Law Times

PAGE 18 ternal flight alternative were com- plete answers to applicant's claim. Applicant did not identify evi- dence contrary to board's finding. It was open to board to conclude applicant provided insufficient evidence to rebut presumption of state protection and to conclude applicant did not sufficiently at- tempt to engage state protection. Flores de la Rosa v. Canada (Minis- ter of Citizenship and Immigration) (Jan. 23, 2008, F.C., Phelan J., File No. IMM-1624-07) Order No. 008/037/070 (6 pp.). Applicant was eight years old. Applicant was denied consider- ation on humanitarian and com- passionate grounds. Motion was brought to compel officer to an- swer questions. Questions related to quality of officer's decision- making on conduct of interview and rejection of application. Mo- tion was dismissed. Questioning was inappropriate. Subjective analysis and depth of experience of decision-maker merged into reasons. Gill v. Canada (Minister of Citi- zenship and Immigration) (Jan. 8, 2008, F.C., Campbell J., File No. IMM-458-07) Order No. 008/043/021 (5 pp.). SELECTION AND ADMISSION Questioning of officer was inappropriate CIVIL CASES Appeal ONTARIO Order set aside noting in default and default judgment. Appellants claimed merits of intended de- fence were not before master be- cause of incompetence of appel- lants' former counsel. Appellants sought leave to introduce fresh evidence. Appeal was dismissed. No effort was made to produce evidence from former solicitor. Court was not prepared to find negligence on record. Affidavit did not persuade court elements of intended defence were not before master. There was noth- ing in fresh evidence on merits of defence that could have affected outcome. Lago v. Rey (Jan. 25, 2008, Ont. Div. Ct., Jennings J., File No. 493/05) Handwritten endorse- ment. Order No. 008/043/111 (3 pp.). FRESH EVIDENCE Fresh evidence could not have affected outcome of motion to set aside default judgment LEAVE TO APPEAL No conflicting decisions on discovery issue Appellant's motion Board found city should have been aware address might no lon- ger be valid. Issue on proposed appeal was whether board cor- rectly interpreted ss. 31(4) and 40(3) of Assessment Act (Ont.), and s. 343(8) of Municipal Act, 2001 (Ont.). Leave to appeal was granted. There was reason to doubt finding and refusal to con- sider whether irregularity could be cured. Cases appeared to be in conflict. Issue was important to assessment process. Wolf v. Municipal Property Assess- ment Corp., Region No. 09 (Jan. 25, 2008, Ont. Div. Ct., Jennings J., File No. 349/07) Leave to ap- peal from (2007), 56 O.M.B.R. 161 was refused. Handwrit- ten endorsement. Order No. 008/043/114 (2 pp.). Leave granted where interpretation of Assessment Act (Ont.) and Municipal Act, 2001 (Ont.) in issue Respondent owned vacant parcel of land. Appellants opposed de- velopment. Committee denied respondents' applications for mi- nor variances to zoning by-law and consents to sever land. Respondent appealed. Appellants were granted status before board. Appeal was allowed. Board denied request to review decision. Appellant was granted leave to appeal. There was good reason to doubt correctness of review decision. If board acted out- side its jurisdiction when deciding original decision was proper, there was importance beyond litigants. Watt v. Classic Leisure Wear Inc. (Feb. 14, 2008, Ont.S.C.J., Kite- ley J., File No. 347/07) Order No. 008/056/112 (15 pp.). Good reason to doubt correctness of review decision in land development matter Civil Procedure compelling respondent to attend for questioning in Ontario was dismissed. Appellant was denied leave to appeal. There was no basis to doubt correctness of or- der. Belittchenko v. Belittchenko (2007), 158 A.C.W.S. (3d) 206 (Ont. S.C.J.), was not conflict- ing decision. There was nothing in case law suggesting difference of opinion about interpretation of Rule 20(14) of Family Law Rules (Ont.). A v. B (Feb. 14, 2008, Ont. Div. Ct., Pitt J., File No. 402/07; 98-FA-7489) Order No. 008/058/141 (5 pp.). for order COMMENCEMENT OF PROCEEDINGS Genuine issue for trial existed re- garding relationship between parties Plaintiff brought claim for wrong- ful dismissal, intentional or neg- ligent infliction of emotional suffering and wrongful interfer- ence with contractual relations. Defendants brought motion for summary judgment. Defendant argued plaintiff made admissions plaintiff was independent contrac- tor. Revenue Canada ruled plain- tiff to be independent contractor for income tax purposes. Motion was