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Page 14 February 1, 2016 • Law Times www.lawtimesnews.com policy reasonable. Employee sought order stating that CRA violated his right to work in lan- guage of choice and requiring CRA to review policy to respect rights of its employees. Applica- tion dismissed. Since impossible to reconcile service language rights under Part IV and work- place language rights under Part V, Part IV of Official Languages Act took precedence. CRA took all reasonable measures to create and maintain work environment conducive to the effective use of both official languages by its call agents. All other parts of CRA computer systems accessible in both official languages for call agents and only "notepad" or logs to be written by call agents in language of taxpayer. Transfer of calls proposed by employee would entail delays for anglo- phone callers and thus unequal service. Tailleur c. Canada (Pro- cureur général) (Oct. 30, 2015, F.C., Denis Gascon J., File No. T-1444-13) 260 A.C.W.S. (3d) 613. ONTARIO CIVIL CASES Agency STOCKBROKERS Brokers did not fall below standard of care Plaintiff C authorized defendant V to open corporate account for W Inc., C's personal holding company, with defendant bro- kers I Inc. C signed corporate resolution appointing V as of- ficer of W Inc. and granted him sole trading authority over ac- count. C transferred $2 million into corporate account. V invest- ed those funds in commodity futures and lost over $1.8 million in three-month period. C and W Inc. brought action against V and I Inc. They subsequently discon- tinued action against V. Plaintiffs claimed against I Inc. in negli- gence. They alleged that I Inc. breached its "know your client" and "gatekeeper" obligations by failing to make necessary inqui- ries of C before opening W Inc. account under V's trading au- thority. Plaintiffs sought to hold I Inc. responsible for investment losses they sustained as result of V's mismanagement of their funds. Action dismissed. I Inc. did not fall below standard of care, as informed by know your client and gatekeeper obligations, when it failed to make further inquiries of C before opening W Inc. account under V's trading authority. Once V instructed B, on behalf of I Inc., to open W Inc. corporate account, B obtained necessary corporate documen- tation and information about W Inc., its beneficial owner and authorized trading authority. B obtained corporate resolution setting out who had trading au- thority for W Inc. account, which was signed by C as sole director. Plaintiffs could not point to any Investment Industry Regulatory Organization of Canada rule or authority that required broker to contact beneficial owner of cor- poration and inquire about his relationship with person being granted trading authority or to inquire into that person's com- pensation arrangements. I Inc. was not responsible for C's deci- sion to grant V trading authority over W Inc.'s account. Wish Group Inc. v. De Vrij (Nov. 19, 2015, Ont. S.C.J. [Commercial List], Conway J., File No. CV-12-9555-00CL) 260 A.C.W.S. (3d) 434. Civil Procedure CHANGE OF SOLICITOR Removal of counsel permitted where there was complete breakdown of solicitor-counsel relationship Parties were involved in motor vehicle accident. There was pos- sibility of finding of contributory negligence on part of plaintiff. There was issue about threshold and there was matter of $30,000 deductible. Defendant made of- fer to settle. Plaintiff 's counsel strongly urged plaintiff to accept offer. Plaintiff viewed offer as too low and wished to have his day in court. Trial was scheduled. Plain- tiff 's counsel sought order to re- move itself as counsel of record for plaintiff. Motion granted. De- fendant consented to adjourn- ment if plaintiff 's counsel were permitted to be removed. Trial was adjourned to permit plaintiff to retain new counsel if it chose to do so. Plaintiff 's opposition to request for removal was unten- able on facts. Motion material made it clear that plaintiff no lon- ger had confidence in his lawyers or in their ability to adequately represent him. There was no lon- ger trust and confidence between plaintiff and counsel. There was complete breakdown of solicitor- counsel relationship. Vaillancourt v. Sloss (Nov. 13, 2015, Ont. S.C.J., Louise L. Gauthier J., File No. C-1113-11) 260 A.C.W.S. (3d) 449. CLASS ACTIONS Litigation plans proposed by both parties were inadequate Plaintiffs brought class action. Defendants admitted