Law Times

Law timeS • September 21, 2009 Bankruptcy And Insolvency PROPERTY Advance made by defendant was not investment in securities Motion by defendant to set aside default judgment. In 2003 moneys had been advanced by defendant to P.M., which was administrative entity. Th ere was no direct evidence before court on purpose of advance of funds however defendant alleged that purpose was to make invest- ment in mutual funds. In 2005 moneys were repaid to defen- dant from P.M. shortly before date of its bankruptcy. Trustee asserted that defendant simply contributed capital which was repaid in fraudulent preference. Defendant's counsel sought to set aside judgment against defendant so that he could ad- vance triable issue that advance by defendant was investment in securities. Motion dismissed. Defi nition of customer under s. 253, Part XII of Bankruptcy and Insolvency Act (Can.), envis- aged someone having a security and specifi cally excluded as cus- tomer someone who advanced cash as part of capital of fi rm. At time defendant made advance and when he was repaid P.M. was administrative entity and not securities fi rm within s. 235 defi nition. Fact that following bankruptcy two fi rms, P.M. and P., were consolidated as Part XII fi rm for bankruptcy administra- tive purposes, could not confer status on defendant as customer of securities fi rm at time he made was repaid his advance. Th ere was nothing in books and records in possession of trustee to suggest defendant was inves- tor in P.M. as opposed to hav- ing provided some initial "seed" money in capital of P.M.. Th ere was no record from defendant that in any way refl ected receipt of investment in security or any note or record of what invest- ment might have been. KPMG Inc. (Trustee of) v. Greenberg (June 11, 2009, Ont. S.C.J. (Comm. List), CV-08- 7599-00CL, File No. CV- 08-7599-00CL) Order No. 009/189/088 (4 pp.). Civil Procedure CLASS ACTIONS Settlement of class action for copyright infringement was provisionally approved Joint application by parties for approval by court of settlement of action pursuant to s. 29 of Class Proceedings Act, 1992 (Ont.). In statement of claim, plaintiff alleged that defendants had infringed rights of free- lance creators, or assignees, of original literary or artistic works published in the print media in Canada by disseminating or au- thorizing dissemination of copies of the Works through electronic media such as databases, contrary to Copyright Act (Can.). Under terms of settlement, defendants would provide $11 million that would be applied for benefi t of class members. Customary re- leases were to be provided by class members and defendants were to have licenses to repro- duce, distribute and use the Works in the future. Works were those reproduced electronically between April 24, 1979 and date of settlement agreement. Class members were freelance authors or creators of Works other than those that had assigned their copyrights, or granted a license to publish, to the defendants or their predecessors in interest. Set- tlement provisionally approved pending further submissions re- lating to effi ciency and expense of claims distribution process. No weight to be attributed to considerations of possibility that agreement may have been moti- vated or infl uenced by extrane- ous consideration or to potential confl ict of interest between in- terests of class members and class counsel's desire to secure fees and likelihood that representative plaintiff will not be equipped to evaluate recommendation that settlement should be accepted. Settlement agreement negotiat- ed at arm's length by experienced class counsel after lengthy nego- tiations following mediation by experienced mediator. Plaintiff actively involved throughout extended period of litigation. Representative plaintiff clearly a driving force behind litigation. Court must give considerable weight to representative plain- tiff 's opinion that settlement in best interests of class. Robertson v. Th omson Canada Ltd. (June 24, 2009, Ont. S.C.J., Cullity J., File No. 96-CU-110595CP) Order No. 009/180/019 (9 pp.). DISCOVERY Plaintiff ordered to produce further and better affidavit of documents, including relevant documents in Facebook account Plaintiff suff ered brain injury in motor vehicle accident. Plain- tiff sued defendant for medi- cal and rehabilitation benefi ts and attendant care benefi ts. Plaintiff claimed plaintiff re- quired 24-hour attendant care because plaintiff was unable to respond appropriately in case of emergency. Defendant sought production of plaintiff 's separation agreement that pro- vided for access to child once per month. Defendant sought further and better affi davit of documents including informa- tion from plaintiff 's Facebook profi le. Defendant sought leave to examine plaintiff for second time. Plaintiff sought further and better affi davit of docu- ments from defendant includ- ing production of notes and records of adjuster assigned by defendant to plaintiff 's case. Plaintiff was ordered to produce separation agreement. Separa- tion agreement met semblance of relevance test refl ecting level of interaction plaintiff had with child. Plaintiff was ordered to produce further and better af- fi davit of documents including relevant documents contained in Facebook account. Defen- dant produced evidence there were relevant photographs of plaintiff participating in social activities posted on Facebook fi le. No order was made with re- spect to possible email account CASELAW without further and better evi- dence on existence and nature of account. Additional produc- tions received after plaintiff 's examination for discovery did not warrant order compelling plaintiff to attend further ex- amination. Evidence did not show substantial improvement or exceptional circumstances justifying leave to conduct sec- ond examination for discovery. Defendant was granted leave to cross-examine plaintiff on fur- ther and better affi davit of doc- uments about nature of content posted on Facebook account. Plaintiff was entitled to further examination for discovery on corrected answer regarding liti- gation privilege over notes. Wice v. Dominion of Canada General Insurance Co. (July 