Law Times

May 9, 2016

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Law Times • may 9, 2016 Page 15 did not call any evidence. Trial judge gave lengthy reasons for judgment. Appellants appealed, arguing trial judge erred in re- fusing adjournment by failing to consider all relevant circum- stances. Appeal dismissed. Trial judge has discretion to decide whether adjournment request ought to be allowed or denied. Factors considered by trial judge justified her decision. Appellants gave notice of intention to act in person and had ample time to retain new counsel. Appellants were self-represented due to own decision to put off trial prepara- tion in hope of settlement. Trial judge clearly considered nature of case, matters in dispute, ap- pellants' familiarity with issues and their relative sophistication. Issues were not complex and defence was entirely within ap- pellants' personal knowledge. Trial judge could reasonably conclude appellants would be capable of defending claim with- out assistance of counsel. Bank would be prejudiced by further delay of case already five years old. There was also public in- terest in efficient use of scarce judicial resources and in timely, efficient and fair resolution of trials. Trial judge properly took these factors into account. Turbo Logistics Canada Inc. v. HSBC Bank Canada (Mar. 23, 2016, Ont. C.A., G.R. Stra- thy C.J.O., P. Lauwers J.A., and M.L. Benotto J.A., CA C58073) Decision at 234 A.C.W.S. (3d) 800 was affirmed. 264 A.C.W.S. (3d) 85. WANT OF PROSECUTION Motion judge erred in assess- ment of prejudice Plaintiffs brought action re- lated to slip and fall of plaintiff at border crossing plaza. After plaintiffs' counsel's staff inad- vertently failed to request status hearing from court registrar dismissed action. More than two years went by before plain- tiffs brought motion to set aside registrar's dismissal order. Mo- tion judge refused to set aside dismissal order, finding that defendants were significantly prejudiced by plaintiffs' delay. Plaintiffs appealed. Appeal al- lowed; action reinstated. Motion judge erred in her assessment of prejudice, which was at heart of her decision to dismiss plaintiffs' motion. Motion judge's findings of prejudice to defendants did not arise from plaintiffs' delay but from factors either pre- dating any delay or stemming from defendants' failure to take appropriate steps to alleviate prejudice. Motion judge's error concerning prejudice played es- sential part in reasoning pro- cess that led her to dismissal of plaintiffs' motion. Without finding of prejudice, contextual analysis resulted in conclusion that order be set aside. Factor of delay by itself was not suffi- cient in circumstances to deny plaintiffs' request to reinstate action. There was no evidence that delay was product of delib- erate decision not to take steps in proceedings. Present case was not instance where finality must trump preference of hav- ing action heard on its merits. Labelle v. Canada (Border Services Agency) (Mar. 7, 2016, Ont. C.A., John Laskin J.A., G. Pardu J.A., and L.B. Roberts J.A., CA C60307) Decision at 254 A.C.W.S. (3d) 558 was reversed. 264 A.C.W.S. (3d) 86. Conflict of Laws CHOICE OF LAW Stay of action based on forum selection clause upheld on appeal Defendant F had acted as plain- tiffs investment advisor for sev- eral years. In December 2011, F informed plaintiffs that he was moving to defendant PIFC. F asked plaintiffs to sign docu- mentation necessary to trans- fer their investment accounts to PIFC. Individual plaintiffs signed documentation, which included client account agree- ments. Those agreements con- tained choice of law and forum clause stating that agreements were governed by law of Brit- ish Columbia. In April 2014 plaintiffs commenced action in Ontario, alleging that F had mismanaged their investment accounts and that PIFC was vi- cariously liable for F's acts and omissions. PIFC moved for stay of action as against it on ground that choice of forum clause in client account agreements re- quired plaintiffs to sue them in British Columbia. Motion judge granted stay. Plaintiffs appealed. Appeal dismissed. Individual plaintiffs were well educated and sophisticated. There was no improper induce- ment to agree to choice of forum clause. Individual plaintiffs were under no obligation to trans- fer