Law Times

Law Times • augusT 6, 2012 executed lent support to conclu- sion that deportation order was spent once it was executed. Min- ister failed to establish basis for refusing to grant relief. Refugee' failure to challenge deportation order at earlier time could not result in Minister being able to exercise power he did not have. Nagalingam v. Canada (Minister of Public Safety and Emergency Preparedness) (Mar. 27, 2012, F.C., Russell J., File No. IMM- 1715-11) 214 A.C.W.S. (3d) 233 (39 pp.). s ONTARIO CIVIL COURT Civil Procedure Plaintiff applied for certification of proposed class action pursu- ant to Class Proceedings Act, 1992 (Ont.). Defendant, through legal publishing branch, copied court documents that had been authored by lawyers and repro- duced them on electronic data base and search retrieval service. Plaintiff was lawyer and docu- ments he wrote were included in retrieval service without express permission. Plaintiff alleged that defendant infringed copyright of class members by making copies of court documents authored by lawyers and law firms available without permission and for fee. Plaintiff alleged that defendant committed primary and sec- ondary copyright infringement under Copyright Act (Can.). Plaintiff alleged that defendant infringed his moral rights and those of class as whole. Plaintiff alleged that defendant encour- aged users to infringe copyright. Plaintiff sought damages of $50 million for compensation and punitive damages of $1 million. Application granted. Court' Several issues readily lent themselves to resolution on class-wide basis CLASS ACTIONS gatekeeper role was limited to ensuring that technical and pro- cedural elements of test were satisfied. Court did not assess merits of claim. Plaintiff pleaded cause of action for copyright in- fringement and for infringement of author' s self-represented litigants, law departments and public sector lawyers should not be included as class members. They were not similarly situated to private sec- tor lawyers and were not likely to have commercial interest in protecting court documents from copyright infringement. With that refinement, there was identifiable class restricted to lawyers and paralegals in private practice. Some proposed com- mon issues were individual and were not certifiable. However, action satisfied common issue criterion. There was set of ques- tions that were certifiable and would substantially advance proceeding. Several issues read- ily lent themselves to resolution on class-wide basis. Proposed action satisfied preferable pro- cedure criteria. Assuming there was copyright infringement, s moral rights. Clients, class proceeding was only rea- sonable means to provide ac- cess to justice to class members. Individual action would not be financially viable. Class action would provide judicial econo- my. Certification as class action would not result in unmanage- able proceeding. Solicitor-client privilege was matter to be ad- dressed but issue did not make class action unmanageable. Plaintiff was suitable representa- tive plaintiff. Criteria for certifi- cation were satisfied and action was certified as class action. Waldman v. Thomson Reuters Corp. (Feb. S.C.J., Perell J., File No. 10-CV- 403667CP) 214 A.C.W.S. (3d) 28 (43 pp.). 21, 2012, Ont. Motion by defendant for stay of proceedings. Plaintiffs were passengers in vehicle that was involved in collision with ve- hicle that was owned and driven by defendant. Plaintiffs lived in Ontario. Defendant lived in state of Michigan, United States. Accident occurred in Michigan. Plaintiffs issued their statement of claim in Ontario. Motion dis- missed. Superior Court of Prov- ince of Ontario had jurisdiction to try action. Ontario was more convenient forum. It would be considerably less expensive and more convenient for plaintiffs to prove their damages in Ontario. Plaintiff ' Would be difficult to convince medical providers to travel to Michigan to testify Conflict of Laws JURISDICTION compelled to testify in Michi- gan. It would be difficult for plaintiffs to arrange or convince their medical providers to travel to court in Michigan to testify. Gordon v. Deiotte (Apr. 3, 2012, Ont. S.C.J., Koke J., File No. 25432/11) 214 A.C.W.S. (3d) 105 (11 pp.). s witnesses could not be Parties were married 24 years and had two children. Younger child had special needs and was not capable of looking af- ter himself. Order granted on consent pursuant to minutes of settlement provided for father to have custody of older child and mother Father showed he would make better decisions regarding child' Contempt Of Court GROUNDS s best interests of younger child. Residence of younger child was shared equal- ly between parties. Parties could not agree on or communicate with respect to best interests of child. Mother did not co-op- erate with parenting coordina- tor. Father brought motion to change final order. Father sought to vary custody and access with respect to younger child. Father sought sole custody of younger child with access to mother. Un- der father' to have custody would attend full-time at centre where child would be provided support programs specifically designed for individuals like s parenting plan child CASELAW child. Father argued mother was in contempt of order because mother failed to contribute to and co-operation with parent- ing coordinator; failed to bring child to residency exchange site on time; and failed to sign au- thorizations with respect to po- lice records and CAS records. Contempt motion with respect to mother' ing coordinator was dismissed. Allegation was in essence fail- ure by mother to comply with payment order. Father did not establish beyond reasonable doubt that mother deliberately and flagrantly disobeyed order with respect to mother' s failure to pay parent- co-operation with parenting co- ordinator. Obligation of mother to sign documentation autho- rizing parenting coordinator to obtain police and CAS records was not clearly and unambigu- ously set out in order. Mother was in contempt of order in not complying with times set for residency transfers. Sentencing was adjourned sine die to pro- vide mother with opportunity to comply with residence exchange times set out. There was material change in circumstances since order. Ability of parents to meet needs of child changed. Contin- uation of parenting coordinator would not work given mother' s lack of lack of co-operation. Parents were not able to meet child' needs under present terms of order. Order requiring parents to communicate