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PAGE 14 action because Ontario did not have closest connection between action and parties. Buxar v. Lukich (Sep. 23, 2008, Ont. S.C.J., Pope J., File No. 07-CV-10279SR) Order No. 008/276/047 (15 pp.). Ontario court could assume jurisdiction over Plaintiff alleged it hired Ontario defendant and his company to pro- cure financing to develop certain mining projects. Plaintiff claimed that Ontario defendants solicited assistance of Texan and his com- panies to secure necessary financ- ing through U.K. sources. Plaintiff contended that through series of events and transactions defendants and various corporate entities con- trolled by them breached fiduciary duties and duties of confidentiality, allowing Texan and companies he controlled to take mining oppor- tunities for themselves to exclusion of plaintiff. Seven of nine defen- dants not Ontario residents. Ap- pellant defendants argued claims alleged breaches of series of agree- ments many of which contained provisions giving English courts exclusive jurisdiction over disputes. Appellants argued exclusive juris- diction provisions provided strong argument both against assumption of jurisdiction and, if jurisdiction was taken, further determination that Ontario was most appropriate forum. Motion judge characterized claims as centering on fiduciary relationships. Appellants' appeals dismissed. Where Ontario court asked to assume jurisdiction over non-Ontario defendant real and substantial connection inquiry should be exclusive means used to determine jurisdiction. Motions judge did not err in conclusion that Ontario court could assume juris- diction over non-Ontario defen- dants. Defendant had potentially significant connection to Ontario as he became involved in business relationship he knew originated in and was centered in Ontario. Ex- clusive jurisdiction provisions in various documents did not apply to action as characterized by trial judge. Appellants did not show any basis upon which to interfere with motion judge's exercise of discretion and determination that appellants failed to demonstrate that some other jurisdiction more appropriate forum than Ontario. Precious Metal Capital Corp. v. Smith (Aug. 7, 2008, Ont. C.A., Doherty, Moldaver and Cronk JJ.A., File No. C48657; C48666; C48670) Order No. 008/266/065 (10 pp.). non-Ontario defendants Constitutional Law CHARTER OF RIGHTS Rights of hearing-impaired parents had to be balanced with best interests of child der was never received by Court Services. Child had been in care for period far in excess of statu- tory timelines under Child and Family Services Act ("CFSA") and the Family Law Rules (Ont.). Al- though hearing impaired parents have a right to ASL interpretation under Canadian Charter of Rights and Freedoms, the rights must be balanced with best interests of the child. When balance cannot be found, the best interests of the child must prevail. Parents rights under Charter to understand and be understood could be main- tained by accommodations to ser- vices that were already provided. Children and Family Services for York Region v. C. (H.) (Sep. 12, 2008, Ont. S.C.J., Olah J., File No. 22850-05) Order No. 008/260/028 (14 pp.). Corporations SALE OF ASSETS Vendor entitled to judgment on promissory note Motion for summary judgment by defendants and judgment on coun- terclaim. Motion for certificate of pending litigation by plaintiffs. Plaintiffs purchased restaurant, convenience store and gas station business from defendant. Defen- dant sold all assets of business and lease of property. Defendant took back $175,000 promissory note. Motion for summary judgment granted. Judgment on the coun- terclaim for sum of $175,000 less any payments. Plaintiff's motion for certificate of pending litigation not ruled on. Statement of claim does not specifically refer to cause of action giving rise to damages. Plaintiffs cannot resist summary judgment motion by suggesting evidence that might be adduced at trial or by amending statement of claim at later date. Promissory note which forms basis of coun- terclaim clear on its face. Nothing put forward by plaintiff to counter evidence of defendant. 1681950 Ontario Inc. v. 1638351 Ontario Inc. (Aug. 19, 2008, Ont. S.C.J., Wilson J., File No. 07-CV-333799PD3) Order No. 008/234/017 (6 pp.). SHAREHOLDERS Appellant not "aggrieved Crown wardship application with no access for child, aged five, for purposes of adoption. At the be- ginning of trial, both mother and father requested adjournment. Mother profoundly deaf and fa- ther hearing impaired. Mother requested adjournment until one American Sign Language ("ASL") interpreter present and father re- quested two ASL interpreters. Child had been in the care of Children's Aid Society since No- vember 2005. Motion denied. Order made at Trial Management Conference ("TMC") requiring two ASL interpreters at trial. Or- Appeal by appellant from motions