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PAGE 18 for partial summary judgment dismissing component of plain- tiff's claim relating to subcontrac- tors. Plaintiff was general con- tractor involved in construction for defendant. Plaintiff entered into contract with subcontractors on "pay when paid" basis; con- tract also entitled subcontractors to reimbursement for costs when plaintiff received reimburse- ment. Plaintiff commenced ac- tion claiming $3,163,267.14, including $1,493,382.40 for subcontractors, due to costs in- curred because of delays caused by defendant. Defendant argued that since plaintiff had not paid subcontractors for delays, who had not made claims and such claims were now statute-barred, nothing was owing to subcon- tractors. Plaintiff argued that it was proceedings under terms of subcontract, which required it to attempt to recover losses. Motion dismissed. It was certainly argu- able that plaintiff had no claim for subcontractors' losses, but ev- idence was insufficient for sum- mary judgment. Delay damages were clearly contemplated by both contract and subcontract so matter was a triable question of law. Binding findings were made that plaintiff commenced action within limitation period and subcontractor damages were capped at $945,000 given dis- covery findings. Substantial in- demnity costs were not awarded since plaintiff's evidence was barely adequate and defendant was reasonable in bringing mo- tion. Plaintiff awarded costs of $10,000. Ledcor Construction Ltd. v. Carleton University (Feb. 20, 2009, Ont. S.C.J., Master Ma- cLeod, File No. 06-CV-034059) Order No. 009/069/056 (9 pp.). PARTIES Defendants were jointly and severally liable for payment of outstanding invoices for furniture Claim by plaintiff furniture manufacturer against M. and F. for payment of outstanding in- voices for furniture supplied by plaintiff in 2003. M. was tradi- tional furniture retail store which closed its operations in October 2004 and sold part of its inven- tory to F.. F. was internet-based furniture retail store. F. and M. operated out of same address, shared same phone number and shared staff. M. was owned by N. and F. was owned by K., N.'s son. Plaintiff obtained judgment against M. which had no assets to satisfy judgment. Plaintiff al- leged F. was also liable for out- standing balance. F. contended its business did not start oper- ating until after October 2004, that is never purchased furni- ture from plaintiff and that its furniture was not contained in inventory purchased from M.. Judgment for plaintiff; M. and F. were jointly and severally li- able for repayment of invoice. Evidence indicated that corpo- ration operating as F. was incor- porated in 2002 and that names of both F. and M. appeared on purchase order to plaintiff dated November 10, 2003. Purchase order also directed customers to F.'s website. Court concluded that M. and F. jointly purchased items from plaintiff and that both M. and F. were jointly and severally liable for payment of outstanding balance. Createch Inc. v. Meblez Inc. (Feb. 19, 2009, Ont. S.C.J. (Sm. Cl. Ct.), Boutet D.J., File No. T 28276/05) Order No. 009/082/013 (4 pp.). Corporations SHAREHOLDERS Respondent's conduct was undertaken qua shareholder, not qua director Application pursuant to s. 247 of Canada Business Corporations Act for declaration that issuance of press releases by W., share- holder and director of P., before issuing director's proxy circular, amounted to solicitation of prox- ies in violation of s. 150(1)(b) of Act. W. brought an unsigned, uncommitted term sheet to raise financing to board of directors for consideration. Financing was conditional on resignation of four of six members of board and offer was not accepted by board. Subsequently W. in his capac- ity as shareholder holding more than 5% of P.'s shares, delivered requisition for special meeting of shareholders pursuant to s. 143 of Act, whose stated purpose was to remove current directors and elect new ones. On same day W. issued first of four press releases which announced his requisition of special meeting whose pur- pose was to remove and replace current directors. P. subsequent- ly issued press release indicating that press releases issued by W. represented improper proxy so- licitation and announcing that P. had commenced application against. Counsel to W. contend- ed that s. 247 was not available to P. since although W. was di- rector and shareholder W. had requisitioned special meeting