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Law Times • march 22, 2010 was properly dismissed January 14, 2009 order under Companies' Creditors Arrange- ment Act (Can.), provided N. with stay of all proceedings against N., suspension of all rights and remedies against N., and order that during stay peri- od, no person shall discontinue, repudiate or cease to perform any contract or agreement with N.. Motion judge correctly de- nied union motion requiring N. to continue to make certain periodic payments pursuant to collective agreement to union- ized former employees who had retired or been terminated from N. Periodic payments in issue could not be characterized as part of payment required of N. for services provided to it by its continuing employees after Jan. 14, 2009. Section 11.3(a) of CCAA does not exclude these payments from eff ect of Jan. 14, 2009, order. Further, mo- tions judge correctly held that while Employment Standards Act, 2000 (Ont.), continued to apply while N. was subject to CCAA restructuring, N.'s pro- vincial statutory obligations for virtually immediate payment of termination and severance can be stayed by order made under CCAA. Decision was limited to eff ect of stay on timing of required statutory payments under ESA and did not deal with inter-relation of ESA and CCAA for purposes of plan of arrangement and ultimate pay- ment of these statutory obliga- tions. Nortel Networks Corp. (Re) (Nov. 26, 2009, Ont. C.A., Goudge, Feldman and Blair JJ.A., File No. C50986; C50988) Deci- sion at 178 A.C.W.S. (3d) 305 was affi rmed. 184 A.C.W.S. (3d) 300 (2 pp.). Civil Procedure CLASS ACTIONS Failure to satisfy preferable procedure criteria fatal to motion for certification Plaintiff s were denied certifi ca- tion as class action. Main alle- gation in action was that defen- dants permitted "market timing" to concur in mutual funds that they managed. Although de- fendants denied liability, their involvement in market timing was admitted for purpose of en- forcement proceedings before Ontario Securities Commission. After negotiations with OSC staff , defendants signed settle- ment agreements, and in these agreements, defendants admit- ted that they had entered into arrangements with 18 "market timers" and that market timing events had occurred. For pur- pose of OSC enforcement pro- ceedings, it was admitted that market timers had made profi ts that adversely aff ected investors in mutual funds and that de- fendants earned commissions from their arrangements with 18 market timers. Under settle- ment agreements with OSC, defendants collectively paid $205.6 million to investors, who would constitute most of members of several of classes in proposed class action. De- fendants also paid for expense of distributing compensatory payments to investors. Plain- tiff s submitted that actual losses suff ered by investors could be as high as $832 million and investors had not had their day in court to recover these losses. Plaintiff s' pleadings disclosed two causes of action that may be certifi ed by class proceed- ing; there was identifi able class; claims of class members raised four common issues of fact or law that may be certifi ed for class proceeding; there was rep- resentative plaintiff who would adequately represent interests of class without confl ict of interest and who could produce work- able litigation plan; however, but for circumstances of OSC proceedings, class proceeding was preferable procedure for case at bar. It was appropriate to consider OSC proceedings and settlement agreements as part of analysis of whether class proceeding to resolve investors' claims would be preferable pro- cedure. OSC proceedings and settlement agreements genu- inely addressed purpose of class proceeding and provided ac- cess to justice for investors. As plaintiff s must satisfy all criteria for certifi cation, their failure to satisfy preferable procedure cri- teria was fatal to their motion for certifi cation. Fischer v. IG Investment Manage- ment Ltd. (Jan. 12, 2010, Ont. S.C.J., Perell J., File No. 06-CV- 307599CP) 184 A.C.W.S. (3d) 319 (50 pp.). DISCOVERY Totality of circumstances established "sufficient" and "persua- sive" grounds to find that List of Documents as originally delivered was deficient in form and substance Plaintiff commenced action al- leging breaches of Canadian Charter of Rights and Freedoms as well as breaches of custom- ary international law. Causes of action alleged included neg- ligence, negligent investigation and breach of statutory duty, false imprisonment, assault and battery, complicity on torture, misfeasance in public offi ce, in- jurious falsehood and defama- tion as result of his treatment by Canadian offi cials who sus- pected plaintiff had something to do with Sept. 11, 2001, ter- rorist attacks and handed him over to United States authori- ties for investigation. Plaintiff was cleared of any involvement in terrorist activity by United States FBI, but was held in United States prisons for nearly fi ve years where he alleged he suff ered extreme mistreatment and held in conditions that could be described as torture, before being returned to Can- ada. In course of action, plain- tiff became aware of existence of 12 documents not disclosed through discovery of documents because he obtained them sepa- rately through Access to Infor- mation and Privacy requests of various defendant Government agencies. Plaintiff 's motion for further and better List of Docu- ments was granted. Totality of circumstances in this litigation, at this point in Canada's histo- ry, established "suffi cient" and CASELAW "persuasive" grounds to fi nd that List of Documents as origi- nally delivered was defi cient in form and substance. Court also directed that List of Documents must be certifi ed as complete, accompanied by certifi cate of solicitor of record as described in reasons with respect to com- pliance with all three Sched- ules with normal requirements for Affi davits of Documents in Ontario. Benatta v. Canada (Attorney General) (Dec. 11, 2009, Ont. S.C.J., Master Short, File No. C07-CV 336613PD3) 184 A.C.W.S. (3d) 362 (50 