judge's order to quash the appel- lant's application under s. 250 of Business Corporations Act (Ont.), as an abuse of process. Appeal dis- missed. Ample evidence on record to justify conclusion that applica- tion ought not to be allowed to proceed. Appellant also had no standing to bring application. Ap- plicant brought application under s. 250 of Act and stated was an "aggrieved person". Appellant has not suffered any legal grievance that would constitute it an ag- grieved person under s. 250. Sec- tion is directed toward rectifying registry of corporation where that registry has failed to record direct holding of shares by a person in that corporation. In direct nature of appellant's claim to owner- ship in shares was too vague and uncertain to fall within intended purpose of section. Hamilton Port Authority v. Nation- al Petroleum Products Corp. (Sep. 2, 2008, Ont. S.C.J. (Div. Ct.), Carnwarth, Swinton and Nord- heimer JJ., File No. 308/08) Or- der No. 008/259/106 (7 pp.). person" under s. 250 of Business Corporations Act (Ont.) CASELAW SHARES Purchaser received benefit of reduction in purchase price for shares Appeal from judgment decided on motion. Appeal dismissed. Under bargain negotiated between par- ties, defendant purchaser received benefit of reduction in purchase price for its acquisition of shares, consideration for which was pre- closing declaration by company of dividend in favour of its plaintiff sole shareholder. It was not within contemplation of parties that de- fendant would enjoy benefit of both reduced purchase price and full ownership of warrants. Harrowston Holdings Ltd. v. St. Joseph Media Inc. (Sep. 19, 2008, Ont. C.A., Feldman, Cronk and Roulean JJ.A., File No. C47063) Order No. 008/276/045 (2 pp.). Courts ABUSE OF PROCESS No error in decision to stay action as abuse of process based on excessive delay and attempt to relitigate issues Quebec gained control of ACL after purchasing majority inter- est held by GDC. Appellant mi- nority shareholders brought six proceedings in attempt to obtain compensation for decline in value of their shares. Present oppres- sion action commenced in 1987 but not pursued until 2003 after other five proceedings wholly ex- hausted. Respondents applied to dismiss action, relying on issue estoppel, no cause of action for oppression, forum non conve- niens, delay and abuse of process. Motion judge held there was no agreement among counsel for par- ties to hold present action in abey- ance pending resolution of other proceedings and dismissed action for delay. Motion judge also dis- missed action on basis that all claims made had been determined in one or more of prior proceed- ings in manner that bound parties and were accordingly governed by doctrine of issue estoppel. Mo- tion judge stayed action as abuse of process based on excessive de- lay and attempt to relitigate is- sues. Appeal to Ontario Court of Appeal dismissed. No basis to interfere with motion judge's find- ing that appellants had decided not to pursue this action until they had exhausted their claims in other forums. Finding sup- ported by record and contained no palpable and overriding error. Specific findings of presumptive as well as actual prejudice to re- spondents well-based in record and not susceptible to challenge on appeal. Motion judge did not err in analysis or conclusion that action should be stayed as abuse of process. There was inexcusable delay, appellants only issued claim as precautionary measure, major issues already been fully investi- gated and litigated, and subjecting respondents to another lawsuit in respect of same series of events should not be permitted. Hurst v. Societe Nationale de l'Amiante (Aug. 1, 2008, Ont. C.A., Feldman, Cronk and Blair JJ.A., File No. C46150) Appeal from 151 A.C.W.S. (3d) 1075; 23 B.L.R. (4th) 214 dismissed. Or- der No. 008/266/067 (24 pp.). Employment LABOUR RELATIONS Arbitrator was not functus officio Application for judicial review www.lawtimesnews.com of award of arbitrator determin- ing he had jurisdiction to change cut-off date for calculating dam- ages found in award. Underlying grievance alleged that applicant breached collective agreement by unilaterally contracting out work performed by members of bar- gaining unit. Arbitrator upheld grievance and expressed concern at delay between filing of griev- ance on February 9, 1998 and hearing on October 26, 2005. Without asking for or receiving submissions from parties, arbitra- tor fixed cut-off date for calcula- tion of damages at August 11, 2005, date on which grievance set down to be heard rather than February 9, 1998, date on which grievance filed. Arbitrator stated in award that he remained seized to assist parties in implementing award. Parties unable to agree on implementation and matter came back before arbitrator where re- spondent made submissions as to variation of cut-off date. Arbitra- tor released award finding that correct cut-off date should