liabil- ity and damages remained to be determined. Parties disagreed about procedure for individual issues phase of class action. Class counsel designed litigation plan with hidden agenda of devising means to increase likelihood of all class members enjoying bump up in their damages awards to in- clude emotional stress damages. Defendants designed litigation plan with hidden agenda to in- crease likelihood that class mem- bers would accept defendants' offers to settle rather than pro- ceed further into individual is- sues phase of proceeding. Court proposed litigation and directed parties to review it. Parties were directed to renew their efforts to negotiate satisfactory litigation plan, failing which case confer- ence would be directed to hear parties' final submissions and court would finally settle plan. Plans proposed by both parties were inadequate and did not serve access to justice and judi- cial economy purposes of Class Proceedings Act, 1992. Neither plans used creative resources available from s. 25 of Act or Rules of Civil Procedure. Parties did not take benefit from lessons learned from allocation and dis- tribution schemes designed for class actions that were settled. Plaintiffs' proposal for test case was problematic because test case required consent of all parties to make outcome binding on par- ties in other cases. Test case about law of damages for mental dis- tress had no utility because law was already settled law, which was favourable to all but perhaps four of remaining class members. Defendants' proposed litigation plan overreacted and attempted to thwart plaintiffs exposed hid- den agenda of attempting to re- shape established law about men- tal distress damages. Defendants' plan was too cumbersome and ponderous. Lundy v. VIA Rail Canada Inc. (Nov. 16, 2015, Ont. S.C.J., Perell J., File No. CV-12-447653- 00CP) 260 A.C.W.S. (3d) 451. SETTLEMENT No reason to interfere with deci- sion to enforce settlement Plaintiffs commenced action against defendant food corpora- tion after they allegedly found moldy piece of chicken in cereal box. Defendant's lawyer served offer to settle on plaintiffs' law- yer. Plaintiffs' lawyer commu- nicated that plaintiffs accepted offer. Plaintiffs changed lawyers and new lawyer informed de- fendant's lawyer that plaintiffs were proceeding with action. On defendant's motion for order enforcing settlement, approv- ing settlement as against infant plaintiff, and dismissing action, motion judge found that parties agreed to settle action but settle- ment was not approved in respect of infant plaintiff, and action with respect to infant plaintiff was returned to trial list. Adult plaintiffs appealed enforcement of settlement against them. Ap- peal dismissed. Policy of courts is to promote settlement. Discre- tion to refuse to enforce settle- ment was to be exercised rarely. Evidence before motion judge did not support refusing to en- force settlement. Critical factors plaintiffs relied on to support their argument that settlement should not be enforced were that female plaintiff accepted offer in haste and was under stress at time. Factors were considered and rejected by motion judge as evidence did not support either assertion. Record supported mo- tion judge's conclusion that, on evidence, plaintiffs could not sat- isfy onus of demonstrating that circumstances surrounding their acceptance of offer to settle were such that they should be allowed to resile from settlement agree- ment. Exercise of motion judge's discretion to enforce settlement was entitled to deference. There was no reason to interfere. Catanzaro v. Kellogg's Can- ada Inc. (Nov. 16, 2015, Ont. C.A., E.A. Cronk J.A., Gloria Epstein J.A., and Grant Huscroft J.A., File No. CA C59545) Deci- sion at 245 A.C.W.S. (3d) 313 was affirmed. 260 A.C.W.S. (3d) 480. Damages PERSONAL INJURIES Jury would be instructed to deduct LTD payments Plaintiff suffered stroke and was in hospital for two months and was not able to return to work afterwards. Plaintiff brought medical malpractice action claiming past and future income loss. Plaintiff received CPP and LTD benefits for almost 10 years. Plaintiff 's employer was school board, which paid 100 per cent of premium costs for plaintiff 's LTD coverage as required by collective agreement. Ruling was sought on deductibility of CPP and LTD benefits from past and future in- come loss. Parties agreed law was settled that CPP benefits were not to be deducted from any past or future income awards made