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Law Times • augusT 24/31, 2009 This was appeal from trial judge's refusal to deduct amount paid to plaintiff under Mary Carter agree- ment from damages award. Plain- tiff was passenger in boat that was operated by defendant K.S. when it was struck by another boat oper- ated by defendant W.R.. Plaintiff entered into Mary Carter agree- ment with W.R.. W.R. paid plain- tiff $365,000. Terms of settlement did not require plaintiff to repay any part of settlement. At trial jury assessed plaintiff's total damages at $312,021. Damages were appor- tioned 50% against W.R., 39% against K.S. and 11% against plain- tiff. Plaintiff was awarded damages of $121,688 against K.S.. Appeal allowed. Settlement moneys re- ceived from W.R. were on account of same damage for which plaintiff continued proceeding against K.S., non-contracting defendant. Plain- tiff's total damages had been as- sessed by jury at $312,000, which was less than amount he received from W.R., contracting defendant. To permit plaintiff to recover any amount from K.S. would result in double recovery to plaintiff, which was not permitted. Laudon v. Roberts (May 7, 2009, Ont. C.A., Weiler, Juriansz and MacFarland JJ.A., File No. C48648) Order No. 009/131/063 (31 pp.). Education SCHOOLS Allegations of negligence were properly struck but claim for misfeasance in public office was permitted to go forward Motions judge erred in part in striking appellant's statement of claim against School Board as disclosing no reasonable cause of action. Statement of claim alleged negligence, intentional infliction of mental suffering and misfea- sance in public office. Appellant, single father, was volunteer and lunch time monitor at school his children attended. Parents of two students complained about appellant's behaviour in relation to their daughters. Principal sus- pended appellant from volun- teering and restricted his access to school property to threshold of principal's office when waiting for or dropping off his children. Paragraphs alleging negligence and those paragraphs giving rise to request for declaratory relief available by way of judicial re- view in Divisional Court were properly struck as against all de- fendants. Claim for misfeasance in public office was allowed to go forward as against relevant prin- cipals, school superintendents and school board. Foschia v. Conseil des Ecoles Catholique de Langue Francaise du Centre-Est (June 19, 2009, Ont. C.A., Weiler, Sharpe JJ.A. and Thorburn J. (ad hoc), File No. C49715) Appeal from 174 A.C.W.S. (3d) 133 allowed in part. Order No. 009/173/011 (19 pp.). Employment EMPLOYMENT STANDARDS Union president entitled to additional vacation pay but not increased severance Plaintiff was president of defen- dant union. When she discontin- ued working for union plaintiff was paid 48 weeks of vacation pay. She was also paid severance repre- senting difference in amount that home employer paid her and what she earned at union for approxi- mately 12 weeks. Plaintiff brought action for increased benefits. Ac- tion allowed in part. In respect of vacation pay plaintiff was entitled to additional $25,815.65. Since union policy on matter was am- biguous judge considered extrinsic evidence which supported plain- tiff's position, including policy interpretation that plaintiff herself adopted in 2001 in capacity as president. Plaintiff's claim to in- creased severance was dismissed. It defied common sense that plaintiff should receive full severance pay from union and home employer for same period of time when she was president. Casselman v. O.P.S.E.U. (June 18, 2009, Ont. S.C.J., Kelly J., File No. 08-CV-348098SR) Order No. 009/173/022 (11 pp.). Family Law COSTS Refraining order was granted Parties entered separation agree- ment. Applicant was to pay child support of $500 per month. Ap- plicant and spouse entered amend- ing agreement reducing child support to $250 per month. Fam- ily Responsibility Officer ("FRO") took enforcement measures not- withstanding notice that agree- ment was amended and motion to change was commenced. Appli- cant brought motion for refraining order. Refraining order was grant- ed. FRO was required to pay costs within 30 days. FRO did not pay costs until FRO was required to at- tend before court. Applicant paid costs of $2,929 to collect costs or- der of $1,617. Applicant sought costs. Refraining order was final order. Court was functus. Court had jurisdiction to bring FRO to court to enforce costs order. FRO was required to pay costs of $2,929 within 90 days. Figliola v. Ontario (Director of the Family Responsibility Office) (June 9, 2009, Ont. C.J., Zisman J., File No. 298/07) Order No. 009/173/056 (13 pp.). Insurance AUTOMOBILE INSURANCE Respondent not entitled to continuing income replacement benefit Trial judge erred in concluding that respondent, who was injured in automobile accident, was com- pletely unable to engage in any employment for which he was "reasonably suited by education, training or experience" under s. 5(2)(b) of Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, O. Reg. 403/96. Trial judge applied wrong test. On findings made by trial judge, application of cor- rect test leads to conclusion that respondent was not entitled to continuing income replacement benefit. Long haul trucking was clearly suitable alternative for re- spondent, even though he lacked formal qualifications for it both at time of assessment and at trial. Burtch v. Aviva Insurance Co. of Canada (June 15, 2009, Ont. C.A., Goudge, Simmons and Ju- riansz JJ.A., File No. C47485) Ap- peal from 158 A.C.W.S. (3d) 819 allowed. Order No. 009/166/198 (14 pp.). CASELAW DISABILITY INSURANCE Overpayment by insurer stood as debt which differed in nature and quality from income replacement benefits Motion by plaintiff for declara- tion regarding rate at which over- payment by insurer of disability benefits should be repaid pending trial. Plaintiff received long-term disability benefits from insurer. Plaintiff retired and began to col- lect Public Service Superannua- tion. Plaintiff