Law Times

Law Times • November 30, 2015 Page 17 www.lawtimesnews.com port claims. There was no cause of action in tort at common law for discrimination. Plaintiff al- leged educational malpractice by university but issues related to internal academic decision- making and resort to univer- sity's internal processes was proper procedure to be followed to resolve complaints. Plain- tiff failed to plead specific facts that could demonstrate that university's alleged conduct constituted intentional tort or fell outside broad discretion en- joyed by university and profes- sors. It was plain and obvious that action against university could not succeed. Plaintiff 's claim against professor did not disclose any conduct outside his duties and obligations as employee of university. No sus- tainable action against profes- sor in his personal capacity was pleaded. King v. Ryerson University (Sep. 25, 2015, Ont. C.A., E.A. Cronk J.A., C.W. Hourigan J.A., and M.L. Benotto J.A., File No. CA C60211) Decision at 250 A.C.W.S. (3d) 228 was affirmed. 258 A.C.W.S. (3d) 286. Employment WRONGFUL DISMISSAL Fixed-term contract not void in whole or in part Defendant employed plaintiff. Plaintiff sought accommoda- tion from defendant to move back to Ottawa for pressing family reasons and to keep his Toronto-based managerial job. Plaintiff signed new fixed-term employment contract. Defen- dant underwent restructuring. Defendant advised plaintiff that his contract would not be renewed and it expired in ac- cordance with its terms. Plain- tiff received all statutory sever- ance and termination amounts and seven months in notice and payments. Plaintiff asserted new employment agreement he signed was void. Plaintiff brought wrongful dismissal ac- tion. Plaintiff sought summary judgment fixing period of rea- sonable notice that he would be entitled to absent fixed-term contract. Motion dismissed. Claim dismissed. Contract was not void in whole or in part. Plaintiff freely accepted fixed- term contract. Although plain- tiff had hopes that contract might be renewed, he under- stood he had no rights to re- quire renewal. Contract was not entered into without consider- ation. Defendant did not agree to accept plaintiff 's telecom- muting proposal without some or all of alterations to employ- ment contract that were pro- posed to plaintiff. Parties were apart on terms and continued to negotiate. Defendant did not acquiesce and there was no evi- dence to suggest that plaintiff thought it had. It was not case of duress. There was alterna- tive open to plaintiff and there was no time pressure applied to plaintiff to preclude him from seeking legal advice. Defen- dant did not discourage plain- tiff from seeking legal advice. Plaintiff took no steps to avoid contract. Fixed term provision of employment agreement that or provided for termination was not null and void. Contract could not be nullified for fail- ure to state that law would be complied with. No notice of ter- mination was required where contract expired in accordance with its terms. Riskie v. Sony of Canada Ltd. (Sep. 22, 2015, Ont. S.C.J., Sean F. Dunphy J., File No. CV- 15-525137) 258 A.C.W.S. (3d) 330. Family Law DIVORCE Marriage was terminated by husband's death, not divorce Divorce was granted at hus- band's request. Answer op- posing divorce on substantive grounds was not brought to at- tention of judge. Before divorce became final, wife brought motion and obtained order staying divorce order pending further court order. Husband died while stay remained in effect. Dispute arose between wife and husband's children whether marriage was termi- nated by death or divorce. Wife brought motion discontinuing or terminating divorce order or she sought declaration that marriage was terminated by death, not divorce. Motion was dismissed. Wife appealed. Ap- peal allowed. Divorce order did not dissolve marriage. Divorce order was stayed until further order of court, which prevented it from taking effect and dis- solving marriage. At time of husband's death, stay had not been lifted and parties were still married. Husband's death end- ed marriage. Divorce order was permanently stayed. White v. White (Sep. 25, 2015, Ont. C.A., K. Feldman J.A., J.M. Simmons J.A., and B.W. Miller J.A., File No. CA C59752) 258 A.C.W.S. (3d) 358. Industrial and Intellectual Property COPYRIGHT No evidence of primary copyright infringement in relation to book Plaintiff was Kenyan-Canadi- an lawyer who had formerly worked as senior advisor for Kenyan Prime Minister. He was author of book about his experiences working for Ke- nyan government. Book was published in 2012 by United Kingdom-based publisher, GA Ltd.. August 2014, plaintiff be- came aware that book was be- ing offered for sale on walmart. com website. Advertisement on walmart.com identified CBSC LLC as publisher of book. Plaintiff sued defendants for breach of copyright and related relief. He claimed that he did not consent to any publication, production, reproduction or release of book by defendants. All defendants were based in United States. CBSC LLC and walmart.com websites were operated from United States. Defendants brought motion for summary judgment to dismiss action as disclosing no reason- able cause of action. Motion granted. Defendants did not physically receive or sell copy of book in North America, let alone in Canada. There was no evidence in record that de- fendants dealt with any copy of book that was not produced by GA Ltd. or did not bear its imprints. Thus, there was no evidence of primary copyright infringement by defendants in relation to book. There was no connection between plaintiff 's claims and Canada. Conse- quently, rights and remedies provided by Copyright Act could not be engaged. Miguna v. Walmart Canada Corp. (Sep. 18, 2015, Ont. S.C.J., Graeme Mew J., File No. CV-14-514949) 258 A.C.W.S. (3d) 398. Limitations DISCOVERABILIT Y Action arising from disclo- sure of criminal record to employer was statute-barred Plaintiff brought action in Janu- ary 2012 alleging that defendant detective disclosed his criminal record to his employer, which caused employer to terminate employment. Plaintiff acknowl- edged that he gave copy of memorandum to Information and Privacy Commissioner in November 2009 that indicated