Law Times

PAGE 14 of $400,000. In its proof of claim, DSLC maintained that sum of $310,000 in possession of Credifinance was its prop- erty. Trustee of Credifinance denied claim in full. DSLC appealed that decision. Appeal judge found that DSLC had been defrauded into loaning Credifinance $400,000. Appeal judge granted DSLC construc- tive trust over what remained of loan, $310,000, and deter- mined that it did not form part of bankrupt estate. Both pro- cesses followed by appeal judge and issues he decided were, in circumstances of this case, cor- rect in law. Appeal judge com- mitted no errors in either his decision or his analysis. Credifinance Securities Ltd. (Re) (Mar. 2, 2011, Ont. C.A., Goudge, Sharpe and LaForme JJ.A., File No. C51766) Decision at 185 A.C.W.S. (3d) 559 was affirmed. 198 A.C.W.S. (3d) 578 (16 pp.). ARRANGEMENTS Debtor's lack of good faith and due diligence fatal to relief sought by secured creditor Motion by secured creditor ATB to extend stay period originally ordered pursuant to s. 11 of Companies' Creditors Arrangements Act (Can.), was dismissed. Request for exten- sion was opposed by GCNA and by AXA, who were surety bonding facilities for debtors. Debtors had not acted with due diligence or in good faith. Lack of good faith and due dili- gence on part of debtors in this case was fatal to relief sought by ATB. Request for extension was dismissed. Envision Engineering & Contracting Inc. (Re) (Jan. 14, 2011, Ont. S.C.J., Beaudoin J., File No. 10-50109) 198 A.C.W.S. (3d) 579 (9 pp.). Civil Procedure COSTS Extreme and pervasive conduct of individual defendant warranted full-indemnity costs Judgment was made for plain- tiff in sum of $33,465 as dam- ages for breach of contract, deceit and misrepresentation regarding purchase of vehicle. Plaintiff was awarded $50,000 in punitive damages. Individual defendant's fraudulent conduct vitiated benefit of limited li- ability available through pro- cess of incorporation and was sufficient to attract personal liability. Individual defendant was found to have deliberately misled plaintiff. Extreme and pervasive conduct of individ- ual defendant warranted full- indemnity costs. Individual de- fendant added 25 days of more to evidence in trial and years to length of trial. Individual defendant was not forthright with documentary disclosure and fraudulently created docu- ments. Individual defendant repeatedly lied under oath and attempted to perpetrate fraud on plaintiff and court. Costs were fixed at $131,211 all-in- clusive payable by defendants jointly and severally. Pirbhai v. Singh (Mar. 2, 2011, Ont. S.C.J., Quinn J., File No. 42633/00) 198 A.C.W.S. (3d) 654 (32 pp.). SUMMARY JUDGMENT Agency's attack on hospital's pleadings far too late Motion by nursing agency for summary judgment dismissing hospital's cross-claim. Plaintiff's claim for negligence against agency and hospital was settled just before trial was to com- mence, so all that remained were cross-claims. Hospital's cross-claim alleged conduct of nurse was below standard of care. Agency argued hospital's defence to plaintiff's claim was that plaintiff did not suffer any injury, so it had admitted nurse did not cause damages. Agency further argued hospital's plead- ings were deficient and did not plead causation. Motion dis- missed. Settlement of plaintiff's claim was not a substantial or unexpected change in circum- stances. Admissions had to be unambiguous and deliberate. Hospital merely made general denial of plaintiff's claim, not an admission. Agency's attack on hospital's pleadings was far too late. Furthermore, hospi- tal's cross-claim specifically pled contribution and indemnity un- der the Negligence Act (Ont.). Sozonchuk v. Polych (Feb. 3, 2011, Ont. S.C.J., Pattillo J., File No. 04-CV- 272449CMA2) 198 A.C.W.S. (3d) 616 (6 pp.). Various indemnity rights granted were, by agreement, time-limited Motions judge did not err in granting summary judgment dismissing appellant's claim on ground that appellants failed to give timely notice in compli- ance with notice provision in agreement sued upon. Notice provision at issue did not vary or exclude limitation period pre- scribed by Limitations Act, 2002 (Ont.). Right of indemnity was purely contractual in nature in commercial agreement between sophisticated parties. Various in- demnity rights granted were, by agreement, time-limited. NFC Acquisition L.P. v. Centennial 2000 Inc. (Jan. 19, 2011, Ont. C.A., Sharpe, LaForme and Rouleau JJ.A., File No. C51693) Decision at 184 A.C.W.S. (3d) 973 was af- firmed. 