dismissed. There was genuine issue for trial. Rulings by Revenue Canada and plaintiff's statements were not conclusive of nature of plaintiff's relationship with de- fendant. Stay was declined. Arbi- tration clause was not applicable. There was no basis for pleading of negligent infliction of emotional suffering and paragraphs were struck. Engels v. Merit (Feb. 25, 2008, Ont.S.C.J., Strathy J., File No. 06-CV-313521 PD1) Order No. 008/058/209 (4 pp.). COSTS Plaintiff claimed defendant breached fiduciary obligation and statutory duty to deal fairly and honestly. Plaintiff's claim for damages was dismissed. Trial was five days. Case was not appropri- ate for award of costs on substan- tial indemnity scale. Costs were awarded in amount of $62,072 on partial indemnity basis. CASELAW Paciorka v. TD Waterhouse (Feb. 25, 2008, Ont.S.C.J., Nolan J., File No. 05-CV-005093CM) Or- der No. 008/058/205 (7 pp.). Plaintiff's motion for interlocu- tory injunction was dismissed. Defendants were completely suc- cessful. Case did not warrant costs on substantial indemnity basis. Serious issues for trial were found. Motion was one day. Plaintiff was ordered to pay costs on partial indemnity basis of $185,000 in- clusive of GST and disbursements payable within 30 days. Longyear Canada, ULC v. 897173 Ontario Inc. (Feb. 5, 2008, Ont.S.C.J., Conway J., File No. 07-CV-342938 PD3) Order No. 008/038/289 (7 pp.). Plaintiffs were second mortgag- ees. Plaintiffs were unsuccessful at trial on main issue. Trial lasted two-and-a-half days. Plaintiffs got judgment for $4,517 which repre- sented small part of original claim of over $38,000. Allegations of bad faith were not of such nature as to attract substantial indemnity costs. Plaintiff was to pay costs of $6,139 inclusive of fees, disburse- ments and GST. Dhaliwal v. Plantus (Feb. 25, 2008, Ont.S.C.J., Nolan J., File No. 05-CV-5535SR) Order No. 008/058/210 (5 pp.). No costs ordered where there was public interest element to litigation Application for judicial review concerned interpretation of em- ployer provisions of Employment Standards Act, 2000 (Ont.), in context of bankruptcy of appli- cants' former employer. Respon- dents were successful. Applicants argued there should be no costs of proceeding because application for judicial review raised issue of public interest. It was not appro- priate case to award costs to appli- cants. Applicants were individu- als of limited means. Applicants brought application in good faith to enforce rights under protective legislation. There was public in- terest element to litigation. There was no order for costs. Abdoulrab v. Ontario (Labour Rela- tions Board) (Feb. 14, 2008, Ont. Div. Ct., Lane, Swinton and Bry- ant JJ.) Order No. 008/059/030 (2 pp.). DISCOVERY Order for examination might advance possibility of settlement JOINDER Plaintiff's motion to add parties was allowed MAY 12/19, 2008 / LAW TIMES Plaintiff obtained judgment against defendant for payment of money and delivery of personal property. Plaintiff was not able to collect on judgment. Defen- dant transferred assets secured by plaintiff's general security agree- ment to individual defendant. Plaintiff called defendant's loans. Individual defendant trans- ferred assets to wife for nominal amount. Wife transferred assets to new company. Assets were again transferred from individual plaintiff to third individual and another new company. Plain- tiff 's motion to add second new company and third individual as parties was allowed. Plaintiff did not delay in action. There was no case for promissory estoppel. It was just and convenient for re- ceiver to be appointed. Royal Bank of Canada v. E-Man- ufacturing Networks Inc. (Feb. 22, 2008, Ont.S.C.J., Tucker J., File No. 15201/03) Order No. 008/058/204 (10 pp.). Appellant defaulted on mortgage. Respondent brought action on mortgage. Summary judgment was granted. There was outstand- ing third party claim involving disability insurance policy that would cover mortgage payments in event of disability of appellant. Disability was alleged in third party proceeding. Appeal was al- lowed. Summary judgment was set aside and action was to pro- ceed. Granting of summary judg- ment in main action was unjust. There was issue as to whether mortgage and insurance policy were linked. Caisse Populaire de la Vallee Inc. v. Cheikh (Jan. 30, 2008, Ont. C.A., Weiler, Rouleau JJ.A. and Pardu J. (ad hoc), File No. C47066) Order No. 008/037/060 (2 pp.). SUMMARY JUDGMENT Granting of summary judgment was unjust Corporations Plaintiff brought medical malprac- tice action. Defendants