Law Times

Law times • OctOber 6/13, 2008 Application granted. Supreme Court of Canada held that similar provisions in British Columbia leg- islation were unconstitutional, as amounting to discrimination on basis of sex. It would bring admin- istration of justice into disrepute and be manifestly unfair to father and not in best interest of child if court was to enforce child-nam- ing provisions of Act where Brit- ish Columbia's virtually identical statute had been ruled unconsti- tutional. Right of mother to ar- bitrarily exclude father in naming of child was sexual discrimination that left father without recourse and rendered him second-class parent. It was not in best interests of child to have parents differenti- ated in that fashion. Gallant v. Lewis (July 14, 2008, Ont. S.C.J. (Fam. Ct.), Quinn J., File No. 506/07) Order No. 008/207/035 (10 pp.). Civil Procedure JURY NOTICE Striking civil jury notice was improper exercise of judicial discretion here unjustly enriched, induced breach of contract and defamed plaintiff. Defendants argued plaintiff was in- dependent contractor engaged by K&M only. Defendants claimed agreement was terminated be- cause of plaintiff's unprofessional behaviour. Agreement provided agreement could be terminated on 15 days' notice. Plaintiff was independent contractor. Plaintiff did not breach fundamental term of agreement. K&M was not justi- fied in terminating agreement im- mediately. K&M was not entitled to immediately terminate agree- ment. K&M was to pay damages in lieu of 15 days' notice as pro- vided for in agreement. All other claims were dismissed. Shekhdar v. K&M Engineering Consulting Corp. (June 6, 2008, Ont.S.C.J., Thorburn J., File No. 03-CV-246488-CM3) Order No. 008/162/209 (26 pp.). Debtor And Creditor ENFORCEMENT Restructuring of loan did not alter terms of credit arrangement Plaintiffs' motion to strike defen- dant's jury notice at commence- ment of trial granted. Action arose out of motor vehicle accident in which plaintiff alleged she sus- tained serious and permanent personal injuries. Plaintiff's mo- tion to strike brought on grounds that plaintiff, a Muslim-Canadian woman of Afghani descent, would not receive fair trial due to current political climate. In granting mo- tion, trial judge took judicial no- tice there is discrimination against Muslims. Defendant's appeal al- lowed. Even if trial judge had basis for doing so, not enough to sim- ply take judicial notice of inher- ent prejudices on part of potential jurors in case involving Muslims. Establishing realistic potential for juror partiality requires satisfying court that: (1) widespread bias ex- ists in community; and (2) some jurors may be incapable of setting aside this bias, despite trial safe- guards, to render impartial deci- sion. Behavioural link between ex- istence of lack of impartiality and inability to set biases aside not es- tablished. It was improper exercise of judicial discretion to conclude that potential civil jurors would be impossibly tainted, and that lack of impartiality would cause them to be unable to set aside bias notwithstanding procedural safe- guards, without any supporting evidence. Kayhan v. Greve (June 27, 2008, Ont. Div. Ct., Cunningham A.C.J.S.C., Stayshyn and Kiteley JJ., File No. DC-07-421) Appeal from 161 A.C.W.S. (3d) 59 dis- missed. Order No. 008/192/007 (18 pp.). Contracts TERMINATION No justification for immediate termination of agreement Plaintiff was to provide software development services to K&M under independent contrac- tor services agreement. Plaintiff claimed damages for wrongful ter- mination of agreement. Plaintiff claimed defendants breached duty of care or fiduciary duty and made negligence misrepresentations on plaintiff's prospects with project. Plaintiff claimed defendants were where plaintiff did not breach fundamental term Defendant entered credit arrange- ment with plaintiff. Two principals of corporate defendant uncondi- tionally guaranteed line of credit. Plaintiff proposed restructuring. First principal was no longer in- volved in operation of corporate defendant. Corporate defendant failed to make payment. Plaintiff demanded payment of outstand- ing amount within 30 days. Re- payment was