Law Times

Page 14 January 16, 2017 • Law Times www.lawtimesnews.com railway companies. Sections 150 and 151 of Act provided for as- sessment of MREs by Canadian Transportation Agency for each crop year. Agency's approach to calculating MREs had been dis- advantageous to railway since 2001. Agency's MRE determi- nation for railway for 2013-2014 crop year resulted in railway be- ing required to pay $4,981,915 that it received in excess of its MRE, plus $249,096 penalty, to Western Grains Research Foundation. Agency changed its approach to calculating MREs starting in 2014-2015 crop year. Railway appealed from MRE de- termination for 2013-2014 crop year. Appeal dismissed. Railway failed to establish agency's inter- pretation and application of Act were unreasonable. Despite fact that agency's interpretation and application of Act had withstood court's scrutiny in past, counsel for railway devoted significant time to this issue. There was no convincing basis given to inter- fere with agency's determina- tion. Agency's interpretation and application of its own stat- ute was possible and acceptable outcome in light of facts and law. Railway failed to establish any violation of procedural fairness in agency's consultation process and in agency not considering in its MRE determination railway's late submission made in that consultation process. Canadian National Rail- way v. Canadian Transporta- tion Agency (2016), 2016 Car- swellNat 5676, 2016 FCA 266, Johanne Trudel J.A., Richard Boivin J.A., and Yves de Mon- tigny J.A. (F.C.A.). Ontario Civil Cases Civil Practice and Procedure DISPOSITION WITHOUT TRIAL Stay or dismissal of action Plaintiff had no cause of action against Public Guardian and Trustee Plaintiff 's action was dismissed under R. 2.1 of Rules of Civil Procedure. Motion judge deter- mined that Divisional Court was not suable entity and that claim against province for allegedly wrong decision of that court was frivolous and vexatious. He also held that there was no merit in plaintiff 's action against Public Guardian and Trustee for its con- duct in settling prior actions on plaintiff 's behalf as settlements were approved by Divisional Court. In addition, he found that plaintiff had no cause of ac- tion against Public Guardian and Trustee for solicitor's negligence because it did not act in capacity of plaintiff 's solicitor. Similarly, he concluded that Public Guard- ian and Trustee's counsel owed its duties to Public Guardian and Trustee and not to plaintiff. Plaintiff appealed. Appeal dis- missed. No error was seen in mo- tion judge's conclusion that plain- tiff 's claim was devoid of merit or in his reliance on history of prior proceedings to address R. 2.1 is- sue. Prior proceedings formed subject matter of plaintiff 's action and were incorporated by refer- ence into his statement of claim. Kavuru v. Ontario (Public Guardian and Trustee) (2016), 2016 CarswellOnt 16562, 2016 ONCA 758, Janet Simmons J.A., H.S. LaForme J.A., and G. Pardu J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 18765, 2015 ONSC 7697, F.L. Myers J. (Ont. S.C.J.). Ontario action was stayed on jurisdictional grounds Plaintiff Ontario company, ven- dor N Inc., entered into exclusive sales agreement with defendant German company, manufactur- er HL, to be exclusive vendor of manufacturer's products within US and Canada. Agreement provided that German law was binding, and that any disputes would be settled by binding ar- bitration through Chamber of Commerce in Frankfurt. Manu- facturer terminated agreement without notice for cause. Ven- dor brought action in Ontario against manufacturer, manu- facturer's principals, and related Canadian corporation C Ltd. in tort and contract. Manufacturer and principals ("defendants") brought motion to stay Ontario action on jurisdictional grounds. Motion judge granted stay based on discretionary decision to de- cline jurisdiction on ground of enforcing choice of forum clause and arbitration clause. Judge held that contractual provisions cov- ered substantive issues raised by litigation and that vendor did not show strong cause that case was exceptional and that forum se- lection clause should not be en- forced. Judge found presence of arbitration clause was additional consideration and that there was no reason why exceptions