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Page 14 august 24, 2015 • Law Times www.lawtimesnews.com factors relevant to comparison. McManaman c. Canada (Pro- cureur général) (May. 27, 2015, F.C.A., J.D. Denis Pelletier J.A., Johanne Gauthier J.A., and A.F. Scott J.A., File No. A-391-13) Decision at 235 A.C.W.S. (3d) 517 was reversed. 254 A.C.W.S. (3d) 936. FEDERAL COURT Employment WRONGFUL DISMISSAL Decision terminating unjust dismissal claim set aside on judicial review Adjudicator's March 2014 de- cision terminated applicant's unjust dismissal claim. Adju- dicator had been advised that parties had reached settlement. Applicant applied for judicial review of March 2014 decision. Applicant denied agreeing to terms of alleged settlement be- tween counsel and employer. Application granted. Evidence as to whether parties reached agreement was contradictory. Counsel did not inform appli- cant clearly of what would be included in agreement. Appli- cant refused to sign settlement documents because they did not ref lect terms he agreed to. Applicant's affidavit specifically stated that he never agreed to proposed terms. Counsel's affi- davit was not specific enough to displace that evidence. Possible that counsel misunderstood what applicant was prepared to accept. Adjudicator's decision was based on settlement that never occurred. Decision was set aside. Baptiste v. 3903214 Canada Inc. (GT Group) (May. 19, 2015, F.C., George R. Locke J., File No. T-880-14) 254 A.C.W.S. (3d) 852. TAX COURT OF CANADA Employment Insurance CONTRIBUTIONS Taxpayer was indepen- dent contractor Minister determined that A was engaged by appellant business owner in insurable and pen- sionable employment from Jan. 1 until Nov. 14, 2012. Owner brought appeal. Appeal al- lowed. Subjective intention of parties not determinative on its own, but owner's intention clear from actions, notably not tak- ing source deductions, issuing cheques that were sometimes marked "contract" and issue of tax slips on subcontractor basis. A's testimony self-serving as he wished to claim employment insurance benefits. A worked under conditions for many years without questioning sta- tus. A deducted business ex- penses on his tax returns. A was experienced painter who did not require supervision. A had considerable freedom to take time off in middle of a job and refused to work overtime. Con- trol factor favoured interpreta- tion that A was independent contractor. A chose to use own tools, although owner's tools available. Lack of assumption of risk and opportunity for profit favoured employment. Key fac- tor was loose relationship be- tween parties. Abhar v. Minister of National Revenue (Jun. 26, 2015, T.C.C. [Employment Insurance], Ju- dith M. Woods J., File No. 2014- 1926(CPP), 2014-1927(EI)) 254 A.C.W.S. (3d) 854. ONTARIO CIVIL CASES Appeal FINAL OR INTERLOCUTORY ORDER Order dismissing motion to strike and declaring that respondent had status to bring application was final Respondent was lawyer licensed to practice law in Ontario. Re- spondent was undischarged bankrupt. Respondent was being sued for professional negligence in class action in Colorado. Respondent sought declaration that his professional liability insurer was required to indemnify him for any judg- ment in Colorado action in- cluding reimbursement for de- fence costs. Appellant asserted respondent lacked capacity to bring application. Appellant brought motion to strike appli- cation. Motion was dismissed and order contained declara- tion that respondent had sta- tus to bring application against appellant. Appellant appealed. Respondent disputed jurisdic- tion of court to entertain appeal on basis that motion judge's or- der was interlocutory and leave to appeal to Divisional Court was required. Appeal allowed. Order was final and appeal was properly brought before court. Declaration deprived appellant of substantive defence that ap- plication was nullity because re- spondent lacked standing as un- discharged bankrupt to bring action. That defence, if success- ful, would be determinative of entire action. Motion judge erred in holding that respondent had standing to bring applica- tion. Application for declaration that appellant had to indemnify him under his insurance policy was claim in breach of contract that was solely about money and vested in trustee. Right to claim indemnity and to enforce claim by bringing action was right of trustee in bankruptcy, and belonged to trustee whether indemnity was payable directly to insured bankrupt or to third party. Proceeds of insurance policy did not form part of es- tate of bankrupt that vested in trustee, but right to bring action to enforce terms of policy vested in trustee and could be assigned by trustee. Meisels v. Lawyers Profession- al Indemnity Co. (Jun. 8, 2015, Ont. C.A., K.M. Weiler J.A., E.A. Cronk J.A., and S.E. Pepall J.A., File No. CA C59723) 254 A.C.W.S. (3d) 759. Civil Procedure CLASS ACTIONS Motion respecting distribu- tion phase of class proceed- ing dismissed on terms Ontario lawyer acting for five class members advised class counsel that distribution plan that had been approved by courts in Ontario, British Co- lumbia, and Quebec contra- vened s. 1 and 3 of Human Rights Code. Ontario lawyer told class counsel that his clients intended to request damages and amendment to distribution plan. After negotiations class counsel and Ontario lawyer signed letter agreement in ac- tion and in companion actions in Quebec and British Colum- bia. Ontario lawyer was satisfied that problems with code could be resolved by giving claims administrator instruction to be posted on claims website for duration of claims process. Mo- tion was brought with respect to distribution phase of class pro- ceeding. Motion dismissed on terms. Class counsel was direct- ed to file notice of motion and supporting affidavit material for motion for directions and mo- tion was scheduled. Proposed instruction may or may not be adequate to address what may or may not have been problem, raised by persons who may or may not have standing to chal- lenge approved settlement dis- tribution scheme. Court could not endorse whatever it was at whim of class counsel and On- tario lawyer without ruling on merits of underlying dispute. Court could not indirectly