Law Times

Page 14 May 1, 2017 • Law TiMes www.lawtimesnews.com CASELAW passing resolution without suf- ficient notice to chief and to all councillors and without provid- ing all councillors with opportu- nity to make representations was breach of procedural fairness, and resolution was invalid. Reso- lution failed to recognize that school board was separate entity that was accountable to Band and not directly to chief and council, that school board election pro- cedures could not be unilaterally amended by chief and council, and that resolution that estab- lished band must be respected. Peguis First Nation v. Bear (2017), 2017 CarswellNat 356, 2017 FC 179, Catherine M. Kane J. (F.C.). Ontario Civil Cases Aboriginal Law FAMILY LAW Children in need of protection Canada failed to take reasonable steps to prevent loss of aboriginal identity in post-placement Plaintiff brought class action against Canada, with respect to "scoop" of aboriginal children who were removed from their families on reserves in Ontario by child welfare authorities and were placed with or adopted by non-aboriginal parents. Plaintiff brought motion for summary judgment on certified com- mon issue of whether Canada breached fiduciary or common law duties to take reasonable steps to prevent class members' loss of aboriginal identity after they were placed in foster and adoptive parents. Motion grant- ed. While rudimentary child welfare services were extended to some reserves, with minimal federal funding, Canada's agree- ment with Ontario extended whole range of child welfare ser- vices and other provincial wel- fare programs to Indians with significant federal funding. Key component of agreement was Canada's obligation to consult with Indian Bands, which plainly and unambiguously applied to each of 18 extended programs including child welfare services. No Indian Bands were ever con- sulted before child welfare servic- es were extended and no Bands provided their concurrence. Language and context of provi- sion at issue implicitly obligated Canada to actually undertake referred-to consultations and so, as Canada failed to consult with Indian Bands as it had under- taken to do, it breached agree- ment. If Canada had consulted with Bands, they clearly would have provided ideas and advice that could have prevented thou- sands of scooped children from losing their aboriginal identity. Canada failed to take reasonable steps to prevent loss of aboriginal identity in post-placement by, at minimum, failing to provide parents with information on ap- prehended children's aboriginal heritage and entitlement to vari- ous federal benefits. Obligation to consult under agreement created common law duty of care that provided basis in tort for class members' claims. Agreement was analogous to third-party benefi- ciary agreement as Canada un- dertook obligation to consult to benefit Indian Bands who were not parties to agreement. Brown v. Canada (Attorney General) (2017), 2017 Carswel- lOnt 1758, 2017 ONSC 251, Ed- ward P. Belobaba J. (Ont. S.C.J.). RESERVES AND REAL PROPERTY Leases Plaintiff and Band entered into private leasing contract regarding hunting grounds Plaintiff was member of defen- dant Band and he agreed to lease hunting grounds from Band for purposes of operating hunt club business pursuant to series of lease or land use agreements between plaintiff and Band. Plaintiff sought approval from Band to make capital improve- ments to buildings and lands of hunt club, and he sought credit for cost of capital improvements against rent he was required to pay. Plaintiff claimed that credit of $532,500 was agreed upon, and plaintiff did not pay rent for five years on the basis that he was drawing down capital improve- ment credit. There was change in Band council and plaintiff was evicted after 15 years of leas- ing land, right at start of hunting season, and plaintiff lost money, he was humiliated and his repu- tation suffered greatly. When council voted to evict plaintiff, they refused to count vote of one council member because they did not want there to be tie. Plaintiff brought action seeking damages, claiming that eviction constituted breach of agreement he had with Band; Band counter- claimed for unpaid rent due and owing. Action allowed; counter- claim allowed. Parties agreed that plaintiff would lease land from Band for $84,000 per year. Plain- tiff and Band had agreement that plaintiff could proceed with construction and renovations, Band agreed to reimburse plain- tiff for improvements by way of capital improvement credit to his rent, and plaintiff was entitled to capital improvement credit of $532,500. Band allowed and en- couraged work to be completed knowing that plaintiff expected to be reimbursed. Band took no steps to collect rent for five years that plaintiff did not pay. Band knew that plaintiff did not keep receipts for cost of improve- ments, as much of work was done by plaintiff and his men on cash basis and receipts were not available. Procedure followed by Band council at meeting where they voted to evict plaintiff was completely improper. Parties en- tered into private contract and it could not be said that Band owed duty of fairness to plaintiff, but giving effect to intention of par- ties, justice required plaintiff to be given capital improvement credit of $532,500 against rent. Taking into account capital im- provement credit, rent owing, and deposit plaintiff had paid, plaintiff was entitled to judg- ment of $142,500. Sands v. Walpole Island First Nations Band Council (2016), 2016 CarswellOnt 21492, 2016 ONSC 