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Page 14 June 1, 2015 • Law Times www.lawtimesnews.com Corporation, to bring within application in Ontario. CWE Ltd only one of 173 chapter 11 debtors not incorporated in US jurisdiction. With authoriza- tion of sole shareholder, CWE Ltd applied under Companies' Creditors Arrangement Act (Can.) (CCAA) for Initial Rec- ognition Order recognizing Illi- nois proceeding as foreign main proceeding, declaring CWE Ltd to be foreign representative and staying proceedings against all chapter 11 debtors. CWE Ltd also applied for Supplemental Order recognizing in Canada and enforcing certain first day orders made in Illinois proceed- ing (permitted under Delaware stay order), staying any claims, rights, liens or proceedings against or in respect of chapter 11 debtors, their business and property, officers and directors and restraining any person or entity from discontinuing sup- ply of products or services to chapter 11 debtors. CWE Ltd intended to continue operating casino throughout chapter 11 proceeding. There was no inten- tion to restructure business or operations, or to compromise any obligations. Application al- lowed. Chapter 11 proceedings under United States Bankruptcy Code constituted foreign pro- ceeding for purposes of CCAA. Under s. 45(1) of CCAA, foreign main proceeding was foreign proceeding in debtor's "centre of main interest". Given location of other 172 chapter 11 debtors, and manner in which subsid- iaries operated, that was United States. Chapter 11 proceeding should be recognized as foreign main proceeding. Foreign rep- resentative did not have to be ap- pointed by court. Authorization by CEOC Inc and own share- holder enough to give CWE Ltd such status. In order to maintain status quo and protect assets of chapter 11 debtors, and allow CWE Ltd to continue with busi- ness as usual during chapter 11 proceeding, relief sought in Supplemental Order should also be granted except with respect to stay of actions against officers and directors. Caesars Entertainment Operat- ing Co., Re (Jan. 19, 2015, Ont. S.C.J., G.B. Morawetz R.S.J., File No. CV-15-10837) 251 A.C.W.S. (3d) 553. Conflict Of Laws JURISDICTION Action not dismissed for want of jurisdiction California company incor- porated distributor in British Columbia to import Swedish automobile manufacturer's automobiles into Canada. Dis- tributor identified itself as car- rying on business in Ontario. Eight automobile dealers from five different provinces entered into dealership agreements with distributor. Agreements were to be governed by laws of Ontario but did not contain choice of forum clause. Canadian dealer- ship network ultimately failed, apparently due to distribu- tor ceasing to operate. Dealers commenced action in Ontario against distributor for unspeci- fied relief. Distributor brought motion for order dismissing action on basis of lack of ju- risdiction. Motion dismissed. Distributor conceded existence of jurisdiction simpliciter in connection with Ontario deal- ers. Distributor was Canadian company carrying on business in Canada and not carrying on business anywhere else. Fact that distributor was subsidiary of California company and was largely operated by Americans living in United States did not take away from fact that distrib- utor's business was real and was conducted in Canada. Distribu- tor had its strongest presence in Ontario. Test for joinder was satisfied, and it was appropri- ate that all claims be pursued in single proceeding. Claims arose from same series of trans- actions and were connected. Claims were based on common questions of law and fact. Costs would be reduced by having one set of counsel, common core documentary production, com- mon discoveries, and one trial. Stuart Budd & Sons Ltd. v. IFS Vehicle Distributors ULC (Feb. 3, 2015, Ont. S.C.J., D.L. Corbett J., File No. CV-13-476346) 251 A.C.W.S. (3d) 588. Corporations DISSOLUTION Plaintiff voluntarily withdrew from active management of company and not forced out by defendants Parties signed agreement to manage and operate company. Following agreement, com- pany hired defendant's son, also a named defendant, to do accounting work. Defendants became more involved in active management while plaintiff had stopped being actively involved by 2004. Neither defendant drew salary for years, until pay- ing themselves retroactive sal- ary from 2009 to 2011. Plaintiff disputed retroactive salaries and commenced oppression action, in which he also objected to de- fendant son's election as direc- tor and officer, and mortgage registered against company property. Motion by plaintiff for summary judgment dissolving company and appointing re- ceiver. Motion dismissed. Plain- tiff voluntarily withdrew from active management of company and was not forced out by defen- dants. Defendant son was en- titled to be paid for accounting work, but actual amounts were triable issue. Agreement did not contemplate son's increased management duties after 1992, so this also raised triable issue. Prior to 2005, parties agreed not to draw salaries, but defendants were entitled to do so thereaf- ter, and defendants' evidence plaintiff agreed unpaid salaries would be paid in future was accepted. Defendants' failure to prepare formal minutes not oppressive as plaintiff had par- ticipated in informal nature of company's operation. Mortgage was registered to secure prop- erty and caused no damage so was not oppressive. Steps taken by defendants to continue com- pany's operations after plaintiff had accounts frozen were done in good faith and not oppres- sive, but defendants were di- rected to provide full account- ing. Son's purported election as director was not valid because it was not compliant with Busi- ness Corporations Act (Ont.), but plaintiff was aware of this and his appointment as officer, and son acted in company's best interests. Parties could no lon- ger work together so defendants would be given opportunity to buy plaintiff 's interest in com- pany. Guertin v. Legault (Mar. 11, 2015, Ont. S.C.J., Marc R. Labrosse J., File No. Ottawa 12-55009) 251 A.C.W.S. (3d) 598. Substitute Decisions PERSON Reasonable for board to con- clude that appellant unable to reasonably appreciate foreseeable consequences of decision or lack of decision respecting treatment Appellant was diagnosed with schizophrenia and had four hospitalizations. Community Treatment Plan (CTP) was de- veloped prior to appellant's dis- charge from hospital to assist appellant with her illness. Re- spondent who was