continued to receive her full disability benefits in addi- tion to her superannuation. Five years later, insurer became aware of plaintiff's retirement. Terms of contract of insurance provided that payment of superannuation entitles insurer to deduct amount of payment from disability pay- ments. Insurer calculated over- payment of $114,644. Insurer agreed to continue paying 50% of reduced benefits, keeping 50% for overpayment. Plaintiff submitted that Wages Act (Ont.), applied, and that 80% of her wages were exempt from seizure or garnish- ment. Motion dismissed. There had been no seizure of wages. Overpayment stood as debt which differed in nature and quality from income replacement benefits. Garneau v. Industrial Alliance Insurance and Financial Services (May 25, 2009, Ont. S.C.J., Me- tivier J., File No. 08-CV-42719) Order No. 009/152/028 (3 pp.). Professions BARRISTERS AND SOLICITORS Divisional Court properly set aside order upholding finding of professional misconduct and order of disbarment Divisional Court set aside order of Law Society Appeal Panel which had upheld finding of professional misconduct and order of disbar- ment against I. imposed by Law Society Hearing Panel. Divisional Court held that Hearing Panel breached standards of natural jus- tice in two respects first, during liability phase, hearing panel re- fused to grant I. brief adjournment in order for him to be represented by counsel; second, after liability phase had concluded, it failed to give I. adequate notice that it was proceeding with penalty phase. Divisional Court then considered and dismissed I.'s request that pro- ceedings against him be stayed on account of Law Society's inordinate delay in proceeding against him. No basis upon which to interfere with decision of Divisional Court. Matter remitted back to newly- constituted hearing panel, which will make fresh determination on I.'s liability, if necessary, appropri- ate punishment. Igbinosun v. Law Society of Upper Canada (June 16, 2009, Ont. C.A., Weiler, Gillese and Watt JJ.A., File No. C49751; C49744) Appeal from 168 A.C.W.S. (3d) 775 dis- missed. Order No. 009/169/027 (35 pp.). Torts CONVERSION Tort of conversion is one of strict liability Respondent lawyer acted for pur- chaser in real estate transaction in which fraudster purported to sell to purchaser property owned by R.. On closing, respondent deliv- ered to fraudster cheque drawn www.lawtimesnews.com Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 6/10/09 10:43:52 AM on his trust account at R.B. bank and payable to R.. Fraudster, af- ter forging endorsement of R. on cheque, deposited it in appellant bank where fraudster had opened account in name of R.. Fraudster withdrew funds from appellant bank. When fraud came to light, respondent sued appellant bank to recover amount of cheque. Cham- bers judge properly granted sum- mary judgment to respondent. Tort of conversion is one of strict liability. Appellant bank could not come within protection of s. 165(3) of Bills of Exchange Act (Can.). Finally, defence of preclu- sion was not available to appellant bank as respondent was not appel- lant's customer. Khosla v. Korea Exchange Bank of Canada (June 10, 2009, Ont. C.A., Goudge, Gillese and Watt JJ.A., File No. C49711) Appeal from 172 A.C.W.S. (3d) 249 dis- missed. Order No. 009/166/142 (4 pp.). ONTARIO CRIMINAL CASE Charter Of Rights APPLICATION Systemic delays in delivery of prisoners to courthouse violated Charter Accused in custody appeared for bail review applications. Pris- oners not delivered to court in timely fashion and proceedings were delayed. Systemic delays discovered in delivery of prison- ers to courthouse. Sections 7 and 11(b) of Canadian Charter of Rights and Freedoms violated. PAGE 15 Deliberate and organized behav- iour of jail guards altered normal operation of jails and court. Ac- cused allowed immediate access to Court. An Inquiry into Delays in the Delivery of Prisoners to The Peel Courthouse (Re) (May 21, 2009, Ont. S.C.J., Hill J., File No. CRIM MOT(P)3416/08) Order No. 009/145/010 (8 pp.). Contempt Of Court PROCEDURE Section 127 of Criminal Code appropriately applied where effect of breach of injunction extends beyond parties to proceeding Appellant G was charged with criminal contempt of court un- der s. 127 of Criminal Code for allegedly displaying a sign within 60 feet of abortion clin- ic, contrary to fifteen-year-old interlocutory injunction. G successfully moved to quash in- formation. Crown appealed. At issue was whether s. 127 was ex- empted from operation by either Rules 60.11 or 60.12 of Rules of Civil Procedure (Ont.). Appeal allowed. Neither Rule 60.11 nor Rule 60.12 expressly providing a punishment or mode of pro- ceeding as required to exempt s. 127, instead merely being prod- uct of court's inherent power to control own process. Section 127 appropriately applied where breach of injunction engaging public interest alleged, i.e. where effect of breach extends beyond parties to proceeding. R. v. Gibbons (June 19, 2009, Ont. S.C.J., Frank J., File No. 22/09) Order No. 009/173/045 (7 pp.). LT Find the best in… eREPORTS included for no extra charge CANADA LAW BOOK's law reports and case summaries are no longer available on Quicklaw LexisNexis. Find them, instead, in BestCase, a web-based research service containing Canada's leading law reports and renowned case summary services as well as a comprehensive collection of unreported decisions dating back to 1977, and a case citator feature. BestCase includes: • Canadian Criminal Cases • Dominion Law Reports • Labour Arbitration Cases • Land Compensation Reports • Ontario Municipal Board Reports • All-Canada Weekly Summaries • Canadian Labour Arbitration Summaries • Weekly Criminal Bulletin • Canada Law Book's Western Digest Services No more photocopying required to get copies of decisions exactly as they appear in a law report! Only on BestCase will you find images of reported decisions as they appear in our law reports, in a pdf file, complete with headnotes. 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