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Law Times • January 9, 2012 No merit that decisions lacked procedural fairness Female security guard entered change room where applicant was changing. Security guard apologized and left room. Ap- plicant claimed woman other than applicant's wife viewing applicant undressed violated applicant's religious beliefs re- garding modesty. Applicant was disciplined on another matter and had negative per- formance evaluation. Appli- cant's employment was termi- nated. Commission decided not to deal with applicant's complaint because complaint was trivial and another statu- tory procedure was available to deal with human rights is- sues raised by complaint. Ap- plication for judicial review was dismissed. Decisions were procedurally fair. Th ere was no merit in arguments that decisions lacked procedural fairness because commission limited length of submissions or because commission did not conduct oral hearing. Ap- plicant had ample opportunity to fully present case. Commis- sion's decision not to deal with complaints was reasonable. Decision was justifi ed on re- cord and was reasonably open to commission based on facts and law. Boshra v. Canada (Attorney General) (Oct. 5, 2011, F.C., Kelen J., File No. T-727-10) 207 A.C.W.S. (3d) 311 (23 pp.). ONTARIO CIVIL CASES Civil Procedure CHANGE OF SOLICITOR Court inferred confi dential in- formation imparted Parties lived together for four years and were never mar- ried. Parties had one child. Relationship between parties was high confl ict. Respondent had sole custody of child with specifi ed residential schedule for parties to follow. Respon- dent brought motion for re- moving solicitors for applicant. Respondent argued current litigation was closely related to earlier litigation. From 1998 to 2006, respondent was rep- resented by previous counsel as well as current counsel. Ap- plicant's counsel throughout was same. Previous counsel's legal assistant began working as legal assistant to applicant's counsel. Previous litigation was inextricably bound to is- sues in current litigation. Pre- vious counsel's retainer was not for unrelated proceeding but culminated in order on which father relied in motion for contempt. Court inferred confi dential information was imparted. Public represented by reasonably informed person would not be satisfi ed that no use of confi dential information would occur in circumstances. Applicant's solicitor was to be removed as solicitors of record for applicant. K. (M.S.) v. T. (T.L.) (Sep. 20, 2011, Ont. S.C.J., Wilson J., File No. 04FA-012804FIS) 207 A.C.W.S. (3d) 203 (7 pp.). Debtor and Creditor ENFORCEMENT Two principals acted in concert in theft and diversion of scrap metal Plaintiff claimed unpaid truck- ing invoices owed by defendant to plaintiff . Defendant brought counterclaim for lost profi ts caused by plaintiff in diverting shipments of scrap metal and selling it to scrap yards for prof- it. Plaintiff argued principal of defendant fully participated in scheme and shared profi ts. De- fendant claimed tort of inten- tional interference with eco- nomic relations. Plaintiff was to have judgment in amount of $97,766. Counterclaim was dismissed. Defendant failed to meet burden in relation to tort. Two principals acted in concert in theft and diversion of scrap metal. Th ere was delay and inaction on part of prin- cipal of defendant. Principal of defendant ran day-to-day operations related to trucking of scrap metal. Inaction of de- fendant's principal was deliber- ate decision to avoid disclosure and further investigation of in- volvement of defendant's prin- cipal in scheme. Documentary evidence showed defendant's principal had knowledge of scheme and was willing partici- pant. Doctrine of abuse of pro- cess was not applicable. Issue of misleading court was more appropriately addressed in rela- tion to issue of costs. 