Law Times

Page 14 February 29, 2016 • Law Times www.lawtimesnews.com seeking. Appellant recklessly al- lowed her animals to continue in distress by failing to avail herself of many offers by respondent to assist her in securing services of qualified veterinarian. Costs of maintaining animals were rea- sonable. There was no delay in hearing generated by conduct of board that unfairly generated ad- ditional costs to appellant. Hurley v. Ontario Society for the Prevention of Cruelty to Animals (Dec. 11, 2015, Ont. S.C.J., A.D. Kurke J., File No. 26834/15) 261 A.C.W.S. (3d) 509. Civil Procedure TRIAL Defendants' motion to change venue from Windsor to Toronto was granted Plaintiffs brought class action on behalf of two classes of inves- tors who had purchased shares in defendant company W Inc, either on basis of prospectus or in secondary market, and held those shares at close of trading on TXS on November 12, 2014. Plaintiffs sought, among other things, declarations defendants had breached s. 130 of Securities Act and been negligent. Defen- dants brought motion pursuant to R. 13.1.02 of Rules of Civil Procedure to change venue of proceeding from Windsor, Ont. to Toronto, Ont. Motion granted. Plaintiffs had prima facie right to choose venue. They were not required to establish any ratio- nal connection or that choice reasonable. Defendants seek- ing change of venue required to establish change in interests of justice. Where plaintiffs' choice unreasonable and defendants' choice reasonable, change likely to be granted as matter of com- mon sense. Where both choices reasonable, defendants required to establish theirs was "signifi- cantly better". Issue had to be considered as holistic exercise with no enumerated factor en- titled to greater weight. In this case, while one original rep- resentative plaintiff resided in Windsor, neither current repre- sentative plaintiff did. Windsor, where plaintiffs' counsel located, was, however, recognized as cen- tre for class actions. Comparison of two venues required. Events or omissions allegedly giving rise to claim had taken place in Vancou- ver, BC or Toronto, not Wind- sor. Substantial part of alleged damages had been sustained in Toronto. Subject matter of claim was in Toronto. Toronto would be more convenient to parties, most counsel and witnesses. Ju- dicial resources appeared to be reasonably available in Toronto. Since only meaningful factor weighing in favour of Windsor was location of plaintiffs' coun- sel, Toronto was significantly better choice. Change was in in- terests of justice. Cass v. WesternOne Inc. (Nov. 24, 2015, Ont. S.C.J., Christopher M. Bondy J., File No. CV-14-00021629-00CP) 261 A.C.W.S. (3d) 581. Constitutional Law ABORIGINAL RIGHTS Challenge to constitutional validity of definitions of "Indian" and "native person" in s. 37(4) of Child and Family Services Act was unsuccessful Two children were apprehended out of concern for partner vio- lence in mother's previous rela- tionship, substance abuse issues, parenting skills and criminal re- cord of mother's current partner. On status review application, order was made for Crown ward- ship with supervised access to maternal grandparents once per week. Maternal grandparents' appeal was allowed and matter was to be reconsidered. Since original order was made, mother had another baby and applicant society provided support to par- ents. Mother proposed plan that mother, partner, new baby and two children would move in with baby's paternal grandparents, who would provide supervision and parenting instruction. Soci- ety conducted kin assessment of paternal grandparents, but result was that society could not sup- port placement of children with paternal grandparents. Maternal grandparents wanted children to be placed with them. Maternal grandparents challenged consti- tutional validity of definitions of "Indian" and "native person" in s. 37(4) of Child and Family Services Act (CFSA). Society ap- plied for order for Crown ward- ship. Application granted. It was clear that no party or children fell within definition of "Indian" and "native person" in CFSA. Provi- sions applicable to "Indian" and "native person" in CFSA were not applicable to every Aborigi- nal child coming within defini- tion of "Aboriginal Peoples of Canada" in s. 35(2) of Constitu- tion Act, 1982, but that did not lead to declaration sought that definitions in CFSA were of no force and effect. Definitions did not breach any Aboriginal or treaty right