Law Times

LAW TIMES / JUNE 9, 2008 heard and judge reserved deci- sion. Six months later plaintiff made inquires at court office and following day his counsel re- ceived fax that leave to appeal was denied. No reasons were given. Motion for leave must be heard before another judge. Failure to give reasons and circumstances of case gave rise to real concern that judge failed to deal with mo- tion for leave on merits and this was unacceptable. Effect was that judge on leave motion had de- clined jurisdiction. MCAP Service Corp. v. McLaren (Mar. 11, 2008, Ont. Div. Ct., Ferrier, Cumming and Lax JJ., File No. 624/07) Order No. 008/077/187 (2 pp.). Arbitration APPOINTMENT OF ARBITRATOR Plaintiff slipped and fell getting off bus at bus terminal. Plaintiff brought action against city and Greyhound. City and Greyhound cross-claimed against each other. City brought motion compel- ling Greyhound to attend arbi- tration to deal with cross-claims. City wanted arbitrator to decide whether Greyhound had to de- fend action on behalf of city. Greyhound operated city's buses pursuant to agreement that con- tained arbitration clause. Motion was dismissed. Until city was found liable by virtue of owner- ship of bus and not as result of own negligence in maintenance of pavements and curbs, city had no claim under provision of agreement. City could not ask Greyhound to protect city from hypothetical loss. Lappin v. Barrie (City) (Mar. 7, 2008, Ont.S.C.J., Wood J., File No. 06-0477) Order No. 008/071/045 (5 pp.). List, Pepall J., File No. 07-CL-7083) Order No. 008/059/020 (6 pp.). Co-defendant not required to attend arbitration to deal with cross-claims Building Liens ACTION No basis to strike claim absent specific language in Construction Lien Act (Ont.) nelling Inc. v. McNally Con- struction Inc. (Feb. 20, 2008, Ont.S.C.J., Hennessy R.S.J., File No. C-10184-07) Order No. 008/071/027 (6 pp.). Civil Procedure CHANGE OF SOLICITOR Counsel's motion to be removed from record was allowed Counsel acted for three parties at board hearing. Three parties were unsuccessful in opposition. Letter indicated intention to seek costs of $3.6 million against three par- ties, counsel's law firm and two lawyers in firm. Nation's counsel brought motion to get off re- cord. Board brought motion for security for costs and to dismiss Nation's judicial review. Counsel was to be removed as solicitor for Nation to ensure lawyers and law firm were not put in position of second-guessing advice. Letter did not create conflict of interest. There was no risk Nation would be ordered to pay costs of board hearing. Adjournment of mo- tion to dismiss was dismissed. Motion for security for costs was adjourned. Huron-Wendat Nation v. Ontario (Municipal Board) (Feb. 12, 2008, Ont. Div. Ct., Kiteley J., File No. 448-07) Handwritten endorse- ment. Order No. 008/063/173 (8 pp.). COSTS Defendant was general contractor. Plaintiff subcontractor brought lien action. Defendants sought leave to bring motion for order discharging claim for lien, arguing statement of claim was deficient by not seeking to enforce claim. Lien was vacated after security for claim was posted. Leave was granted to bring motion. Motion to discharge claim for lien was dismissed. Allegations of negli- gence, breach of trust and conver- sion were struck from statement of claim with leave for plaintiffs to issue new claim. There was no ambiguity in statement of claim. There was no basis to strike claim for alleged deficiency in wording of claim absent specific language in Construction Lien Act (Ont.), specifically dictating language to be used to enforce claim. Con- struction Lien Act prohibited joinder of other causes of action outside contractual relationships between parties. Paragraphs alleg- ing negligence, breach of trust and conversion were struck. Plaintiff was granted leave to issue new statement of claim. C.M. & D. Drilling and Tun- Appeal from dismissal of appel- lant's motion to vary costs order made after trial, which had been appealed to Superior Court and varied to some extent. Cost order made against appellant at trial was appealed to Court of Appeal and varied in his favour to some extent. Appellant subsequently brought motion before trial judge asking him to amend or vary order which had been appealed and var- ied. Trial judge dismissed motion and appellant appealed to Court of Appeal. Appeal dismissed. Mo- tion was misconceived. To extent that appellant's submissions at- tacked jurisdiction of this court to make order it did on appeal with respect to appellant's respon- sibility for costs trial judge had no jurisdiction to address court's ju- risdiction and no authority to in any way vary order of this court. Moreover there was no merit to substance of appellant's conten- tion that this court did not have jurisdiction to make order it did. Appellant's obligation in respect of costs was controlled by order of this court. Trial judge had no authority to in any way amend or vary order of this court. Susin v. Goodreau (Mar. 3, 2008, Ont. C.A., Doherty, Rosen- berg and Blair JJ.A.) Order No. 008/071/015 (3 pp.). authority to vary costs order of Court of Appeal Trial judge had no DISCOVERY No satisfactory explanation for Catalyst sought declaration of oppression. Applicant was invest- ment fund managed by Catalyst. Applicant was not party. Appli- cant sought order setting aside consent solicitation, declaration of default, order directing in- vestigation and appointment of inspector and production order. Applicant brought two refus- als motions. Applicant brought failure to seek information prior to cross-examinations CASELAW motion requesting