in capacity as shareholder, his press releases were issued in capacity as shareholder, and s. 247 did not apply to conduct of share- holders. Counsel for W. further contended that non-compliance by shareholder with provisions of Act governing proxy solicita- tion were addressed by s. 150(3) of Act. Application dismissed. Jurisprudence acknowledges distinction between individual's conduct undertaken qua direc- tor and that undertaken qua shareholder. Conduct at issue was clearly conduct of W. qua shareholder and not qua direc- tor and s. 247 was therefore not available to P. to found its claim on this application. Polar Star Mining Corp. v. Willock (Mar. 17, 2009, Ont. S.C.J., Hoy J., File No. CV- 09-8031-00CL) Order No. 009/082/179 (17 pp.). Courts ABUSE OF PROCESS Determination in federal court action would not have material impact on claim Plaintiff brought patent infringe- ment action against defendant in Federal Court. Plaintiff brought second action for damages for breach of contract from alleged CASELAW misappropriation of trade secrets. Defendant sought stay of action until disposition or settlement of earlier action commenced in Fed- eral Court involving same parties. Motion was dismissed. Deter- mination in patent infringement action would not render second action substantially moot or have material impact on claim. Infringe- ment and loss claimed in each ac- tion was different. There was no concern of inconsistent verdicts or potential for double recovery. Delay in matter would not result in savings or greater efficiencies in use of judicial and legal resources. It would be prejudicial and unfair to require plaintiff to wait outcome or 18 months before plaintiff was permitted to seek injunctive relief and damages. Areva NPGmbH v. Atomic En- ergy of Canada Ltd. (Mar. 5, 2009, Ont. S.C.J., O'Marra J., File No. CV-06-CV315609PD3) Order No. 009/068/017 (8 pp.). Damages PERSONAL INJURIES $100,000 awarded to plaintiff for burn injuries Action by plaintiff for damages for personal injuries incurred while attending gathering at premises of co-defendants. Plain- tiff had tripped over cinderblock surrounding bonfire on defen- dants' property and fallen onto mattress in fire. Plaintiff sus- tained second and third degree burns to 14% of his body and spent one month in hospital. He underwent several surgeries as result and was left with chronic residual effects including scar- ring of arm, cramping of hand, decreased strength and sensa- tion in arm. General damages of $100,000 awarded to plaintiff for substantial pain, suffering, permanent superficial scarring and skin grafting over signifi- cant portion of lateral left arm, and marked decrease in sensa- tion over 15% of surface of left forearm. Taylor v. Allard (Mar. 13, 2009, Ont. S.C.J., Marchand J., File No. 59931/01) Order No. 009/079/275 (9 pp.). Employment EMPLOYMENT STANDARDS Recourse to s. 56(2)(c) of Employment Standards Act, 2000 (Ont.) not subject to conditions found in s. 56(2)(b) Application for judicial review of arbitration award. On September 18, 2007, respondent employer gave notice to 293 of its employ- ees of permanent lay-off effective November 30, 2007. Over 200 employees were laid off on No- vember 30, 2007. On November 29, 2007 union filed grievance claiming that lay-off of affected employees would become termi- nation of employment for pur- poses of Employment Standards Act, 2000 (Ont.), after 13 weeks. Union relied on s. 56(2)(a) of Act claiming lay-off would be more than 13 weeks in 20-week peri- od. Union claimed that respon- dent had given approximately ten weeks of notice to affected employees but was required by www.lawtimesnews.com mass termination provisions in s. 58 of Act to give 12 weeks of notice and therefore respondent would owe termination pay to affected employees for balance of notice period. Respondent took position that s. 56(2)(c) of Act was operative provision of Act. Arbitrator determined that maximum duration of lay-offs in this case was determined by s. 56(2)(c) and not s. 52(2)(a). Accordingly employees were not terminated after lay-off of 13 out of 20 consecutive weeks. Issue whether arbitrator's conclusion that s. 56(2)(a) of Act did not ap- ply was reasonable. Application dismissed. Arbitrator's conclu- sion was reasonable given word- ing of s. 56(2) of Act. Union's contention that compliance with s. 56(2)(b) was required before employer could rely on s. 56(2) (c) was not evident from lan- guage used. While s. 56(2)(c) did