by jury. Law regarding deductibility of LTD payments was shifting. Jury would be instructed to de- duct from any wage losses LTD payments provided to plaintiff both in past and future. LTD benefit was indemnity caused by defendant's breach. Plaintiff was being paid LTD pursuant to poli- cy of insurance paid for by school board, which was funded by tax- payer. Defendants were paid di- rectly or indirectly by Ministry of Health funded by taxpayer. Plaintiff was getting double re- covery from agencies funded by taxpayer. It was not reasonable to plaintiff to receive double recov- ery from public purse. Mazzucco v. Herer (Nov. 9, 2015, Ont. S.C.J., A. Skarica J., File No. Hamilton CV-07-32005) 260 A.C.W.S. (3d) 513. Elections RECOUNT Determination was made as to validity of three ballots Results of federal election in riding led to order for judicial recount. Judicial recount held. Recount results certified. Pro- ceedings had same formality as courtroom. Disputed ballots were set aside and dealt with on record once all ballots had been counted. It was agreed that spe- cial ballots that cast ballot for candidate in different riding were rejected. Through coopera- tion of counsel, disputed number of rejected ballots was narrowed from 120 to only three that re- quired judicial determination on validity. Pursuant to s. 284(1)(e) of Canada Elections Act, court had no discretion in whether bal- lot was accepted if there was any mark or writing by which elector could be identified. In first ballot, marks beside candidate's name did not ref lect identifiable initials but they ref lected intention of voter and ballot was valid. In sec- ond ballot, voter placed "XO" op- posite candidate's name. In mul- ticultural society, letters could identify voter and ballot was rejected. In third ballot, letters PD were written above scratched out word "Progressive" and let- ters PC were written above words "Conservative Party". There was considerable doubt that letters were intended to identify voter and they likely had to do with words "Progressive Conservative Party" and ballot was valid. Tamblyn v. Nuttall (Nov. 18, 2015, Ont. S.C.J., M.L. Edwards J., File No. Barrie CV-15-1292) 260 A.C.W.S. (3d) 519. Family Law CUSTODY Order for police enforcement of access not in child's best interests Parties separated after six years of marriage and had one child, age four at separation. Child lived primarily with mother and parties agreed to ac- cess schedule for father. Mother claimed that on several occa- sions, father refused to return child at end of access visit and au- thorized others to remove child from daycare when parties had agreed she would be in mother's care. Mother brought application for, inter alia, sole custody, de- termination of access and order for police enforcement of access order. Father did not participate in proceedings. Mother granted sole custody and primary resi- dence. Father to exercise access as agreed. Order for police enforce- ment not in child's best interests. Police enforcement was order of last resort and would be danger- ous in circumstances here. Child had been in serious car accident and was vulnerable to trauma. Father had difficulty manag- ing anger and limited insight into child's emotional needs. There was serious risk that father would abuse police enforcement order with harmful and unin- tended consequences for child. Contempt remedy available for father's non-compliance with ac- cess order. Ward v. Ward (Oct. 7, 2015, Ont. S.C.J., Price J., File No. Brampton FS-15-83193) 260 A.C.W.S. (3d) 533. Limitations TORT There was no new test for discoverability in medi- cal malpractice actions Defendant W was plaintiff 's den- tist. In 2008, W referred plaintiff to defendant C, oral and maxil- lofacial surgeon, to discuss pos- sible dental implant treatment to replace missing teeth. C recom- mended that best treatment op- tion for plaintiff was removal of all of her teeth and replacement by implants. Surgery to remove plaintiff 's teeth and install dental implants took place in May 2009. W's role was fabrication and in- stallation of dental prostheses to be fixed to implants. Final in- stallation of permanent dentures was completed in September 2010. Plaintiff subsequently com- plained about fracturing of two dentures, biting her cheek, diffi- culties with eating, and accumu- lating food in her dentures while she ate. Plaintiff issued statement of claim against defendants in

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