Law Times

Law timeS • September 28, 2009 S.C.J. (Comm. List), New- bould J., File No. 06-CL-6650) Order No. (11 pp.). Conflict Of Laws JURISDICTION Forum selection clause did not apply Appeal from decision staying ac- tion commenced in Ontario. Ap- plicant and respondent agreed that Texas would have exclusive jurisdiction over all disputes aris- ing out of or in connection with their agreement. Applicant com- menced claim in Ontario for conspiracy and for knowingly assisting applicant's employees in breaching their fi duciary duties. Motions judge held that forum selection clause governed, and stayed action against respondent. Appeal allowed. Stay was set aside. Forum selection clause did not apply. Motions judge erred by characterizing claim as being con- tractual in nature. Neither party relied on existence of contractual obligation as necessary element to create or defeat claim. Matrix Integrated Solutions Ltd. v. Radiant Hospitality Systems Ltd. (July 28, 2009, Ont. C.A., Laskin, Sharpe and LaForme JJ.A., File No. C50048) Order No. 009/210/142 (11 pp.). Contempt Of Court GROUNDS Mother's acts of contempt not so great as to warrant transfer of children's primary residence Parties were married for over 11 years and had two children. Par- enting Plan provided children were to have primary residence with wife. Separation agreement provided each parent would pay children's expenses when children were living with that parent. Husband was ordered to pay child support of $703 based on imputed income of $50,000 plus portion of s. 7 ex- penses. Husband sought to have wife found in contempt of two court orders. Husband claimed wife did not include husband in decision-making concerning children's health and education; wife failed to provide husband with fi rst refusal when wife was unable to care for children, and wife interfered with husband's relationship with children. Hus- band claimed wife failed to noti- fy husband of changes to expens- es and to wife's income. Wife did not observe Parenting Plan. Wife used custodial authority and su- perior economic position to un- dermine children's view of hus- band. Orders in question were clear and unambiguous. Orders were within wife's knowledge at time of breaches. Wife in- tentionally failed to act. Acts of contempt were not so great as to warrant transfer of children's primary residence. It was in best interests of children to transfer fi nal decision-making responsi- bility regarding children to hus- band. Parties were ordered to take steps designed to improve communication and confl ict management skills. Wife was 009/211/076 ordered to pay fi ne of $500. Nixon v. Hunter (July 16, 2009, Ont. S.C.J., Price J., File No. FS-06-2401-00) Order No. 009/204/057 (25 pp.). Courts ACCESS TO RECORDS Trustees' motion for sealing order dismissed Two children received compen- sation for loss of father. Trust was established to hold funds. Order provided proceeding to be treated as confi dential and for court fi le to be sealed and not form part of public record. Trustees sought to pass accounts. Trustees brought motion for or- der that pending application to pass accounts be treated as con- fi dential, court fi le sealed and all future proceedings for passing of accounts be treated same way. Motion was dismissed. Th ere was no important interest to protect or risk of serious harm to inter- est. Evidence did not give details of harm that might occur should sealing order not be granted. Ev- idence lacked detailed of risk of publicity to two children. Risk of publicity to children would be addressed by permitting style of cause, affi davit material and ac- counts fi led on proposed appli- cation to use initials of trustees, trusts and two children instead of full legal names. J.B. Trust v. B. (J.) (Litigation Guardian of) (June 29, 2009, Ont. S.C.J., Brown J.) Order No. 009/181/207 (5 pp.). Education SCHOOLS Application for judicial review of decision denying admission of child to school for deaf was allowed Application by child, by her mother and litigation guardian, for judicial review of committee's decision denying her admission to school for the deaf. Applicant now seven years old. Applicant diagnosed with complete agen- esis of the corpus callosum as an infant and was severely delayed with respect to language, being able to form only one-syllable words. Applicant had been diag- nosed with profound hearing loss in 2007, so her mother enrolled her in American Sign Language classes. Applicant's regular school assigned Educational Assistants to her and she began to improve through a mixture of signing and verbal communication. A further examination with an audiologist in 2008 found that applicant had normal hearing. Neurologist re- port stated that, while applicant's hearing was normal, she had cen- tral auditory processing problems and thus behaved like a deaf child. School for the deaf rejected ap- plicant's application because she had normal hearing. Applicant appealed to committee but com- mittee concluded that since the applicant could process auditory language, she would not benefi t from a primarily ASL teaching environment. Committee