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Law Times • June 8, 2009 who had received two threaten- ing telephone messages from ap- plicant. Respondent M. sent e- mail using J.'s communications network to respondent J.'s On- tario sales representatives asking if anyone knew who applicant worked for. Mail distribution list was approximately 150 persons. Applicant filed complaint with commissioner alleging that M. inappropriately used his position at J. to collect personal informa- tion about applicant contrary to Act and that J. failed to observe Act privacy requirements. Com- missioner ruled that there was no evidence that e-mail attempt to collect personal information was successful and because no infor- mation about applicant was col- lected his collection complaint was not well-founded. Com- missioner also found that re- spondent J. did not have privacy policy that complied with Act but decided that accountability complaint was satisfactorily re- solved upon subsequent devel- opment and implementation by J. of privacy policy in compliance with Act. Application dismissed. Evidence failed to establish that respondents collected any per- sonal information of applicant. Act does not provide protection to attempted collection of per- sonal information, only actual collection of information. M.'s attempt to collect personal infor- mation about applicant did not constitute violation of Act. Waxer v. McCarthy (Feb. 18, 2009, F.C., Mandamin J., File No. T-1349-06) Order No. 009/084/033 (23 pp.). ONTARIO CIVIL CASES Administrative Law BIAS Reasonable apprehension of bias not established Application by commissioner for order prohibiting adjudicator from hearing further proceedings on basis of reasonable apprehen- sion of bias. Proceedings involved prosecution of respondent senior police officers for misconduct arising out of internal investiga- tion. Respondents brought mo- tion for stay of hearing as abuse of process. In course of hearing motion, issue arose resulting in motion by prosecution to have adjudicator recuse himself. Ap- plication dismissed. None of matters complained of gave rise to reasonable apprehension of bias, neither individually nor cumulatively. Decisions taken by adjudicator were reasonable. Ontario Provincial Police (Com- missioner) v. MacDonald (Mar. 10, 2009, Ont. S.C.J. (Div. Ct.), Carnwath, Spence and Low JJ., File No. 564/08) Order No. 009/071/007 (31 pp.). Appeal LEAVE TO APPEAL Not necessary to decide whether master erred in determining that leave not required Motion for leave to appeal order dismissing appeal from order of master. Plaintiff had brought motion for summary judgment in failed real estate transaction. Defendant brought cross-motion to compel answers to questions refused on cross-examination. Parties appeared before master on refusals motion which was ad- journed for lack of time. Pending return of refusals motion defen- dants served trial record. Plain- tiffs contended that defendants could no longer continue refus- als motion without leave of court as required by rule 48.04(1) of Rules of Civil Procedure (Ont.). Defendant contended that leave was not required to continue refusals motion but if it were then leave ought to be granted. Master subsequently ordered defendants' motion to compel answers to question arising out of cross-examination of affiants for plaintiff would continue as scheduled. Master determined that in circumstances before him leave was not required under rule 48.04(1) however in cir- cumstances of case if leave were required it should be granted. On appeal court concluded that it was not required to determine whether master had made error in law in finding that it was not necessary to obtain leave to con- tinue refusals motion. Court dismissed appeal concluding that master had granted leave and there had been no palpable or overriding error in doing so. Appeal dismissed. Test on mo- tion for leave to appeal set out in rule 62.02(4). Appeal judge was not obliged to decide issue she did not need to decide to dispose of appeal, i.e. whether maser erred at law in deciding leave was not required. Master's discretion in granting leave was unassailable in circumstances of case. It was within master's dis- cretion to grant leave, which he did and it was not necessary on appeal to give seal of approval or otherwise, to parallel conclu- sion that leave was unnecessary. 