in s. 7.2 of Arbitration Act, 1991 might apply. Vendor appealed. Appeal dismissed. Judge did not err in finding that language of forum selection clause was broad enough to capture both contract and tort claims. Judge did not err in relying on forum selection clause to stay action against de- fendants who were not parties to agreement, being principals and C Ltd. because claims pleaded against them arose out of same transactions and raised common questions of facts and law linked to claims against manufacturer. Novatrax International Inc. v. Hägele Landtechnik GmbH (2016), 2016 CarswellOnt 16387, 2016 ONCA 771, Doherty J.A., K. Feldman J.A., and Brown J.A. (Ont. C.A.); affirmed (2013), 2013 CarswellOnt 19145, 2013 ONSC 8045, I. Leach J. (Ont. S.C.J.). JUDGMENTS AND ORDERS Final or interlocutory Trial judge declared mistrial Conduct of two jurors gave trial judge concern about ap- pearance of trial's fairness, but did not find there was reason- able apprehension of bias. Trial judge declared mistrial and dis- charged jury and ordered that he would remain seized of mat- ter and it would be placed on list of jury trials commencing in September 2016. Defendant appealed. Plaintiffs brought motion to quash appeal. Mo- tion granted. Order under ap- peal was interlocutory. Court expressly retained jurisdiction. Williams v. Grand River Hospital (2016), 2016 Carswell- Ont 16447, 2016 ONCA 793, G.R. Strathy C.J.O., H.S. LaFor- me J.A., and K. van Rensburg J.A. (Ont. C.A.). PRACTICE ON APPEAL Interlocutory or final orders Appeal was properly quashed Appellant R was plaintiff, in ac- tion against defendant insurer. Two orders were made in action. First order adjourned trial of ac- tion, and ordered R to pay $3,729 in costs as well as requiring medical record authorizations to be executed. Second order dismissed motion to set aside first order, and imposed another $4,500 in costs to be paid by R. R brought motion for leave to ap- peal second order to Divisional Court, which was dismissed. R appealed second order to Court of Appeal. Insurer claimed that Court of Appeal did not have jurisdiction over appeal of inter- locutory order. Insurer moved to quash R's appeal. Motion grant- ed; appeal quashed. Jurisdic- tion was clearly with Divisional Court on interlocutory order. Neither order in subject case disposed of matter. Appeal was properly quashed, and in any event was moot after Divisional Court declined to grant leave. Rana v. Unifund Assurance Co. (2016), 2016 CarswellOnt 18629, 2016 ONCA 906, S.E. Pepall J.A., C.W. Hourigan J.A., and Grant Huscroft J.A. (Ont. C.A.). PRACTICE ON APPEAL Powers and duties of appellate court Appeal and motion were frivolous and vexatious Accountant's membership in professional body was suspend- ed in 2007 for failure to pay membership dues. Accountant paid for readmission using cred- it card belonging to third party. Professional body received no- tice that charge was reversed as third party claimed it was unau- thorized. Action by accountant against professional body in 2008 for finding that member- ship dues were paid was dis- missed, on basis that profession- al body was correct in suspend- ing accountant when credit card charge was reversed. Action by accountant in 2013 for dam- ages for professional fees paid was dismissed as against profes- sional body. Accountant's ap- peal of order was dismissed for failure to pay security for costs. Professional body dismissed application by accountant in 2015 for reinstatement. Instead of appealing decision to Ap- peal Committee of professional body, accountant issued notice of appeal and brought motion to Divisional Court. Registrar advised accountant that appeal may be dismissed under Rule 2.01 of Rules of Civil Procedure. Hearing was held to determine if appeal and motion should be dismissed. Appeal and motion dismissed. Issue of disputed credit card payment and rever- sal was determined in previous proceedings. Accountant had yet to pay professional body any of numerous outstanding costs orders issued against him. Ap- peal and motion were frivolous and vexatious. Simpson v. Chartered Pro- fessional Accountants of On- tario (2016), 2016 CarswellOnt 17495, 2016 ONCA 806, John Laskin J.A., Robert J. Sharpe J.A., and B.W. Miller J.A. (Ont. C.A.). SUMMARY JUDGMENT Judgment on part of