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PAGE 18 within meaning of s. 255 of Act. Relationship between power exercised by motion judge was sufficiently close to legislative source under Act, namely power to adjudicate on oppression claims, making it equally order "under this Act". Ontario (Securities Commission) v. McLaughlin (Apr. 2, 2009, Ont. C.A., O'Connor A.C.J.O., File No. M37383; C49832) Order No. 009/097/045 (6 pp.). PROCEDURE Father did not act diligently in pursuing appeal Father brought application for declaration that child was wrongfully removed from New York State and detained in Ontario by mother. Judgment declined return of child in view of grave risk of physical and psy- chological harm. Appeal docu- ments filed by father himself were repeatedly rejected by court for being improperly prepared. Eventually father retained coun- sel who prepared motion for extension of time to file notice of appeal eight months after judgment. Motion dismissed. Father did not act diligently in pursuing appeal. After sev- eral unsuccessful attempts father should have been aware of his lack of knowledge and skill to pursue appeal without coun- sel. Father did not reasonably explain to satisfaction of judge failure to observe time-limit in appealing judgment. Lombardi v. Mehnert (Apr. 27, 2009, Ont. S.C.J., Pazaratz J., File No. FS 3/09) Order No. 009/119/017 (10 pp.). Bankruptcy And Insolvency COURTS AND PROCEDURE Involvement of Bankruptcy Court would result in further delay Plaintiff claimed spousal support, child support and constructive trust over assets of LPI. Plaintiff sought leave to continue with family law proceeding between plaintiff and bankrupt. Plaintiff claimed bankrupt transferred all assets to LPI. Plaintiff 's motion was granted. Stay was lifted to permit plaintiff to continue trial against bankrupt in respect of cause of action for recov- ery of property or for damages for breach of trust contract or other legal obligation. Plaintiff did not need stay lifted to per- mit her to proceed with action in respect of determination of amount of claim against bank- rupt for spousal or child sup- port. Plaintiff did not need leave to continue action as against LPI because it was not bank- rupt. Action was going on in excess of five years. Involvement of Bankruptcy Court would result in further delay. Further delay would likely be prejudicial to plaintiff. LPI's cross-motion for order directing take trustee to steps to oppose motion or for order permitting LPI to prosecute proceedings in own name for bankrupt estate was dismissed. Chapple (Re) (Apr. 3, 2009, Ont. S.C.J. (Comm. List), Morawetz J., File No. 35-1044190) Order No. 009/098/042 (4 pp.). Civil Procedure CLASS ACTIONS Judge erred in failing to consider advantages of class proceeding Motions judge dismissed motion for certification of class action against respondent tour opera- tor. Although motions judge's determination of preferable pro- cedure was normally entitled to substantial deference, in this case motions judge erred in failing to consider advantages of class pro- ceeding when considered against alternative procedures in light of narrow class definition. Not appropriate for court to make order for certification. Motions judge indicated that were he to have found class proceeding preferable procedure, he would not have granted certification because he would not approve litigation plan in its then cur- rent form. Appropriate remedy was to refer issue of certifica- tion back to motions judge, so appellants could provide revised litigation plan. Lavier v. MyTravel Canada Holidays Inc. (Mar. 31, 2009, Ont. S.C.J. (Div. Ct.), Hackland R.S.J., Swinton and Karakatsanis JJ., File No. 407/08) Appeal from 168 A.C.W.S. (3d) 258, 59 C.P.C. (6th) 57 allowed. Order No. 009/092/156 (14 pp.). PLEADINGS Plain and obvious that plaintiff's action not reasonable Motion by defendant for order striking out plaintiff's state- ment of claim as disclosing no reasonable cause of action and alternatively as abuse of process. Plaintiff invested $250,000 in hedge fund. Fund was victim of fraudulent, negligent and alleg- edly criminal misappropria- tion by its principals causing multi-million dollars of finan- cial losses. In this proposed class action plaintiff claimed general damages of $110 mil- lion against of P. accounting firm for negligent misrepre- sentation, reckless misrepresen- tation and negligence for its role as auditor of hedge fund. Plaintiff alleged that P. allowed its name along with its desig- nation as auditor to appear on offering memorandum and on other of fund's documents and that this enabled hedge fund to appear legitimate and be sold to numerous investors throughout Canada. Motion granted. Other than naming P. as auditor there was nothing alleged to establish a relationship between investors and P. and there were no prom- ises, undertakings or holding out of responsibility made by P. to investors. It was not fair nor reasonable to impose liability on P. without any misrepresenta- tion or wrongdoing by it or any allegations that it participated in fund's wrongdoing. Accordingly it was plain and obvious that plaintiff's action was not rea- sonable. Hurst v. PriceWaterhouse Coopers (PWC) LLP, Canada CASELAW (Apr. 7, 2009, Ont. S.C.J., Perell J., File No. 06-CV-319818 CP) Order No. 009/103/075 (9 pp.). Conflict Of Laws JURISDICTION Child was habitually resident in Prince Edward Island Application for variation in cus- tody of child. Shortly after child's birth, mother was granted custo- dy. Further order forbade child's removal from Ontario without father's consent. Child, current- ly aged nine. Mother moved with child to Prince Edward Island in May 2008. Father proposed that child live with him in Ontario. Father com- menced proceedings in Ontario for variation of custody. Mother submitted that Prince Edward Island was proper forum for action. Application dismissed. Court declined jurisdiction. Child was habitually resident in Prince Edward Island. There was clearly acquiescence, tacit silent or passive agreement on part of father to change of resi- dence for child on permanent basis. Gillis v. Fenton (Mar. 19, 2009, Ont. C.J., Thibideau J., File No. F370/99A) Order No. 009/092/163 (8 pp.). Contempt Of Court GROUNDS Father deliberately and wilfully breached access order Mother claimed father breached three access-related