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Page 14 February 22, 2016 • Law Times www.lawtimesnews.com and develop matrimonial home property and lot in daughter's name and build new homes to sell at significant profit. Wife and children had moved out of mat- rimonial home. Arbitrator made interim award that provided matrimonial home be immedi- ately listed and sold. Husband appealed interim arbitration award. Husband brought mo- tion for stay. Motion granted. Court had jurisdiction under s. 134 of Courts of Justice Act to grant stay. As sole owner on title, wife had prima facie right to sell matrimonial home, sub- ject to husband's rights as spouse under Part II of Family Law Act. Arbitrator did not deal with husband's rights as part of his award. It was clear husband was claiming property interest in matrimonial home by making trust claim. Husband raised is- sue for appeal that was not vexa- tious or frivolous and there was serious issue to be determined. Husband established he would suffer irreparable harm if stay were not granted. Husband had right to have trust claim litigated and would be prejudiced if mat- rimonial home was sold before appeal was heard. Balance of convenience favoured granting stay because sale of matrimonial home might permanently impair husband's rights, in comparison to temporary distress to wife of not listing home for sale. Jurewicz v. Jurewicz (Dec. 10, 2015, Ont. S.C.J., Emery J., File No. FS-15-0256-00) 261 A.C.W.S. (3d) 262. Civil Procedure CLASS ACTIONS Appeal of change to class composition allowed Students enrolled in post-gradu- ate program at GBC commenced class action for unfair practice under Consumer Protection Act, 2002 based on misleading state- ment in course calendar that program graduates would have opportunity to complete indus- try designations but additional courses, work experience and exams at students' expense, were required. Course calendar state- ment found to be breach of un- fair practices provision of CPA. Court awarded aggregate dam- ages but removed third cohort of students from class. Third cohort was orally advised about correc- tion and given opportunity to withdraw and receive tuition re- fund. Trial judge reiterated that student enrolling in program after unfair practice occurred entitled to damages, whether or not student relied on representa- tion. Students' appeal of change to class composition allowed. GBC's cross-appeal of aggregate damages award denied. Trial judge acknowledged it was not necessary to prove reliance or even knowledge of unfair prac- tice to establish claim but erred in relying on fact course calendar corrected before third cohort en- tered program. To extent conclu- sion suggested the students were only subject to unfair practice because they relied on misrep- resentation, it was error of law. Students entered into agreements after unfair practice occurred and before correction; claim had crystallized. Class Proceedings Act, 1992 allows court to assess and award aggregate damages. Trial judge analyzed components of award to properly compensate each class member and assessed on aggregate basis. He erred in attributing motive of represen- tative plaintiffs to all members. Trial judge also erred by suggest- ing that causation established because of group reliance. Com- pensation based on plaintiffs' change in position, not reliance. Since aggregate damages award based on entering into agree- ment and not reliance, errors did not affect outcome. Open to trial judge to accept parties' agree- ment to use tort measure of dam- ages and apply agreed formula to put plaintiffs back into position they were in before they entered into agreement, except for hav- ing taken course and paid what it was actually worth. Students who either failed or withdrew from program qualified for dam- ages because they entered into agreements with GBC following unfair practice and their direct costs were same as other class members. Their damages to be reduced by any tuition refunds. Trial judge entitled to consider reliable evidence to reasonably determine components of ag- gregate damages and to make evidentiary decisions relating to value of GBC program; his con- clusions were entitled to defer- ence. No basis to interfere. Ramdath v. George Brown College of Applied Arts and Technology (Dec. 24, 2015, Ont. C.A., K. Feldman J.A., E.A. Cronk J.A., and Grant Huscroft J.A., File No. CA C59349) De- cision at 242 A.C.W.S. (3d) 554 was affirmed. Decision at 242 A.C.W.S. (3d) 94 was reversed. 261 A.C.W.S. (3d) 322. Family Law CUSTODY Mother's emergency motion for reinstatement of access was granted Parties lived together from January 2004 until September 2013. They had two children who were born in 2005 and 2007. Mother said that following separation, parties had informal agreement to share custody of children on basis of alternating weekly access schedule. Mother said when she told father she would be seeking to formalize ar- rangement and obtain child and spousal support, father denied her access to children. Father said mother effectively aban- doned children after separation but admitted that they ultimately agreed on alternating weekly ac- cess schedule. Father claimed to have concerns about mother's conduct including nature of her employment as server and youthful lifestyle associated with her employment. Mother was granted leave to bring emergency motion for reinstatement of ac- cess. Motion granted. Father's unilateral decision to alter exist- ing access schedule and to refuse to permit children to see their mother on regularly scheduled basis stemmed from his errone- ous belief he had unilateral con- trol over when children would have access with their mother. Father's decision was unwarrant- ed, knee-jerk reaction to being served with notice of application and supporting documents. On interim basis, court ordered that children have access with mother from 3:40 p.m. on Friday to 8 p.m. on Monday every weekend. van den Ham v. Thibodeau (Dec. 8, 2015, Ont. S.C.J., S. Corthorn J., File No. FC-15-1482) 261 A.C.W.S. (3d) 363. DIVORCE There was air of reality to apprehension that severing claim for divorce would result in legal disadvantage to wife Husband and wife started co- habiting in 2000 and married in 2012. Parties separated nine months later. Husband com- menced application for divorce. Wife commenced cross-appli- cation for spousal support and equalization of net family prop- erty. Parties' litigation became acrimonious, with husband