leave to conduct examinations after ap- plicant already conducted its cross-examinations. Motion for leave was dismissed. Applicant was not granted leave. It was ap- parent well in advance of cross- examinations that IMAX made misstatement and that witnesses might have relevant informa- tion. Satisfactory explanation as to why applicant did not seek information prior to cross-ex- aminations was not given. Catalyst Fund Limited Partnership II v. IMAX Corp. (Mar. 6, 2008, Ont.S.C.J. Commercial List, Pepall J., File No. 07-CL-7163) Order No. 008/071/010 (7 pp.). WANT OF PROSECUTION Inexcusable three-year delay trumped lack of prejudice filed at trial. Test results favoured defendant. Claim was dismissed. Trial judge referred to polygraph tests. Appeal was allowed. Results of polygraph test were not admis- sible. Error was not erased by fact parties consented to tests. Petti v. George Coppel Jewellers Ltd. (Mar. 6, 2008, Ont. Div. Ct., Quinn J., File No. 48293/06) Or- der No. 008/073/247 (9 pp.). Family Law CUSTODY Father made denigrating comments regarding children's weight Master dismissed appellant's mo- tion to set aside registrar's order that dismissed action for delay. Delay of three years was conced- ed to be inexcusable. Limitation period passed. Plaintiff died. Ap- pellant argued there was no preju- dice to defendant. Defendant was able to properly investigate liabil- ity and medical records existed. Defendants were prejudiced by death of plaintiff by not being able to cross-examine plaintiff. Appeal was dismissed. Plaintiff was not left without remedy. Ex- cusing delay of such magnitude risked undermining public confi- dence in administration of justice. Inexcusable delay of three years trumped lack of prejudice. Sider v. Toronto (City) (Mar. 7, 2008, Ont. Div. Ct., Ferrier J., File No. 147/07; 03-CV-249024SR) Order No. 008/071/067 (3 pp.). Debtor And Creditor ENFORCEMENT Plaintiff expected to have funds loaned to defendant returned Plaintiff brought claim for mon- ey plaintiff loaned to defendant. Money was to assist in payment of hydro bill for house defendant owned and was renting to other parties. Plaintiff and defendant pooled resources and put money in bank account of plaintiff. De- fendant argued money was contri- bution and not loan. Defendant brought counterclaim for money owed to defendant by plaintiff in excess of that claimed by plain- tiff. Defendant was indebted to plaintiff in amount of $31,506. There was no justification to sug- gest plaintiff did not expect to have funds returned. Plaintiff was indebted to defendant in amount of $16,757. Parties had common intention that plaintiff was to have beneficial interest in prop- erty to value of plaintiff's con- tribution towards paying hydro account. Registration of caution was proper. Caution was lifted. No damages were proven as result of registration of caution. Dong v. Liu (Mar. 5, 2008, Ont.S.C.J., Lederer J., File No. 06-CV-322663SR) Order No. 008/071/031 (17 pp.). Evidence ADMISSIBILITY Results of polygraph test not admissible Plaintiff attended defendant's jew- ellery store to have diamond val- ued. Plaintiff claimed defendant took diamond. Parties submitted to polygraph tests and results were www.lawtimesnews.com Parties had two children who were being treated for obesity. Children resided with mother for majority of schedule. Father sought to have primary residence of two children revert to father and for mother to have access restricted to 20% of time. Father's attitude prevented parties from working co-opera- tively to manage children's weight. Father retired year before birth of children. Comments made by father to children regarding size and appearance were not appro- priate. Mother was awarded sole custody. Mother was better able to insulate children from denigra- tion of other parent. Reid v. Catalano (Feb. 11, 2008, Ont.S.C.J., Scott J., File No. 7734-99) Order No. 008/071/062 (36 pp.). Injunctions INTERLOCUTORY RELIEF Plaintiff entitled to Plaintiff intended to explore claim to determine whether uranium mining on property was commer- cially viable. Defendants occupied interlocutory injunction to permit mining exploration PAGE 15 land and set up blockade. Plaintiff was granted interlocutory injunc- tion. There was serious question to be tried. Plaintiff would suffer irreparable harm if injunctive re- lief were denied. Plaintiff 's pro- posal as compromise solution had merit. Staged exploration proto- col would permit ample opportu- nity for meaningful consultation without holding plaintiff hostage. Plaintiff was to have immedi- ate unfettered access to property. Contempt proceeding was ad- journed sine die to permit those involved to comply with order. Frontenac Ventures Corp. v. Ar- doch Algonguin First Nation (Feb. 12, 2008, Ont.S.C.J., Cun- ningham A.C.J.S.C., File No. CU-07-0395-00) Order No. 008/064/039 (21 pp.). Insurance LIFE INSURANCE Beneficiary not entitled to payment of policy proceeds out of court without action being brought Deceased designated W. as ben- eficiary under three life insur- ance policies. Daughter claimed deceased lacked testamentary ca- pacity to make designation and was under undue influence from W.. Order directed proceeds of policies to be paid into court. W. brought motion for moneys to be paid to her. Motion was dis- missed. There was no jurisdiction to make order sought. There was no proceeding before court. One of parties would have to com- mence action. London Life Insurance Co. v. Wise- man (Mar. 5, 2008, Ont.S.C.J., Lederer J., File No. 07-CV- 338385PD5) Order No. 008/071/076 (3 pp.). 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