6, 2009, Ont. S.C.J., Boswell J., File No. 06-0166) Order No. 009/195/092 (12 pp.). PLEADINGS Statement of claim did not show reasonable cause of action against lawyers Motion by defendant solicitors and law fi rm for order striking out statement of statement of claim on grounds it disclosed no reasonable cause of action. Action for damages arising from arbitration and its consequenc- es. Moving parties were lawyers for opponents in arbitration and in application to enforce arbitration award and appeal. Order that claims against mov- ing parties be struck out with leave to amend and that plain- tiff appoint solicitor of record and deliver fresh as amended statement of claim prepared by solicitor of record. Statement of claim did not show reasonable cause of action because elements of claims in negligence, misrep- resentation, slander, breach of contract, intentional interfer- ence with economic relations missing and collusion with intent to bankrupt and loss of contracts and irreparable harm not recognized causes of action. Fundamental characteristic of claims was that moving parties owed plaintiff and his corpora- tions duty of care. Law does not recognize duty of care to oppos- ing litigant upon which negli- gence, negligent misrepresenta- tion or breach of fi duciary claim against opposing lawyer could be based. No claims in contract against opposing lawyer. Plain- tiff self-represented litigant who was also representing corporate plaintiff s. Plaintiff and his cor- porations required independent legal advice to inform them whether there was reasonable cause of action against moving parties. Sheppard v. McKenzie (July 17, 2009, Ont. S.C.J., Perell J., File No. CV-08-364743) Order No. 009/203/223 (10 pp.). Constitutional Law CHARTER OF RIGHTS Applicant's rights under s. 7 of Charter not in jeopardy at hearing before Ontario Racing Commission Application for judicial review of decision of Ontario Rac- ing Commission ("ORC") up- holding proposal by Director www.lawtimesnews.com 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. LT0208 Starting from $62.50 per month More value for your money! Cases that you can't find anywhere else can be found in BestCase, a new web-based research service from Canada Law Book, containing: • Comprehensive collection of reported and unreported decisions dating back to 1898 and including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator eREPORTS included at no extra charge ... continuing legal education delivered to your desktop! BestCase subscribers can now receive our eREPORTS – electronic versions of "paper parts" of our law reports. Emailed to you, the eREPORTS link from the subject index to the full reported judgment (including headnote). No more photocopying required to get copies of decisions exactly as they appear in a law report! Only in BestCase will you find images of reported decisions as they appear in our law reports, in a pdf file, complete with headnotes. Also available are images of original judgments as released by the court, with the official court stamps and signatures. Disburse your costs! BestCase allows you to track research, generate reports and manage your passwords using the new Disbursement Manager. Contact your Account Manager to compare BestCase to your current research services! of ORC to suspend applicant's racing licenses for ten years and imposing fi ne. ORC found that applicant purchased, received and possessed performance en- hancing drug EPO on several occasions and had administered EPO to a race horse on at least one occasion. Applicant's state- ment to detective, the investiga- tor's ORC Supervisor, admitted into evidence. Application for judicial review dismissed. Appli- cant's rights under s. 7 of Cana- dian Charter of Rights and Free- doms to life, liberty and security of the person not engaged at time he made statement. Applicant's liberty not infringed. Applicant not detained and was not under arrest. Applicant's rights under s. 7 of Charter not in jeopardy at hearing before ORC. No possi- bility applicant could be impris- oned. No security of person or life interest engaged in context of loss of right to practice trade or profession, together with imposition of civil fi ne enforce- able only through ordinary civil means. Imposition of adminis- trative sanction including revo- cation or suspension of license or of signifi cant fi ne did not impose kind of state-induced psycho- logical stress that could trigger guarantee of security of person under s. 7 of Charter. Applicant not charged with true crime or regulatory off ence. Simply sub- jected to discipline as licensee in regulated industry he voluntarily chose to enter. Scott v. Ontario Racing Com- mission (July 2, 2009, Ont. S.C.J. (Div. Ct.), Cunning- ham A.C.J.S.C., McCartney R.S.J. and Hambly J., File No. PAGE 15 07-DV-001344) Order No. 009/189/077 (13 pp.). Family Law CHILD WELFARE Adoption order was granted Child was made Crown ward. Order was made granting child access to child's brother in discretion of CAS. Adoption placement was made. Submis- sions were requested on eff ect of access order on court's abil- ity to grant adoption order. Prospective adoptive parent did not previously know of access order. On learning of access order prospective adoptive par- ent brought motion to termi- nate order. Prospective adoptive parent would not proceed with adoption if access order were in force. Access order was ter- minated. Adoption order was granted. It was in child's best in- terests for adoption to be fi nal- ized. Access order was no lon- ger in child's best interests and continuation of order would impair child's opportunity to be adopted. Access order survived adoption placement and would continue in force and eff ect subsequent to adoption order being made. Access order would remain in force and eff ect until it was varied or terminated. Sec- tion 59(2.1) of Child and Fam- ily Services Act (Ont.), did not apply only to access to Crown ward and not to order for ac- cess by Crown ward to another person. G. (A.) (Re) (July 7, 2009, Ont. S.C.J., Mackinnon J., File No. FA-09-35) Order No. 009/190/082 (7 pp.). LT

• Cover
• Funding Promise
• Family Law
• Focus On Intellectual/Trademark Law