refer to s. 56(2)(b) it did so in context of permitting longer period of temporary lay-off than 35 weeks in 52 weeks permitted under s. 56(2)(b). Section 56(2) (c) is a stand alone provision and recourse to s. 56(2)(c) was not subject to conditions found in s. 56(2)(b). C.A.W., Local 222 v. Johnson Controls Inc. (Mar. 16, 2009, Ont. S.C.J. (Div. Ct.), Cunning- ham A.C.J.S.C., Carnwath and Swinton JJ., File No. 568/08) Order No. 009/079/268 (7 pp.). Family Law CHILD WELFARE No evidence that child who attempted suicide was in need of protection Child, now aged 15. Child at- tempted suicide. Child insisted at hospital if child were returned to parents, child were attempt suicide again. Child was placed in temporary care of society. So- ciety sought finding child was child in need of protection and nine-month supervision order to parents. Protection application was outstanding for more than 400 days. Parents would apply for summary judgment which dismissed current protection ap- plication. Motion was allowed. There was no evidence child was in need of protection. Evidence was only that child's behaviours resulted from mental illness. Par- ents were integral part of child's treatment. There was no genuine issue material to protection con- cern. There was no evidence of causal connection claim under s. 37(2)(g) of Child and Family Services Act (Ont.), requiring trial. Children's Aid Society of Ot- tawa v. D. (C.) (Mar. 17, 2009, Ont. S.C.J., Ratushny J., File No. 08-FL-97) Order No. 009/082/186 (14 pp.). CUSTODY Change in children's circumstances warranted variation hearing Appeal from order varying custo- dy arrangements of two children of parties. Appellant mother had sole custody of two sons. Custo- dy and access arrangements were varied in February 2008 and mother appealed. In December 2008 before appeal was heard June 8, 2009 • Law Times parties entered into minutes of settlement. Term of minutes was that mother would abandon ap- peal. Mother now sought to set aside minutes on ground that she entered into them based on misleading information pro- vided by father as to well being of children. Office of children's lawyer contended that best inter- ests of children would be served by expedited variation hearing in Superior Court with full in- volvement of children's lawyer. One child B. was now in care of children's aid society. Appeal dis- missed. Change in circumstanc- es of children, including fact that B. was now under care of society constituted change in cir- cumstance sufficient to warrant variation hearing. Best interests of children would be served by expedited variation hearing in Superior Court with fill involve- ment of children's lawyer. This court was not proper forum in which to resolve question of va- lidity of minutes. C. (S.R.) v. S. (R.H.) (Mar. 26, 2009, Ont. C.A., Feld- man, Gillese and Rouleau JJ.A., File No. C48372) Order No. 009/092/168 (2 pp.). Insurance LIABILITY INSURANCE Respondent under no duty to defend Bank claimed against J. amount owing under mortgage. J. brought counterclaim against defendants. J. claimed applicants owed fiduciary duty and falsified application with intent of quali- fying J. for mortgage for which J. would not otherwise qualify for. Applicants sought declara- tion respondent was obliged to defend applicants and to pay all defence costs incurred by applicants. Application was dis- missed. Respondent was under no duty to defend. Negligence and intentional tort claims arose from same actions and caused same harm. Claims of negligent conduct were derivative and were subsumed in intentional tort of fraud. Claims fell within exclu- sion category under policy. O'Leary v. AXA Pacific In- surance Co. (Feb. 3, 2009, Ont. S.C.J., Cavarzan J., File No. C-1109-08) Order No. 009/061/028 (9 pp.). Labour Relations COLLECTIVE AGREEMENT Short-term disability benefits provision discriminated against worker with partial disability Arbitrator found re-qualification provision for short-term disabil- ity benefits was discriminatory against workers with disabilities who were able to work part-time but not "regular" work weeks. Arbitrator's decision was reason- able. Provision discriminated against worker with partial dis- ability in that worker who had returned to work part-time after using short term disability provi- sion and who worked continu- ously but at reduced level was unable to access further period of short term disability, if he or she subsequently suffered from another short term disability.