Law Times

Page 14 December 7, 2015 • Law Times www.lawtimesnews.com FEDERAL COURT OF APPEAL Administrative Law JUDICIAL REVIEW Application was properly dismissed as moot Applicant was unsuccessful candidate in job selection pro- cess for position as tax auditor at respondent Canada Revenue Agency (CRA). After appli- cant successfully challenged process, CRA issued correc- tive measures. Measures were subsequently found to unrea- sonable and CRA issued new corrective measures. Applicant brought application for judicial review asking court to set aside decision of CRA purporting to correct errors in selection pro- cess and have matter remitted back to CRA to rectify errors. Application was dismissed. Judge found that application for judicial review was moot and judge declined to exercise discretion to hear moot ap- plication. Applicant appealed. Appeal dismissed. Even if judge erred in admitting affidavit into evidence that established applicant had been promoted to higher classified position, it did not impeach finding that matter was moot. Judge would have reached same conclusion without affidavit. Judge chose proper test for mootness and made no error in applying it to facts. Judge did not err in de- clining to exercise discretion to hear moot case. Considering whether there was adversarial context, lack of practical effect of decision on applicant, inter- ests of judicial economy and role of courts in legal system as whole, there was no error in de- cision that warranted appellate intervention. Plato v. Canada Revenue Agency (Oct. 13, 2015, F.C.A., Trudel J.A., A.F. Scott J.A., and Boivin J.A., File No. A-10-15) Decision at 248 A.C.W.S. (3d) 100 was af- firmed. 258 A.C.W.S. (3d) 540. ONTARIO CIVIL CASES Bankruptcy and Insolvency ARRANGEMENTS Motion for sale of assets was approved Education publishing compa- ny obtained protection under Companies' Creditors Arrange- ment Act. Bank was one of 22 first lien lenders, second lien lender and agent for second lien lenders. Credit bid for sale of substantially all assets to newly incorporated entity owned by first ranked secured lenders, if approved, would results in second lien lenders receiving nothing on outstanding loans. Company brought motion for approval of sale; bank brought motion for order that amounts owing to it and portion of con- sent fee be paid by company prior to sale. Company's mo- tion granted; bank 's motion dismissed. Normally, sale pro- cess is undertaken after court approves proposed sale meth- odology with monitor partici- pating in process and reporting to court. While none of this oc- curred, sale or investment sales process (SISP) and credit bid sale transaction met require- ments of CCAA. Sales process was typical and consistent with processes that had been ap- proved by court in many CCAA proceedings. Results of process showed that no interested par- ties could offer price sufficient to repay amounts owing to first lien lenders. Intercreditor agreement governed, and led to conclusion that order in favour of bank as second lien agent was not appropriate as payment would reduce collateral subject to rights of first lien lenders in that collateral. Nelson Education Ltd., Re (Sep. 8, 2015, Ont. S.C.J. [Com- mercial List], Newbould J., File No. CV15-10961-00CL) 258 A.C.W.S. (3d) 465. Civil Procedure AFFIDAVITS Affidavit was struck out as irrelevant and scandalous Applicant had commenced ar- bitration proceedings alleging respondent Kyrgyz Republic had expropriated his invest- ment in bank. Arbitral tribunal found in favour of applicant and rejected Republic's defence alleging criminal activity of ap- plicant and bank. Applicant ap- plied in Ontario to have arbitral award recognized and enforced. In response to application, Re- public delivered affidavit of A, who was chief inspector of banks inspection division of National Bank of Republic. Her affidavit detailed audit and in- vestigation of bank in support of Republic's continued asser- tion that bank was involved in criminal activity. Republic had commenced proceedings before Paris Court of Appeal seeking annulment of arbitral award. Applicant sought to strike out affidavit of A on ground that it may prejudice hearing of ap- plication. Application allowed. While affidavit may be relevant to annulment proceedings, it was not relevant to valid- ity of arbitration agreement or whether dispute fell within sub- mission to arbitration. Affidavit was attempt to reopen merits of arbitral award in Ontario pro- ceedings, which was not per- mitted. It was also attempt by Republic to repackage its main defence at arbitration as public policy objection to recogni- tion and enforcement. Repub- lic could not use public policy defence to challenge award on its merits. Affidavit was clearly irrelevant to defence of appli- cation and was scandalous. Its inclusion would likely cause massive trial within proceeding about criminal allegations. Af- fidavit of A was struck out. Belokon v. Kyrgyz Republic (Sep. 25, 2015, Ont. S.C.J., W. Matheson J., File No. CV-15- 10890-00CL) 258 A.C.W.S. (3d) 474. COSTS Costs should follow success on appeal Plaintiff 's wife came to Can- ada from Thailand on work visa. Plaintiff claimed wife was aware that she had HIV when she came to Canada and failed to disclose her HIV status to him in intentional fraud or- chestrated to secure immigra- tion sponsorship into Canada by marriage. Plaintiff claimed Attorney General of Canada knew or ought to have known wife was HIV-positive and neg- ligently or intentionally failed to warn plaintiff prior to accept- ing application for sponsorship and was vicariously liable for al- leged negligent actions of defen- dant doctor. Plaintiff claimed defendant club was vicariously liable by allowing wife to work as exotic dancer without im- posing restrictions on her with respect to goal of guarding against spread of HIV. Plaintiff was diagnosed as HIV-positive and he brought action. Defen- dant's motion for summary judgment was granted. Motion judge concluded that action was statute-barred. Plaintiff 's ap- peal was dismissed. Defendant club applied for costs. Applica- tion granted. Costs should fol- low success on appeal. Plaintiff was ordered to pay club costs fixed at $3,500, inclusive of dis- bursements and HST. Whiteman v. Lamkhong (Oct. 13, 2015, Ont. C.A., John Laskin J.A., G. Pardu J.A., and David Brown J.A., File No. CA C57975) Additional reasons to 256 A.C.W.S. (3d) 435. 