en- dorse anti-suit injunction pro- hibiting clients of Ontario law- yer from taking administrative proceedings that may or may not be available to them assum- ing that they were entitled to make claims notwithstanding releases that were part of court approved settlement. Eidoo v. Infineon Technologies AG (Jun. 8, 2015, Ont. S.C.J., Perell J., File No. 05-CV-4340, 10-CV-15178CP) 254 A.C.W.S. (3d) 779. PARTIES Parties incapable of conduct- ing litigation should not be held responsible for costs Seventeen-year-old plaintiff commenced actions against defendant hotel operators. De- fendant had refused to permit plaintiff to stay at hotel due to his age. Plaintiff commenced actions without naming liti- gation guardian. Plaintiff was emancipated minor under art. 168 of Civil Code of Quebec. Defendants brought motion for stay on grounds that no litiga- tion guardian was appointed. December 2014 decision grant- ed motion and imposed stay. After plaintiff turned 18, de- fendants renewed request for costs. No costs were awarded. Rules of Civil Procedure did not expressly prohibit costs award against party under disability. Courts had established practice of not doing so. Parties under disability were incapable of con- ducting litigation. Parties inca- pable of conducting litigation should not be held responsible for costs. Plaintiff could not now take position that plaintiff had capacity for purpose of in- curring liability for costs. Asselin-Normand v. King Edward Realty (Jun. 1, 2015, Ont. S.C.J., Stinson J., File No. Toronto CV-14-510449, CV-14- 510450) 254 A.C.W.S. (3d) 805. Contracts INTERPRETATION Application judge did not err in interpreting option agreement Appellant P was award-winning mystery writer who, through her company appellant T, op- tioned certain rights to books to respondent television produc- tion company for purpose of producing made-for-television movies. Option agreement pro- vided that option terminated after two years but respondent was able to extend initial two- year term. Respondent gave no- tice that it was extending option agreement pursuant to s. 2.3B. One year later, respondent gave notice that it was further ex- tending option agreement pur- suant s. 2.3B but extension was not accepted by appellants. Re- spondent brought application seeking declaration that option agreement remained in effect while T sought declaration that any option rights respondent had pursuant to option agree- ment had ended. Application judge concluded that option agreement allowed for exten- sion of fourth year. Respondent admitted it erred in citing s. 2.3B as basis for first extension of option agreement and appli- cation judge exercised equitable discretion to grant relief from forfeiture. Appellants appealed. Appeal dismissed. Application judge's reasons were sufficient. Application judge did not err in interpreting option agreement. There were two possible routes to extension. Respondent could initially choose s. 2.3 route near end of original contract period and s. 2.3B route allowed for potential second extension one year later. Section 2.3 provided for extension of contract into third year and s. 2.3B provided for further extension but in more limited circumstances. That interpretation was com- mercially reasonable and fair. Respondent was permitted to extend option agreement pur- suant to s. 2.3 and s. 2.3B cu- mulatively. Court had broad discretion to award relief from forfeiture. There was no basis to interfere with application judge's exercise of discretion. PDM Entertainment Inc. v. Three Pines Creations Inc. (Jun. 29, 2015, Ont. C.A., J.C. MacPherson J.A., Gloria Epstein J.A., and L.B. Roberts J.A., File No. CA C60024) 254 A.C.W.S. (3d) 825. Courts ABUSE OF PROCESS Action arising from feed-in tariff Program properly dis- missed as abuse of process In judicial review application, plaintiffs attacked lawfulness of minister's direction to On- tario Power Authority and re- sulting changes to feed-in tariff program. Motion judge found that plaintiffs could have raised allegations that they were spe- cifically targeted in judicial re- view application. Motion judge dismissed action as abuse of process. Plaintiffs appealed. Ap- peal dismissed. Motion judge was correct in deciding that plaintiffs' failure to raise target- ing allegation in judicial review proceedings was sufficient for doctrine of abuse of process to apply. Motion judge did not err in deciding not to exercise her discretion to permit action to proceed. Conclusion that not applying doctrine of abuse of process would offend principle of finality and undermine cred- ibility of judicial process de- served deference. Skypower CL 1 LP v. Ontario Power Authority (Jun. 5, 2015, Ont. C.A., R.G. Juriansz J.A., Paul Rouleau J.A., and P. Lau- wers J.A., File No. CA C59869) Decision at 248 A.C.W.S. (3d) 583 was affirmed. 254 A.C.W.S. (3d) 836. Mortgages FORECLOSURE Summary judgment in favour of bank upheld on appeal In March 2007, defendant M granted mortgage in favor of plaintiff bank on property for principal amount of $588,147 with five-year term. In July 2007, property was transferred to defendant G for nominal consideration of $2.00, al- though it was made pursuant to agreement of purchase and sale that indicated purchase price of $502,000. G executed a mort- gage assumption agreement in favour of bank in June 2007. In October 2007, bank com- menced action against M and G seeking possession of property and payment of amounts due, based upon principal amount of $587,623. In his defence and counterclaim, G took position he had only assumed principal debt of $502,000. He sought declaration that any liabil- ity under mortgage in excess of that amount was released due to conduct of bank. In Janu- ary 2008, bank gave G notice of sale. In 2009, bank moved for partial summary judgment. G was ordered to pay $95,093 on account of arrears of prin- cipal and interest, as well as $18,733 in municipal property taxes that bank had paid. G was also ordered to make monthly mortgage payments of $2,517. Parties subsequently agreed to set aside that order on the basis that G would pay bank amount of $113,826.87, which he paid. He made no further payments under mortgage. In July 2012, CASELAW

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