Law Times

law Times • July 23, 2012 ternal grandmother by allow- ing extension of time. Father's understanding that appeal was appropriate route to take and conflict with mother over tak- ing that route met criterion of intention to appeal. Court was not satisfied with father's ex- planation for reasons for delay. Inference drawn was that fa- ther collaborated with mother to stall access while mother planned and implemented departure with children and father facilitated mother's con- tinued absence from Ontario. Justice of case required leave to be granted on very strict conditions. Father was to en- sure children were in Toronto at specified times. Motion to stay enforcement of orders was granted. Potvin v. Pennington (Mar. 5, 2012, Ont. S.C.J., Kiteley J., File No. FS-11-17526) 213 A.C.W.S. (3d) 820 (18 pp.). Applicants brought applica- tion under Business Cor- porations Act (Ont.), and Winding-up and Restructur- ing Act (Can.). Applicants commenced separate actions for orders Minutes of settlement included no provision for costs Civil Procedure COSTS edly unconscionable agree- ment and damages. Actions not pursued. Six amending alleg- tory motions between par- ties. One resulted in costs award. Applicant's first two motions resulted in judicial determinations. Applicant's third motion resolved on con- sent. Applicants responded with affidavits to respondent's two motions. Motions ad- journed sine die and did not proceed. Sixth motion ended with execution of minutes of settlement of entire litiga- tion. Settlement included no provisions for costs. No costs outlines exchanged. Appli- cants claimed substantial in- demnity costs of $197,313, aſter crediting respondent for prior $27,000 costs award on motion. Respondents claimed substantial indemnity costs of $104,253, or partial indemni- ty of $69,495 including costs as self-represented litigant and costs of consulting prior counsel. Respondent's claim for self-representation costs denied. Respondent unable to demonstrate lost opportunity cost. Fair and reasonable, with exception of applicant's claims not pursued, that parties bear own costs. Applicants ordered to pay respondents $4,000 all- inclusive. Cohlmeyer v. Ffrench (Feb. 7, 2012, Ont. S.C.J., Mulli- gan J., File No. 08-0361) 213 A.C.W.S. (3d) 854 (6 pp.). interlocu- Conflict of Laws Kansas procedural rules complied with rules of natural justice FOREIGN JUDGMENTS Applicant was Kansas cor- poration. Respondent was Canadian living in Toronto. Applicant obtained default judgment in 2009 against re- spondent in Kansas court for damages due to alleged breach of contract, fraud, breach of fiduciary duty and liability for net sales losses. Applicant sought enforcement of for- eign judgment Respondent argued foreign judgment was obtained by fraud and foreign proceedings were conducted in violation of rules of natural justice. Ap- plication was allowed. Default judgment from Kansas court was to be recognized and enforced in Ontario. There was real and substantial con- nection between Kansas and cause of action and between Kansas and respondent. Fraud defence was rejected. Respondent's argument con- cerning partial private insur- ance coverage payment to ap- plicant revealed no evidence that Kansas default judgment was obtained by fraud. Argu- ment of alleged fraud by false- ly claiming damages that were not provable was not available to respondent because argu- ments were about merits of complaint launched by ap- plicant and respondent could not re-litigate merits of action that led to foreign judgment sought to be enforced. Default judgment was not obtained in violation of rules of natural justice. Natural justice did not require identical laws in for- eign jurisdiction. Kansas pro- cedural rules complied with rules of natural justice. Marcus Food Co. v. DiPanfilo (Mar. 5, 2012, Ont. S.C.J., Campbell J., File No. CV-11- 00419883) 213 A.C.W.S. (3d) 882 (11 pp.). in Ontario. Evidence Necessary that treating physician's OPINION EVIDENCE Plaintiff commenced action in medical malpractice and conspiracy. Plaintiff alleged defendants conspired to deny claims under Workplace Safe- ty and Insurance Act, 1997 (Ont.). Defendant physician moved for summary dismissal on basis plaintiff had no prop- er expert opinion as to breach of standard of care and causa- tion. Defendant's physician's similar prior motion was dismissed in February 2006. Plaintiff objected that defen- dant bound by February 2006 decision, and not permitted to bring second motion on same ground. Subsequent qualifications be determined by trial judge ruary 2006 decision, plaintiff passed trial record before ob- taining full production and discovery from defendants. "Best foot forward" principle inapplicable. Court could not fully appreciate case without forensic machinery of trial. Not impossible that treating to Feb- CASELAW physician could provide ex- pert opinion as to standard of care. Necessary that treat- ing physician's qualifications be determined by trial judge. If treating physician prepared report compliant with Rule 53.03 of Rules of Civil Proce- dure (Ont.), within 30 days, motion dismissed. Otherwise, motion allowed and action dismissed as against moving party. Farooq v. Miceli (Feb. 1, 2012, Ont. S.C.J., Lauwers J., File No. 62793/02) 213 A.C.W.S. (3d) 876 (6 pp.). Limitations Plaintiff's son was murdered while in penitentiary February 1999. Plaintiff learned of son's death in February 1999. In- vestigations conducted under Corrections and Conditional Release Act (Can.). Board of Investigation ("BOI") report prepared in February 2000 and produced to plaintiff in May 2006. Redacted BOI re- port very critical of offers and facility, though no explicit findings of negligence. Fact Finding Report prepared in February 1999 led to disci- pline of correctional officers for serious negligence. Plain- tiff received Ontario Provin- cial Police ("OPP") brief in June 2008. Inquest conducted September 2008. Plaintiff re- ceived coroner's verdict in November 2008. Plaintiff first learned of officers' negligence and discipline in coroner's verdict. Plaintiff commenced civil action in April 2010, alleging