Law Times

PAGE 18 Injunctions Minister gave authorization to ap- plicant allowing work to be done as part of project. Applicant com- menced work on project. Applica- tion for judicial review was allowed. Order remitted matter back to panel. Minister advised applicant authorization was rendered nullity by decision. Applicant sought ju- dicial review. Applicant sought stay of application or injunction pro- hibiting Minister from revoking authorization given to applicant. Application was dismissed. Order was made for expedited hearing. Applicant would not suffer irrepa- rable harm if stay was not granted, especially if application for judicial review was heard on expedited ba- sis. Respondents were added. Imperial Oil Resources Ventures Ltd. v. Canada (Minister of Fisheries and Oceans) (Mar. 27, 2008, F.C., de Montigny J., File No. T-460-08) Order No. 008/105/086 (14 pp.). INTERLOCUTORY RELIEF Applicant would not suffer irreparable harm if stay refused CIVIL CASES Agency ONTARIO REAL ESTATE AGENTS AND BROKERS Defendant breached buyer agency agreement Defendant signed Buyer Agency agreement giving plaintiff broker exclusive authority to act as agent for period of time and entitled plaintiff to commission even if defendant bought house through another agent or during period of agreement or during holdover period. Defendant chose to enter into agreement with another agent which resulted in purchase of prop- erty during period of time cov- ered by agreement with plaintiff. Defendant breached agreement. Defendant owed plaintiff 2.5% commission, which amounted to $21,774. Homelife/Vision Realty Inc. v. Clubine (Apr. 9, 2008, Ont.S.C.J., Wilson J., File No. 06-CV-322729-SR) Order No. 008/105/039 (8 pp.). Civil Procedure AFFIDAVITS References in affidavit to respon- Respondent moved to strike por- tions of Attorney General's notice of application for forfeiture of currency under Civil Remedies dent's criminal history admissible in civil proceedings in rem Act, 2001 (Ont.), and support- ing affidavit. Respondent alleged ownership of currency and chal- lenged forfeiture as proceeds of unlawful activity. Supporting af- fidavit detailed background of police involvement with respon- dent and seizure of funds and in- cluded reference to respondent's criminal record, involvement with illegal drugs and laboratory testing results finding traces of drugs on currency. Motion dismissed. No- tice complied with Rule 38.04 of Rules of Civil Procedure (Ont.). Notice clearly and carefully set out grounds relied on, which re- quired summary of essential facts relied on. References in affidavit to respondent's criminal history admissible in civil proceedings in rem. Other impugned portions of affidavit contained probative information and clearly identified sources in accordance with Rule 39.01(5). Canada (Attorney General) v. $5,545 in Canadian Currency (Apr. 14, 2008, Ont.S.C.J., Hackland J., File No. 07-CV-39412) Order No. 008/119/056 (5 pp.). Plaintiff alleged that defendants conspired to fix prices of air freight shipping services in Canada and throughout world. There were three class actions in Canada. Plaintiffs in three Canadian class actions had settled actions with various defendants. Plaintiff was granted order certifying action as class proceeding for settlement purposes. Plaintiff was appointed as representative plaintiff and no- tice program was approved. Nutech Brands Inc. v. Air Canada (Mar. 19, 2008, Ont.S.C.J., Leitch R.S.J., File No. 50389CP) Order No. 008/086/100 (6 pp.). CLASS ACTIONS Certification granted in relation to alleged conspiracy to fix prices of air freight shipping services Plaintiffs sought general and pu- nitive damages or alternatively disgorgement of revenues or net income from defendants in respect of their alleged negligence and conspiracy relating to their devel- opment, marketing and sale of defibrillators. Six plaintiffs claimed to have been implanted with one, or more, of these defibrillators. Other five plaintiffs were members of their families. Plaintiffs granted certification of action under Class Proceedings Act, 1992 (Ont.). Five of patient plaintiffs would represent class consisting of all per- sons in whom defibrillators were implanted in Canada. Three of family plaintiffs would represent class of family members with de- Action arising from development, marketing and sale of defibrillators was certified CASELAW rivative claims under Family Law Act (Ont.), and equivalent legisla- tion in other provinces. LeFrancois v. Guidant Corp. (Apr. 10, 2008, Ont.S.C.J., Cullity J., File No. 05-CV-292387 CP) Or- der No. 008/108/027 (26 pp.). Environmental Law Ministry of Environment ("MOE") granted two Certificates of Approv- al to C.L., pursuant to s. 41 of En- vironmental Bill of Rights (Ont.). Ontario Environmental Review Tribunal ("OERT") granted leave to appeal from MOE's decision to several property owners and advo- cacy groups. C.L. brought applica- tion for judicial review seeking to set aside granting of leave. Environ- mental Commissioner of Ontario ("ECO") was granted leave to in- tervene as friend of court. Applica- tion for judicial review of decision of OERT was not of private nature. It would be matter of first instance for Divisional Court as to role of Statement of Environmental Val- ues ("SEV") in Environmental Bill of Rights. ECO's unique involve- ment with SEV put him in posi- tion of being able to provide assis- tance to court. Further, ECO had special knowledge and expertise in broader context of legislation and its impact generally. Ontario (Environmental Com- missioner) v. Lafarge Canada Inc. (Apr. 4, 2008, Ont. Div. Ct., Kiteley, Molloy and Archibald JJ., File No. 451/07) Order No. 008/108/012 (6 pp.). ENFORCEMENT Environmental Commissioner of Ontario was granted leave to intervene Family Law PROPERTY Wife was granted preservation order Application by wife for preser- vation order and order