Law Times

PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Social Welfare SOCIAL ASSISTANCE Umpire failed to deal with real issue of whether notices of debt valid Applications for judicial review of five decisions relating to claims for recovery of overpaid benefits paid pursuant to Em- ployment Insurance Act (Can.). Overpayment arose after claim- ants received severance pay from employer's interim receiver after commencement of employment insurance benefits. Severance payments made without de- duction despite s. 46(1) of Act, which requires estimate and withholding over overpayment and payment of amount with- held to Receiver General. Appli- cations allowed. Umpire failed to deal with real issue on appeal, i.e. whether notices of debt valid, instead focusing on issue of al- locable earnings. Employees not disputing that amounts received were not allocable earnings, but alleging that moneys received were net of requisite deductions. CEIC not required to prove debt before becoming repayable. Pur- suant to s. 52(3) of Act, amount specified in notice of debt re- payable on date of notification and sufficiently established on that date. Appellant bears onus of demonstrating inaccuracy of amounts claimed. Onus not on CEIC to prove debt. Braga v. Canada (Attorney Gen- eral) (May 26, 2009, F.C.A., Evans, Layden-Stevenson and Ryer JJ.A., File No. A-522-08; A-523-08; A-526-08; A-527- 08; A-528-08) Order No. 009/166/250 (28 pp.). FEDERAL COURT Employment PUBLIC SERVICE Delay not so oppressive as to taint proceedings Applicant was found not to be qualified for selection into pre- qualified pool of candidates for appointment to position. Appli- cant filed complaint with com- mission. Investigator concluded complaint was well-founded because selection process did not conform to merit principle and board did not apply own instructions to candidates with respect to verifying written sub- missions were received on time. Commission ordered corrective measures. Application for judi- cial review was dismissed. De- lay did not rise to exceptional threshold. Applicant did not es- tablish delay was so oppressive as to taint proceedings. Applicant did not establish bias. Conclu- sion merit principle would have been satisfied when position was reclassified was supported by ev- idence and was reasonably open to commission. Hughes v. Canada (Attorney General) (June 8, 2009, F.C., Dawson J., File No. T-1167- 07) Order No. 009/176/077 (31 pp.). ONTARIO CIVIL CASES Appeal TIME Plaintiff formed intention to appeal within relevant period Plaintiff and defendant had do- mestic relationship. Plaintiff claimed defendant assaulted plaintiff and plaintiff had con- structive trust in domestic resi- dence. Plaintiff sought produc- tion of notes of family counsellor. Judge declined to order produc- tion. Plaintiff was granted leave to appeal. Plaintiff served notice of appeal. Plaintiff's solicitor omitted to file notice of appeal within time. Plaintiff brought motion for extension of time. Plaintiff's solicitor defended mo- tion for delay before applying for extension of time. Motion to dismiss for delay was dismissed. Motion was allowed. Appeal had enough merit to be argued. Plaintiff formed intention to appeal within relevant period. Plaintiff maintained intention to appeal. Appeal would not add significantly to delay. Presump- tion of prejudice was rebutted. Evidence being sought was im- portant. Defendant made no at- tempt to have appeal dismissed. Plouffe v. Blackmore (June 26, 2009, Ont. S.C.J. (Div. Ct.), Ramsay J., File No. 4534/98) Order No. 009/180/024 (7 pp.). Arbitration STAY OF PROCEEDINGS Exemption from enforcement under s. 36(1)(b) (ii) of International Commercial Arbitration Act (Ont.) was not available Application by A.E. for enforce- ment of Spanish arbitration award against S.O.. Cross-ap- plication by S.O. for stay of en- forcement application pending arbitration between it and A.E.- related corporation A.T. in Unit- sepTember 7, 2009 • Law Times COURT DECISIONS ainmaker_LT_June2_08.indd 1 CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: 5/28/08 10:43:29 AM Single or multiple copies of the full text of any case digested in this issue can be obtained by calling CaseLaw's photocopy department at (905) 841-6472, or 1(800) 565-6967. i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. ed States on basis that A.E. and A.T. closely-related and claims arising from same construction project. Exemption from en- forcement potentially available under s. 36(1)(b)(ii) of Interna- tional Commercial Arbitration Act (Ont.), if "recognition of the award would be contrary to the public policy". Alleged equitable set off not justifying application of s. 36(1)(b)(ii). No basis on which to find A.E. and A.T. cor- porate alter egos so as to pierce corporate veil. No evidence that S.O. would be prejudiced by paying Spanish award before American arbitration. Even as- suming availability of set off, not contrary to public policy to insist on payment of Spanish award first. A.E.'s application allowed. S.O.'s application dismissed. Abener Energia, S.A. v. SunOp- ta Inc. (June 15, 2009, Ont. S.C.J., Perell J., File No. CV-09- 374167; CV-09-380451) Order No. 009/169/023 (6 pp.). Civil Procedure CROSSCLAIM Refusal to allow conversion of purported cross-claim to third party claim was not clearly wrong Motions judge declined to ex- ercise his discretion in favour of appellants to cure admit- ted irregularity in proceeding. Cross-claim was improper when commenced in that respondents were no longer party to main ac- tion when purported