Law Times

Law times • SEPTEMBER 22, 2008 dential information was imparted that was relevant to current pro- ceeding. It was speculation firm might be third partied. It was premature to consider making order removing counsel of choice at early stage. Motion lacked suf- ficient evidentiary foundation. Bank of Montreal v. Combra Furniture Ltd. (May 12, 2008, Ont.S.C.J., Master Dash, File No. 06-CV-324619PD2) Order No. 008/135/051 (9 pp.). CLASS ACTIONS Deference owed to judges making decision on certification motion Application for leave to appeal certification. Moving parties con- tended that judge hearing certi- fication motion erred in decision in respect of waiver of tort and in finding that conspiracy pleading was sufficient. Application de- nied. Deference due to Superior Court Judges who have devel- oped expertise in sophisticated area of practice, i.e. certification motions. Any intervention by appeal court should be restricted to matters of principle. Certi- fication judge crafted careful and reasoned responses to each of moving parties' submissions. There was nothing in her reasons to persuade appeal court that cor- rectness of decision was open to serious debate. Peter v. Medronic, Inc. (May 14, 2008, Ont. Div. Ct., Carnwath J., File No. 05-CV-295910-CP; 605/07) Leave to appeal from 167 A.C.W.S. (3d) 256 was re- fused. Order No. 008/141/012 (3 pp.). COSTS Costs of action settled during trial fixed at $300,000 plus disbursements and GST Plaintiff was passenger in mo- tor vehicle involved in accident. Plaintiff was not wearing seat belt. Plaintiff suffered injuries that left plaintiff incomplete paraplegic and catastrophically impaired. Action proceeded to trial with all damages issues outstanding. There was jury. Action was set- tled during trial for $3,000,000. Costs were ordered determined by trial judge. Costs were fixed at $300,000 plus disbursements of $313,825 plus GST. Song v. Hong (May 6, 2008, Ont. S.C.J., Moore J., File No. 03-CV-253544CM1) Order No. 008/135/030 (48 pp.). DISCOVERY Defendants entitled to examine individual out of court where reasonable possibility that individual would be unable to testify at trial Plaintiffs brought action in re- spect of alleged assault. Defen- dants counterclaims for assault and malicious prosecution. De- fendants brought motion for order allowing out of court ex- amination of individual for trial and for paragraphs to be struck from plaintiff's statement of de- fence to counterclaim. Plaintiff brought cross-motion for order transferring action to simplified procedure and order striking por- tions of paragraphs in statement of defence and counterclaim. Defendants were granted leave to conduct examination of individ- ual subject to terms. There was reasonable possibility individual would be unavailable to testify at trial because of death, infirmity or sickness. Paragraphs of plaintiff 's statement of defence were struck. Portions of defendants' statement of defence and counterclaim were struck. Plaintiffs were prepared to maintain claims within monetary limit of actions under simplified proceedings. Action was to be continued under simplified pro- cedure. Polakow v. Swerdon (May 12, 2008, Ont. S.C.J., Daley J., File No. CV-07-2539-00) Order No. 008/135/056 (10 pp.). JOINDER Proposed claim against proposed defendant not legally tenable Action arose out of publication of article allegedly contain- ing false and defamatory state- ments. Plaintiff brought motion for leave to amend statement of claim to add defendant. Article indicated it was written by staff reporter. Proposed defendant was reporter who wrote article. Motion was dismissed. Proposed libel claim against proposed de- fendant was not legally tenable. There was no tenable case defen- dant did not comply with s. 8 of Libel and Slander Act (Ont.). Even if discoverability doctrine applied, evidence on discover- ability did not support tenable cause of action. Plaintiff took no steps to identify proposed defendant as reporter. There was no tenable case claim against proposed defendant could fall within limitation period even if discoverability applied. Claim was statute-barred. Plaintiff failed to rebut presumption of prejudice arising from passing of limitation period. Guo v. Sing Tao Daily Ltd. (May 12, 2008, Ont. S.C.J., Mas- ter Glustein, File No. 07-CV- 337895PD2) Order No. 008/135/058 (8 pp.). TRIAL Motion to transfer action dismissed Plaintiff purchased home in Thornhill and retained defen- dant real estate agent to purchase property. Plaintiff sought dam- ages for difference in commission and $5,000 rebate. Defendants brought motion to transfer ac- tion to Whitby from Toronto. Majority of plaintiff's witnesses lived in Thornhill or Toronto. Motion was dismissed. Defen- dants did not displace onus on defendants to establish it was in interests of justice to transfer proceeding. Balance of factors fa- voured Toronto or Newmarket as venue for trial. Borden v. Rai (May 8, 2008, Ont. S.C.J., Master Glustein, File No. 07-CV-339892SR) Order No. 008/135/045 (7 pp.). WANT OF PROSECUTION Action permitted to proceed in absence of prejudice to defendant Plaintiff brought action for wrongful dismissal. No steps were taken since statement of defence was served in 2005. Defendant sought to dismiss ac- tion for delay. Limitation period had not passed. Plaintiff could bring new action if action were dismissed that would result in greater delay and expense. Ac- tion was permitted to proceed within time-limit counsel put forward. There was no prejudice to defendant. Etienne v. Canada Bread Co. (May 5, 2008, Ont. S.C.J., Shaw J., File No. CV-05-0461) Order No. 008/136/078 (6 pp.). CASELAW Conflict Of Laws JURISDICTION Husband did not attorn to jurisdiction of Ontario in divorce action Wife brought application for divorce in Ontario. Husband brought application for disso- lution of marriage in Florida. Husband claimed wife was resi- dent in Florida for more than six months. Florida judge ruled Florida had jurisdiction. Major- ity of assets were in Florida and there was no claim relating to matrimonial property in On- tario. Wife sought divorce