protected under s. 35. For purposes of s. 15 of Canadian Charter of Rights and Freedoms, there was distinction in treat- ment of "Indian" and "native person" in CFSA and treatment of other individuals, including individuals with Aboriginal her- itage. Distinction was not based on ethnicity but was based on status. Differential treatment of individuals with Aboriginal an- cestry on basis that they did not have legal Indian status or mem- bership in native community was not differential treatment within enumerated ground of national or ethnic origin. However, dis- tinction of Aboriginal ancestry without Indian status or mem- bership in native community was analogous ground. It was not clear that distinction at issue in fact created disadvantage. Ques- tion could not be answered on evidentiary record before court. Absent more complete record, s. 15 claim could not succeed. Children's Aid Society of Ottawa v. F. (K.) (Dec. 3, 2015, Ont. S.C.J., J. Mackinnon J., File No. Ottawa FC-11-1819) 261 A.C.W.S. (3d) 583. Courts JUDGES Leave was granted to appeal dis- missal of motion to set aside trial management orders on ground of reasonable apprehension of bias Parties entered into agreement of purchase and sale of property. Defendant discovered that plain- tiff did not hold title to property and these proceedings were com- menced. Parties settled action. Defendant brought motion to set aside settlement. Judge made trial management orders. Before trial began, trial judge recused himself because he was admin- istrative judge for Small Claims Court when plaintiff 's counsel was deputy judge. Defendant brought application for judicial review of trial management or- ders. Application was dismissed on basis that Divisional Court had no jurisdiction to review de- cision of Superior Court judge sitting in that capacity. Defen- dant then brought motion to set aside trial management orders on ground of reasonable apprehen- sion of bias. Judge found that he had no jurisdiction to hear mo- tion because Divisional Court had dismissed application for judicial review and doctrine of is- sue estoppel precluded defendant from re-litigating issue of reason- able apprehension of bias. Defen- dant brought motion for leave to appeal. Leave to appeal granted. Judge did not consider R. 59.06 of Rules of Civil Procedure. Mo- tion to set aside trial management orders on basis of reasonable ap- prehension of bias was based on information that became known to defendant after orders had been made and he was not trying to re-litigate question of jurisdic- tion on which Divisional Court dismissed application for judicial review. Defendant had reasonable basis to challenge order because ground on which motion was dismissed was not applicable and R. 59.06 was not considered. This was access to justice case and is- sues raised went beyond interests of parties and involved question of general importance relevant to administration of justice. Stockey v. Grant (Dec. 9, 2015, Ont. S.C.J., Emery J., File No. Orangeville 390/08) Leave to appeal from 244 A.C.W.S. (3d) 846 was allowed. 261 A.C.W.S. (3d) 599. Employment WRONGFUL DISMISSAL No error in trial judge's finding that employee mitigated damages Employee worked at waiter and bartender for employer. Employ- ee was silent partner at another local bar, and employer ques- tioned employee's ability to per- form both jobs and alleged con- f lict of interest. Employer pre- sented employee with letter that accused him of breaching duties to employer, and attached letter of resignation for employee's sig- nature. Employee did not return to work, and brought successful action for damages for wrongful dismissal. Trial judge held that employee had been actually, not constructively, dismissed with- out cause or notice. Trial judge found that employee adequately mitigated his damages. Employer appealed finding that employee mitigated damages. Appeal dis- missed. Trial judge's decision was well supported by evidence and was entitled to considerable deference on appeal. Employee's prospects were low as he was in his fifties, had limited education, had worked for employer most of his adult life, was not provided with letter of reference, and had been accused of theft and other wrongdoing by employer. Em- ployee was not obliged to accept employment that was not com- parable to position he held with employer. Carter v. 1657593 Ontario Inc. (Nov. 24, 2015, Ont. C.A., John Laskin J.A., G. Pardu J.A., and L.B. Roberts J.A., File No. CA C59744) Decision at 246 A.C.W.S. (3d) 390 was affirmed. 