negligent supervi- sion of inmates. Defendants moved for dismissal on basis of expiry of limitation period under Limitations Act, 2002 (Ont.). Motion allowed. Ac- tion dismissed. No evidence defendants fraudulently con- cealed information. Lengthy delays not requiring opposite inference. Delays related to length of OPP investigation and scheduling difficulties. No evidence defendant cor- rectional service involved in delays. Plaintiff had all neces- sary information to recognize and pursue negligence action aſter May 2006 receipt of BOI report. Two-year limitation period ran from May 2006 to November 2008. Discovery of new information was of fur- ther support for pre-existing claim. No basis for equitable relief from limitation period. Mongeon v. Sammon (Jan. 24, 2012, Ont. S.C.J., Ratushny J., File No. 10-48371) 213 A.C.W.S. (3d) 1025 (12 pp.). Plaintiff had necessary information to pursue action after receipt of Board of Inquiry report DISCOVERABILITY Applicant purchaser agreed www.lawtimesnews.com Property sufficiently unique that specific performance available Sale Of Land CLOSING to buy property with Decem- ber 2011 closing date. Contract stated that time of the essence. Applicant expended efforts and moneys in anticipation of closing obtaining lease with current oc- cupier; negotiating terms of pos- session; obtaining $1.8 million mortgage commitment; and ob- taining environmental audit. Par- ties extended closing date due to office closures of mortgagor and lawyers over holidays. Purchaser' position closing date extended to February 2012. Respondent ven- dor denied any extension beyond December 2011, when purchaser allegedly unable to close. Pur- chase received notice of change of solicitors from vendors Decem- ber 2011. Neither party tendered on other at December 2011 clos- ing date. Respondent vendor rel- isted property for sale in January 2012. Two mortgages registered on title, now four months in ar- rears. Lenders retained coun- sel. Power of sale or foreclosure proceedings possible. Internal dispute at respondent corpora- tion regarding who authorized to instruct solicitor regarding sale. Purchasers brought emergency motion for judicial recognition of February 2012 closing date. Motion allowed. Property suffi- ciently unique that specific per- formance available. Vendor failed to put self in position to close De- cember 2011. By refusing to re- spond to requisitions and exten- sion requests, vendor impliedly renounced agreement. Implied renunciation relieved any obli- gation on purchaser to tender. Parties acted as to time was not of essence. One party not permit- ted to insist on term as defence to its inaction and as sword to get out of contract. Equity prevents vendor' s extension beyond December 2011. Vendor' Faced with vendor's silence, pur- s reliance on absence of s inaction to blame. chaser did what could to save transaction with apparent head of corporation. Purchaser dealt with individual who for years was presented as vendor' mind. Purchaser had no idea that vendor' s directing not in accordance with own arti- cles. Purchaser not faulted for not having inquired behind change of solicitors. Purchaser' s internal management unaware of internal power strug- gle at vendor. Vendor ordered to complete sale. Closing date fixed. 2628 St-Joseph Boulevard Inc. v. Fondation Olangi-Wosho (Jan. 24, 2012, Ont. S.C.J., Kane J., File No. 12-53280) 213 A.C.W.S. (3d) 1045 (18 pp.). s solicitor Torts monitoring been met infant would have been delivered before injury resulted Had standard of care of foetal NEGLIGENCE Plaintiff child was born blue, silent and in critical condition. Brain permanently damaged. Child survived with cerebral palsy. Jury held defendant breached duty of care in man- ner of monitoring foetal heart rate. Failure to detect abnor- PAGE 15 malities precluded earlier in- tervention. Brain injury oc- curred because infant denied oxygen. Defendant ordered to pay $5.5 million to child and $500,000 to each parent. De- fendant appealed as to breach of standard of care and causa- tion. As to breach of standard of care, appeal denied. Appel- lant took no issue with find- ing that brain injury caused by oxygen deprivation. Evi- dence from which jury could infer causal connection. Evi- dence that, had standard of care of foetal monitoring been met, distress would have been detected and infant delivered before injury resulted. Nurse's breach the only reasonable explanation for injury. Jury's finding based on balance of probabilities as to causation, not a finding of "lost chance" to prevent permanent injury. Unnecessary to have estab- lished precisely when irregu- lar foetal heart beat began. If electronic foetal monitoring used or intermittent auscul- tation performed adequately, likely irregularities noticed at stage while permanent injury preventable. Gutbir v. University Health Net- work (Feb. 2, 2012, Ont. C.A., Weiler, Armstrong and Hoy JJ.A., File No. C53132) 213 A.C.W.S. (3d) 1057 (18 pp.). ONTARIO CRIMINAL CASES Appeal Appeal by accused from his conviction of one count of tax evasion in 1996 and for two counts for failing to file income tax returns dismissed. Contrary to accused's Judge did not improperly reverse burden of proof GROUNDS mission trial judge not only articulated correct mens rea but she properly ap- plied it when she found that accused intended to evade tax payments when he failed to file his 1996 return. There was overwhelming evidence that accused failed to file 1996 return for purpose of evad- ing payment of taxes that he owed. Judge's verdict, that ac- cused did not commit tax eva- sion in 1996 when net worth method was used but he did commit that offence when direct method was used, was not inconsistent. Crown did not pursue alternative issues of liability, but rather, it of- fered two different methods of proof which were both le- gitimate. Judge did not im- properly reverse burden of proof. She properly instructed herself and she then applied burden of proof. R. v. Zuk (Apr. 12, 2012, Ont. S.C.J., Trotter J., File No. 90/08) 100 W.C.B. (2d) 500 (9 pp.). test sub- for LT

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