terms of divorce order. Divorce order made it clear residence of chil- dren was to be with moth- er. Child, aged 15. Father informed mother child wished to change primary residence from mother's home to father's home. Mother later told child that child was free to do as child wished and mother later acquiesced in further breaches of order. Contempt motion was allowed. Father deliberately and wilfully breached order. Father did not make effort to encour- age child to comply with order. Father induced child to disobey order. Mother's statement to child and fact mother acqui- esced were mitigating factors for sentencing. Hatcher v. Hatcher (Mar. 24, 2009, Ont. S.C.J. (Fam. Ct.), Quinn J., File No. D750/00) Order No. 009/097/015 (15 pp.). Courts STAY OF PROCEEDINGS Allegation of irreparable harm speculative Motion for order staying proceedings of Discipline Committee of College of Physicians and Surgeons pend- ing outcome of application for judicial review of decision of committee dismissing motion seeking to quash notice of hear- ing or to have allegations dis- missed on basis of issue estop- pel and/or abuse of process. Motion dismissed. Allegation of irreparable harm specula- tive. Premature to grant stay www.lawtimesnews.com June 29/July 6, 2009 • law Times on ground that applicant may suffer irreparable harm because of way in which notice of hear- ing is framed when hearing not commenced. If discipline proceedings turned out to be flawed because of notice or dis- closure, applicant had full right of appeal to court. Not a case where applicant had shown pro- ceeding fatally flawed because of some failure of natural justice or loss of jurisdiction. While loss of hospital privileges might well cause irreparable harm, not satisfied stay would have any impact on decision of hospital board. To extent that hospital board concerned about length of applicant's absence and restric- tion on his license, interim stay would not address concerns. Balance of convenience did not warrant stay. Public interest in permitting self-regulating pro- fession to carry out its supervi- sory jurisdiction over members without regular interventions by court as process unfolds. Karkanis v. College of Physicians and Surgeons of Ontario (Apr. 21, 2009, Ont. S.C.J. (Div. Ct.), Swinton J., File No. 162/09) Order No. 009/113/051 (5 pp.). Debtor And Creditor ENFORCEMENT Defendant never intended to be guarantor or co-lessee Insurer of father's motor vehicle cancelled insurance. Vehicle was added to defendant daugh- ter's vehicle insurance. Father made it plain to plaintiff defen- dant was not to assume finan- cial responsibility under lease. Father defaulted on lease pay- ments. Father surrendered pos- session of vehicle. Plaintiff was unable to collect from father. Plaintiff claimed money for breach of vehicle lease. Plaintiff claimed defendant was co-lessee and was responsible to plain- tiff as primary debtor. Lease was in carbon copy format. Plaintiff first brought action against defendant as guar- antor and then as co-lessee. Defendant denied signature was defendant's. Defendant argued defendant was added as driver. Action was dismissed. Defendant never intended to be guarantor or co-lessee of father's vehicle. Plaintiff never treated defendant as co-lessee. Plaintiff 's conduct was consis- tent with finding plaintiff never intended to make defendant party to lease as principal or guarantor. North York Chevrolet Oldsmobile Ltd. v. Valko (Apr. 1, 2009, Ont. S.C.J., Aston J., File No. 05-CV-285710SR) Order No. 009/098/030 (7 pp.). Employment EMPLOYMENT RELATIONSHIP Independent contractor was entitled to reasonable notice of termination without cause Action by plaintiff for dam- ages for wrongful dismissal. Defendant had contract to provide physiotherapy ser- vices to individuals residing in long-term care Defendant selected plaintiff to provide these services at particular facility. Plaintiff completed invoices provided by defendant and received payments without being sub- jected to employment deduc- tions. Plaintiff was terminated for refusing to stop socializing with resident. Action allowed. Plaintiff was awarded $9,150 based on six-month notice period. Plaintiff was indepen- dent contractor but relation- ship was of such nature that law implied condition of rea- sonable notice for termination without cause. Plaintiff did not have any flexibility regard- ing who she treated or when she treated them. Plaintiff had no discretion regarding insur- ance coverage arranged by defendant. Plaintiff essentially worked full-time hours and could not readily find other work. Defendant paid flat fee for plaintiff's services. Greenland v. Ogunkoya (Apr. 23, 2009, Ont. S.C.J., Crane J., File No. 06-25700-SR) Order No. 009/118/026 (18 pp.). Family Law CHILD WELFARE Parents' lifestyle created risk of harm to child Child was in society's care since birth. Mother's previous three children were made Crown wards without access. Parenting capacity assessment report recommended child be made Crown ward without access. Society brought summary judg- ment motion for child to be made Crown ward and placed in society's care without access. Motion was allowed. There was no genuine issue for trial. Crown wardship was in best interests of child. There was no less dis- ruptive alternative. Supervision order was not appropriate and inadequate to protect child. Parents had serious continuing mental health problems. Parents' lifestyle created risk of harm to child. Parents had difficulty in day-to-day lives and had inabili- ty to deal with budgeting issues. No material was filed to show parents had support network. Evidence did not satisfy either element of test for access. Catholic Children's Aid Society of Hamilton v. M. (J.) (Feb. 18, 2009, Ont. S.C.J., Lofchik J., File No. C-1482-00) Order No. 009/056/064 (13 pp.). CUSTODY Conflict between mother and grandmother precluded access by grandmother Maternal grandmother had not spoken to mother since 2005 and had no access to grand- children for almost four years. Grandmother brought applica- tion for access to two grandchil- dren. Mother sought order for- bidding access. Mother's motion for summary judgment allowed. Conflict between mother and grandmother precluded any possibility that access by grand- mother could be successful. Grandmother presented no evi- dence to persuade court access facilities.