The premier weekly newspaper for the legal profession in Ontario
Issue link: https://digital.lawtimesnews.com/i/50765
PAGE 18 COSTS Plaintiffs' counsel jointly and severally liable on personal basis for one half of party-and-party costs Plaintiff's claim was struck with- out leave to amend. Action was dismissed. Action was found to be abuse of process. Claims against defendants, two judges and master were barred by prin- ciple of judicial immunity. Par- ty-and-party costs were fixed on full indemnity basis at $103,480. Plaintiffs' counsel was to show cause why plaintiffs' counsel should not be personally liable for all or part of costs of action. Motion by plaintiffs' counsel for judge to recuse himself was dis- missed. Plaintiffs' counsel made allegation of corruption, case fixing and criminality against judiciary in own capacity. Pro- ceeding was baseless and scurri- lous attack on judges. Plaintiffs' counsel was to be jointly and severally liable on personal basis for one half of party-and-party costs ordered payable forthwith. Baryluk v. Campbell (July 3, 2009, Ont. S.C.J., Hackland R.S.J., File No. 07-CV-039852) Order No. 009/187/099 (8 pp.). DISCOVERY Applicant responsible to pay reasonable travel and accommodation costs incurred by third parties Order for non-party disclosure and questioning was made on consent in family law matter. Issues for determination re- lated to mechanism and cost of disclosure. Non-party would make productions ordered if its costs were covered and original documents did not leave its pos- session. Non-party's claim for $10,000 on account of costs incurred to date was denied. No breakdown of costs was provided to court. Sealing order was made with third party's consent and did not contain any provision for costs. Non-parties sought for court to require advance payment towards costs. Photo- copying charges were to be paid before copies were released. Non- parties had sufficient recourse against respondent for costs that security for costs was not necessary for their protection. Applicant was responsible to pay for reasonable travel and ac- commodation costs incurred by third parties to attend question- ing, for reporting services and to provide transcript. Respondent was responsible for reasonable costs incurred by non-parties to locate and review documents for compliance with order. Matthys v. Foody (June 30, 2009, Ont. S.C.J., Mackinnon J., File No. 07-FL-261) Order No. 009/187/054 (11 pp.). LANGUAGE OF PROCEEDINGS Where first document in action written in French, party deemed to have exercised right to require conduct of bilingual proceeding before bilingual judge or officer Defamation action commenced via statement of claim written in French. Motions initially pro- ceeded before bilingual Master, at plaintiff's express request. Apparent court administration errors meant a series of case conferences were conducted be- fore unilingual-English Master, including motion in plaintiff's absence in which action discon- tinued where costs of $10,000 ordered against plaintiff. Plain- tiff's appeal of costs award al- lowed. Section 3(1) of Bilingual Proceedings, O. Reg. 53/01 un- der Courts of Justice Act (Ont.), is mandatory and requires, where first document in action written in French as here, party deemed to have exercised right to require conduct of bilingual proceeding before bilingual judge or officer under s. 126 of Act. Plaintiff's subsequent filing of materials in English irrelevant. Issue of costs referred for redetermination by bilingual Master. Plaintiff en- titled to make submissions. Bajikijaie v. Mbuyi (June 8, 2009, Ont. S.C.J. (Div. Ct.), Wilson J., File No. 525/08) Or- der No. 009/166/138 (7 pp.). PARTIES Christian-focused groups refused leave to intervene Motion by three Christian-fo- cused groups to appear as inter- veners. Applicants sought order declaring Criminal Code (Can.), prohibitions against keeping a common bawdy house, living off avails of prostitution and communicating for purposes of prostitution violated ss. 2(b) and 7 of Canadian Charter of Rights and Freedoms. Moving parties argued they had common goal of protecting human dignity, which laws against prostitution were designed to do. Moving parties also argued they had ex- perience with Charter challeng- es. Respondent did not oppose intervention by moving parties, agreeing that they could pro- vide different perspective. Ap- plicants argued moving parties could make no useful contribu- tion because legal moralism was not relevant. Motion dismissed. Moving parties did not have sufficient understanding of role of interveners. Moving parties appeared to be seeking political platform to advance their be- liefs, were not experts and would likely disrupt the proceedings. Bedford v. Canada (Attorney General) (July 2, 2009, Ont. S.C.J., Matlow J., File No. 