cross-claim was issued. Appellants, who ob- tained carriage of proceedings at some subsequent point through order in bankruptcy proceed- ings, sought to cure that defect and to commence third party proceeding. Motions judge was not clearly wrong in concluding that it would be abuse of process to permit appellants to convert purported cross-claim to third party claim and to proceed at this point against respondent. Lo Faso v. Kelton & Ferracuti Consultants Ltd. (June 12, 2009, Ont. C.A., Doherty, Moldaver and Lang JJ.A., File No. C49111) Appeal from 170 A.C.W.S. (3d) 33 dismissed. Or- der No. 009/176/020 (4 pp.). DISCOVERY Motion for disclosure of summary of facts was allowed Plaintiff attended high school dance. Metal rod fell from ceil- ing and pierced plaintiff's head. Metal rod was surgically re- moved. Plaintiffs brought mo- tion for summary of facts rele- vant to issues revealed in witness statement by defendant's chief engineer referred to at exami- nation for discovery. There was no challenge to status of state- ment as litigation-privileged www.lawtimesnews.com document. Motion was allowed. Defendant was to produce sum- mary of facts relevant to issues as revealed in statement. Defen- dant put in issue safety of prem- ises, assumption of risk, causa- tion, contributory negligence by plaintiff and damages. Plaintiff was entitled to know all facts known to defendant relating to condition of premises, role of plaintiff, causation and whether plaintiff suffered damage. Plain- tiff was entitled to know names of persons with relevant knowl- edge and addresses. Tiller (Litigation Guardian of) v. St. Andrew's College (June 23, 2009, Ont. S.C.J., Howden J., File No. CV-08-089489) Order No. 009/176/027 (5 pp.). PLEADINGS Master erred in striking out pleadings for non-compliance with court orders Action was construction lien ac- tion. Statement of defence and counterclaim was struck out for failure to comply with court or- ders. Last chance order required fulfillment of undertakings and particulars of damages claimed in counterclaim. Master con- cluded lack of prejudice to plain- tiff was not relevant. Appeal was allowed. Master's reasons reflect- ed misapprehension of relevant evidence of compliance with order. Evidence disclosed order was complied with as of speci- fied date. Master misinterpreted second aspect of order. Specific wording of order was ignored. Schedule from expert report pro- vided with letter was responsive to requirements of order. Master considered strength or weakness of defence and counterclaim rather than evaluating compli- ance with order. Starland Contracting Inc. v. 158518 Ontario Ltd. (June 15, 2009, Ont. S.C.J. (Div. Ct.), Wilson, Swinton and van Rens- burg JJ., File No. 015/09) Order No. 009/167/015 (12 pp.). Contempt Of Court PROCEDURE Section 127 of Criminal Code applicable where breach of injunction engaging public interest alleged Appellant G. was charged with criminal contempt of court un- der s. 127 of Criminal Code (Can.), for allegedly displaying a sign within 60 feet of abor- tion clinic, contrary to 15-year- old interlocutory injunction. G. successfully moved to quash information. Crown appealed. At issue was whether s. 127 of Code was exempted from op- eration by either Rule 60.11 or Rule 60.12 of Rules of Civil Procedure (Ont.). Appeal al- lowed. Neither Rule 60.11 nor Rule 60.12 expressly providing a punishment or mode of pro- ceeding as required to exempt s. 127 of Code, instead merely be- ing product of court's inherent power to control own process. Section 127 of Code appropri- ately applied where breach of injunction engaging public in- terest alleged, i.e. where effect of breach extends beyond parties to proceeding. R. v. Gibbons (June 19, 2009, Ont. S.C.J., Frank J., File No. 22/09) Order No. 009/173/045 (7 pp.). Corporations DIRECTORS Neither s. 134(1)(b) of Business Corporations Act (Ont.), nor s. 122(1)(b) of Business Corporations Act (Alta.) provided foundation for tort action against corporate director Motion to strike claim by judg- ment creditor, holding judgment for $15,255,622, against direc- tor of debtor insolvent corpora- tion. Claim alleging that director owed creditor in breach of both statutory and common law du- ties of care by accepting bonus- es, expenses reimbursement and repayment of promissory note when corporation in dire finan- cial situation. Motion dismissed. Neither s. 134(1)(b) of Business Corporations Act (Ont.), nor s. 122(1)(b) of Business Corpo- rations Act (Alta.), sufficient, alone, to provide foundation for tort action against corporate director. To determine whether conduct falls short of statu- tory standard requires that duty of care at common law also be found. Sufficient facts pleaded to support findings of forseeability and proximity sufficient to give rise to common law duty here. Whether cause of action estab- lished needs to be determined on basis of full evidentiary record, and not on pleadings motion. Festival Hall Developments Ltd. v. Wilkings (June 10, 2009, Ont. S.C.J., MacDonnell J., File No. 07-CV-326232 PD3) Order No. 009/166/156 (11 pp.). Employment WRONGFUL DISMISSAL Arbitrator decided grievance on basis of frustration provisions without giving parties opportunity to address issue Worker suffered work-related in- jury to hand. Worker developed permanent restrictions. Em- ployer could not accommodate permanent restrictions. Worker found other employment. Em- ployer asserted worker volun- tarily quit employment. Arbi- trator held there was deemed

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