Law Times

Law Times • June 25, 2012 Motion by defendants for dis- missal of portion of plaintiff ' impeachment ing 615 patent on grounds of mootness. Plaintiff was seeking declaration defendants' 330 and 615 patents were invalid and plaintiff ' action regard- s ordered to re-attend for fur- ther cross-examination. Thirty- minute time-limit imposed. Corporation' lets did not infringe them. 615 patent expired in August 2011. Plaintiff argued 615 matters were not moot because it was seek- ing determination of whether 615 was ever valid and, if not, it would seek remedies under s. 8 of Patented Medicines (Notice of Compliance) Regulations (Can.), for being kept off mar- ket. Plaintiff further argued that, even if 615 issues were moot, court should exercise jurisdic- tion to allow them to proceed since 330 issues were proceeding regardless. Motion allowed. Issue had been decided by Federal Court of Appeal jurisprudence. 615 patent plaintiff was seeking to have declared invalid no lon- ger existed. Jurisprudence clearly established there was no "reach- back" under s. 8 of Regulations, so plaintiff ' s Apo-qunapril tab- affected by striking out 615 por- tion of action. It made no sense to use court time to examine com- plex evidence and render deci- sion on 615 when such decision would have no practical effect. Apotex Inc. v. Warner-Lambert Co. LLC (Feb. 10, 2012, F.C., Lemieux J., File No. T-1252-09) 213 A.C.W.S. (3d) 459 (22 pp.). s rights would not be ONTARIO CIVIL CASES Dissatisfied shareholders attend- ed traded corporation' affidavit not permitted so as to avoid cross-examination Withdrawal of portion of Civil Procedure AFFIDAVITS general meeting ("AGM") with proxies purportedly sufficient to reject management' s annual slate of directors. Corporation's s proposed transfer agent disallowed proxies to extent quorum requirements of corporation' Corporation and shareholders commenced proceedings, includ- ing for oppression remedies. Cross-examinations on affida- vits conducted. One sharehold- er' s by-law not met. he "received legal advice to that effect" holder voluntarily waived privi- lege, and demanded production of documents relating to legal advice to applicants. Shareholder moved to withdraw portion of affidavit. Withdrawal motion denied. Language intentionally included. No inadvertence, mis- take or oversight. Withdrawal not permitted so as to avoid cross-examination. Corporation' production demand allowed. Obvious waiver of privilege. Shareholder had legal advice available when swore affidavit. No unfairness in holding affiant to what sworn. Corporation' s duction demand beyond scope of disputed paragraph. Shareholder s pro- answers to questions about prox- ies submitted to AGM denied. Corporation' answers to questions about share- holder' business transactions denied. Corporation' pel answers to questions about shareholder' alleged joint action with individual regarding cor- poration and other investments individual denied. Individual let out of application. Allegations related only to corporation, not other investments. Shareholders' motion to compel production of individual' s investment portfolio and s motion to com- ment denied. Reference to "gold- en parachute" in notice of applica- tion insufficient to establish link between individual' and relief sought. Shareholders' motion to compel answers to questions regarding director' quorum-related feelings denied. No probative value. Shareholders' motion to compel production of correspondence draft report from corporation' s tendering expert, corporation waived litigation privilege over documentation between expert and corporation' s expert allowed. By ordered to attend for further cross-examination. Ebrahim v. Continental Precious Minerals Inc. (Feb. 17, 2012, Ont. S.C.J. (Comm. List), Brown J., File No. CV-11-9446-00CL; CV-11- 9520-00CL) 213 A.C.W.S. (3d) 361 (21 pp.). s counsel. Expert Contracts Corporate plaintiff entered into coffee shop franchise agree- ment expiring February 2006, subject to renewal. Individual plaintiffs guaranteed corpo- ration' Disclosure so inadequate that it constituted none at all AGREEMENTS FRANCHISE entered into sublease for opera- tion of store. Plaintiff ' they renewed franchise agree- ment tive April 2006. Plaintiffs alleged defendants made inadequate disclosure under Arthur Wishart Act for five-year term effec- s