07-CV-329807PD1) Order No. 009/187/098 (8 pp.). Conflict Of Laws JURISDICTION There was real and substantial connection between subject matter of claims and Ontario Plaintiffs all worked for British Columbia company for all rele- vant periods that had head office in Toronto. Employment agree- ments provided laws of Ontario and Canada governed. Plaintiffs brought actions for payment of amounts due under agreements, breach of contract, wrongful dismissal and misrepresentation. Plaintiffs served claims with- out notice. Defendants brought motion to set aside service of statement of claim. Defendants sought permanent stay of ac- tions arguing there was no real and substantial connection be- tween Ontario and subject mat- ter of claims. Motion was dis- missed. Ontario had jurisdiction over actions because there was real and substantial connection between subject matter of claims and Ontario. Even if service without leave could not be ef- fected under rule 17.02 of Rules of Civil Procedure (Ont.), ser- CaSElaW vice would have been validated pursuant to rule 17.06(3). Mov- ing parties had significant ties to Ontario. Moving parties had reasonable expectation of litiga- tion in Ontario. Majority of fac- tors supported jurisdiction even there was no evidence plaintiffs' damages occurred in Ontario. Carrera v. Coalcorp Mining Inc. (July 3, 2009, Ont. S.C.J., Mas- ter Glustein, File No. CV-09- 374657; CV-09-374743; CV- 09-375011; CV-09-374838; CV-09-374969) Order No. 009/187/078 (26 pp.). Courts ABUSE OF PROCESS Motions by vexatious litigant were attempt to re-litigate Applicant was declared to be vexatious litigant. Applicant brought motion for leave to pro- ceed against respondents named in matter in which applicant was found to be vexatious litigant. Applicant brought motion to set aside numerous judgments against applicant on ground of fraud. Both motions were dis- missed. Both motions lacked merit. Proposed proceeding re- hashed issues previously raised and properly decided against applicant. Applicant's materials and submissions did not show any evidence of fraud under- lying findings. Motions were attempt to re-litigate. Before commencing any further pro- ceedings, applicant was to pay all outstanding costs order in all legal proceedings and post- security for costs in proposed proceeding. Proposed proceed- ing was to be by written applica- tion and was not to be attempt to re-litigate. Rachiele v. Rachiele (July 3, 2009, Ont. S.C.J., Baltman J., File No. CV-09-2297-00) Or- der No. 009/187/031 (8 pp.). Damages PERSONAL INJURIES Trial judge did not err in putting future housekeeping costs to jury Jury awarded plaintiff respon- dent damages that included award for "past housekeeping inefficiency" and for past and future "lost housekeeping capac- ity". As result of motor vehicle accident plaintiff suffered from chronic pain, fibromyalgia, de- pression and anxiety. Prior to accident she did all housekeep- ing for her family. After accident she testified she could undertake most housekeeping responsibili- ties "with pain" or decreased effi- ciency. For balance she relied on husband, mother and two sisters. Experts disagreed about plain- tiff's prognosis and treatment. Plaintiff's expert economist provided jury with calculations valuing plaintiff's housekeeping losses assuming plaintiff suffered different degrees of impairment. Defendants took issue with that evidence, arguing that any award should be restricted to non-pecuniary damages. Trial judge instructed jury that past housekeeping inefficiency dam- ages were in nature of general damages and any award should be modest. Trial judge explained that plaintiff claimed actual amount for past lost housekeep- ing but defendants took posi- tion past housekeeping losses should simply be component www.lawtimesnews.com of general damages. Trial judge told jury that plaintiff should not be compensated twice and any sum awarded for past house- keeping inefficiency would have to be deducted from any award for past lost housekeeping. De- fendants' appealed. They argued that award for housekeeping in- efficiency should have been in- cluded as part of non-pecuniary damages rather than treated as separate head of damages. They challenged jury award for past lost housekeeping on grounds that any loss was non-pecuniary and plaintiff suffered no com- pensable loss since family mem- bers undertook necessary house- keeping without compensation. Defendants also challenged jury's award for future lost housekeep- ing. They claimed this award not available in absence of evidence that plaintiff would, in fact, re- tain housekeepers. Appeal dis- missed. Trial judge's instructions misled jury by unnecessarily sub- dividing non-pecuniary damages into two categories. It is gener- ally inappropriate to create sepa- rate heading for one particular