Law Times

Page 14 November 2, 2015 • Law Times www.lawtimesnews.com ONTARIO CIVIL CASES Civil Procedure COSTS Court required to have regard to unique and extraordinary cir- cumstances of Indian residential school settlement agreement Applicants were former students of Indian residential school who had or were making claims for compensation under indepen- dent assessment process of Indi- an residential school settlement agreement. Applicants brought request for directions respect- ing Canada's compliance with its disclosure obligations. Request was granted in part. Applicants applied for costs. Application granted. Costs determinations under Indian residential school settlement agreement involved considerations not present in regular civil litigation. Requests for directions required court to exercise discretion having regard to unique and extraordinary cir- cumstances of Indian residential school settlement agreement. Applicants were entitled to costs. Applicants were not confined to partial indemnity award of costs but they were not awarded full indemnity costs. It was fair and reasonable for Canada to pay ap- plicants costs of $50,000, inclu- sive of disbursements and HST. Fontaine v. Canada (Attorney General) (Aug. 31, 2015, Ont. S.C.J., Perell J., File No. 00- CV-192059) Additional reasons to 255 A.C.W.S. (3d) 251. 257 A.C.W.S. (3d) 277. WANT OF PROSECUTION Action arising from pur- chase and sale of property stood dismissed for delay Action related to purchase and sale of residential property. Plaintiffs were purchasers and defendants were vendors. Plain- tiffs brought action for various breaches related to sale includ- ing non-disclosure by vendors that property came within zone that prohibited construction. Plaintiffs took position that if property could be removed from holding zone they would be pre- pared to walk away from litiga- tion. There was mutual agree- ment not to carry out any further examinations while plaintiffs pursued solution with Ministry of Environment. Action was dis- missed for administrative delay. Plaintiffs' first motion to set aside administrative dismissal was dismissed without prejudice to plaintiffs bringing new motion. Property was not removed from holding zone. Plaintiff had re- newed interest in pursuing litiga- tion. Plaintiffs' counsel failed to diarize matter and failed to can- vass availability of defendants' counsel with result that defen- dants' counsel was not available. Plaintiff brought fresh motion to set aside dismissal three and half years after original motion was brought. Motion dismissed. Action stood dismissed. Delay was caused by effort to pursue cost-effective solution outside of courts with acquiescence of all parties and by amalgam of care- lessness in file management, poor communication with opposing counsel, and disregard for court- ordered timetable. When motion was dismissed without prejudice, it was not open to plaintiffs to continue to prioritize Ministry of Environment process to ex- clusion of litigation. Defendants had reasonable expectation that plaintiffs would proceed with motion immediately or would abandon it. When defendants heard nothing, they reasonably concluded litigation was over. It was not open to plaintiffs to continue to prioritize Ministry of Environment process to exclu- sion of litigation. At that point motion delay was deliberate strategy followed over objection of defendants. Defendants' ac- quiescence in pursuit of Minis- try of Environment solution was not to be overstated. Defendants would likely have had benefit of witnesses evidence who died but for pace of litigation. McLean v. Boettcher (Jun. 4, 2015, Ont. S.C.J., B.W. Miller J., File No. 58762) 257 A.C.W.S. (3d) 324. Conflict of Laws JURISDICTION Proposed class action regard- ing global price fixing con- spiracy was stayed as it related to absent foreign claimants Global price fixing conspiracy was alleged. Defendants other than Air Canada defendants were foreign companies resi- dent and domiciled outside of Canada. Action was certified class proceeding for settlement purposes and none of defen- dants opposed motion. Plain- tiffs brought motion to certify action as class proceeding. Class proposed by plaintiffs included claimants from more than 30 different countries. Defendants sought declaration that court did not have jurisdiction over parties who were absent foreign claim- ants. Defendants sought order staying proposed class action as it related to absent foreign claim- ants. Motion granted. Action was