pp.). Family Law CUSTODY Wife was granted sole custody of children Parties were married 11 years. Th ere were three children, two of whom were dependents. Par- ties' relationship was acrimoni- ous. Wife was granted sole cus- tody of children. Husband was to be consulted on educational and medical issues, including counselling. Wife was to be fi - nal decision maker. It was ap- propriate for children to attend for therapeutic access with specifi ed individual. Husband's allegation of parental alien- ation by wife was not made out. Calls to CAS by wife were not for purpose of alienating children from husband. Wife attempted to facilitate access. Order required parties to com- municate by e-mail rather than by fax. Order permitted wife to move within 35 kilometres of current home. Wife was per- mitted to purchase husband's half of Trout Creek property. Husband was to be refunded $1,502 for overpayment of child support. Husband was to pay child support based on income of $42,000 per year. Th ere was to be equal division of holidays as set out. Nussbaum v. Nussbaum (Jan. 13, 2010, Ont. S.C.J., Kelly J., File No. 03 FA 012142 FIS) 184 A.C.W.S. (3d) 423 (53 pp.). Professions BARRISTERS AND SOLICITORS Father's friend barred from representing father in access dispute Motion by unrepresented fa- ther seeking court's permission to have his friend, P., represent him in trial of access dispute pursuant to rule 4(1)(c) of Fam- ily Law Rules (Ont.). P. alleged that he was retired lawyer who had resigned membership in law society in 1999 for personal and health reasons. Decision of law society regarding P. indi- cated that he had been guilty of professional misconduct and recommended disbarment. Law society had determined that P. was guilty of misleading coun- sel, clients and a judge and that he did not understand ethics re- quired of lawyer and could not be trusted to function as lawyer with integrity. Order of convo- cation of law society stipulated that P. be prohibited from act- ing or practising as barrister and solicitor and from holding him- www.lawtimesnews.com Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 2/3/10 1:41:29 PM Starting from $62.50 per month More value for your money! Cases that you can't find anywhere else can be found in BestCase, a new web-based research service from Canada Law Book, containing: • Comprehensive collection of reported and unreported decisions dating back to 1898 and including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator eREPORTS included at no extra charge ... continuing legal education delivered to your desktop! BestCase subscribers can now receive our eREPORTS – electronic versions of "paper parts" of our law reports. Emailed to you, the eREPORTS link from the subject index to the full reported judgment (including headnote). No more photocopying required to get copies of decisions exactly as they appear in a law report! Only in BestCase will you find images of reported decisions as they appear in our law reports, in a pdf file, complete with headnotes. Also available are images of original judgments as released by the court, with the official court stamps and signatures. Disburse your costs! BestCase allows you to track research, generate reports and manage your passwords using the new Disbursement Manager. Contact your Account Manager to compare BestCase to your current research services! self out as barrister and solicitor. Motion denied. P. was seeking to do in this trial precisely what convocation's order prohibited. Even if there special circum- stances within meaning of rule 4(1)(c) that justifi ed this form of representation, there were no special circumstances that could override bar of P.'s ability to par- ticipate in upcoming trial. Pires v. Dedvukay (Jan. 4, 2010, Ont. C.J., Katarynych J., File No. T0-05-10744B1) 184 A.C.W.S. (3d) 440 (9 pp.). Sale Of Land OPTIONS Option agreement was upheld Crown purported to exercise option to purchase property. Crown gave notice exercising option to purchase property by letter during fi rst option period. In notice Crown advised de- fendant that Crown intended to close purchase on date that was in second option period for purchase price of zero dol- lars. Crown registered notice on title of Crown's intention to exercise option. Defendant refused to accept option no- tice as valid because it did not comply with terms of option agreement. Crown sought dec- laration that Crown was en- titled to purchase property for zero dollars. Defendant coun- terclaimed that option expired and defendant was entitled to treat option agreement as at end because of Crown's actions. Defendant sought declaration defendant was no longer bound PAGE 15 by terms of option agreement. Crown sought determination of three questions of law. It was held Crown's fi rst option was not validly exercised. Crown provided second option notice to defendant advising Crown would purchase property on specifi ed date for $18 million. Counterclaim was dismissed. Option agreement was upheld. Crown could exercise second option. Th ere was no evidence of bad faith on part of Crown with respect to Crown's inter- pretation of option agreement or with respect registering notice on title. On plain reading of op- tion agreement there were two separate independent options. Option agreement was unilater- al contract. Option agreement constituted irrevocable off er that could not be withdrawn by defendant. Fact Crown's fi rst option was not validly exercised did not aff ect option agreement which remained irrevocable of- fer. Second option remained in full eff ect and was open for ac- ceptance by Crown. Second op- tion notice was valid to create binding bilateral agreement of purchase and sale. Normal con- tractual remedies that applied to bilateral contracts did not apply to unilateral contracts. Doctrine of repudiation and ac- ceptance of purported repudia- tion did not apply to unilateral contracts. Canada (Attorney General) v. Rostrust Investments Inc. (Dec. 21, 2009, Ont. S.C.J., Polowin J., File No. 05-CV-29853) 184 A.C.W.S. (3d) 537 (54 pp.). LT 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. LT0208