appellant's attending psychiatrist during her admission to hospital deter- mined appellant was incapable of giving or refusing consent to proposed CTP. Appellant's brother was appointed as sub- stitute decision maker. Respon- dent signed CTP, which was sent to appellant by mail. Appellant applied to Consent and Capac- ity Board complaining that she never received Compulsory Treatment Order (CTO) and re- quested review of respondent's finding of incapacity. Board was not satisfied that appellant received CTO and ordered it revoked. Board confirmed ap- pellant's incapacity to consent to medical treatment for schizo- phrenia. Appellant sought to have decision quashed or remit- ted back to board for reconsid- eration in light of fresh evidence that appellant asserted would result in different decision. Ap- pellant sought to have admitted pregnancy test, medical report detailing high level of prolactin in appellant's body and report from another psychiatrist that expressed contrary opinion to that of respondent. Appeal dis- missed. It was reasonable for board to conclude that appellant was unable to reasonably appre- ciate foreseeable consequences of decision or lack of decision with respect to treatment pursu- ant to CTP. Pregnancy test and elevated levels of prolactin were not credible or relevant and were not to be received as fresh evi- dence. Letter from another psy- chiatrist was not fresh evidence. There was no explanation as to why opinion was not procured prior to board hearing. Other psychiatrist's conclusions were based on appellant's single visit without reference to any of wide ranging hospital documenta- tion relied on by respondent. Board carefully considered all of issues and did not place undue emphasis on any single factor. Hearsay evidence was properly admitted by board and it was accorded its proper weight. Ap- pellant claimed that board acted unreasonably in ignoring her desire to have children by forc- ing her to take anti-psychotic treatment that caused infertil- ity, but there was no reference to her stated wish to have children at board hearing. Parliament intended CTO and CTP to be separate entities, which could co-exist within same order. Question was whether board reasonably decided that appel- lant did not have capacity to consent to treatment and fact that CTO was revoked did not change that question. Christoforou v. Liu (Feb. 26, 2015, Ont. S.C.J., S. Akhtar J., File No. CV/14/504584) 251 A.C.W.S. (3d) 705. SUPREME COURT OF CANADA Constitutional Law CHARTER OF RIGHTS Malice does not provide useful liability threshold for Charter breach based on failure to dis- close in criminal proceedings In 1983, H convicted of 10 sexu- al offences, declared dangerous offender and sentenced to indef- inite incarceration. H remained incarcerated until 2009. Con- victions subsequently quashed. H sought damages, pleading causes of action in negligence, malicious prosecution and breach of Charter rights. Prov- ince applied to strike out certain paragraphs of claim and dismiss claims grounded in negligence and Charter breach. Claim in negligence dismissed but Char- ter claim allowed to proceed since it was based on allegations of malicious conduct. Court noted that if H intended to pur- sue Charter damages claim for conduct falling short of mal- ice, he required leave to amend pleadings. H applied to amend pleadings to particularize cir- cumstances in which Prov- ince could be liable for Charter breach for non-malicious con- duct. Judge granted application, finding that threshold lower than malice should apply and that s. 24(1) damages justified if Crown's conduct constitutes marked and unacceptable de- parture from reasonable stan- dards expected of prosecutors. Province's appeal allowed but H's further appeal allowed. Cause of action will lie where Crown, in breach of constitu- tional obligations, causes harm to accused by intentionally withholding information when it knows, or would reasonably be expected to know, the in- formation is material to the de- fence and that failure to disclose will likely impinge on accused's ability to make full answer and defence. Threshold high but lower than malice. Claimant must demonstrate that state has breached his Charter rights and that award of damages would serve compensation, vindica- tion or deterrence function. Once that burden met, onus shifts to state to rebut claim- ant's case. Malice requires more than recklessness or gross neg- ligence; it requires claimant to demonstrate willful and inten- tional effort to abuse or distort proper role within criminal justice system. Malice not pro- viding useful liability threshold. Malice requires determination of whether prosecutor moti- vated by improper purpose, an inquiry relevant to highly dis- cretionary decisions. Decision to disclose relevant information not discretionary; it is consti- tutional obligation. Compel- ling good governance concerns raised in malicious prosecution jurisprudence remains relevant, mandating high threshold that substantially limits scope of li- ability. H alleged very serious instances of wrongful non- disclosure that demonstrated shocking disregard for Charter rights. H may seek to amend pleadings to include claim for Charter damages grounded in wrongful non-disclosure. Henry v. British Columbia (At- torney General) (May. 1, 2015, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Moldaver J., Kara- katsanis J., Wagner J., and Gas- con J., File No. 35745) Decision at 237 A.C.W.S. (3d) 360 was reversed. 251 A.C.W.S. (3d) 590. ONTARIO CRIMINAL CASES Appeal GENERAL Accused not entitled to state-funded counsel Accused brought two applica- tions: "Rowbotham Applica- tion" and "s. 684(1) Application". Both applications sought order that agency, Attorney General of Ontario on Rowbotham Ap- plication and Legal Aid On- tario on s. 684(1) Application, provide funding for counsel for accused in respect of his appeals from his convictions for assault and mischief. Accused now al- leged his ss. 7 and 11(d) rights had been violated, as Legal Aid Ontario had refused to grant certificate for counsel for his ap- peal. Crown conceded that first and second portions of Rowbo- tham test had been satisfied by accused. Argument on this ap- plication therefore focused on part three of test: whether or not this appeal involved seri- ous charges that presented in factually and legally complex manner such that accused could not have fair appeal without as- sistance of counsel. Application CASELAW

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