1086471 Ontario Ltd. v. 2077060 Ontario Inc. (Mar. 2, 2009, Ont. S.C.J. (Div. Ct.), Aston J., File No. 60/09; 07-CV-336760PD1) Order No. 009/061/004 (4 pp.). Civil Procedure COSTS Costs on joint and several basis would create disproportionate burden on defendants Plaintiff was successful in mort- gage deficiency claim against defendants. Plaintiff made two offers to settle. Plaintiff sought costs on substantial indemnity basis. Mortgages contained costs and expenses provisions. Pro- ceedings were complex. Offers to settle were more advantageous than outcome in final account- ing of individual mortgage debts. Settlement offers did not attract consequences of rule 49.10 of Rules of Civil Procedure (Ont.). To award costs on joint and sev- eral basis would create unfair dis- proportionate burden on defen- dants and would create significant impediment to consolidation of proceedings with common issues. Costs were to be apportioned sev- erally amongst defendants on pro rata basis on completion of final accounting. Amount awarded CASELAW for B.S. accounts was $10,000 inclusive and for G.B. accounts $440,008 inclusive. Empire Life Insurance Co. v. Krystal Holdings Inc. (Mar. 13, 2009, Ont. S.C.J., Archibald J., File No. 02-CV-222931CM4) Order No. 009/079/458 (15 pp.). DISCOVERY Litigation privilege extended to third party proceedings Motion by third parties for or- der compelling defendant to produce certain documents and answer undertakings. Plaintiff claimed for damage done to its business premises by fire alleged to have been caused by negli- gence of defendants. Defendants claimed against third parties for failure to comply with estab- lished standards of fire investiga- tion and spoliation of evidence of cause of fire. Motion granted in part. Defendant was compelled to answer undertakings, but not produce documents. Litigation privilege attached to main action extended to third party proceed- ings. Third party claim was re- lated action to main action. Rudolph Meyer & Son Ltd. v. Endurowe Contracting (Mar. 12, 2009, Ont. S.C.J., Cavarzan J., File No. 02-6421- A) Order No. 009/076/009 (14 pp.). PLEADINGS Plaintiff pleaded requisite elements of claims Plaintiff's mother was involved in motor vehicle accident. De- fendant denied mother's claim for accident benefits. Mother suffered complete emotional and physical breakdown. Plain- tiff was taken out of mother's care and placed in foster care. Plaintiff claimed plaintiff was denied of mother's care, guid- ance and companionship. Plain- tiff claimed defendant was li- able for damages arising out of defendant's handling of claim of plaintiff's mother for statu- tory accident benefits. Plaintiff was occupant of motor vehicle at time of accident and was de- pendent. Defendant sought to strike out statement of claim in entirety. Motion was dismissed. Plaintiff was owed duty of care under peace-of-mind policy of automobile insurance. Plain- tiff pleaded requisite elements of mental distress flowing from breach of contract, essential ele- ments of tort of bad faith, essen- tial elements of negligence and adequately pleaded claim under Family Law Act (Ont.). Mujagic v. State Farm Auto- mobile Insurance Co. (Mar. 4, 2009, Ont. S.C.J., Fedak J., File No. 07-35590) Order No. 009/068/038 (22 pp.). SET-OFF There was genuine issue for trial in relation to equitable set-off claim Motion by P. for summary judg- ment on amount held back by A. from payment of $350,000 for cash provided by P. to A. for use in A.'s automated teller ma- chines. A. contended that it paid impugned fees since P. stated it would no longer provide cash for A.'s ATMs if A. did not pay im- pugned fees. A. sought to set off www.lawtimesnews.com this amount against $129,000 balance it owed for payment of $350,000 cash provided by P. to A. for use in ATMs. Motion for summary judgment dismissed. There was genuine issue as to whether vault cash agreement, which prohibited set-off, ap- plied to $350,000 from which ATM withheld impugned fees. P. acknowledged that there was separate understanding which was not written agreement that A. would provide P. with cheque and then P. would provide A. with cash for same amount as cheque and those amounts would be sent to ATM directly for use in A.'s own machines. $350,000 was advanced as drops to A. which raised genuine issue that funds were provided under separate understanding and not vault cash agreement. Conse- quently trial judge could find that A. was not prohibited from raising set-off defence if separate understanding applied. Even if vault cash agreement