their investment accounts. Language of forum selection clause was broad enough to cover all allegations asserted by them against defendants. Manjos v. Fridgant (Mar. 1, 2016, Ont. C.A., E.E. Gillese J.A., C.W. Hourigan J.A., and David Brown J.A., CA C60862) 264 A.C.W.S. (3d) 89. Courts PUBLICITY Motion for privacy orders by appli- cant seeking authorization for phy- sician-assisted death was granted Applicant was 80-year-old gentleman, married with adult children. Applicant deposed that he had advanced-stage ag- gressive lymphoma and wished to bring application for court order authorizing physician-as- sisted death. Applicant brought motion seeking privacy orders. Media respondents raised num- ber of issues concerning orders sought, and specifically op- posed any order that provided anonymity to respondent physi- cians who were involved in ap- plicant's care. Motion granted. Applicant's proposal was rea- sonable compromise that struck balance between importance of open court principle and right of applicant to bring this application and maintain his privacy and dignity and that of his family. This reasonably ex- tended to protecting identity of involved responding physicians and health care professionals in greater public interest of re- ducing any risk that applicants, physicians, and their health care providers were deterred from participating in applications in issue. Applicant's proposal maintained right of media re- spondents to move before ap- plication judge to dispute scope of redactions if they deemed fit, following review of applicant's redacted application record and accompanying explanations. B. (A.) v. Canada (Attorney General) (Mar. 7, 2016, Ont. S.C.J., T. McEwen J., CV-16- 00AD001-00ES) 264 A.C.W.S. (3d) 113. Debtor and Creditor RECEIVERS Motion judge did not err in con- cluding that leave was required to commence action against receiver Within litigation commenced by railway company, S Inc. was appointed as monitor and receiver of SH and JF. After discharge of S Inc., SH and JF brought action, without leave or consent, against S Inc. as re- ceiver and against tax advisors, seeking damages arising from potential tax liabilities. Motion judge granted S Inc.'s motion to dismiss action and cross-claim by tax advisors, dismissed SH, JF and tax advisors' motions for leave to commence proceedings, and dismissed action and cross- claim. Motion judge held that leave was required to bring ac- tion against S Inc. as S Inc. was intended to have all protections afforded to it as monitor when acting as receiver. Motion judge did not grant leave nunc pro tunc as there was no foundation for claim that S Inc.'s conduct constituted very marked depar- ture from standard of reason- able and competent receiver, so any liability of S Inc. fell within scope of release in discharge or- der. Motion judge held that tax advisors could not be in better position that SH and JF. SH, JF and tax advisors appealed. Ap- peals dismissed. Motion judge did not err in concluding that leave was required to commence action against S Inc.. Motion judge did not misapprehend evidence in finding that S Inc.'s conduct did not constitute gross negligence or wilful mis- conduct. Motion judge did not err in concluding that SH and JF should not be granted leave to commence action, whether regular test or stricter standard was used. Tax advisors' plead- ings sought contribution and indemnity from S Inc. as co-de- fendant, so their ability to claim against S Inc. was dependent on SH and JF's ability to claim against S Inc.. As SH and JF had not made out prima facie case against S Inc., this was sufficient to dispose of tax advisors' claim. Holmes v. Schonfeld Inc. (Feb. 24, 2016, Ont. C.A., Karen M. Weiler J.A., H.S. LaForme J.A., and Grant Huscroft J.A., CA C60734/C60744) Decision at 256 A.C.W.S. (3d) 111 was af- firmed. 