceased operation respondent company continued to do busi- ness on property. Applicant was appointed receiver of T Inc.. Re- ceivership order directed individ- uals, fi rms and corporations with notice of order to grant receiver access to T Inc.'s assets, including property. Applicant brought mo- tion for contempt against respon- dent company and manager for barring representatives from gain- ing access to property on two oc- casions. Motion allowed. Judge found all elements of contempt to have been established beyond rea- sonable doubt. Respondents had knowledge of nature of terms of receivership order. Terms of order were unambiguous. Order was directive. Respondent manager's conduct in refusing access was in contravention of order. Conduct in question was intentional. HSBC Bank Canada v. Turbo Lo- gistics Canada Inc. (Aug. 28, 2009, Ont. S.C.J. Comm. List), Stinson J., File No. CV-08-007922-00CL) Order No. 009/244/039 (12 pp.). Contracts TENDER Municipality legally entitled to waive compliance with irregularity and consider bid Application for direction that bid by respondent K Ltd. not compli- ant with municipality's tendering requirements and could not law- fully be considered for acceptance. Municipality issued thirteen adden- da prior to bid closing in process of clarifying or amending scope of project. Addenda included request that addendum be included with bid submissions and attachments which formed part of addendum be included. K Ltd. received all addenda, acknowledged receipt on bid forms and appended addenda to bid. K Ltd. failed to include attachments to addenda in bid package. Prior to tender deadline and in response ton inquiry from K Ltd., municipality's purchasing analyst responsible for tender stated that addenda could be submitted without attachments. Application dismissed. Municipality legally entitled to waive compliance with irregularity and consider bid. Ob- jective examination of Instructions to Bidders and bid form led to con- clusion that Municipality simply wished to ensure bidder acknowl- edged receipt of addenda. Terms of addenda themselves introduced uncertainty into question and led to conclusion that bidder was not only required to sign acknowledge- ment of receipt of addenda but also expected to include both addenda and attachments in bid package. Bid assumed to be not compliant but defect could not have been ma- terial to decision making process. Defect had not impact on price of contract, work to be done on con- tract, schedule for contract or any other matter that might give one bidder advantage over other. Rules contemplated waiver of insignifi - cant and immaterial defi ciencies in bid and giving eff ect to waiver did no violence to principles of fairness and consistency in bidding process. North America Construction (1993) Ltd v. York (Regional Municipality) (Sep. 3, 2009, Ont. S.C.J., Strathy J., File No. CV-09-095580-00) Or- der No. 009/251/065 (19 pp.). Corporations RECEIVERS Motion to cancel stay was allowed Moving party sought to allow in- terim receiver to sell assets of NCI to moving party. Respondent ap- pealed receivership and sale orders. Respondent challenged interim re- ceiver's right to proceed with sale. Motion to cancel stay was allowed. Cross-motion was dismissed. It was highly unlikely respondent had requisite standing to appeal. Re- spondent was not creditor or con- tingent creditor. Respondent had license agreement with NCI that if breached would give respondent potential cause of action against NCI. Potential cause of action did not warrant respondent being add- ed as party to motion to approve sale of NCI's assets. Respondent would not suff er irreparable harm if stay remained in force for following eight days. BDC Venture Capital Inc. v. Natural Convergence Inc. (Sep.2, 2009, Ont. C.A., Lang J.A. in Chambers, File No. M37941/M37942 (C50876)) Order No. 009/246/024 (11 pp.). Insurance AUTOMOBILE INSURANCE "Completed application" meant application in OCF-1 form Appeal from arbitration award wherein respondent successfully disputed priority of payments set out in s. 268 of Insurance Act (Ont.), pursuant to mechanism provided by Disputes Between In- surers, O. Reg. 283/95. Time-limit under s. 3 of Regulation for initi- ating priority dispute triggered by date of receipt of completed appli- cation for no-fault benefi ts from in- jured party. Arbitrator determined completed application had been received on date on which OCF-1 form had been received. Injured party's father had policy issued by respondent and would be entitled to no-fault benefi ts under that policy provided she was principally dependent on father at time of acci- dent. Respondent met with injured party, obtained full statement and sent accident benefi ts package to her all within week of accident. Re- spondent processed minor claims for hospital related expenses of less than $200 before application for benefi ts submitted. After making CASELAW further investigations, respondent concluded injured party not princi- pally dependent on father at time of accident and that appellant insurer of vehicle that struck injured party should be responsible for benefi ts. Appeal dismissed. Plain meaning of words "receipt of completed ap- plication" in s. 3(1) of Regulation is an application that had been com- pleted, i.e. a written application in OCF-1 form that had been fi led by claimant and received by insurer. Ironic and unfortunate if interpre- tation of "completed application" under s. 2 of Regulation as "could be something less