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Page 14 June 8, 2015 • Law Times www.lawtimesnews.com dismissed for delay. Defendant appealed. Appeal dismissed. Motion judge did not err in re- quiring defendant to provide some reasonable explanation for delay in complying with or- der made on consent at status hearing. Motion judge consid- ered all relevant circumstances in exercising discretion to dis- miss counterclaim for delay af- ter defendant failed to comply with timetable and there was no basis to interfere with that deci- sion. Sioux Lookout (Municipality) v. Goodfellow (Apr. 7, 2015, Ont. C.A., Robert J. Sharpe J.A., K. van Rensburg J.A., and G. Pardu J.A., File No. CA C59384) Deci- sion at 244 A.C.W.S. (3d) 59 was affirmed. 252 A.C.W.S. (3d) 53. Constitutional Law CHARTER OF RIGHTS Police conduct during G20 summit was prima facie con- stituted infringement of rights During G20 summit in Toron- to, appellant and friends went downtown to demonstrate. They were stopped by police of- ficers who told them they would have to submit to search of their bags. Appellant refused, even- tually abandoning plans. Pre- vious day, demonstrators had engaged in looting, violence and vandalism. Police arrested large groups of protesters en masse. Appellant applied for declaration that police officers violated his rights to freedom of expression, peaceful assembly and liberty and declaration that officer committed tort of bat- tery by grabbing and pushing him. Sergeant adopted strategy of stopping people and requir- ing them to submit to weapons search on his own initiative. Other teams deployed to patrol streets did not implement this strategy. Other persons passed by without being stopped. Ap- plication judge held that offi- cers' conduct authorized under test for ancillary police powers and that alleged battery was de minimis at worst and was justified under s. 25 of Crimi- nal Code (Can.), which permits peace officer to use "as much force as is necessary" in course of law enforcement duties. Ap- pellant's appeal allowed. Power exercised was power of indi- vidual officers to target dem- onstrators and, with intention of preventing crime, to require demonstrators submit to search if they wished to proceed down public street. Police conduct was prima facie infringement of freedom of expression un- der Canadian Charter of Rights and Freedoms and common law right to travel unimpeded down public highway. Demonstrat- ing is well-established expres- sive activity. Demonstrating around G20 site lawful and rea- sonably expected. Civil liberty to move unimpeded on public highways is part of long com- mon law tradition. Police stop clearly resulted in infringement of appellant's common law lib- erty. Test for ancillary police powers requires determination of whether police conduct falls within general scope of any duty imposed on officer by stat- ute or common law and, if so, whether execution of conduct in question involved justifiable use of powers associated with engaged duty. Parties agreed of- ficers' conduct fell within scope of police duty to preserve peace and prevent damage. Applica- tion judge failed to adequately assess whether police power exercised and resulting inter- ference with appellant's liberty was necessary for performance of the duty. Even assuming of- ficers faced "imminent" risk of repeat of previous day's law- lessness, power they exercised was not effective nor rationally connected to purpose. Protes- tors turned away could easily have reached downtown core by another route and no evidence previous violence was initi- ated by demonstrators. Those engaged in violence acquired improvised weapons at scene rather than carrying them to scene in backpacks. Basis for targeting would-be demon- strators did not rise to level of reasonable suspicion. Contact by officer was much more than "touching". It was kind of un- necessary manhandling that would offend dignity of person and serve to intimidate that per- son. Elements of tort of battery were met. Section 25 of Code not applicable as officer did not possess statutory or common law authority for his actions. Figueiras v. Toronto Police Ser- vices Board (Mar. 30, 2015, Ont. C.A., Paul Rouleau J.A., K. van Rensburg J.A., and G. Pardu J.A., File No. CA C58771) De- cision at 239 A.C.W.S. (3d) 631 was reversed. 252 A.C.W.S. (3d) 61. Contracts BUILDING CONTRACTS Defendant entitled to rely on waiver Plaintiff submitted successful bid in request for tender issued by defendant township for con- struction of new runway and rehabilitation of existing run- way. Only part D of four parts contemplated by tender was completed so plaintiff sued de- fendant for breach of contract damages. Motion by defendant for summary judgment dis- missing action on basis there was no contract for all parts, waiver applied, plaintiff had not proven damages, or action was statute-barred. Motion grant- ed. Defendant's counsel passed resolution accepting plaintiff 's tender for all four parts. De- fendant could not rely on its failure to mail written notice to plaintiff as required by request for tender to claim no contract was made. Plaintiff 's submis- sion of compliant bid formed contract that parties would enter contract on terms if bid was accepted, which it was, so there was binding contract for all four parts. However, plain- tiff signed compensation waiver acknowledgement that stated it would not seek compensa- tion for work identified but not completed if defendant could not proceed with all phases due to matters beyond its control. Defendant first had to wait on report from Canadian Envi- ronmental Association Agency to issue report, which it held off on signing off on due to public concerns, and then Ministry of Natural Resources (MNR) proposed joint project that pro- ceeded instead of parts A, B and C from parties' contract. Had defendant not agreed to pro- ceed with MNR joint project, it may have lost provincial fund- ing. Defendant entitled to rely on waiver in circumstances. Furthermore, plaintiff failed to prove damages. Todd Brothers Contracting Ltd. v. Algonquin Highlands (Town- ship) (Mar. 6, 2015, Ont. S.C.J., Bale J., File No. CV-13-115317- 00) 252 A.C.W.S. (3d) 64. Corporations OPPRESSION Oppression action and derivative action not mutually exclusive Plaintiff and defendant were equal shareholders in Ontario corporation. Parties became joint and several guarantors for credit line granted to cor- poration by bank. Defendant allegedly misappropriated funds, with result that credit line became overdrawn. Bank sought payment from parties pursuant to guarantee. Plain- tiff