have been February 9, 1998, stating that original choice of cut-off date found on incomplete information that led him to conclude respon- dent had not taken timely steps to pursue disposition. As result of submissions, arbitrator found he had erred in that conclusion. Ap- plication for judicial review dis- missed. Principle of functus officio was that decision-maker may not re-open matter once final decision made. For arbitrator to have made decision of real significance to par- ties without providing parties with opportunity to make submissions or present evidence, and as result coming to mistaken belief of facts, would amount to denial of natu- ral justice. Arbitrator had power, and indeed duty, to avoid that result and revisit issue. Arbitrator not functus. Canada Post Corp. v. C.U.P.W. (June 26, 2008, Ont. S.C.J. (Div. Ct.), Jennings, Molloy and Swin- ton JJ., File No. 617/07) Order No. 008/189/094 (6 pp.). Family Law CHILD WELFARE Applicant authorized to comply with recommendation of palliative treatment only for child December 1, 2008 • Law Times Ont. S.C.J., Metivier J., File No. 94-FL-281-4) Order No. 008/276/060 (8 pp.). Husband brought motion for in- creased access to children of the marriage, and an order that would require the wife to return certain personal items to him. Wife re- quested an order for increased and retroactive child support, an order for exclusive possession of the matrimonial home, an order that the husband pay one-half of certain costs to maintain the mat- rimonial home, and an order that the husband account for proceeds of an R.R.S.P. Parties married in June 1998 and separated in Janu- ary 2006. There are two children of the marriage. Wife lived in the matrimonial home with the chil- dren. Husband had an R.R.S.P. and wife believed that he had used proceeds of the pension to pur- chase his home. Wife sought an account and/or disclosure of the R.R.S.P.. Husband did not op- pose accounting or disclosure, but requested an order for full disclo- sure by both parties of all income and assets. Wife did not oppose. Both parties ordered to make full disclosure of all their assets and all of their respective incomes and sources of income. Husband to make full disclosure of the R.R.S.P. and what had happened to the funds. Coleman v. Coleman (Aug. 26, 2008, Ont. S.C.J., Gray J., File No. 30131/07) Order No. 008/241/072 (7 pp.). PROPERTY Husband to make full disclosure regarding R.R.S.P. funds Insurance LIABILITY INSURANCE Third party insurer did not have duty to defend main action Applicant sought authorization to comply with medical recommen- dation of palliative treatment only for child. Child was apprehended at birth and was "crack baby" with serious medical problems. Child was in distress and doctors recom- mended termination of treatment rather than surgery. Application granted. Issue was whether author- ity granted to applicant pursuant to s. 62(3) of Child and Family Services Act (Ont.), included, as part of term "treatment", author- ity to consent to medical decision to withdraw or cease treatment. "Treatment" was not legislatively defined but best interests of child could, in appropriate circumstanc- es, require refraining from invasive treatment or withdrawing medical treatment other than palliative care. Although it might be that consent was not needed for doc- tors to make use of professional judgment and discretion to cease treatment or only give palliative care, until there was further clari- fication of issue applicant should continue to seek court order. Children's Aid Society of Ottawa- Carleton v. C. (M.) (Oct. 1, 2008, Rules of Civil Procedure (Ont.), Rule 21 motion brought by defen- dant fuel company for declaration that third party has duty to defend main action. In main action plain- tiffs claimed for damage done to cottage following fuel oil spill. Fuel company supplied oil and pumped it into plaintiffs' tank, where it then leaked into ground. Motion dismissed. Issue of wheth- er fuel company an insured under third party's policy and whether policy covers distribution of heat- ing oil to householders cannot be resolved without evidence. Law v. Whelan (Aug. 21, 2008, Ont. S.C.J., Corbett J., File No. 119/2002) Order No. 008/239/083 (11 pp.). Limitations MOTOR VEHICLES Owner had constructive notice of claim before expiration of limitation period Action arose out of motor vehicle accident which occurred in Sep- tember 1991. Plaintiff severely in- jured when car collided with trailer portion of tractor-trailer. Motion by plaintiffs in part for order grant- ing leave to amend statement of claim. Some amendments in- volved addition of new defendants. Plaintiffs also sought order under s. 258.3(1) of the Insurance Act (Ont.), extending time for service on proposed defendants notice of intention to commence action. Plaintiff originally commenced action against owner of whole tractor-trailer. Plaintiffs wished to add owner of tractor portion