brought motion for physical examination of plaintiff, order permitting in- home assessment of plaintiff by future-care expert and expert in home accessibility. Order sought compelling plaintiff to produce school, psychological and lan- guage testing records. Plaintiff would not suffer delay as result of failure of defendants to exercise rights in timely fashion. Order for examination would advance most just and expeditious determina- tion of action on merits and might advance possibility of settlement. Request for in-home assessment was allowed in respect of future care costs and denied in respect of home accessibility. Documents were ordered produced. Suwary v. Women's College Hospi- tal (Feb. 21, 2008, Ont.S.C.J., Strathy J., File No. 05-CV- 291159CM4) Order No. 008/058/201 (4 pp.). www.lawtimesnews.com DISSOLUTION Charter of plaintiff was dissolved. Plaintiff purported to register claim for lien while dissolved. Plaintiff's claim was not preserved within statutory period notwith- standing articles of revival. Plain- tiff's claim for lien was discharged. Action against mortgagees was dismissed. T.D. Swan Construction (1951) v. Blanc (Feb. 19, 2008, Ont.S.C.J., MacKinnon J., File No. 07-1452) Order No. 008/058/200 (2 pp.). Courts STAY OF PROCEEDINGS Multiple proceedings with Defendant brought motion for stay of three civil actions until proceeding commenced by com- mission against defendant was concluded. Defendant argued multiplicity of proceedings was oppressive and contrary to fair- ness and access to justice. Motion was dismissed. Fact of multiple proceedings with overlapping is- sues was not sufficient to justify stay. Bald assertion there was no prejudice to respondents was not accepted. overlapping issues did not justify stay Nortel Networks Corp. v. Dunn (Jan. 30, 2008, Ont.S.C.J., Campbell J., File No. 05-CV-283095PD1; 06-CV-309865PD1; 05-CV- 284058PD2) Order No. 008/038/288 (6 pp.). Employment WRONGFUL DISMISSAL Notice period increased by one month because of employer's disrespectful conduct Defendant employed plaintiff. Plaintiff's employment termi- nated. Plaintiff claimed defen- dant terminated employment in disrespectful manner. Defendant argued plaintiff resigned. Plain- tiff had judgment for $39,674. Plaintiff's evidence was accepted. Plaintiff established on balance of probabilities plaintiff was wrong- fully dismissed. Defendant did not meet burden on mitigation issue. Appropriate notice period was nine months. Notice was set at ten months because of nasty and disrespectful way plaintiff was treated. Defaria v. Xtra Canada (Feb. 6, 2008, Ont.S.C.J., Dawson J., File No. CV-05-009644-SR) Order No. 008/038/293 (21 pp.). Family Law Two children resided with mother since separation. Father had not seen children. It was in best in- terests of children that custody be granted to mother. Order went for access as requested. Value of busi- ness was found to be $130,988 as requested by mother. Mother pro- vided cheques from line of credit made payable to father's company totalling $48,800. Father abscond- ed with funds on liquidating busi- ness without notice to mother. It was unconscionable for debt to be equally paid by parties. Mother was to have credit of $24,400 from father for debt. Father owed mother $61,866. Father's income was found to be $75,000 per year. Father was to pay child support of $1,098 per month. Mother was unemployed and did not work outside of home since birth of first child. Older child had autism and younger child was diagnosed with learning disabilities. It was not appropriate for mother to be in work place at present time. Fa- ther was to pay spousal support of $1,250 per month. Father was to pay extraordinary expenses of $700 at rate of $116 per month if mother sent child to camp. Cerra v. Cerra (Feb. 4, 2008, Ont.S.C.J., Lemon J., File No. FS-07-58949-00) Order No. 008/038/287 (7 pp.). SUPPORT Father ordered to pay monthly spousal and child support arties were married 22 years and had two children. Applicant sought interim child and spousal support. Applicant sought order for sale of one of matrimonial homes. Appli- cant cared for children during mar- riage. Both children attended uni- versity. Annual income attributed to respondent was $1,000,000. Re- spondent was to pay child support of $8,436 per month. Respondent was to continue to pay $60,000 per year in university expenses for children. There was no hardship to respondent in ordering interim Appropriate that two households each have 50% of net disposable income

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