and come to joint agreement with respect to decisions involving child was not in child' s s ther showed he had and would make better decisions regarding child' s best interests. Fa- granted sole custody of younger child. Long-term primary resi- dence with father was much bet- ter for child' s best interests. Father was ry residence with father during week was in child' Mother was to have access alter- nating weekends. Parties were to share holidays equally. Father' s well-being. Prima- s best interests. request for restraining order was denied. There was no evidence restraining order was necessary or appropriate in circumstances. Taylor v. Taylor (Mar. 2, 2012, Ont. S.C.J., Ricchetti J., File No. 30071/07) 214 A.C.W.S. (3d) 191 (29 pp.). s Contracts PERFORMANCE AND BREACH Action by plaintiff for moneys owing under contracts with de- fendant. Plaintiff bricklayers in- stalled brick and stone on total of nine houses built by defendant homebuilder. Plaintiff claimed that $162,502 plus interest was owing to it under terms of ver- bal contracts. Action allowed. Plaintiff was awarded judgment in amount of $144,112 plus in- terest for amounts owed under contract. Cash payments de- fendant claimed were made to plaintiff were in fact not made. Defendant was not credible. www.lawtimesnews.com Cash payments defendant claimed were made were in fact not made 690536 Ontario Inc. v. Tri- mark Homes Ltd. (Feb. 6, 2012, Ont. S.C.J., Sanderson J., File No. 08-CV-353114PD3) 214 A.C.W.S. (3d) 117 (12 pp.). Courts Damages No other explanation than this was scheme to steal funds from husband Action by husband against wife and her mother and father for remedies for wife' AGGRAVATED DAMAGES use of joint bank account and misappropriation of cheque. Parties had traditional marriage, with husband earning income and wife managing household, children, and finances. While volunteer fire-fighting, husband experienced injury, and could no longer work. Husband went to prison for arson. When he was released from prison, hus- band discovered that WSIB had released cheque in amount of $271,502.92 to wife. On its re- ceipt, wife cashed cheque and deposited in her mother' s alleged mis- account. Action dismissed with respect to misuse of joint bank account, and granted with re- spect s bank cheque. Judgment went to hus- band in amount of $271,502.92 plus punitive damages in amount of $10,000. There was no basis for husband' to misappropriation of bank account in payment of bills was entirely consistent with hus- band' relationship. Conversion was clearly made out on facts with respect to cheque. Wife offered no defence to conversion. There could be no other explanation than this was scheme to steal funds from husband. Drummond v. Drummond (Apr. 2, 2012, Ont. S.C.J., McLean J., File No. 07-CV-37099) 214 A.C.W.S. (3d) 305 (10 pp.). s wishes throughout their Evidence Applicant sought order that respondent' Concerns about bias could be dealt with through cross-examination OPINION EVIDENCE were inadmissible and order preventing respondent' from testifying as expert on re- spondent' s expert reports s expert roofing company, entered into contract with respondent to undertake repairs on roof of respondent' s behalf. Applicant, was being carried out, leaking occurred and caused substan- tial damage to inside of hotel. Applicant commenced claim against respondent for contract price. Respondent issued coun- terclaim for damages to hotel. Respondent retained individual, architect and engineer, to pro- vide consulting services with respect to roof. Individual asked applicant to submit quote for repair of roof and approved ap- plicant' s hotel. While work accepted by respondent. Aſter s proposal before it was PAGE 15 leak was reported, individual carried out inspection of appli- cant' that respondent hire another roofer to install different roof. Respondent intended to call in- dividual as expert witness. Ap- plication dismissed. Individual was not to be regarded as expert witness under Rule 53.03 of Rules of Civil Procedure (Ont.). He was not retained by respon- dent for sole purpose of provid- ing expert testimony at trial. He was not litigation expert. He was retained to provide professional consulting services. He was not disinterested party. Individual should be permitted to provide evidence with respect to his in- volvement in subject matter of action. Evidence could include factual evidence and opinions that he formed concerning methods used by plaintiff in car- rying out work and cause of wa- ter leakage. Evidence individual would provide would be similar to evidence tendered by appli- cant' s work and recommended dence was necessary and critical to arriving at just determination of lawsuit. Concerns about bias could be dealt with through cross-examination and by ap- plicant tendering own witnesses. Individual was permitted to pro- vide opinion evidence at trial. Continental Roofing Ltd. v. J.J. s witnesses. Individual's evi- of any substantial misuse of bank funds. Wife managed account to best of her ability. Wife' s assertions s use of Hospitality Ltd. (Mar. 15, 2012, Ont. S.C.J., Koke J., File No. 24714/09) 214 A.C.W.S. (3d) 154 (12 pp.). 's Family Law Parents failed to appreciate nature and severity of demands of child's care CHILD WELFARE Child was apprehended at birth. Child was placed with family that had adopted child' Child suffered from significant medical problems. Child re- quired significant number of medical appointments and med- ications. Child had to undergo surgeries. Parents sought return of child subject to supervision order. Child was in need of pro- tection. There was no reasonable prospect of significant change in respondents' circumstances or abilities that could justify extension of time. Mother was victim of sexual abuse as child. Parents existed on $410 per month. Evidence disclosed little change in financial and physical resources available to parents in foreseeable future. Parents and maternal grandmother failed to appreciate nature and severity of demands of child' s sister. was lack of reality in proposals of parents. Maternal grandmother met child on two or three occa- sions. Maternal grandmother suffered many illnesses. Foster parents were completely bond- ed with child. Child was made Crown ward. No order was made for access. Children' s care. There and Middlesex v. N. (A.L.) (Apr. 2, 2012, Ont. S.C.J., Vogelsang J., File No. C1953/07-03) 214 A.C.W.S. (3d) 161 (38 pp.). LT s Aid Society of London

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