1590825 Ontario Ltd. v. 1199547 Ontario Ltd. (Sep. 16, 2011, Ont. S.C.J., Shaugh- nessy J., File No. 61249/09SR) 207 A.C.W.S. (3d) 272 (13 pp.). Evidence OPINION EVIDENCE Material fi led to date did not disqualify accountant Respondent's income was deter- mined to be $60,000 for child support purposes. Applicant sought to vary order. Respon- dent was remarried. Parties were separated 11 years. Order was made for respondent to provide fi nancial disclosure. Applicant claimed disclosure was not com- plete. Applicant retained forensic accountant to provide opinion as to respondent's true income and to review disclosure to determine if it were complete. Respondent sought to strike out two affi davits provided by forensic accountant. Respondent brought motion to have proposed fi nancial expert retained by applicant removed as biased. Applicant brought cross- motion to have respondent's cur- rent wife and wife's corporation added as parties. Respondent's application was dismissed. Cur- rent wife and corporation were to be added as parties. Accountant had not provided expert opinions to date. Accountant was critical CASELAW of disclosure provided and re- quested additional material. Ma- terial fi led by accountant to date did not disqualify accountant. It was not case where joint fi nancial expert would likely succeed. Evi- dence indicated there may well be fi nancial interaction between current wife's corporation and those of respondent and it was necessary to explore relationship. Th ere was little if no prejudice to current wife and corporation be- coming parties and providing full fi nancial disclosure. Disclosure requested was to be provided. Some items were not producible as being irrelevant. Wakeley v. Wakeley (Sep. 23, 2011, Ont. S.C.J., Arrell J., File No. FS-10-23) 207 A.C.W.S. (3d) 281 (7 pp.). Family Law CUSTODY Processes whereby child could play hockey without necessity of court order Respondents were child's parents who resided in London. Ap- plicant and husband resided in Sarnia. Child was skilled hockey player. Child's career goal of pro- fessional hockey player would be better achieved it child played on Sarnia team. In order to play on Sarnia team child had to be in custody of Sarnia resident. Appli- cant sought interim custody. Re- spondents consented. Motions were dismissed. Relationship between child and applicant was minimal more akin to acquain- tance. Plan was not custody plan but plan for child to board with applicant for year. Th ere was no genuine intent to turn custodial authority of child over to appli- cant because applicant was re- quired to consult respondents for all important decisions regard- ing child. Arrangement agreed to was not one where applicant had role of true parent. Child be- ing away from parents was more likely to impact negatively on child's academic performance. Th ere was no basis in law and it was not in child's best interests to transfer custody of child to applicant. Th ere were processes contemplated by hockey organi- zations whereby child could play hockey in Sarnia without neces- sity of court order. Di Sotto v. Kenney (Sep. 14, 2011, Ont. S.C.J., Mitrow J., File No. F1353/11) 207 A.C.W.S. (3d) 288 (15 pp.). JUDGMENTS AND ORDERS SETTING ASIDE Plaintiff provided adequate explanation for failing to attend hearing Plaintiff was judgment creditor of defendant. Plaintiff registered writ of execution on property jointly owned by defendant and defendant's son. Order was granted deleting writ of execu- tion from title on basis plaintiff did not appear to oppose it. Son placed signifi cant mortgage on property. Plaintiff brought mo- www.lawtimesnews.com tion to set aside order expung- ing writ of execution from title. Defendant's counsel failed to in- form plaintiff 's counsel of fact of application and return date. De- fendant's counsel failed to send plaintiff 's counsel copy of dele- tion order. Plaintiff argued plain- tiff was not served with applica- tion. Motion was allowed. Plain- tiff moved forthwith to set aside deletion order. Plaintiff provided adequate explanation about why it failed to attend hearing. Plain- tiff 's materials disclosed arguable case to resist defendant's eff orts to remove writ from title to prop- erty. Preservation of overall integ- rity of administration of justice required setting aside deletion order. Th ere was no real preju- dice to defendant in setting aside deletion order. It was appropri- ate to keep certifi cate of pending litigation on title given claims of