stayed in relation to absent foreign claimants. Court did not have jurisdiction simpliciter over absent foreign claimants. Potential for multiplicity of fur- ther actions by absent foreign claimants was inconsistent with objectives of class proceedings and contrary to principles of order and fairness. Judgment of court would not be enforced outside of Canada and defen- dants would be exposed to po- tential for double recovery of absent foreign claimants. Even if aggregate damage award was made, Canadian court could not resolve or prevent potential for double recovery. Asserting jurisdiction over absent foreign claimants in these circumstances where court could not reason- ably expect that its judgment would be recognized in foreign countries would offend comity. Consent certification for settle- ment purposes could not have effect on determination of issues raised on jurisdiction motion. Approval of settlement and its notice program was irrelevant to reasonable expectations of ab- sent foreign claimants vis-a-vis defendants and could not preju- dice defendants. Expectations of absent foreign claimants were more likely in accordance with laws of their own countries and they would not expect that their rights would be determined in current proceeding. Fact of ad- equate representation of rights and procedural fairness became relevant only after court con- cluded it had jurisdiction. Real and substantial connection test was not met. Ontario was forum non-conveniens. Airia Brands Inc. v. Air Canada (Aug. 26, 2015, Ont. S.C.J., L.C. Leitch J., File No. 50389CP) 257 A.C.W.S. (3d) 273. Landlord and Tenant RESIDENTIAL TENANCIES Court had no jurisdiction to entertain fresh proceeding against tenants for unpaid rent Tenants were late with rent and proceeding before Landlord and Tenant Board ensued. Mediated settlement was reached and ten- ants paid amount. Tenants then defaulted on agreement and landlord obtained order that ter- minated tenancy and required tenants to vacate. Order provided for payment of outstanding rent. Landlord did not pursue eviction promptly but attempted to work with tenants. Landlord had ten- ants evicted within six-month expiry date for eviction order. Landlord claimed unpaid rent, sheriff 's fee for eviction, amount for cleaning and amount unpaid hydro against tenants and their guarantor. Claim proceeded as assessment hearing. Claim against first two defendants dis- missed for want of jurisdiction. Claim against third defendant dismissed. Board had exclusive jurisdiction. Board exercised ju- risdiction, terminated lease and determined rent owing. Court had no jurisdiction to entertain fresh proceeding against tenants for unpaid rent. Court had no jurisdiction to entertain claim against tenants for enforcement of costs before Board including sheriff 's eviction fee, which was incidental to enforcement of Board's order. Claims for clean- ing and unpaid hydro bill failed for want of proof. No rent was payable after lease was termi- nated and claims for rent after that date was dismissed. Resi- dential Tenancies Act created no notice obligation on tenants or landlords after their lease was terminated by order of Board. Board had no jurisdiction over guarantor of residential tenancy could, but on merits there was no amount owed by tenant and there was no basis for judgment against guarantor. Stamm Investments Ltd. v. Ryan (Aug. 25, 2015, Ont. S.C.J., J. Sebastian Winny D.J., File No. Kitchener 182/15) 257 A.C.W.S. (3d) 450. Limitations TORT Claims arising from criminal and child protection proceed- ings were statute-barred Statement of Claim referred to three central areas of conf lict over 17 years that formed basis of claims against 78 defendants. Plaintiff and MV had violent common law relationship and had one child. MV's complaints to police led to plaintiff being arrested and convicted of crimi- nal offences. Children's Aid So- ciety of District of Sudbury and Manitoulin commenced child protection proceeding. Plaintiff 's supervised access was suspend- ed. Plaintiff alleged police acted improperly in review of allega- tions of assault by MV against him, his arrest, charges against him and subsequent trials of those charges. Plaintiff faulted police, Crown attorneys, justices of peace, court reporters and judges involved in those criminal proceedings. Plaintiff asserted information communicated by police to aid society was false and biased against him. Plain- tiff asserted bias and improper conduct by aid society, lawyers representing