component (inefficiency dam- ages) of global award for non- pecuniary damages. Instructions also misled jury by injecting un- due complexity and confusion by requiring jury to deduct non- pecuniary award from pecuniary award. Although pecuniary and non-pecuniary losses often in- terdependent, each are assessed separately without any arith- metical deduction. It did not constitute error for trial judge to put future housekeeping costs to jury in absence of evidence that plaintiff had firm inten- tion to employ homemaker. It is for plaintiff to decide whether to employ homemaker or to struggle with housekeeping and spend damage award on luxuries that would otherwise be unavail- able. Plaintiff sought compensa- tion for gratuitous work done by family members but failed to plead or lead sufficient evidence to support such claim. Plaintiff also presented economic evi- dence as to average number of hours of productive household activities someone in plaintiff's situation would perform but failed to link statistical evidence to evidence regarding her degree of incapacity in way that would have allowed jury to quantify hours of work performed on behalf by family members. Issue could be taken fairly with cat- egorization of certain aspects of individual housekeeping awards but viewed globally total pecu- niary and non-pecuniary house- keeping award supported by evi- dence. Evidence included extent of plaintiff's pain and suffering in performing housekeeping tasks, evidence relating to high house- keeping standards and impact of injuries on those standards, evidence regarding loss of ability to do tasks previously enjoyed, and evidence about impact of pain on relationships with oth- ers. Jury's award of damages not set aside. McIntyre v. Docherty (May 29, 2009, Ont. C.A., Lang, Rouleau and Watt JJ.A., File No. C47258) Order No. 009/152/014 (34 pp.). Employment WRONGFUL DISMISSAL September 14, 2009 • Law timeS Termination of employee after single incident was without just cause Action for damages for wrong- ful dismissal. Plaintiff, aged 57, with high school education, had been employed by defendant as warehouse manager for 9.5 years. Plaintiff was terminated after incident in which he and some other employees were found to have consumed alco- hol during course of conducting annual inventory at store. Af- ter plaintiff had consumed two beers operations manager, I., di- rected plaintiff to move pallet of plywood with forklift in order to recount some material. Plaintiff responded that he was impaired and was not going to handle machinery. I. subsequently gave plaintiff written warning which escalated into loud argument in which I. alleged that plaintiff was insubordinate. Next day I. asked plaintiff to acknowledge safety concerns about drinking and operating machinery and when he failed to acknowledge there was concern, he was verbally in- formed that he was being termi- nated. None of other employees who had been drinking during inventory taking were fired. In prior years after inventory had been counted defendant had al- lowed employees to drink prior to leaving work and beer was supplied by employer. Until inci- dent plaintiff had never been ad- vised that his work performance did not meet required standards and he had received favourable performance reviews. Judgment for plaintiff. Defendant had not met onus of establishing just cause for dismissal. Plain- tiff had performed duties well for 9.5 years until this incident. Alcohol had been consumed in workplace prior to this incident. Plaintiff was not only one who consumed alcohol but was only one fired. While safety concerns should not be diminished, ac- tion of employer by terminating plaintiff's employment after this one incident without provid- ing plaintiff with opportunity to correct his conduct was not sufficient to establish just cause. This was particularly relevant when it was employer that sup- plied alcohol and made it readily available during working hours. Defendant's concerns about safety issues in this instance did not satisfy defendant's onus for proving just cause. Ritchie v. 830234 Ontario Inc. (June 12, 2009, Ont. S.C.J., Warkentin J., File No. CV-07- 213) Order No. 009/187/029 (14 pp.). Evidence OPINION EVIDENCE Applicant entitled to file and rely on expert report Application for order permitting and validating service of expert report. Cross-application to dis- miss action or place conditions on admittance of expert report and require greater disclosure. Applicant's counsel obtained four expert reports but mistak- enly failed to include one when making disclosure. Applicant ar- gued her failure to comply was inadvertent and her counsel took full responsibility for the error. Respondent argued that previous order had to be follow scrupu- lously and applicant had missed deadline to show cause. Applica-