restrain- ing parties from transferring or encumbering their assets. After separation, husband had encum- bered matrimonial home with $2 million mortgage without wife's consent. Wife alleged that hus- band intended to transfer all his assets into trust excluding wife as beneficiary and that husband had depleted or threatened to move as- sets in order to defeat her claims. Wife's allegation was supported by parties' daughter. Wife filed net family property statement which indicated that she was owed equal- ization payment of $1,238,300. Application granted. Purpose of s. 12 of Family Law Act (Ont.), was to ensure that if court determined that equalization payment was owing there would be sufficient assets available to satisfy payment. Preservation order under s. 12 not Mareva injunction however fac- tors considered in granting order relative strength of case, balance of convenience, and irreparable harm. Wife had raised prima fa- cie case that she was entitled to substantial equalization payment. Order sought by wife would limit husband's conduct only in so far as it was outside ordinary course of business. There was a real risk that if requested order was not made wife's equalization claim could be defeated. Both v. Both (Apr. 7, 2008, Ont.S.C.J., Backhouse J., File No. 07-FA-14695-FIS) Order No. 008/105/153 (7 pp.). Professions BARRISTERS AND SOLICITORS Solicitor removed where actions gave rise to appearance of impropriety AUGUST 11-18, 2008 / LAW TIMES Motion by defendants for order removing C. as plaintiff's solicitor of record. C.'s client was 81-year- old woman who slipped and fell and sustained injury in 2004 while entering defendant F.P.'s theatre to view film. In February 2008 C. contacted F., who was senior vice- president and general legal coun- sel of C.E., which had purchased F.P. to clarify corporate owner- ship of theatre. Defendants con- tended it was improper for C. to have contacted F. without consent of defendant's solicitor and that court should exercise discretion to remove him as solicitor. Plain- tiff contended that C. had not contacted "client" of defendant's law firm. Motion granted. It was imprudent and improper for C. to contact theatre under circum- stances in which he had informa- tion before contact that there was lawyer/client relationship between defendant's law firm and theatre on premises. C. might reason- ably have contacted defendant's solicitor and conducted searches without any need to contact the- atre. There was no need to arrive at conclusion that C.'s actions had improper motive or were in bad faith or intended to do harm to find appearance of impropriety. Courts had inherent jurisdiction to assume supervisory role over conduct of lawyers as officers of court if administration of justice may be affected by their conduct. Consky v. Famous Players Inc. (Apr. 7, 2008, Ont.S.C.J., Allen J., File No. 05-CV-291756PD3) Order No. 008/108/025 (5 pp.). Motion by defendant for order removing B. as solicitor of record Defendant failed to satisfy criteria for removal of solicitor based on likelihood that solicitor would be called as witness for plaintiff on basis that there was strong likelihood that B. would be called by defendant as witness at trial. Plaintiff had brought ac- tion against defendant claiming damages for breach of duty of fair representation in relation to how defendant dealt with griev- ance after plaintiff was terminated from police service. From 2003 to 2005 B. had monitored situation or purported to represent plaintiff and as such corresponded with defendant's counsel. Defendant subsequently decided to abandon plaintiff's grievance arbitration. That decision and handling of arbitration proceedings by defen- dant formed basis for action and allegation of bad faith on part of defendant. Defendant intended to call B. as witness at trial should plaintiff fail to do so. Plaintiff did not intend to call B. as witness. B. took no direct role in preparation for arbitration proceedings and it was unlikely that he would have material evidence to give on core issues. No evidence of conflict aris- ing should B. continue. Motion dismissed. B. was not personally involved in preparation for and attendance at arbitration itself. Defendant failed to satisfy onus to show that there was strong likeli- hood that B. would be called as witness at trial or real basis to be- lieve that he could likely provide material evidence on core issues. Should motion to disqualify be granted interests of defendant would be outweighed by serious prejudice to plaintiff in depriving him of his counsel of choice. Abutalib v. Toronto Police Assn. (Apr. 9, 2008, Ont.S.C.J., Chapnik J., File No. 06-CV-320901PD2) Or- der No. 008/105/157 (6 pp.). Sale Of Goods Plaintiff manufactured automo- tive suspensions for use in large vehicles. Defendant, by its contract with plaintiff, undertook to design and build robotic weld cell to finish weld plaintiff's pre-tacked frames. Robotic weld cell designed and built by defendant failed to meet contractual requirements. Robotic cell was not fit for its intended pur- pose, which was well-known to de- fendant. Further, robotic weld cell was never in condition ready for delivery to plaintiff at defendant's premises. Defendant breached im- plied condition that goods would be reasonably fit for purpose for which they intended. Breach en- titled plaintiff to reject goods and rescind contract. Plaintiff entitled to judgment for $132,000. Chalmers Suspensions International Inc. v. B & B Automation Equipment OBLIGATIONS OF SELLER Robotic weld cell was not fit for its intended purpose When the entire firm has the same goal, success comes naturally. Une équipe avec un objectif commun : le succès dans la poche! SMSS.COM CHARLOTTETOWN FREDERICTON HALIFAX MONCTON SAINT JOHN ST. JOHN'S Untitled-10 1 www.lawtimesnews.com 11/6/07 3:56:47 PM

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