261 A.C.W.S. (3d) 615. Insurance LIMITATION PERIODS Second party insurer could not invoke defence of laches to first party insurer's legal claim for indemnity Insurer I sought indemnity from insurer L about four years and seven months after multi-vehicle accident involving pickup truck insured by I and tractor trailer in- sured by L. Matter proceeded to arbitration and L raised defence of laches. Arbitrator concluded that doctrine of laches could be applied to loss-transfer claims under s. 275 of Insurance Act (IA). On appeal, judge concluded that doctrine of laches did not apply to loss-transfer claims un- der s. 275 of IA. Insurer T sought indemnity from insurer Z about 11 years after accident that in- volved heavy commercial vehicle insured by Z and automobile in- sured by T. Z brought motion to have T's claim dismissed on basis of laches. Arbitrator dismissed Z's motion on basis that laches did not apply. Judge allowed Z's appeal, finding doctrine of laches applied to loss transfer regime. L and T appealed. L's appeal dismissed; T's appeal allowed. Doctrine of laches was not avail- able to second-party insurer in defence of claim under s. 275 of IA. Loss-transfer claim under s. 275 of IA was claim for legal re- lief and was not equitable claim. Doctrine of laches was histori- cally restricted to claims for equi- table relief that were not subject to statutory limitation periods. Limitation periods prescribed under new Limitations Act, 2002 (LA) applied to all claims, wheth- er they were legal or equitable, unless they were specifically ex- empted from its application. LA and prescribed limitation period applied to claim for indemnifica- tion under s. 275 of IA. Old Limi- tations Act specifically preserved entitlement to equitable relief and absence of laches-savings provision in new LA suggested that equitable defence of laches was not available to bar claim that was brought within basic limitation provision provided for in LA. Allowing defendant to rely on defence of laches to legal claim subject to and within basic limitation period set out in LA would be contrary to purpose of Act in promoting certainty and clarity in law of limitation peri- ods. Second-party insurer could not invoke defence of laches to first party insurer's legal claim for indemnity. Neither L nor Z could have successfully invoked doctrine of laches, as neither es- tablished acquiescence nor ac- tual prejudice. Intact Insurance Co. of Canada v. Lombard General Insurance Co. of Canada (Nov. 12, 2015, Ont. C.A., Alexandra Hoy A.C.J.O., K. van Rensburg J.A., and M.L. Benotto J.A., File No. CA C58290, C59127) De- cision at 233 A.C.W.S. (3d) 82 was affirmed. Decision at 240 A.C.W.S. (3d) 975 was reversed. 261 A.C.W.S. (3d) 617. Sale of Land CONDITIONS PRECEDENT Conditions were waived before deadline Purchasers agreed to buy ven- dors' home. Conditions were to be waived by 9 p.m. on Decem- ber 9, 2010. Purchasers signed waiver at 7:45 p.m. on Decem- ber 9, 2010. Purchasers' agent indicated he faxed waiver to vendors' agent within half hour. Vendors' agent indicated he re- ceived waiver prior to 9 p.m., but vendors' receipt of acknowledge- ment indicated receipt at 10 a.m. on December 10, 2010. Vendors refused to complete transaction. Purchasers commenced action against vendors for specific per- formance. Purchasers brought motion for summary judgment. Motion granted; action allowed. Vendors' receipt of acknowledg- ment on waiver was inconclu- sive regarding date and time when waiver arrived at office of vendors' agent. If there were no staff at agent's office at 9 p.m. or later on December 9, 2010, they might not have completed re- ceipt of acknowledgment until following morning. There was no evidence as to hours that agent's staff worked on Decem- ber 9, 2010. Sworn evidence from both agents was preferred on this issue. Furthermore, Toronto Real Estate Board status report showed home had been sold on December 9, 2010. It was unlikely that anyone would have updated status report if waiver had not been received on time. In addi- tion, RN's evidence was that his agent had told him home had been sold when discussing rent- al accommodations. Fact that agreement of purchase and sale might have been amended after waiver deadline was irrelevant. Agreement and waiver were sep- arate documents that dealt with different issues. Yan v. Nadarajah (Dec. 4,

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