detective had disclosed crimi- nal convictions to employer. Defendants brought motion for summary judgment. Motion granted on basis that claim was statute-barred because it was not brought within two-year limitation period in Limitations Act, 2002. Plaintiff appealed. Appeal dismissed. Plaintiff knew when his employment was terminated that injury or loss occurred. Plaintiff knew by November 2009 that detec- tive disclosed criminal record to employer, which was what he alleged caused or contribute to his injury, loss or damage. Two- year limitation period began to run in November 2009. Ac- tion was not started until Janu- ary 2012 and was out of time. Knowledge of liability on part of injured person was not part of discoverability for purposes of running limitation period. Fact that plaintiff did not know whether defendants were liable for disclosure did not prevent limitation period from run- ning. Lochner v. Toronto Police Ser- vices Board (Sep. 17, 2015, Ont. C.A., E.E. Gillese J.A., S.E. Pep- all J.A., and P. Lauwers J.A., File No. CA C60123) 258 A.C.W.S. (3d) 414. Professions BARRISTERS AND SOLICITORS Client benefited from solicitor's services Client was involved in vari- ous disputes relating to sales of business and property and vendor take back mortgages. Client retained solicitor around 2002 to represent client in vari- ous proceedings. Particular proceeding related to apparent intention of business purchaser H to avoid payment and dispose of security. Disputes involving mortgagee B were settled. Net proceeds from sale of particular property were placed in trust pending resolution of remain- ing issues between client and former co-owner. Solicitor ter- minated retainer in 2007 due to nonpayment of accounts. Solicitor brought action against client for payment of accounts. Client brought counterclaim for damages for breach of contract. Action allowed; counterclaim dismissed. Solicitor's account was reduced due to some exces- sive time expended by solicitor. Solicitor acted in accordance with client's instructions at all times. Solicitor had kept client fully apprised of all matters re- lated to his retainer, including steps taken and associated costs in furtherance of that retainer. Client benefited from solicitor's services. Client failed to estab- lish any shortfall in settlement funds received from B or any other related matter. Client had received all funds to which he was entitled. Solicitor had exer- cised his judgment appropriate- ly in proceeding relating to pay- ment from H's based on factual matrix he was presented with. Solicitor had acted appropri- ately when preparing material for ex parte Mareva injunction against H's. Problems with ma- terial were due to client's lack of disclosure to solicitor. Resulting settlement was not shown to be adversely affected by anything solicitor had done. Roy Wise Professional Corp. v. Colaco (Aug. 27, 2015, Ont. S.C.J., Firestone J., File No. CV- 08-364088) 258 A.C.W.S. (3d) 429. Lawyer ordered to pay costs to former client Former client retained lawyer in family law proceedings. Coun- sel for spouse of former client heard nothing from former client and proceeded by way of uncontested trial. Spouse's counsel and court did not know lawyer was represented former client. Former client provided significant material to lawyer and had no reason to believe counsel was not representing him in ordinary course. Lawyer did not contact spouse's coun- sel. When former client under- stood he was in default he dis- charged lawyer, retained new counsel and took steps to bring pleadings into good standing. Former client sought costs from lawyer. Lawyer was ordered to pay former client $14,500 in costs. There was no basis to shift to former client responsi- bility to give notice to opposing counsel or to take mixed view of failure to file answer. Lawyer took no steps to protect former client from being in default. Macmull v. Macmull (Sep. 15, 2015, Ont. S.C.J., H. McGee J., File No. Newmarket FC-13- 42571-00) 258 A.C.W.S. (3d) 342. Torts LIBEL AND SLANDER Nurse's communications to child welfare agency were pro- tected by qualified privilege Plaintiff attended defendant hospital for birth of his grand- daughter. Defendant nurse observed conduct of plaintiff and found it be inappropriate and potentially abusive and she contacted Child and Fam- ily Services who told her to complete SCAN form. Nurse wrote notes and SCAN report to be sent to Child and Fam- ily Services, which plaintiff claimed were defamatory. Af- ter plaintiff 's daughter was re- leased from hospital, Child and Family Services visited home and found no evidence of child protection concerns. Plaintiff brought defamation action. Defendants brought motion for summary judgment. Mo- tion granted; action dismissed. There were no genuine issues requiring trial and issues could be fairly and justly determined based on evidence on motion and it was in interests of justice to do so. Comments on SCAN report and notes were defama- tory in that they tended to lower plaintiff in estimation of right- thinking member of society or exposed him to hatred, con- tempt or ridicule. Words clearly referred to plaintiff. Words were seen by others and communi- cated to others and there was publication. There was statu- tory privilege provided to nurse for communications to Child and Family Services pursuant to Child and Family Services Act. Communications were made on occasion of qualified privi- lege, which could be defeated by malice. Nurse had concerns about plaintiff and her conduct in communicating with Child and Family Services was consis- tent with her concern for baby. While nurse's suspicions were found to be unjustified, that did not mean she acted with mal- ice. Nurse was not motivated by malice. Rolon v. Bell (Sep. 29, 2015, Ont. S.C.J., P.R. Sweeny J., File No. Kitchener 12-4340-SR) 258 A.C.W.S. (3d) 446. ONTARIO CRIMINAL CASES Appeal PLEA OF GUILT Y Appeal from refusal to strike pleas dismissed Accused appealed from her plea of guilty to two charges of fraud and one charge of uttering forged document. Fraud charg- es related to credit applications made to banks. Uttering charge involved forged documents used to obtain passport for ac- CASELAW

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