258 A.C.W.S. (3d) 493. DISCOVERY Motion for production of records from SIU dismissed Plaintiff asserted police as- saulted him. Special Investiga- tions Unit conducted investi- gation. Plaintiff brought claim for damages for negligence, assault and breach of rights un- der Canadian Charter of Rights and Freedoms arising out of incident. SIU provided names of witness and plaintiff could seek to interview witnesses or obtain their consent to release information they provided. Plaintiff brought motion for production of records from SIU including civilian witness statements and police witness statements. SIU was non-party. Motion dismissed. Plaintiff had obligation to take steps to prove case. Plaintiff failed to provide evidence that he made any real effort to obtain evidence with respect to claim. It was not ap- propriate for plaintiff to rely on SIU investigation to provide in- formation in civil case. Produc- tion of witness statements of civilian witnesses who did not provide their consent or police officers were not necessary. It would not be unfair for plaintiff to proceed to trial without wit- ness statements. Farkas v. Niagara Regional Po- lice Service (Sep. 4, 2015, Ont. S.C.J., P.R. Sweeny J., File No. Welland 5479/12) 258 A.C.W.S. (3d) 497. Insurance AUTOMOBILE INSURANCE Arbitrator did not err in inter- preting "commercial vehicle" Vehicle driven by GM was struck by ice and snow falling from overpass above him dam- aging roof of vehicle and injur- ing GM. Independent witness indicated that vehicle passing at time was snow plow but was un- able to identify snow plow com- pany. There were two compa- nies responsible for snow plow- ing area. Arbitrator found that snow plows were heavy com- mercial vehicles and were sub- ject to loss transfer. Appellant appealed. Appeal dismissed. Arbitrator did not err in inter- preting definition of "commer- cial vehicle" for purposes of loss transfer provisions. Arbitrator considered relevant legisla- tion in contextual and purpo- sive manner in harmony with scheme and object of legisla- tion and legislature. Arbitrator properly considered purpose of loss transfer scheme. Dominion of Canada General Insurance Co. v. Aviva Canada Inc. (Oct. 13, 2015, Ont. S.C.J., Carole J. Brown J., File No. CV- 15-527062) 258 A.C.W.S. (3d) 598. Restitution UNJUST ENRICHMENT Plaintiff entitled to compensation for environ- mental clean-up services There was large spill of canola oil at defendant's premises that went into parking lot, through catch basin and into creek. Di- rector of defendant landlord and defendant tenant requested plaintiff 's clean-up services, which plaintiff performed over six-week period, then rendered invoices for $328,067.96 that remained unpaid. Action was against defendant landlord, as well as tenant, provider of f lexi tank that ruptured, insurer and adjuster, and defendant's motion to add cross-claim had been adjourned. Action had been stayed against tenant due to its notice to file proposal under Bankruptcy and Insol- vency Act. Motion by plaintiff for summary judgment against defendant landlord for payment of $328,067.96 on basis of unjust enrichment and quantum me- ruit. Motion granted. That most of oil requiring clean up was off property did not eliminate defendant's potential liability. Under Environmental Protec- tion Act, Ministry of Environ- ment could make order and seek damages against owner of property, and director was aware of this potential liability and thus made clean up request and signed emergency autho- rization for plaintiff to begin work immediately. Defendant's premises were at risk of damage from oil spill, and it faced risk of liability to MOE; that no MOE order was made did not support absence of benefit to defendant. Entitlement to compensation for work performed was clearly demonstrated by plaintiff 's documentary evidence. No ju- ristic reason for defendant to be enriched at plaintiff 's detri- ment. That request for services was made in tenant's name and invoices were sent to tenant did not detract from benefit con- ferred on defendant, and clean up was not even on part of prop- erty where tenant did business. Plaintiff entitled to $328,067.96 on quantum meruit basis. Accuworx Inc. v. Enroute Im- ports Inc. (Sep. 18, 2015, Ont. S.C.J., Seppi J., File No. CV-14- 0503-00) 258 A.C.W.S. (3d) 522. Torts MISFEASANCE IN PUBLIC OFFICE No evidence that college engaged in unlawful investi- gation that went beyond its public duty and mandate Plaintiff offered hyperbaric oxygen therapy at clinic. Plain- tiff was owned and controlled by chiropractor. Chiropractors were not permitted to adminis- ter hyperbaric oxygen therapy, as it must be administered by CASELAW CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164.

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