264 A.C.W.S. (3d) 258. Insurance AUTOMOBILE INSURANCE Application judge understood elements of purpose test Respondent camped with wife and daughters. His camping trailer was parked alongside oth- er trailers and cars in horseshoe shape on campsite. Some camp- ers parked their motorcycles on respondent's campsite. After nightfall, and without respon- dent's knowledge, motorcycles were moved to block walkway leading out of campsite. Respon- dent tripped over one motor- cycle and sustained serious spi- nal cord injuries. Respondent's insurer denied accident benefits on ground incident did not meet definition of "accident" as found in Statutory Accident Benefits Schedule (Ont.) (SABS). Appli- cation judge found that tempo- rary parking of motorcycle on walkway constituted ordinary or well-known use of vehicle and was dominant feature in in- cident. He concluded that inci- dent constituted accident under SABS. Insurer appealed, arguing that application judge erred in concluding 'purpose' test was met. Appeal dismissed. Insured must first establish that use or operation of automobile was cause of injuries. If that is estab- lished, insured must then satisfy court there was no intervening act(s) that resulted in injuries that could not be said to be part of "ordinary course of things". Question was whether it could be said that use or operation of vehicle was "direct cause" of in- juries. Parking a vehicle is ordi- nary and well-known activity to which vehicles are put. There is no active use component in pur- pose test. There is no require- ment that vehicle be in active use. Application judge did not err in finding that motorcycle was parked temporarily on walkway. No evidence the motorcycle was inoperable or was being stored at campsite for extended period of time. Application judge under- stood elements of purpose test. Economical Mutual Insur- ance Co. v. Caughy (Mar. 24, 2016, Ont. C.A., Alexan- dra Hoy A.C.J.O., P. Lauwers J.A., and C.W. Hourigan J.A., CA C60642) Decision at 255 A.C.W.S. (3d) 465 was affirmed. 264 A.C.W.S. (3d) 194. Landlord and Tenant CONSTRUCTION OF LEASE Summary judgment was appropri- ate for deciding landlord/tenant waiver of subrogation cases Tenant continued to occupy leased premises and to pay rent after term of lease ended. Parties never signed lease extension or renewal. Original lease required tenant to obtain insurance and to include landlord as named insured. Lease provided land- lord was not liable for damage to tenant's property. Tenant pur- chased all-risks property insur- ance with landlord as named in- sured. Property was f looded af- ter drain plug in drain line from roof of building dislodged. Plug was installed by MCM which landlord contracted to perform work on roof. Appellant was un- der-insured and brought action against landlord. Action was dismissed. Tenant appealed. Ap- peal dismissed. Case was not un- suitable for summary judgment. Court determined that summa- ry judgment was appropriate for deciding landlord/tenant waiver of subrogation cases. There was no risk of inconsistent verdicts. Appellant was overholding ten- ant that remained in leased premises subject to terms, cov- enants and conditions set forth in lease. Terms of lease respect- ing insurance had effect of shift- ing to tenant risk of damage to its property from insured peril. Orion Interiors Inc v. State Farm Fire and Casualty Co. (Feb. 29, 2016, Ont. C.A., Ja- net Simmons J.A., S.E. Pepall J.A., and K. van Rensburg J.A., CA C59989) Decision at 248 A.C.W.S. (3d) 442 was affirmed. 264 A.C.W.S. (3d) 204. Public Health GENERAL Applicant granted per- mission to proceed with physician-assisted death Applicant was married with two adult children. Applicant was diagnosed with serious medical condition several years earlier and had lost all independence and mobility. Applicant expe- rienced excruciating pain and loss of enjoyment of life. Appli- cant applied for permission to proceed with physician-assisted death. Application granted. Ap- plicant met procedural eligibil- ity requirements. Applicant was resident of Ontario, was adult and request was not premature. Applicant met substantial eligi- bility requirements. Applicant had rare form of progressive, permanent and irreversible dis- ease. Assessed subjectively from applicant's perspective and ob- jectively from uncontroverted medical evidence, condition was grievious and irremediable. Applicant experienced endur- ing and intolerable suffering caused by medical condition. Applicant was competent and was capable of making request. Applicant's request to terminate life was clear and unequivo- cal. Applicant's choice was completely voluntary with no coercion or undue inf luence. B. (A.), Re (Mar. 30, 2016, Ont. S.C.J., Conlan J., 16-062) 264 A.C.W.S. (3d) 244. CASELAW

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