affidavit included statement . Corporation alleged share- 2000 (Ont.), such that entitled to rescission and damages, and breached duty of good faith, such that entitled to punitive damages. Defendants denied any renewal, disclosure obligations, or right to rescission or damages. Defendant counterclaimed for $47,000 unpaid fees pursuant (Franchise Disclosure), antee. Claim and counterclaim allowed. Defendant' to guar- letter a franchise agreement as broadly defined under Act, where related to franchise, sublease of premises, ongoing payments and potential renovation costs. Letter signed by plaintiffs s May 2007 ated binding agreement. Where agreement created new franchise agreement for five-year term, dis- closure required. Disclosure so inadequate that constituted none at all. Defendant deliberately and cre- s obligations. Plaintiffs s position s employment CASELAW s motion to compel s motion to compel concealed fundamental informa- tion, i.e. that lease would at end of December 2007. Two-year rescis- sion period at Plaintiff 's March 2009 notice of s. 6(2) applied. s employment agree- rescission timely. Plaintiffs award- ed damages for base rent, CAM, tax installment, sign rent, loan for cappuccino machine, adver- tising fees, equipment purchases and value of inventory totaling $187,730. Damages claim for moneys advanced to franchise by personal plaintiff denied. No way to know whether moneys used to pay expenses for which dam- ages awarded. No entitlement to double recovery. Punitive damag- es for misrepresentation denied. Keeping critical lease informa- tion from plaintiffs, while actively leading plaintiffs to believe lease renewed, a breach of duty of good faith. No mental suffering claim. Damages of $25,000 awarded. Defendants entitlement under counterclaim and guarantee acknowledged. Set-off of $48,824 awarded. 1159607 Ontario Inc. v. Country Style Food Services Inc. (Feb. 6, 2012, Ont. S.C.J., Mesbur J., File No. 08-CL-7458) 213 A.C.W.S. (3d) 332 (25 pp.). Courts Unmarried father and mother in relationship from June 2007 to April 2008, and had child in December 2008. Father com- menced litigation against moth- er before child born, including action seeking $5 million for alleged false statements under oath and to Crown Attorney and police; Small Claims Court action for childcare expens- es, dismissed January 2010. Father commenced total of six actions, plus appeals and motions for leave to appeal. Approximately 30 family law proceedings commenced by father against mother. Paternal grandfather commenced litiga- tion against mother regarding access as child' Father persistently and unreasonably commenced 30 vexatious family law proceedings ABUSE OF PROCESS Paternal grandfather involved only in son' s grandfather. tion. Mother's motion for orders s family law litiga- adding paternal grandfather as party; declaring father and paternal grandfather vexatious litigants; dismissing proceed- ings on basis frivolous and vex- atious; security for costs; that civil and appeal proceedings not continue; and costs. Application granted. False statements action dismissed. Allegations very sim- ilar to those in prior proceeding. Complete absence of material facts. Claim frivolous, vexatious and scandalous. Father a vexa- tious litigant. Father persistently and unreasonably commenced vexatious proceedings, includ- ing scorched earth litigation against mother, and public officials. Vast major- ity of proceedings unsuccess- ful. Father refused to pay costs. Repeated attempts to unsuc- cessfully re-litigate and appeal judges, court www.lawtimesnews.com matters. Father behaved badly inside and outside courtroom. Behaviour worsening. Paternal grandfather a vexatious litigant. Grandfather acted with ques- tionable motives. Father and grandfather instituted proceed- ings in concert to gain advan- tage to which mother could not respond. Grandfather demon- strated willingness to repeatedly act as means by which father could pursue vexatious litiga- tion. Vexatious litigant orders issued, without time-limitation. Dyce v. Lyons-Batstone (Jan. 20, 2012, Ont. S.C.J., McEwen J., File No. 11-0333; 11-0512) 213 A.C.W.S. (3d) 345 (25 pp.). Evidence Father brought motion seeking primary residence of children. Parenting co-ordinator created reporting letter that was prof- fered as evidence. Reporting letter was found not to be admissible in