than a full written application on OCF-1 form" which was intended to encourage good claims handling were held to apply to s. 3 of Regulation so as to penal- ize good claims handling. Insurer that made prompt and thorough investigation of claim or who paid some interim and incontestable ex- penses could fi nd limitation period triggered even though it had not received OCF-1 form and would be in invidious position of not knowing whether limitation pe- riod had begun to run. Certainty regarding commencement of limi- tation period achieved by saying that "completed application" in s. 3 of Regulation means application in OCF-1 form. ING Insurance Co. of Canada v. State Farm Insurance Co. (Sep. 4, 2009, Ont. S.C.J., Strathy J., File No. CV-09-378526) Order No. 009/251/068 (12 pp.). Real Property LIENS Motion to lift writs should have been made to Court of Appeal Motion by defendant for order lift- ing writs of execution and for or- der requiring sheriff to withdraw writs. Plaintiff contractor was granted summary judgment for money owned by defendant. Mo- tions judge, however, concluded that genuine issue for trial existed with respect to defendant's coun- terclaim for defi cient work. Plain- tiff fi led writs of execution against defendant's properties. On appeal by defendants, summary judgment was set aside in order that alleged defi ciencies be addressed. Plaintiff fi led notice of motion for leave to appeal decision to Court of Appeal. Defendant's motion dismissed. De- fendant's motion should have been made to Court of Appeal. Court to which appeal had been taken was in best position to decide whether writ should be lifted pursuant to rule 63.02(1) of Rules of Civil Pro- cedure (Ont.). D.J. Venasse Construction Ltd. v. MVD Properties Inc. (Sep. 1, 2009, Ont. S.C.J., Gauthier J., File No. 4213/07) Order No. 009/251/057 (8 pp.). ONTARIO CRIMINAL CASES Charter Of Rights TRIAL WITHIN REASONABLE TIME Judge erred in finding counsel's conduct in seeking adjournment disingenuous Accused appealed convictions for "over 80" and failing to stop. On morning of trial, Crown disclosed police notes to defence showing that roadside device had been prop- erly calibrated. Defence requested adjournment, which Crown op- posed. Application judge found www.lawtimesnews.com 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. LT0208 that defence implicitly waived 10 months of delay occasioned by adjournment. Accused argued ap- plication judge erred in fi nding that his s. 11(b) Charter rights had not been violated. Appeal dismissed. Application judge found that delay was unnecessary and disingenuous. Neither accused nor his counsel had warning that truthfulness of coun- sel's submissions before adjourn- ment judge would be challenged. Unfair of application judge to over- rule fi nding of adjournment judge that application was necessary with- out giving notice to counsel and al- lowing him opportunity to address concerns raised. Application judge erred in holding that defence coun- sel's conduct in seeking adjourn- ment was disingenuous. Strategy of defence in refraining from making disclosure request regarding cali- bration caused delay and therefore it should have been attributable to defence. Despite error by applica- tion judge, same result would have been reached. R. v. Moura (Sep. 2, 2009, Ont. S.C.J., Forestell J., File No. SCA 123/08) Order No. 009/251/063 (15 pp.). Jury EMPANELLING Parks question to be used Accused black man charged with attempted murder of white woman. Accused sought to chal- lenge prospective jurors for cause by asking each potential juror 12 questions directed at uncovering non-conscious racism. Accused submitted that Parks question was ineff ective because it required ju- ror to self-report if they were rac- ist, which would pose problem for incidents of non-conscious racism. Challenge for cause permitted but 12 questions not allowed. Parks question to be used. Twelve ques- PAGE 15 tions were not within bounds of legitimate inquiry into impartiality of prospective juror and could dis- tract triers from issue of impartial- ity. Despite problems with Parks question, it has positive impact in achieving objective of empanelling impartial jury. Evidence failed to establish high degree of probability that, if proposed questions were not permitted, accused's fair trial rights would be imperiled. Single question format was preferable in this case. R. v. Douse (July 8, 2009, Ont. S.C.J., Durno J., File No. 748/06) Order No. 009/190/075 (113 pp.). Sentence ASSAULT Conditional discharge for administering corporal punishment to 13-year-old child would not be in public interest Appeal by the accused from the nine-month suspended sentence imposed on him after he pleaded guilty to assault with a weapon. Accused was sentenced for admin- istering corporal punishment to his 13-year old daughter with a belt on two occasions. He was 44 years old and did not have a prior criminal record. Accused provided a series of character letters that described him as a responsible and loving and compassionate father. Daughter indicated that she loved her father and wanted him in her life. Appeal dismissed. In the circumstances of this case a conditional discharge would not be in the public inter- est. Objectives of deterrence and denunciation would not be ad- equately served by the imposition of a discharge. R. v. Lawrence (Aug. 31, 2009, Ont. S.C.J., Hill J., File No. SCA(P) 2932/08) Order No. 009/244/034 (14 pp.). 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