198 A.C.W.S. (3d) 619 (3 pp.). Crown ACTIONS AGAINST CROWN Charter claim did not make action immune from limitations Action for damages and decla- ration for alleged ss. 7 and 15 Canadian Charter of Rights and Freedoms violations. Plaintiff was arrested and charged with his brother's murder in 1994. Plaintiff was convicted in 1996, following a trial in which the Crown adduced evidence of a jailhouse informant. Trial judge failed to give Vetrovec warning to jury. Plaintiff appealed and Court of Appeal overturned conviction and ordered new trial because of judge's failure to give warning. At new trial, CASELAW Crown did not introduce in- formant evidence, in light of plaintiff's objections. Plaintiff was acquitted on July 3, 2004. Plaintiff argued he was wrong- fully imprisoned and com- menced this action against the Crown on September 6, 2006. Crown argued action was stat- ute-barred. Action dismissed. While plaintiff always knew he was innocent, wrongful arrest and imprisonment only became a cause of action when plaintiff was acquitted. As plaintiff was acquitted on July 3, 2004, he was required by Proceedings Against the Crown Act (Ont.), to bring action by September 5, 2006. Plaintiff issued claim after expiry of limitations pe- riod and there was no sugges- tion that court had discretion to override limitations period. Fact that this was a Charter claim did not make it immune from limitations. Baltrusaitis v. Ontario (Jan. 28, 2011, Ont. S.C.J., Whitaker J., File No. 06-CV-318089) 198 A.C.W.S. (3d) 832 (13 pp.). Employment WRONGFUL DISMISSAL Five months' pay awarded at trial set aside and substituted for period of nine months Appellant chartered accountant was dismissed without cause and was awarded equivalent of five months' pay in lieu of notice. Appellant was also part owner of respondent, having been per- mitted to buy 2% of equity of company. Appellant, aged 50, had two and one-half years of service with respondents. Over that time, he received total compensation, including sal- ary commissions, profit distri- bution and value of his shares which were worth average of $633,548 per year of employ- ment. Character of appellant's employment, viewed fully, and challenge of finding similar em- ployment both required signifi- cantly longer period of notice. Giving appropriate weight to these factors, and keeping in mind appellant's age and short service, five months awarded at trial was set aside and sub- stituted period of nine months. Appellant ceased to be employee of respondent on May 3, 2005. Trial judge erred in using end of notice period rather than his termination date as trigger for respondent's right to repurchase and for valuation. Love v. Acuity Investment Management Inc. (Feb. 16, 2011, Ont. C.A., Goudge, Lang and Watt JJ.A., File No. C50725) Decision at 178 A.C.W.S. (3d) 151, 24 D.E.L.D. 182 was re- versed. 198 A.C.W.S. (3d) 680 (17 pp.). Family Law SUPPORT Husband's high-handed refusal to comply with court orders sufficient reason to disentitle husband from spousal support Parties were married eight years and had one child. Wife was custodial parent. Husband sought order requiring wife www.lawtimesnews.com to pay spousal support. It was not marriage of long duration. Husband maintained three- bedroom house after termina- tion of husband's employment and provided rent-free lodgings to others. Application was dis- missed. Husband did not estab- lish any entitlement to spousal support. Wife had no duty to assist husband in maintaining three-bedroom house and in providing free lodgings to rela- tive. On-going rental obligation could not be linked to break- down of marriage. Husband did not bring bank deposits to court's attention in application. Husband paid no child support in 2008 and 2009 when hus- band was earning significant income. Husband did not com- ply with court order requiring husband to pay child support. Wife was required to bear entire burden of child support and extraordinary expenses without assistance from husband. There were significant outstanding cost obligations that were not paid by husband. Husband's high-handed refusal to