applied there was genuine issue of wheth- er service fees could be charged on stolen funds. Third there was genuine issue of whether A. was coerced into paying service fees on stolen money as refusal by P. to continue to supply vault cash would have put A. out of busi- ness. There was genuine issue for trial that A. could raise success- ful equitable set-off claim. Basis for equitable set-off was fairness. It must be manifestly unjust to allow party to enforce payment without taking into account claim for set-off. Here, there was genuine issue that set-off claim was so clearly connected with demand of plaintiff that it would be manifestly unjust to al- low plaintiff to enforce payment without taking into consider- ation set-off claim. Accordingly there was genuine issue for trial that A. could raise successful eq- uitable set-off claim. Automated Teller Machines Canada Inc. v. Guardsman Security Services Inc. (Mar. 27, 2009, Ont. S.C.J., Mas- ter Glustein, File No. 05-CV- 293773PD2) Order No. 009/089/054 (5 pp.). SETTLEMENT Dismissal of action for breach of minutes of settlement upheld on appeal Appeal from order granting summary judgment and dismiss- ing action against respondent for breach of minutes of settle- ment. Respondent bank had reported appellant as R9 credit rating for portion of appellant's debt that it wrote off following settlement. Appellant contended that motion judge had erred in interpretation of term "bad debt" in context of credit report- ing under Consumer Reporting Act (Ont.). Appellant contended that R9 was worst credit rating and was for bad debts and that motion judge should have rec- ognized as genuine issue for trial whether failure to pay money compromised on settlement was properly characterized as "bad debt" within meaning of R9 credit rating. Appeal dismissed. Motion judge had not erred. Only evidence was contained in respondent's affidavit which stat- PAGE 17 ed that settlements that involve write-downs of amounts owing to credit grantor were intend- ed to be reported as R9 under North American Standard Ac- count Ratings and appellant was treated same way as other bank customers in similar circum- stances. In settlement agreement appellant specifically agreed that respondent was not required to report to credit agencies in any particular way. In light of that R9 report could not be breach of settlement agreement. Martinek v. Canadian Impe- rial Bank of Commerce (Mar. 30, 2009, Ont. C.A., Feld- man, Gillese and Rouleau JJ.A., File No. C49247) Order No. 009/090/006 (2 pp.). TRIAL Motion to discharge jury was dismissed Plaintiff brought motion to discharge jury. Plaintiff argued defendant's counsel made incor- rect statement of law in open- ing to jury, defendant's counsel was argumentative in opening and defendant's counsel state or implied personal feelings about evidence. Motion was dismissed. Defendant's counsel made incor- rect reference to law in opening. Defendant's counsel was moder- ately argumentative in opening. Defendant's counsel made state- ments in opening in reference to personal position. Charge was clear sympathy played no role in jury's deliberation. There was no prejudice to plaintiff by conduct of defendant's counsel that would work injustice. Justice was better served in retaining jury. Incorrect statement of law was neutralized by mid-trial instruction. Walsh v. Kapusin (Mar. 4, 2009, Ont. S.C.J., Coats J., File No. 1416/06) Order No. 009/068/052 (11 pp.). Compensation For Victims Of Crime AMOUNT OF AWARD Award of $20,000 for injuries sustained in knife attack was upheld on appeal Appeal by applicant from order awarding him compensation for injuries sustained in knife attack while working as taxi driver. Applicant was awarded compensation of $20,000 for pain and suffering. Applicant sought compensation between $90,000 and $150,000. Appeal dismissed. There was nothing to suggest board committed any er- ror in law or that Board failed to exercise its discretion appropri- ately. Section 19(1)(a) of Com- pensation for Victims of Crime Act (Ont.), restricts board to maximum lump sum award of $25,000. Kwong v. Ontario (Criminal Injuries Compensation Board) (Mar. 10, 2009, Ont. S.C.J. (Div. Ct.), Carnwath, Bellamy and Pierce JJ., File No. 79/08) Order No. 009/071/002 (1 p.). Contracts BUILDING CONTRACTS Delay damages were clearly contemplated by both contract and subcontract Motion by defendant university

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