claim Full trial could more clearly determine issues of duty of care Company P went into insol- vency, after accounting fraud took place in 1998. P's lenders and P by its receivers and man- agers brought action against defendant auditors. Lenders claimed in negligence, for al- leged misrepresentation of audi- tors. Lenders' claim for negligent misrepresentation against audi- tors was dismissed, by way of motion for summary judgment. Remaining claims of P, as well as third-party claims by auditors against directors and officers of P, were allowed to proceed to trial. Lenders were allowed to proceed to trial on claim of reck- less misrepresentation. Lenders claimed that partial summary judgment could lead to inconsis- tent results at trial. Lenders also claimed that motion judge erred in admitting some evidence, and on issues of duty of care. Lenders appealed from partial summary judgment. Appeal al- lowed. Reckless misrepresenta- tion claims and claims of P came from same factual matrix. Facts found as to dismissed claim would likely be at issue during trial of remaining claims. Full trial could more clearly deter- mine issues of duty of care. Mo- tion judge's analysis was f lawed, and trial judge would be able to determine all issues. It was not necessary to determine lenders' other grounds of appeal. Canadian Imperial Bank of Commerce v. Deloitte & Touche (2016), 2016 Carswell- Ont 19133, 2016 ONCA 922, Alexandra Hoy A.C.J.O., M.L. Benotto J.A., and Grant Hu- scroft J.A. (Ont. C.A.); reversed (2015), 2015 CarswellOnt 19194, 2015 ONSC 7695, Perell J. (Ont. S.C.J.). SUMMARY JUDGMENT Miscellaneous Document-driven case was determined by way of summary judgment Appeal. Defendant B sought to ex- ploit bonus component of provin- cial program for wind power, by designing companies with struc- ture intended to comply with lo- cal investor requirements. While operating under mistaken under- standing that local investors only had to be majority shareholders, B retained plaintiff consultant and firm through consulting agree- ment to seek to find potential in- vestors. B had previously retained firm for tax accounting services. Consultant agreed to post letter of credit as performance security. Project did not qualify for pro- gram because local investors did not have 50 per cent of real eco- nomic interest in project. Plain- tiffs brought action against B and his companies for amounts owing under consulting agreement and letter of credit agreement. Defen- dant brought action against plain- tiffs for negligence and breach of fiduciary duty with respect to accounting services. Defendants' motion to consolidate actions was dismissed; Plaintiffs' motion for summary judgment in its ac- tion was granted. Defendants appealed. Appeal dismissed. Ac- tion was document-driven, as all communications were by email and all agreements documented by lawyers, so there were no real credibility issues. This was pre- cisely type of case that should be determined by way of summary judgment. There was no basis for interfering with conclusions that letter of credit agreement was in- vestment agreement, that there was no fiduciary duty owed by consultant, and that B was party to both agreements in personal capacity. Consulting agreement was agreement for provision of services and was not loan agree- ment, despite consultant's agree- ment to defer hourly fees and ac- cept success fees. Norton McMullen Consult- ing Inc. v. Boreham (2016), 2016 CarswellOnt 17361, 2016 ONCA 778, Alexandra Hoy A.C.J.O., M.L. Benotto J.A., and Grant Huscroft J.A. (Ont. C.A.); af- firmed (2015), 2015 CarswellOnt 14681, 2015 ONSC 5862, E.M. Morgan J. (Ont. S.C.J.). Claim constituted abuse of process Plaintiff 's employment with S Inc., subsidiary of subsidiary of defendant B Inc., was terminated. Plaintiff brought action claiming B Inc. conspired with defendant university to terminate his em- ployment with S Inc.. Plaintiff al- leging wrongful termination by B Inc., and claimed against univer- sity in tort. Defendants brought motions for summary judgment and to strike claim against uni- versity as abuse of process. Mo- tion judge granted motions and summarily dismissed claims. Plaintiff appealed. Appeal dis- missed. There will be no genuine CASELAW

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