constructive trust and unjust en- richment pleaded in action. Battistella v. Italian Home Bakery Ltd. (Sep. 21, 2011, Ont. S.C.J., Brown J., File No. 07-CV- 345634PD3, CV-11-421557) 207 A.C.W.S. (3d) 360 (12 pp.). Limitations REAL PROPERTY Real Estate Limitations Act de- signed to provide for specifi c trans- actions Plaintiff sued to recover money advanced on mortgage. Defen- dant moved for summary judg- ment on basis that action was in- stituted after expiry of statutory limitation period. Defendant as- serted that action was instituted after expiry of two years provided in Limitations Act, 2002 (Ont.) ("LA"). Plaintiff argued that ac- tion was instituted within ten years permitted by Real Prop- erty Limitations Act (Ont.) ("RPLA"). Motion for summary judgment was dismissed. Obliga- tion of personal defendants was not demand obligation. Defen- dants' obligation was made in mortgage deed. It was also made in letter of commitment. In both cases it was solemn promise to repay part of money owing on mortgage. On plain words of RPLA, there was no reason to doubt that it was sort of obliga- tion to which RPLA applied. Th is interpretation was consistent with intent of legislature and scheme of both RPLA and LA. Purpose of LA was to provide for single and consistent but fl exible limitation period for wide range of human activity, to clarify when limita- tion period commences in case of demand obligations that were made in course of this range of activity, but to leave some mat- ters, such as obligations that were connected to real estate, to opera- tion of specifi c legislation such as Real Estate Limitations Act. Lat- ter Act was designed to provide for specifi c transactions, such as repayment of mortgages on real estate. Action was instituted be- fore expiry of ten years allowed by applicable statute. Equitable Trust Co. v. 2062277 Ontario Inc. (Sep. 13, 2011, Ont. S.C.J., Ramsay J., File No. 10- 22621) 207 A.C.W.S. (3d) 344 (7 pp.). PAGE 15 ONTARIO CRIMINAL CASES Appeal FRESH EVIDENCE Conviction for lesser included off ence substituted Accused charged with posses- sion of prohibited or restricted fi rearm with ammunition. Ac- cused adduced fresh evidence on appeal, which negatived essential element of off ence charged. Ap- peal was dismissed pursuant to s. 686(1)(b)(i) of Criminal Code. Accused conceded that he was properly convicted of unauthor- ized possession of fi rearm, lesser and included off ence. Convic- tion for that off ence was properly ordered in present case. Sentence appeal dismissed. On fresh evi- dence, Crown agreed conviction could not stand under s. 95(2). However accused agreed that he was still guilty of lesser included off ence of unauthorized posses- sion of a fi rearm. Conviction for lesser included off ence of unau- thorized possession of a fi rearm substituted. Sentence imposed fi t having regard to appellant's an- tecedents and appropriate prin- ciples of sentencing. Leave to ap- peal sentence granted, sentence appeal dismissed. R. v. Walke-Buchanan (Sep. 12, 2011, Ont. C.A., Weiler, Cronk and Watt JJ.A., File No. C53567) 97 W.C.B. (2d) 154 (2 pp.). FEDERAL COURT OF APPEAL Administrative Law BOARDS AND TRIBUNALS Agency failed to consider and decide central issues including settlement agreement Agency determined that it could adjudicate complaint concern- ing noise and vibration arising from operations at Rail Yard notwithstanding that parties previously entered settlement agreement with respect to same complaint. Appeal was allowed. Where partiesfi nally resolved complaint in settlement agree- ment, practical eff ect of agency decision to ignore settlement agreement and adjudicate issues previously resolved would be to denude collaborative measures of any eff ect. Submission that par- ties did not present settlement agreement as fi nal and binding agreement that would bar ad- judication of second complaint was untenable. Agency failed to consider and decide central is- sues by parties including eff ect ofsettlement agreement. Deci- sion was unreasonable. BNSF Railway Co. v. Canadian Transportation Agency (Sep. 28, 2011, F.C.A., Noel, Pelletier and Dawson JJ.A., File No. A-25- 11) 207 A.C.W.S. (3d) 183 (15 pp.).