not made. Plaintiff brought action. Second principal declared bankruptcy. Default judgment was granted against corporate defendant and summa- ry judgment was granted against first principal. Appeal was dis- missed. Plaintiff's restructuring of loan did not alter terms of credit arrangement. Principal could not complain principal was unaware of terms of agreement. Principal made acknowledgement in guar- antee. Argument plaintiff ignored duty to protect security under credit agreement was rejected. TD Canada Trust v. B & B En- terprises (London) Ltd. (June 5, 2008, Ont. C.A., O'Connor A.C.J.O., Doherty and Gillese JJ.A., File No. C48021) Order No. 008/162/200 (6 pp.). Family Law CUSTODY Supervised access to continue for six months Mother sought temporary sole custody of child. There was crimi- nal restraining order against father. Child was in mother's sole care since separation. Child saw father at supervised access centre. Father now took medication to help with alcoholism. Order issued granting mother temporary sole custody. Parties would not attain level of co-operation to allow joint cus- tody. Father did not need to use services of access centre. Father proposed three acceptable persons to act as temporary supervisor until child felt more comfortable with access visits. Father could no longer afford services of access centre. Supervised access was to continue for six months. Income of $134,483 was imputed to fa- ther for 2007 for purposes of child and spousal support. Father owed $12,750 in child support arrears. Father was to pay $270 per month in on-going temporary child sup- port. Parties were to share s. 7 CASELAW expenses on equal basis until true 2008 incomes were known. Access scheme was set out. Father was to pay $25,000 as temporary spousal support for specified period. McSkimming v. McSkimming (June 11, 2008, Ont.S.C.J., Greer J., File No. 07-FD-334699) Or- der No. 008/170/011 (11 pp.). Canadian citizen asked relatives in Iran to arrange for him to meet Iranian woman. Parties entered into "marriage contract" in Iran. Man returned to Canada imme- diately after and marriage never consummated. Man applied to sponsor woman for immigration purposes. Woman asked for di- vorce and for payment stipulated in marriage contract but man re- fused. Parties met several times in Toronto but woman began pro- ceedings against man in Iran to enforce payment. Man eventually applied in Ontario for annulment on basis of woman's fraud. Woman resisted, arguing she intended to live with man as his wife until she learned sometime after marriage that man's parents would be living with them. Annulment granted on finding that woman never intended to enter into real mar- riage. Man unaware of fraud until well after marriage. Because man relied on woman's false misrepre- sentations, he was entitled to an- nulment. Wife's appeal dismissed. Reasons and analysis of trial judge agreed with. Trial judge did not make any palpable and overriding errors in findings of fact. Torfehnejad v. Salimi (Aug. 14, 2008, Ont. C.A., Rosenberg, Gillese and Blair JJ.A., File No. C46392) Appeal from 153 A.C.W.S. (3d) 158; 276 D.L.R. (4th) 733; 32 R.F.L. (6th) 115 dis- missed. Order No. 008/232/059 (2 pp.). MARRIAGE Reliance on false misrepresentations justified annulment SUPPORT Job loss amounted to material change of circumstances agreement. Plaintiff announced four plant closures. Defendant blockaded plaintiff's office head- quarters. Defendant caused mo- torcade in area of truck assembly plant resulting in production stoppage. Plaintiff sought interim injunction to end blockade at of- fice and prohibit future illegal behaviour. Plaintiff did not come to court with clean hands. Plain- tiff engaged in deceitful business practice by allowing negotiators to agree to advance notice and discussion clauses in agreement when truck business was in dire straits. Plaintiff would suffer ir- reparable harm if blockade con- tinued in present form. Balance of convenience favoured granting of injunction. Plaintiff was entitled to relief claimed with modifica- tions. General Motors of Canada Ltd. v. C.A.W., Local 222 (June 13, 2008, Ont.S.C.J., Salmers J., File No. 55786/08) Order No. 008/170/008 (9 pp.). Insurance