ultimately became liable for defendant's misappropriation. Plaintiff commenced Small Claims Court action against defendant for relief from op- pression. Defendant success- fully brought motion for order striking out plaintiff 's claim on basis that plaintiff did not have standing since wrong had been done to company. Plaintiff ap- pealed. Appeal allowed. Deputy judge erred in law by failing to consider oppression remedy provided in s. 248 of Business Corporations Act (Ont.). There was no question that plaintiff fit definition of "complainant" under s. 245 of Act. Oppression remedy itself was extremely broad and could be invoked any time powers of director were used in way that was "unfairly prejudicial" or "unfairly disre- gards the interests" of any share- holder or "creditor". As such, it encompassed alleged actions of defendant in this case. Op- pression action and derivative action were not mutually exclu- sive. In current case, where cor- poration was closely-held cor- poration with only two share- holders, there was no rationale to have this claim proceed as derivative action. Deputy judge also erred in finding plaintiff had "no cause of action" when R. 12.02(1)(a) of Small Claims Court Rules (Ont.) referred to "no reasonable cause of action". Tersigni v. Georgevitch (Mar. 5, 2015, Ont. S.C.J., Douglas J., File No. Newmarket DC-13- 540-00) 252 A.C.W.S. (3d) 69. Courts PUBLICIT Y Request for sealing order respect- ing insurance policy refused Respondent created smart phone application that facilitat- ed peer-to-peer ride requesting and sharing services. Applicant city alleged that respondent op- erated unlicensed taxi and lim- ousine brokerage service. City claimed that respondent failed to obtain requisite licences and that its services breached licens- ing provisions of Municipal Code through involvement of drivers using personal vehicles to provide taxi and limousine services within city. City sought declaratory orders with perma- nent injunctive relief restrain- ing respondent from operating its business within Toronto. In support of its application, city claimed that respondent did not have sufficient insurance coverage to protect drivers and passengers. Respondent stated that it maintained insurance coverage for all ride-sharing services. It submitted that its insurance policy was highly confidential and contained commercially sensitive infor- mation. Respondent sought sealing order in respect of in- surance policy and related doc- uments on basis that its disclo- sure would cause serious harm to its commercial interests and competitive position. Motion dismissed. Respondent failed to present sufficient evidence to show that disclosure of insur- ance policy would lead to loss of any competitive advantage. Fact that respondent negotiated previously unavailable terms did not detract from nature of document to be sealed. Terms of insurance policies regularly evolved as commercial realities and needs evolved. Absence of evidence from respondent's insurer undermined its asser- tion policy was commercial in- novation worthy of being kept from public record, and left no evidence of risk of similar poli- cies being sold to respondent's competitors. Insurance policy was commercial information and did not constitute type of important commercial interest that constituted trade secret or justified sealing order. Toronto (City) v. Uber Canada Inc. (Mar. 18, 2015, Ont. S.C.J., Diamond J., File No. CV-14- 516288) 252 A.C.W.S. (3d) 73. Limitations DISCOVERABILIT Y Genuine issue requiring trial on when plaintiff knew she had injuries exceeding threshold In November 2003, 14-year-old plaintiff sustained personal in- juries, including skull and left leg fractures, as pedestrian in motor vehicle accident. Most injuries resolved within weeks or months although plaintiff had ongoing problem with fo- cus that had impact on school work. Neuropsychological test- ing found weaknesses consis- tent with mild residual cogni- tive dysfunction, depression and anxiety. Doctor found aca- demic problems consistent with brain injury or anxiety but did not consider whether emotional problems related to brain injury. By 18th birthday in May 2007, plaintiff felt she had recovered well and ongoing distractibility not significant problem. In Jan- uary 2008, however, she began to experience problems with left knee and was diagnosed with arthritis. Doctors did not consider whether problem re- lated to accident. In May 2008, depression worsened. Doctors attributed problem to difficult relationship with father and did not consider any relation to accident. Possibility that knee problem related to accident first raised in November 2009. Plaintiff first realized emotion- al problems might be related to accident when doctor suggested CT scan to check for organic cause of ongoing depression in May 2010. In April 2011, plaintiff commenced action for damages for personal injuries. Defendants brought motion for summary judgment dismissing action as commenced outside limitation period. They submit- ted there was body of evidence prior to April 2009 that plain- tiff 's injuries exceeded thresh- old under Insurance Act (Ont.). Motion denied. Two-year limi- tation period began to run af- ter plaintiff turned 18 in May 2007 and knew or ought to have known that she met threshold and that claim exceeded de- ductible. It appeared, however, that she did not realize until November 2009 and May 2010, respectively, that knee problem and emotional problems might be related to accident. Action commenced within two years of those dates. There was genu- ine issue requiring trial with respect to when plaintiff knew or should have known she had injuries exceeding threshold. Trial necessary to make find- ings regarding discoverability and whether injuries exceeded threshold. Cranley v. Baggieri (Mar. 17, 2015, Ont. S.C.J., Vallee J., File No. Newmarket CV-11-103929- 00) 252 A.C.W.S. (3d) 143. Professions BARRISTERS AND SOLICITORS There was strong inference that lawyers who worked together shared confidences Husband brought motion to have lawyer K removed as so- licitor of record for wife on basis that G, K's former partner, pro- vided advice to company partly owned by parties, and which employed them, with respect to its intended termination of wife's employment. Only is- sue in family proceedings was spousal support. When parties were employed by company they earned same amount. Husband stated that wife's ter- mination was trigger point for her spousal support claim. Therefore, basis for termina- CASELAW

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