evidence as expert report or as factual basis that court could rely on. Reporting letter con- tained fact and opinions. Parent coordinator was not qualified as expert and could not offer opin- ions. Hearsay evidence offered on much of supposed facts was far beyond bounds of accept- ability. Fact offered from direct observation by parent coordina- tor were compromised by parent co-ordinator' Parent co-ordinator not qualified as expert and could not offer opinions OPINION EVIDENCE tion to assess credibility and obvi- ous decision that mother was in wrong. Conclusions of parenting co-ordinator of reporting letter about facts were not acceptable. Sehota v. Sehota (Feb. 13, 2012, Ont. S.C.J., Rogers J., File No. FC-09-033698-00) 213 A.C.W.S. (3d) 389 (7 pp.). s clear determina- Father completely unaware of child' Family Law CUSTODY Application for access. Parties ended relationship in April or May 2002. Mother gave birth to child in December 2002, without ever informing father about preg- nancy. Mother made no effort to contact father, or to inform him of existence of child, until com- mencing application for child support in 2011. Meanwhile, father continued to reside and work at same places, got married and had one child with current wife. Father wanted opportuni- ty to develop relationship with child, but recognized gradual introduction of access necessary. Mother opposed to any access as too emotionally difficult for child. Application adjourned. Court satisfied father completely unaware of child' with application for support s existence until served served with application for sup- port. Father should have oppor- tunity to establish relationship with child. Child old enough to have views considered. Matter had to be handled with utmost care, s existence until sensitivity and caution. PAGE 15 Appropriate course to appoint Office of Children' ("OCL") to investigate and report as soon as possible. Father should have whatever interim access OCL deemed necessary to con- duct investigation. Robson v. Albazi (Apr. 4, 2012, Ont. C.J., Spence J., File No. D54291/11) 213 A.C.W.S. (3d) 410 (15 pp.). s Lawyer Injunctions INTERLOCUTORY RELIEF Significant possibility of harm to First Nation' First Nation brought motion for interlocutory injunction restrain- ing company from engaging in activities relating to mineral exploration in and treaty rights lands. First Nation sought order for province to provide under- taking in damages to company. Province sought court' area of treaty tance in fashioning consultation remedy that promoted reconcili- ation by fairly balancing rights of First Nation to be properly consulted and right of company to carry out mining activities. Injunction was granted. Intended claim raised serious issues that merited fulsome hearing at trial. Without meaningful consultation and accommodation regarding exploratory mining operations of company involving bona fide dialogue and information shar- ing between First Nation and company facilitated by province, there was significant possibility of harm to First Nation' s assis- and treaty rights. Damages were not sufficient as compensation given rights at issue. Balance of convenience favoured granting injunction with terms and condi- tions imposed. It was appropriate that requirement of undertaking be waived. Wahgoshig First Nation v. Ontario (Jan. 3, 2012, Ont. S.C.J., Brown J., File No. CV-11-439248) 213 A.C.W.S. (3d) 463 (12 pp.). s aboriginal Landlord had to differentiate work done by Atlantis to main- tain property. Landlord was given time to put forward detailed claimed based on work actu- ally done for specified period of time. Landlord failed to meet onus of showing what work land- lord did, how much time was expended on maintenance and at what commercial reasonable cost. There was little to support maintenance landlord claimed annually in lump sum of $38,400 over and above other claims mak- ing up total claims of reported annual expenses for identifiable maintenance work and build- ing expense. Tenant overpaid additional rent for four years in amount of $128,712. C.C. Tatham & Associates Ltd. v. 2057870 Ontario Inc. (Mar. 2, 2012, Ont. S.C.J., Eberhard J., File No. 09-1137) 213 A.C.W.S. (3d) 469 (9 pp.). Tenant overpaid additional rent in amount of $128,712 Landlord and Tenant RENT LT s aboriginal

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