society, numerous society workers, healthcare pro- viders of child while under su- pervision of society and lawyer representing Office of Children's Lawyer. Plaintiff sought dam- ages against several provincial ministers and members of On- tario legislative assembly, several Ontario boards or commissions in relation to their review of de- cisions and complaints related to defendants. It was alleged On- tario defendants were ultimately liable for wrongdoing of agencies and employees of those agen- cies of government including aid society. Ontario defendants brought motion for dismissal of action. Motion granted. Speci- fied claims were dismissed. Spec- ified claims were statute-barred and could not constitute basis for cause of action. Plaintiff knew when he was detained, arrested and charged by police and knew when aid society intervened and took his child away. Plaintiff knew of and participated in child protection proceedings. There were no allegations or evidence establishing discoverability sub- sequent to dates of arrests, trials, convictions and child protec- tion proceedings. Tort claims that arose before January 1, 2004 were subject to six-year limita- tion period, which would have expired no later than December 31, 2009. Otherwise claims were subject to general two-year limi- tation period from date of event occurrence. Fragomeni v. Greater Sudbury Police Service (Jul. 14, 2015, Ont. S.C.J., Kane J., File No. C-2835- 13) 257 A.C.W.S. (3d) 343. Professions BARRISTERS AND SOLICITORS Plaintiff granted order requir- ing former solicitor to deliver files to new solicitor Underlying litigation was claim for damages arising from mo- tor vehicle accident. Plaintiff re- tained former solicitor and signed retainer agreement, which was contingency fee agreement. For- mer solicitor dismissed plaintiff as client. Terms of solicitor's lien asserted by former solicitor for fees and disbursements incurred on plaintiff 's behalf were in issue. Plaintiff agreed to pay former so- licitor's fees and disbursements subject to assessment, out of any settlement or litigation proceeds from action. Plaintiff agreed for- mer solicitor's fees and disburse- ments were to be protected by first charge against settlement or litigation proceeds. Former solicitor was content with un- dertaking with respect to fees but took position that plaintiff or new solicitor should pay dis- bursements incurred by former solicitor to date. New solicitor would not take plaintiff on as client if required to pay disburse- ments to date. Plaintiff brought motion for order requiring his former solicitor to deliver his files to his new solicitor. Motion granted. It was reasonable for plaintiff to believe that changing lawyers at instance of either party would not generate account that would be payable immediately. There was nothing in retainer agreement that spoke to when disbursements were payable or that required disbursements to be paid on ongoing basis or on demand. Retainer agreement did not address termination by solic- itor. Interests of former solicitor could be sufficiently protected by charging order against proceeds of settlement or litigation. There was no unfairness in holding for- mer solicitor to its bargain. Romero v. Turnbull (Jun. 4, 2015, Ont. S.C.J., B.W. Miller J., File No. 8029/12) 257 A.C.W.S. (3d) 470. Action dismissed where solicitor acted on clear instructions to settle Defendant was solicitor who represented plaintiff in action that arose from dispute in con- nection with mortgage loan that defendant prepared for plaintiff. Mortgage was registered in fa- vour of plaintiff. Dispute arose as to terms of loan agreement and plaintiff refused to approve advance of further amount un- der loan agreement. Borrower deemed plaintiff to be in breach of loan agreement and stopped payment on next mortgage pay- ment. Borrower commenced action seeking damages and discharge of mortgage. Bor- rower made offer to settle that was $3,000 short of amount advanced. Defendant recom- mended plaintiff accept offer, but plaintiff did not accept of- fer. Plaintiff made two offers to settle, which borrower rejected. Plaintiff rejected borrower's sec- ond offer. Defendant stressed to plaintiff that he should accept second offer because difference between what plaintiff sought and offer was $2,000. Borrower brought motion for order dis- charging mortgages. Offer to settle was proposed with judi- cial assistance during hearing. CASELAW

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