AUTOMOBILE INSURANCE Applicant should have contacted insurer prior to expiry of time period PAGE 23 reasonable investigations and not whether investigations resulted in correct determination. There was evidence applicant had reason to question representation there was no other insurance. It would have been reasonable to follow up with respondent after receiving infor- mation about respondent's policy. Arbitrator did not err in conclud- ing applicant should have con- tacted respondent prior to expiry of time period. Echelon General Insurance Co. v. CGU Insurance Co. of Canada (June 5, 2008, Ont.S.C.J., Herman J., File No. 07-CV-331710PD2) Or- der No. 008/162/197 (6 pp.). G. was struck by motor vehicle while riding bicycle. Motor ve- hicle was insured by applicant. Applicant claimed respondent was responsible for benefits be- cause G. was dependent of father who was insured by respondent. Arbitrator refused to extend time for providing written notice dis- puting insurer's obligation to pay benefits. Applicant appealed. Ap- peal was dismissed. Section 3(2) (b) of Ontario Regulation 283/95 focused on whether insurer made R. parked in lot, left engine run- ning and daughter in vehicle while R. went into restaurant. R. was shot while in restaurant by assail- ants who shot guns from another vehicle into restaurant. R. sustained serious permanent injury. Personal brought motion for determina- tion before trial of question of law raised by statement of defence. Ac- tion was dismissed. Shooting was separate and independent from use and operation of vehicle. Conclu- sion was not affected by fact assail- ants continued to use vehicle when shots were fired. Fact assailants shot gun from motor vehicle did not make act motoring activity attract- ing indemnification. R. did not establish chain of causation linking injuries to use and operation of as- sailants' vehicle. Case fell outside limits of liability set by Supreme Court of Canada. Russo v. John Doe (May 28, 2008, Ont.S.C.J., Allen J., File No. 06-CV-306377PD3) Order No. 008/162/182 (8 pp.). Shooting from vehicle was separate and independent from use and operation of vehicle LT Obtain Copies of Judgments Parties had two children. Separa- tion agreement provided for child support of $1,428 per month based on father's annual income of $85,600 per year. Father lost job. Father's new income was $23,000. Father sought to amend child support provisions of sepa- ration agreement. Mother sought to amend child support provisions in separation agreement claim- ing father understated income in separation agreement and arrears accumulated. Mother sought to impute income to father arguing father was intentionally under- employed or unemployed. Father's job loss amounted to material change of circumstances. Father was intentionally under-employed or unemployed. There was no evi- dence father specifically intended to evade payment of child sup- port. Income of $26,000 was im- puted to father. Father was to pay Guideline child support amount plus proportionate s. 7 amount and arrears. Eskridge v. Eskridge (June 16, 2008, Ont.S.C.J., Ratushny J., File No. FC-07-1555-2) Order No. 008/170/010 (8 pp.). Injunctions INTERLOCUTORY RELIEF Interim injunction to end blockade was granted Parties agreed on new collective www.lawtimesnews.com to copies of original decisions Your 24/7 connection caseimage.ca is an online database of both unreported and reported court and tribunal decisions — www.caseimage.ca $12.50* per case CaseLaw on Call • rates Single or multiple copies of the full text of any case digested in this issue can be supplied at the rates shown. Via E-mail Cost per case $17.50* sales@canadalawbook.ca Via Mail Cost per page $0.60* Minimum charge $10* Plus postage Via FAX Via Courier Cost per page $2.50* Minimum charge $10* Cost per page $0.60* Minimum charge $10* Plus courier charges CaseLaw on Call • order form Attention: Photocopy Service: Please send the full text of the following judgments. Orders must provide the case name, case order number (9 digits) and number of pages. Please enclose payment unless you have a VISA, MasterCard, AMEX or Canada Law Book account number. 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