and spousal support. There was out- standing contempt order against wife in Florida and default order. Court did not have jurisdiction to hear wife's claim for divorce. Husband did not attorn to juris- diction of Ontario. Wife did not show wife was ordinarily resident in Ontario prior to divorce ap- plication. Florida was convenient forum to deal with parties' assets. Wife resided in Ontario at pres- ent but maintained connection with Florida. Wife would be deprived of claim for support if forced to pursue claim in Florida. Husband was to consent to and obtain order permitting wife to participate in Florida proceedings on conditions. Wife was to purge contempt, give full discovery and account for proceeds of works. Tower v. Tower (Apr. 30, 2008, Ont. S.C.J. (Fam. Ct.), Marsh- man J., File No. FD2080/05) Order No. 008/127/045 (13 pp.). Family Law CUSTODY Test for habitual residence was not met Parties had two children who re- sided with mother in Ontario. Father resided in Michigan. Mother initiated divorce proceed- ings in Michigan. Divorce judg- ment granted parties joint legal and physical custody but primary physical custody was in favour of mother. Divorce judgment recog- nized domicile and residence of children would be both Ontario and Michigan. Mother brought application in Ontario for custody, child support and order determin- ing father's right of access. Father filed answer and claimed unspeci- fied access. Test for habitual resi- dence under s. 22(2)(b) of Chil- dren's Law Reform Act (Ont.), was not met. Divorce judgment specifically contemplated children to have two residences. Eight years passed since divorce judgment during which children lived with mother in Ontario. Father had sporadic time with children in Michigan. Court had jurisdiction under s. 42(1) of Act to make cus- tody order that could supersede divorce judgment. Passage of time and long standing interruption of parenting regime constituted ma- terial change in circumstances. Green v. Nixon (May 13, 2008, Ont. S.C.J. (Fam. Ct.), Aston J., File No. F1003/05) Order No. 008/136/080 (5 pp.). DOMESTIC CONTRACTS Cohabitation agreement reached without independent legal advice to wife was not valid Parties were married nine years and had no children. Parties en- tered written cohabitation agree- www.lawtimesnews.com ment. Parties made no formal disclosure of significant assets or debts. Husband never gave wife list of property and never told wife husband's income. Hus- band's lawyer prepared agree- ment. Wife did not obtain inde- pendent legal advice. Husband sought declaration agreement was binding. Full and frank dis- closure was not given at time contract was entered. Wife was not advised to seek independent legal advice. Agreement was not reviewed by parties with lawyer and lawyer was not present when agreement was signed. Contract was not valid. Wife did not fully understand nature of agreement. Contract did not provide for al- ternative property regime that had effect of excluding property from equalization of net family properties. Contract did not con- tain mutual release of parties for equalization of net family prop- erty. If support were waived, re- sult would be unconscionable. Lambert v. Lambert (Apr. 21, 2008, Ont. S.C.J., Platana J., File No. FS-06-0060) Order No. 008/136/075 (19 pp.). SUPPORT Spousal support reduced where material change in recipient's financial circumstances Parties were married over 22 years. Husband, aged 66, had two knee replacements and suffered heart attack. Husband's income for 2007 would be substantially lower. Husband worked two days per week. Husband's income was $4,717 per month. Wife received $400,000 in investments and property from common law hus- band. Husband sought variation of spousal support from $2,000 per month. There was little like- PAGE 15 lihood wife would obtain future employment or husband would work full-time again. There was substantial and material change in financial circumstances of wife. Husband was no longer re- quired to maintain life insurance to same extent. Husband was to pay $1,000 per month in spousal support. Witzel v. Witzel (Apr. 28, 2008, Ont. S.C.J., Templeton J., File No. FD 1490/91) Order No. 008/128/022 (15 pp.). Landlord And Tenant EVICTION Court could not consider merits of appeal due to inadequacy of record Landlord sought order evicting tenants because landlord required property as residence for land- lord's son. Tenants argued they were licensees. Tenants brought motion to submit new evidence. Member advised decision would be based solely on evidence be- fore member on specified date. Member found there was land- lord and tenant relationship and allowed landlord's application for termination of tenancy. Tenants appealed. It was impossible to consider merits of appeal because of failure to provide complete tapes or transcripts. Member's reasons were inadequate. It was impossible to determine legal test used from reasons in finding landlord and tenant relationship. Parties were entitled to some rea- sons for dismissal of motion for new evidence. Stanoulis v. Lykakim, Holdings Ltd. (Apr. 18, 2008, Ont. Div. Ct., Carnwath, Molloy and Linhares De Sousa JJ., File No. 353/07; 371/07) Order No. 008/135/048 (7 pp.). LT Obtain Copies of Judgments Your 24/7 connection to copies of original decisions caseimage.ca is an online database of both unreported and reported court and tribunal decisions — www.caseimage.ca $12.50* per case CaseLaw on Call • rates Single or multiple copies of the full text of any case digested in this issue can be supplied at the rates shown. Via E-mail Cost per case $17.50* sales@canadalawbook.ca Via Mail Cost per page $0.60* Minimum charge $10* Plus postage Via FAX Via Courier Cost per page $2.50* Minimum charge $10* Cost per page $0.60* Minimum charge $10* Plus courier charges CaseLaw on Call • order form Attention: Photocopy Service: CaseLaw, 240 Edward St., Aurora, ON L4G 3S9 Please send the full text of the following judgments. Orders must provide the case name, case order number (9 digits) and number of pages. 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