relied on report prepared by Ministry's pathologist. Application allowed. CASELAW Applicant was denied procedural fairness. Committee did not have all documents submitted by ap- plicant before it when it made its decision. Committee also relied on pathologist and audiologist reports without explaining what weight was given to medical evi- dence supporting the applicant's position. Committee also failed to explain why it had concluded the applicant could not benefi t from an ASL-only environment and there was no available evi- dence about the school for the deaf teaching methods. Matter referred to diff erently-constituted committee. Baggs (Litigation Guardian of) v. Ontario (Minister of Edu- cation) (July 15, 2009, Ont. S.C.J. (Div. Ct.), Lederman, Swinton and van Rensburg JJ., File No. 217/09) Order No. 009/204/063 (13 pp.). Family Law PROPERTY Issue of exclusive possession of chalet and matrimonial home had already been dealt with Parties had six children. Young- est child was dependent and re- sided with wife. Parties had mat- rimonial home and chalet. Th ere was consent order chalet would be sold. Chalet was registered in wife's name. Pending sale husband was to have exclusive possession of chalet to specifi ed date after which wife was to have exclusive possession of chalet. Husband sought order permit- ting husband to reside in cha- let for period of wife's exclusive possession. Wife was ordered to sign necessary documentation to redress mortgage to benefi t bank mistakenly placed on husband's vacant property instead of cha- let. Husband's request for order varying order to allow husband exclusive possession of chalet or of matrimonial home was dis- missed. Exclusive possession of chalet and matrimonial home was already dealt with in pre- vious endorsement. Th ere was issue as to whether chalet was matrimonial home. Wife could bring chalet up to standard while wife was in residence and it could be done without further fi nancial contribution from hus- band. Husband was responsible for ongoing expenses of chalet pending sale. Expenses could be shared by parties in accordance with trial judge's fi nding of own- ership of chalet. Husband was to live up to original agreement and maintain retainer for evalu- ator. Wife was ordered to pro- duce child's report card within 15 days. Poirier v. Poirier (Aug. 4, 2009, Ont. S.C.J., Lemon J., File No. FS-08-064296-00) Order No. 009/223/009 (14 pp.). Highways DEDICATION No express or inferred intention by Crown to dedicate road Applicants were landowners. Ap- plicants sought declaration lands were dedicated for use as public highway. Township had assumed www.lawtimesnews.com maintenance and repair of road as pubic highway. Applicants ar- gued Crown constructed access road and township took steps to adopt part of road as municipal road. Applicants claimed Crown entered unwritten agreement to dedicate road to public use for highway purposes and town- ship agreed to assume road for such purposes. Application was dismissed. Th ere was no express or inferred intention by Crown to dedicate road to township for purposes of public road. Th ere was no formal municipal cor- porate act accepting dedication. Th ere could be no inferred as- sumption of road on basis of expenditure by township. Work performed by township was with express approval and consent of road owner. Road was public forest access road and remained under ownership and jurisdic- tion of Crown. Clark v. North Kawartha (Town- ship) (July 24, 2009, Ont. S.C.J., Gunsolus J., File No. 150/07) Order No. 009/223/029 (13 pp.). ONTARIO CRIMINAL CASES Charter Of Rights Accused FUNDAMENTAL JUSTICE Section 467.11 of Criminal Code not overbroad sought determina- tion that s. 467.11 of Criminal Code be declared of no force PAGE 19 and eff ect on grounds it was overbroad and contrary to s. 7 of Canadian Charter of Rights and Freedoms. Relevant provi- sion made it an off ence to par- ticipate in or contribute to any activity of a criminal organiza- tion for purpose of enhancing ability of criminal organization to facilitate or commit indict- able off ence. Application dis- missed. Section not overbroad. Intention of Parliament was to capture individuals who ac- tively participate in criminal activity with respect to the or- ganization. It was not intended to capture mere membership in organization. In order to be found guilty Crown had to prove active participation in or- ganizational criminal activity. Elements of section require ac- tus reus so as not to criminalize mere thoughts of organizational criminal activity. R. v. Beauchamp (July 8, 2009, Ont. S.C.J., Smith J., File No. 05-G3629; 05-G3630; 05- G3625; 05-G3627; 05-G5411) Order No. (30 pp.). Courts JURISDICTION Defi nition of "counsel" in s. 650.01 of Criminal Code included paralegals. Paralegal could appear on administrative remand for accused charged with indictable off ence, pursuant to proper designation. R. v. L. (G.Y.) (July 21, 2009, Ont. S.C.J., McCombs J., File No. 112/09) Order No. 009/203/225 (3 pp.). LT 009/202/054 Starting from $62.50 per month More value for your money! 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