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CaseLawLaw PAGE 14 ONTARIO CIVIL CASES Bankruptcy And Insolvency PROPERTY Words "wages" and "service" con- noted activity contemporaneous with entitlement to remuneration Bankrupt assigned royalties to SOCAN by written agreement. Bankrupt entered loan agreement with publisher. Security agree- ment was to be executed assign- ing royalties due bankrupt from SOCAN to publisher. Publisher sought court approval to purchase trustee's interest in royalties due from SOCAN to extent of bank- rupt's indebtedness to publisher. Words "wages" in s. 68.1(1) of Bankruptcy and Insolvency Act (Can.), and "service" in s. 68.1(2) connoted activity contemporane- ous with entitlement to remunera- tion. Bankrupt's activity was com- plete before bankruptcy and was not performed during bankruptcy. Trustee was entitled to sell royalty asset. Declaratory order sought by bankrupt was dismissed. Friedman (Re) (Nov. 19, 2008, Ont. S.C.J., Campbell J., File No. 31-1082221) Order No. 008/336/036 (5 pp.). Civil Procedure CHANGE OF SOLICITOR Law firm removed as solicitors of record for plaintiffs Defendants were plaintiffs' accoun- tants. Plaintiffs retained law firm to investigate and negotiate with Canada Revenue Agency. Law firm retained two law firms with tax expertise and included defendants in effort. Negotiations were unsuc- cessful. Plaintiffs brought action in negligence against defendants. Defendants brought motion to remove law firm as counsel of re- cord for plaintiffs. Accounting firm was near client. Accountants and law firm had common goal to de- feat reassessment by agency. There was implied professional relation- ship. There was repose of trust and expectation of loyalty in which instructing firm would not act against accounting firm. Law firm could not act against defendants. Order issued removing law firm as solicitors of record for plaintiffs in action. Krede Marketing International Inc. v. Micacchi (Dec. 3, 2008, Ont. S.C.J., Hockin J., File No. 49679) Order No. 008/343/083 (14 pp.). Conflict Of Laws JURISDICTION Claims had real and substantial connection with Ontario Plaintiffs purchased yacht manu- factured by defendant. En route there was fire in engine of yacht in Ontario and yacht was destroyed. Yacht was sold for salvage. Other parties all had ties to Ontario. Defendant brought motion to stay action on grounds court lacked ju- risdiction simpliciter. Defendant had strong ties to China. Motion was dismissed. Claims fell with- in rule 17.02 of Rules of Civil Procedure (Ont.), governing ser- vice outside Ontario. Claims had real and substantial connection with Ontario. Court had jurisdic- tion simpliciter. It was reasonably foreseeable respondent's con- duct could result in harm within Ontario. Potential for prejudice to other parties was significant. Other parties would incur sig- nificant costs litigating matter in China. Chase v. Great Lakes Altus Motor Yachts Sales (Dec. 5, 2008, Ont. S.C.J., Pitt J., File No. 06-CV-322800PD3) Order No. 008/345/102 (13 pp.). Contracts FRANCHISE AGREEMENTS Franchise disclosure document did not comply with requirements Franchisee brought application for rescission of franchise con- tract. Franchisee argued disclo- sure document did not meet requirements and amounted to no disclosure. Franchisee sought refund of money invested in franchise. Application was al- lowed. Disclosure document did not comply with requirements. Disclosure document lacked ma- terial information. Disclosure document could be considered nullity if it was materially deficient in substantive content. Sublease entered into between franchisee and S. could be considered fran- chise agreement on same basis as franchise agreement entered into between franchisee and franchisor. Cross-application of respondent with respect to sublease was de- nied. S. was franchisor's associate. 6862829 Canada Ltd. v. Dollar It Ltd. (Nov. 20, 2008, Ont. S.C.J., Linhares de Sousa J., File No. 08-CV-41479) Order No. 008/331/033 (24 pp.). Damages Plaintiff claimed defendants S. and J. assaulted plaintiff. Plaintiff conceded there was no cause of ac- tion against defendant R. and ac- tion against defendant R. was dis- missed. Plaintiff claimed defendant D. was liable as owner of vehicle used by S. and J. to get to location of assault. Defendants S. and J. were in default. Plaintiff sustained PERSONAL INJURIES Non-pecuniary damages assessed at $95,000 for permanent eye injury march 23, 2009 • Law Times COURT DECISIONS ainmaker_LT_June2_08.indd 1 CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: 5/28/08 10:43:29 AM i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. permanent serious impairment of physical function of left eye. Plaintiff was unable to work on full- time basis. Plaintiff suffered loss of competitive advantage. Plaintiff, aged 54, at time of assault. Plaintiff had to retire from work because of injuries. Non-pecuniary damages were assessed at $95,000. Family Law Act (Ont.), damages of spouse were assessed at $7,500. Loss of income up to trial was $227,596. Future loss of income was assessed at $113,000. There was no nexus or causal relationship between in- juries and operation of defendant's motor vehicle. Defendant D. was not liable. Lafond v. Roksa (Dec. 3, 2008, Ont. S.C.J., Festeryga J., File No. 03-9611) Order No. 008/343/082 (9 pp.). Family Law SUPPORT Arbitration Act, 1991 (Ont.) Appeal by respondent of arbitra- tion award which terminated spousal support. Parties had co- habited in same sex relationship from 1991 to 2001. Following separation parties reached me- diated settlement and executed separation agreement which re- quired applicant to pay respon- dent monthly spousal support of $3,500. Separation agreement established three year transition period from 2003 to 2006 for respondent in which she was to use her best efforts to achieve