Law Times

Page 14 February 13, 2017 • Law Times www.lawtimesnews.com CASELAW Federal Court of Appeal Civil Practice and Procedure PRACTICE ON APPEAL Staying of proceedings pending appeal Board obtained stay of tribunal's order pending appeal Toronto Real Estate Board was not-for-profit corporation whose members acted as real estate agents or brokers, and all of its members were also members of Canadian Real Estate Associa- tion. Board offered services to its members, including access to MLS database which contained extensive information about listed properties, but members were restricted to what portions of information they could place on their own websites that were made available to members of public. Commissioner of Com- petition complained that certain of board's practices violated s. 79 of Competition Act. Competi- tion tribunal found that MLS rules that prohibited board's members from posting infor- mation to their own websites about sold, withdrawn, expired, suspended or terminated list- ings and about details of pending sold listings constituted abuse of dominant position under s. 79 of Act. Board appealed. Board brought motion for stay of tri- bunal's order pending disposi- tion of appeal. Motion granted. Board met threshold of raising at least one serious issue with re- spect to possibility that tribunal's order failed to give adequate con- sideration to property owners' privacy rights. There was non- frivolous argument that tribunal did not fully consider all relevant potential impacts of its order on third party privacy interests. Board would suffer irreparable harm if requested stay was not granted because there was real possibility that it would lose control over data order required it to permit its members to post on their websites. Once informa- tion was available on internet it could be copied, and there was no way to ensure that all copies would be retrieved by board if they were successful on appeal, which would render appeal nu- gatory. Balance of convenience favoured stay given potential for interference with third party pri- vacy interests and fact that stay would effectively continue status quo. Appeal should be expedited to minimize detriment to public interest in having violation of Act remedied as soon as possible. Toronto Real Estate Board v. Canada (Commissioner of Competition) (2016), 2016 Car- swellNat 6636, 2016 Carswell- Nat 6637, 2016 FCA 204, 2016 CAF 204, Mary J.L. Gleason J.A. (F.C.A.). Constitutional Law PROCEDURE IN CONSTITUTIONAL CHALLENGES Miscellaneous Amended statement of claim was struck in its entirety Plaintiffs, economic think-tank and its members, brought action against Crown defendants with respect to Parliament's handling of economic and monetary is- sues, challenging constitutional- ity of Bank of Canada Act and alleging conspiracy and misfea- sance in public office. Crown's motion to strike statement of claim was granted. On plaintiffs' appeal, they were granted leave to amend. Plaintiffs' amended statement of claim abandoned claims under ss. 7 and 15 of Ca- nadian Charter of Rights and Freedoms and instead claims breach of s.3 of Charter. Crown's motion to strike plaintiffs' amended statement of claim in its entirety was granted, with- out leave to further amend, with motion judge ruling that it did not disclose reasonable cause of action as plaintiffs were asking for advisory opinion via decla- rations. Plaintiffs appealed. Ap- peal dismissed. Plaintiffs reiter- ated their arguments, focusing on issue of standing and right to seek declarations of constitu- tionality. Right to remedy was conditional on existence of jus- ticiable issue. Even on least def- erential standard, no error could be detected in motion judge's ruling. Plaintiff 's arguments had been fully considered and noth- ing could usefully be added to further explain why their claims were bound to fail. Considering discretionary element in mo- tion judge's decision that leave to amend should not be granted second time, no error could be detected in that conclusion. Committee for Monetary and Economic Reform v. R. (2016), 2016 CarswellNat 6635, 2016 FCA 312, Noël C.J., Near J.A., and Donald J. Rennie J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 3751, 2016 Car- swellNat 381, 2016 FC 147, 2016 CF 147, James Russell J. (F.C.). Ontario Civil Cases Civil Practice and Procedure ACTIONS INVOLVING PARTIES UNDER DISABILITY Mental incompetents Proposed settlement was approved by court Court approval of settlement. Insured was elderly man who suffered significant head injury when struck by vehicle while walking across roadway. Insur- ers paid more than $1.3 million for statutory accident benefits (SABs). Insurers offered to settle insured's SAB claim by payment of $180,000 for future attendant care, $180,000 for future medi- cal and rehabilitation benefits, $10,000 for costs, and $3,000 for assessable disbursements. In- sured's solicitors would receive total of $53,680 from settlement amount. Insured, through his litigation guardian, applied for order approving proposed full and final settlement of his SAB claim. Application granted. In- sured's solicitors had obtained settlement that was in best in- terests of insured and that would adequately look after his needs. Resolution of SAB claim on full and final basis would bring end to claim and negate need to participate in dispute resolution process regarding any future de- nial of benefits requested. Pro- posed settlement represented fair and appropriate resolution of insured's claims for SABs hav- ing regard to complete factual matrix of case. Proposed legal fees were fair and reasonable. Kwok (Litigation guardian of) v. State Farm Mutual Au- tomobile Insurance Co. (2016), 2016 CarswellOnt 19083, 2016 ONSC 7339, Firestone J. (Ont. S.C.J.). CLASS AND REPRESENTATIVE PROCEEDINGS Representative or class proceedings under class proceedings legislation Class proceeding was preferable procedure Plaintiff commenced class ac- tion alleging defendants con- trolled supply of gem grade dia- monds in order to increase price, which in turn resulted in sales in retail market at inf lated prices. Proceedings were commenced in Ontario, British Columbia, Quebec and Saskatchewan. Plaintiffs reached resolution with defendants. Parties brought motion for order on consent cer- tifying class for settlement pur- poses and for approval of notices of hearing for court approval of settlement. Motion granted. Cause of action was clearly and plainly disclosed in pleadings, arising from alleged breach of Competition Act and tort of conspiracy. Proposed class was defined objectively and its mem- bership was readily discernible. Claim raised common legal and factual issues about existence, extent and effect of alleged con- spiracy. Class proceeding was preferable procedure. Proposed notices and plan of dissemina- tion were acceptable. Brant v. De Beers Canada Inc. (2016), 2016 CarswellOnt 18869, 2016 ONSC 7515, H.A. Rady J. (Ont. S.C.J.). DISPOSITION WITHOUT TRIAL Stay or dismissal of action Lawsuit had no reasonable chance of success Plaintiff 's complaint arose from alleged mistreatment of his dis- abled friend at defendant's cafe. Plaintiff claimed he was barred from attending defendant's premises, which resulted in loss of friends and humiliation. Plaintiff sued defendant seeking public apology, investigation of defective or unsafe construction and damages. Registrar deliv- ered notice to plaintiff that court was considering dismissing ac- tion, and plaintiff delivered sub- missions explaining why action was not frivolous or vexatious. Action dismissed. Plaintiff could not sue for poor physical state of defendant's premises. Plaintiff 's real complaint was that defendant failed to explain basis for his banishment. While defendant might not have un- CASELAW Caselaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. These cases may be found online in WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Get noticed by the lawyers, judges, corporate counsel, finance professionals and other blue chip cilents and prospects who find the contacts they need for Canadian legal expertise at canadianlawlist.com with an Enhanced listing. ENCHANCE YOUR LISTING TODAY! Untitled-3 1 2017-02-08 11:02 AM

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