comply with court orders was sufficient reason to disentitle husband from spousal support. Husband created significant economic hardship for wife since date of separation. Husband's unem- ployment was direct result of husband's invitation to be laid off. Husband did not make rea- sonable efforts to find employ- ment in non-engineering capac- ity. Husband was author of own misfortune. Zinyama-Mubili v. Mubili (Feb. 24, 211, Ont. S.C.J., Murray J., File No. 5514/08) 198 A.C.W.S. (3d) 779 (14 pp.). Labour Relations ARBITRATION Evident on record that employer and intervener prejudiced from delay Arbitrator did not err in dismiss- ing union's grievance respect- ing bargaining rights for delay. Arbitrator reasonably concluded that union, party filing griev- ance, had obligation to move it forward, given language of article 7.05. In absence of explanation for delay, he dismissed grievance. While he did not make express finding of prejudice, it was evi- dent on record that there was prejudice to employer and inter- vener, from delay, having regard to nature of dispute and impact of remedy on negotiations, bar- gaining rights and employee rep- resentation. Teamsters, Local 230 v. Dufferin Concrete (Feb. 14, 2011, Ont. S.C.J. (Div. Ct.), Swinton, Wilton-Siegel and Herman JJ., File No. 610/09) Application for judicial review from 188 LAC (4th) 378, 99 C.L.A.S. 226 was affirmed. 198 A.C.W.S. (3d) 820 (4 pp.). Limitations DISCOVERABILITY Defendant's name should have been easily discoverable given machines almost contained defendant's full name Motion by defendant manufac- May 9, 2011 • Law TiMes turer for summary judgment dismissing plaintiff's action as statute-barred or disclosing no cause of action. Cross-motion by plaintiff to amend statement of claim to plead discoverabil- ity. Plaintiff alleged she was injured while helping a friend with a jammed weight stack on a machine at premises of travel centre defendant. Plaintiff re- tained engineering firm that identified two areas of negli- gence in design of machine and lack of warning labels. Plaintiff was injured March 30, 2005. Plaintiff conducted internet search in October 5, 2005, using "Hoist Fitness Systems" and "Hoist H100" which were on machine. Somehow plaintiff found name of a vendor of the machines, rather than the de- fendant manufacturer's name, despite the fact that it was "Hoist Fitness Systems Inc.". Plaintiff commenced action against travel centre and ven- dor in October 2005. In May 2007, vendor sent evidence it did not manufacture machine or sell it to travel centre and in- cluded letter from manufactur- er's support manager. Despite this information, plaintiff did nothing until April 2008, and then obtained ex parte order adding manufacturer as defen- dant. Motion allowed. Cross- motion dismissed. Defendant did not counter negligence al- leged in engineering report so could not be said there was no genuine issue for trial. Plaintiff had an obligation to commence product liability action against all relevant defendants and mere fact that it was somewhat difficult to identify manufac- turer did not relieve her of that obligation. Furthermore, given machines almost contained de- fendant's full name, it should have been easily discoverable. Proper corporate search was never conducted. Defendant was discoverable in October 2005 at the latest. Plaintiff did not provide all evidence of discoverability at ex parte hear- ing. Limitations period expired October 5, 2007, and ex parte order did not overcome fact that claim against manufac- turer was statute-barred. Murphy v. Stoneridge Travel Centre Inc. (Jan. 13, 2011, Ont. S.C.J., Parayeski J., File No. 07-30388) 198 A.C.W.S. (3d) 833 (10 pp.). Professions PHYSICIANS AND SURGEONS More probable than not that life of patient would have been saved but for failure of obstetrician to carry out responsibility as most responsible physician Patient died in hospital when aorta ruptured. Emergency cae- sarean section was performed and infant survived. There was aneurism in patient's ascend- ing aorta which was dilated to dimension of six centimetres by six centimetres. None of defendant doctors took any steps to address cardiac issues that might arise from presence of dilated aorta while patient was in hospital. Doctors agreed

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