threatening that wife would get nothing. Husband failed to provide financial disclosure de- spite wife having obtained court orders. Wife hired forensic ac- countant to examine records of husband's medical supply busi- ness. Husband complied with or- der requiring him to pay interim spousal support. In September 2015, husband unsuccessfully brought motion for order sev- ering his divorce claim from wife's claims for corollary relief. Motions judge noted husband's failure to comply with disclosure orders and potential prejudice to claim wife might have against husband's estate in event of in- testacy. Husband brought mo- tion for leave to appeal. Motion dismissed. Husband failed to establish conf lict with another decision of court and desirabil- ity of granting leave to appeal. Husband also failed to establish reason to doubt correctness of decision and that issue was of such importance that leave to appeal should be granted. Pres- ent case was different from cases in which severance had been granted. There was air of real- ity to apprehension that severing claim for divorce would result in legal disadvantage to wife, whose claim for ongoing spousal sup- port had been impeded by lack of financial disclosure. Wife might not have adequate security for such spousal support. Further, motions judge had exercised ju- dicial discretion given to him by R. 12(6) of Family Law Rules af- ter applying proper test. Impact on wife's entitlement to share in husband's estate upon intestacy was legal disadvantage. While wife could not use her opposition to husband's claim for divorce as leverage to exact strategic advan- tage in her claims for corollary relief, it was permissible for court to refuse to exercise its discretion to sever claim for divorce where it would be unfair to do so. Hus- band's failure to make financial disclosure arguably impeded wife's ability to establish her claim to ongoing spousal sup- port. Resulting delay increased importance of wife's potential claim against husband's estate in event of intestacy. Mullin v. Sherlock (Dec. 4, 2015, Ont. S.C.J., Price J., File No. FS-13-78828-00) 261 A.C.W.S. (3d) 379. Injunctions JURISDICTION Court had jurisdiction to grant injunction against RCMP Informant provided informa- tion to her local police about criminal syndicate. Royal Ca- nadian Mounted Police (RCMP) used this information to inves- tigate and prosecute members of criminal syndicate on drug- related charges. During this pro- cess, RCMP relocated informant due to perceived threat to her safety. Informant had to leave behind her family, friends, and job. Informant was provided with total of $175,000 and in- tended to begin new life in new province. Something received by informant ultimately led to her being placed in Witness Pro- tection Program (WPP). Infor- mant assumed new identity and moved to new location. Infor- mant learned WPP had become necessary because RCMP had inadvertently disclosed her prior identity and personal informa- tion. Informant commenced ac- tion against federal government for damages for negligence and breach of fiduciary duty. RCMP took steps to discharge infor- mant from WPP. Informant developed mental health issues that prevented her from work- ing. Informant brought motion for interlocutory injunction re- straining federal government from withdrawing informant's financial support pending out- come of litigation. Motion grant- ed. Neither s. 18(1) of Federal Courts Act nor s. 22(1) of Crown Liability and Proceedings Act ousted jurisdiction of Superior Court of Justice to grant injunc- tion against RCMP. Injunctive relief against Crown was only exclusively within jurisdic- tion of Federal Court under s. 18(1) of FCA where claimant was seeking judicial review and other traditional administrative law remedies available under s. 18(1) of FCA. Pursuant to s. 17 of FCA, where claimant had proper private lawsuit seeking dam- ages, and where injunction was collateral to resolution of issues, Superior Court of Justice could exercise concurrent jurisdic- tion over those areas. As long as what claimant was seeking was compensation for alleged losses by way of damages and not judi- cial review, claimant could seek redress through legal process of their choosing. Informant had valid private law cause of action for damages arising from neg- ligence and breach of fiduciary duty. So long as claim was not dressed-up attempt to avoid ju- dicial review, injunctive relief that was corollary to damages claim could be granted in Supe- rior Court of Justice. Forcing in- formant to pursue injunction via separate proceeding in Federal Court was unfair, nonsensical, and would frustrate intention of amendments to FCA. Access to justice required legal system to permit procedures that mini- mized unnecessary cost and complexity. Jane Doe v. Canada (Attor- ney General) (Jun. 30, 2015, Ont. S.C.J., Patrick Smith J., File No. 12-55541) 261 A.C.W.S. (3d) 296. Sale of Land DUTY OF VENDOR No triable issue as to whether sellers were entitled to rely on annulment clause in agreement Sellers entered into agreement of purchase and sale with buyer for purchase and sale of prop- erty. Sellers previously agreed to sell property to third party. Sellers believed prior agreement to be at end but third party reg- istered caution against property. Registrar of Land Titles agreed to remove caution when it ex- pired, which was day of closing. However, third party registered certificate of pending litigation (CPL) against property. Buyer required CPL to be removed from title but sellers took posi- tion they could not discharge CPL prior to closing and relied on annulment clause to termi- nate agreement. Buyer brought action for specific performance and damages. Sellers brought motion for summary judgment to dismiss action. Motion was granted and action was dis- missed. Buyer appealed. Appeal dismissed. There was no triable issue as to whether sellers were entitled to rely on annulment clause in agreement. Motions judge did not err in interpret- ing letter from buyer's solicitor to sellers' solicitor as amounting to demand to remove CPL and not as request to extend closing. There was no authority to sup- port submission that motions judge ought not to have granted summary judgment because ac- tion respecting third party had not been determined. Agree- ment provided that time was of essence. There was no merit to submission that motions judge subjected evidence of parties to

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