Law Times

PAGE 18 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. FEDERAL COURT Charter of Rights Alleged cause of action arose from warden' FREEDOM OF ASSOCIATION punitive damages. Inmate assert- ed that his rights under Canadian Charter of Rights and Freedoms, particularly freedom of assem- bly, were violated and that he suffered domestic hardship, shame, dishonour, and embar- rassment. Application allowed, in part. Allegations against two of servants were simply that in their positions of authority they appointed decision-makers at second and third grievance level. If there was any cause of action against Inmate took action against Crown and three of its servants in employ of Correctional Service of Canada arising from decision of warden to reject his nomination to run for election for inmate committee, and his subsequent transfer out of institution. Respondents applied to have statement of claim struck in its entirety or to dismiss action against individuals, and to strike out let inmate run for office claim for aggravated and at all, it would be constitutional in nature and lay only against state. Alleged cause of action arose from warden' two individuals to let inmate run for office, not from grievance procedure. It was far too early to determine how matter would develop, and at what stage, if any, inmate would have to elect between private law damages and Charter damages. If there was chance that inmate might succeed, then he should not be driven from judgment seat. Statement of claim struck against two individuals, but not against warden. Spidel v. Canada (Dec. 12, 2011, F.C., Harrington J., File No. T-1569-11) 98 W.C.B. (2d) 728 (8 pp.). s decision not s decision not to Immigration EXCLUSION AND EXPULSION Application for judicial review pursuant to s. 72(1) of Immigration and Refugee Protection Act (Can.), to set aside decision of Inland Enforcement Officer rejected ongoing lawsuit as cause for deferral Court had previously These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. Prothonotary's Order made on date on which plaintiff 's cause from ex-parte motion for default judg- ment, refusing to grant plain- tiff prejudgment interest of action arose on February 1, 2005, in accordance with Order Interest Act (B.C.). Prothonotary did award SOCAN prejudgment interest from February 23, 2011, date of Services Agency refusing appli- cants' request for deferral of their removal. Principal applicant and her children arrived in Canada in 2001 from Saint Vincent and Grenadines. Applicants' refugee claim was refused. When prin- cipal applicant failed to appear for her pre-removal interview in 2005, arrest warrant was issued against her. Applicants' remov- al was scheduled in May 2011. Applicants sought deferral pend- ing completion of civil litigation matter which could take more than two years to resolve depend- ing on the circumstances that litigation may reveal. Application dismissed. Decision not to grant deferral was reasonable. Court had previously rejected ongo- ing lawsuit as cause for deferral. Discoveries and taking of evi- dence before trial can be con- ducted outside of Ontario, and applicants offered no explanation as to why such provisions could not be employed in current case. Phillips v. Canada (Minister of Public Safety and Emergency Preparedness) (Dec. of Canada Border F.C., Noel J., File No. IMM-3019- 11) 210 A.C.W.S. (3d) 758 (12 pp.). 22, 2011, Society of Composers, Authors and Music Publishers of Canada ("SOCAN") appealed, by ex- parte motion, pursuant to s. 51 of Federal Courts Act (Can.), By electing statutory damages plaintiff elected not to pursue claim for unpaid licence fees Judgments and Orders INTEREST of claim, to date of judgment, September 11, 2011. Appeal dis- missed. Copyright Act (Can.), in terms of remedies, provided for number of options includ- ing ordinary damages, statuto- ry damages, account of profits, putative damages and interest. Section 38 of that Act had num- ber of provisions. One dealt specifically with collectives such as SOCAN. It spoke to award of statutory damages over cer- tain range geared to unpaid applicable royalties "in lieu of any other remedy of a monetary nature provided by this Act". Prothonotary reasoned that by electing for statutory damages SOCAN had elected not to pur- sue its claim for unpaid provin- cial license fees and, as necessary consequence, prejudgment inter- est on that sum. Prothonotary' issuance of statement reasoning was compelling and fit with purpose for which election was granted by Parliament to col- lective societies. Society of Composers, Authors and Music Publishers of Canada v. IIC Enterprises Ltd. (Dec. 1, 2011, F.C., Lemieux J., File No. T-308- 11) Decision at 207 A.C.W.S. (3d) 220 was affirmed. 210 A.C.W.S. (3d) 766 (11 pp.). s ONTARIO CIVIL CASES Civil Procedure Class action was Proposed fee of 15% of net settlement generally fair CLASS ACTIONS in 2008 on behalf of artists and rights holders who had not commenced received full compensation for use of their works by record labels. In 2011, settlement of class proceeding was approved, resulting in payment of approxi- mately $46.7 million into settle- ment trust for benefit of class. Class counsel sought payment of fees, taxes and disbursements in the amount of approximately $7.65 million. Order was issued approving retainer agreements entered into between representa- tive plaintiffs and class counsel, and approving fees of class coun- sel in amount of $6.25 million plus taxes and directing that such amount be paid out of settle- ment trust. Proposed fee of about 15% of net settlement was gen- erally fair. Results achieved in this case were excellent. Matter was important to class. Factual and legal complexities of matter were significant. Skill and com- petence demonstrated by class counsel was exceptional. Risk undertaken by class counsel, and opportunity cost was sizeable. This was not one of those rare and exceptional cases that called for payment of compensation to class representative. Baker Estate v. Sony BMG Music (Canada) Inc. (Nov. 30, 2011, Ont. S.C.J., Strathy J., File No. CV-080036065100 CP) 210 A.C.W.S. (3d) 586 (18 pp.). Professions Plaintiff brought motion for approval of settlement of class action on behalf of residents of Canada who were prescribed drug. Class counsel sought approval of fee. Settlement was approved. Proposed settlement was accepted by all class mem- bers. Settlement process was fair. Settlement came with rec- ommendation of experienced counsel. Settlement was fair and reasonable. There was no opt out from class action. There Fees of $811,563 fair and reasonable BARRISTERS AND SOLICITORS was detailed work-up of each class member' member agreed to class member's s claim. Every class proposed share of settlement and of fee of class counsel. There was no objection. Settlement was in best interests of class. Retainer agreement between class counsel and representative plaintiff was approved. Fees and disburse- ments of $811,563 inclusive of taxes were fair and reasonable and were approved. Fees and disbursements were to be paid out of settlement moneys. Time of class counsel was reasonably spent and disbursements were reasonably incurred. Class action was certified for purposes of set- tlement. Banerjee v. Shire Biochem Inc. (Dec. 21, 2011, Ont. S.C.J., Strathy J., File No. 05-CV-293457 CP) 210 A.C.W.S. pp.). (3d) 616 (6 Real Property Owner's contractor cut hole in Expenses formed charges that could be added to common expenses for unit CONDOMINIUMS roof to install HVAC unit. Owner did not have authorization to proceed with work. Owner had plumber attend unit to fix leak in bathroom. Plumber turned off water to wait for part that would come after weekend. Main water pipe for building went through unit and entire water supply for complex was turned off. Owner was away for weekend. Corporation had to enter unit to turn on water supply. Owner of condominium unit sought order vacating lien registered by corporation. Owner sought permanent injunction restrain- ing corporation from exercising power of sale rights and from proceeding in any way pursu- ant to notice of sale under lien. Corporation brought application for costs corporation incurred to gain access to owner' to turn on main water supply to remainder of building and in s unit April 16, 2012 • lAw Times Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

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