eco- nomic self-sufficiency. On or after January 1, 2006 applicant was en- titled as of right to trigger review to terminate or reduce quantum of support that she owed respon- dent and agreement provided that review was to be conducted through binding arbitration. Applicant subsequently exercised right to review support and arbi- tration award ordered that spousal support continue for further pe- riod of nine months, after which all spousal support was to cease. Respondent appealed arbitration award seeking continuation of spousal support. Applicant con- tended that rights of appeal were restricted to those set out in s. 45 of Arbitration Act, 1991 (Ont.), ("AA") and that since parties did not agree to preserve rights of ap- peal there could only be appeal on question of law alone if leave were granted. Appeal dismissed. While there was no specific provi- sion in separation agreement that dealt with right to appeal award it was clear that AA governed ap- peal. This was family arbitration as defined in s. 51 of Family Law Act (Ont.) ("FLA"), and s. 59.1 of FLA stated that family arbitration was governed by FLA and AA. Application of AA was also con- governed appeal from arbitration award terminating spousal support www.lawtimesnews.com sistent with separation agreement. Section 45 of AA provided that unless parties agreed to allow more expansive types of appeal there could only be appeal on question of law with leave of court. Here separation agreement did not al- low more expansive form of ap- peal. Parties chose to opt out of court system and rules and pro- tection that court system offers. It was open to parties in separation agreement to deal with issue of appeal from arbitrator's decision however they simply agreed to be bound by laws of Ontario and therefore by AA. Since respondent had not raised any grounds of ap- peal that were not solely questions of law it was not necessary to con- sider if leave should be granted. S. (A.) v. G. (J.) (Dec. 1, 2008, Ont. No. 08-FA-015332) Order No. 008/339/119 (7 pp.). S.C.J., Horkins J., File Professions BARRISTERS AND SOLICITORS Applicant's vague assertions insufficient for disqualification qualified. G. Raymond Chang Ltd v. Shopcase Television (Nov. 28, 2008, Ont. S.C.J. (Comm. List), Pepall J., File No. 08-CL-7489) Order No. 008/340/033 (12 pp.). Sale Of Land AGREEMENT OF PURCHASE AND SALE On closing of purchase of motel property, respondent acquired title to sign Sign identified presence of mo- tel behind applicant's restaurant. Applicant claimed ownership of sign arguing sign was fixture. Respondent argued sign was chat- tel and sought declaration respon- dent had irrevocable licence to permit sign to be located on ap- plicant's property. Application was dismissed. Respondent was enti- tled to declaration respondent had licence to maintain sign in present location. On closing of purchase of motel property, respondent acquired title to sign as chattel. Applicant's conduct Motion by applicant for declara- tion that law firm L., which was acting for respondent, should not act against S. in within oppres- sion application. Applicant com- menced application against re- spondent and in support filed ap- plication of S., who was barrister and solicitor who had been busi- ness adviser to applicant for sev- eral years. S. had also been client of L. since 2004, primarily with respect to tax matters. S. did not alleged that L. had received con- fidential information relevant to applicant's litigation nor that there was any risk that any information would be used to his prejudice. S. did not identify any relationship between L.'s two retainers nor did he state that there was any risk to him or applicant that arose from L.'s representation of respondent. Privacy wall had been established by L. with respect to S. in 2008. L. had acted for respondent for one month and undertaken signifi- cant amount of work in relation this litigation before complaint was made. Motion dismissed. First question to be asked in cases involving potential conflict of in- terest was whether there had been receipt of information attribut- able to solicitor-client relationship relevant to matter at hand. Here evidence of any interconnection between two retainers was lacking and was neither clear nor cogent. No particulars were provided. S.'s concern that he had been client of L. for number of years, and other vague assertions were insuf- ficient to provide any disqualifica- tion on basis of conflict of interest and confidential information and accordingly L. ought not be dis- intent applicant conveyed sign to respondent. Respondent acquired licence from applicant to locate and maintain sign on restaurant property. Demers Holdings Inc. v. London (South) Purchaseco Inc. (Dec. 3, 2008, Ont. S.C.J., Tausendfreund J., File No. 53774) Order No. 008/343/091 (7 pp.). confirmed SUPREME COURT OF CANADA Criminal Law IDENTITY OF ACCUSED Circumstantial evidence had insufficient weight to support conviction Accused appealed judgment up- holding convictions for 15 counts of sexual assault against 14 victims. Assaults occurred at same time of day in same area and involved same conduct. In all but one case, assail- ant rode bicycle. Descriptions of assailant similar. Within hour after last assault, police found accused riding bike and matching descrip- tion of assailant. Accused did not stop for police and was sweating when arrested. Trial judge found victims' testimony did not establish identity beyond reasonable doubt, partly due to tainted photo lineup procedure. However, judge con- cluded that evidence regarding last assault proved accused committed that offence. On basis of similar fact evidence, judge convicted accused of remaining 14 counts. Majority of Quebec Court of Appeal con- cluded verdicts not unreasonable. Appeal allowed and acquittals

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