7983, Pamela L. Hebner J. (Ont. S.C.J.). Civil Practice and Procedure COSTS Persons entitled to or liable for costs Matter remitted for purpose of fixing the costs as against non-party personally Numbered company and prin- cipal and shareholder, EA, com- menced two separate actions against LTM Ltd., claiming dam- ages for breach of contract and unjust enrichment arising out of tax consulting services alleg- edly performed by EA for LTM Ltd.. Trial judge therefore dis- missed both actions. Trial judge ultimately refused to order costs against EA. LTM Ltd. appealed. Appeal allowed. Matter remitted to trial judge for purpose of fixing the costs of proceeding in superi- or Court as against non-party EA personally. Where trial judge did commit error in principle was in not conducting broader analysis of whether he had inherent ju- risdiction to order costs against EA because EA committed abuse of process. Case law established that Superior Court did have wider jurisdiction. It was abuse of process for EA to bring action against LTM Ltd. with numbered company as nominal plaintiff. Proceeding was fictitious, as there was no evidence that EA or numbered company ever per- formed tax services for LTM Ltd. There was simply no good reason for EA to bring action in num- bered company's name rather than in his own name, and rea- sons that EA thought he had were illusory. Effect was that LTM Ltd. had to defend two equally fruit- less proceedings and incur costs of each by retaining separate counsel. LTM Ltd.'s resources, public resources and judicial re- sources were wasted. 1318847 Ontario Ltd. v. La- val Tool & Mould Ltd. (2017), 2017 CarswellOnt 2942, 2017 ONCA 184, George R. Strathy C.J.O., H.S. LaForme J.A., and K. van Rensburg J.A. (Ont. C.A.). Conflict of Laws TORTS Choice of law Ontario law applied to negligent misrepresentation claims Plaintiffs brought action against defendants including manufac- turers of airplane engine with respect to fatal airplane crash in New York State during f light from Ontario; certain defendants brought third party and cross- claims against engine manufac- turers. Engine manufacturers' motion for summary judgment, on basis that claims were statute- barred by United States law as engine was 39 years old, was dis- missed. Manufacturers appealed. Appeal dismissed. Motion judge did not err in characterizing crux of claims against manufacturers was not negligence in production of engine but negligent misrepre- sentation through allegedly faulty instructions issued for repair and overhaul of its engines. Misrep- resentation and failure to warn were squarely pleaded by other defendants against manufactur- ers, who argued that tortious ac- tivity occurred in Ontario where such instructions were received and maintenance was performed on engine. Given such character- ization, motion judge made no palpable and overriding error in conclusion that Ontario law ap- plied to negligent misrepresenta- tion claims. Record did not sup- port manufacturers' argument that United States law would bar claims against it in event that New York law applied, given ex- pert evidence about limits of its application. Thorne v. Hudson Estate (2017), 2017 CarswellOnt 3435, 2017 ONCA 208, Alexandra Hoy A.C.J.O., E.E. Gillese J.A., and David Brown J.A. (Ont. C.A.); affirmed (2016), 2016 Carswel- lOnt 14015, 2016 ONSC 5507, E.M. Morgan J. (Ont. S.C.J.). Family Law DIVISION OF FAMILY PROPERTY Determination of ownership of property Claim for proprietary interest in house was rejected by application judge Woman and man shared home owned by man during their six- year common law relationship. Man used $150,000 from pro- ceeds of sale of another home he owned to purchase home in which parties resided. Balance came from first mortgage on property. Man took possession on July 31, 2006 and parties lived together in property from Sep- tember 1, 2008 to November 29, 2014. Over course of cohabita- tion, parties earned similar sala- ries. Before moving in with man, woman was paying more than $400 monthly in rent, and, while parties lived together, woman gave man $400 monthly. Man had mortgage of $1,000 and in 2013, woman gave man $5,000 toward mortgage. During period of cohabitation, home's net value increased in amount of $410,000 and woman had saved approxi- mately $105,000, exclusive of her pension. In addition to increase in home equity, man saved ap- proximately $112,000, exclud- ing his pension. Woman did not sacrifice her career resultant of her relationship and purchased maximum amount of RRSPs each year during relationship. At time that application was heard, woman was paying more than $800 monthly for current rental accommodations. Woman made unsuccessful application for in- terest in increase in equity of home owned by man, which she shared during their six-year com- mon law relationship. Woman advanced claim on basis of unjust enrichment, arguing that she had contributed to $410,000 increase in home's net value over course of relationship on basis of contribu- tions she made to common living expenses and to maintenance and repair of home. Woman ap- pealed. Appeal allowed in part. There was no reason to interfere with application judge's rejection of woman's claim for proprietary interest in house, however, ap- peal was allowed on treatment of $5,000 lump sum payment made by woman to man. Appli- cation judge's conclusions about circumstances of woman's con- tribution to expenses and about nature of relationship were en- titled to deference. It would have been preferable to first establish whether there was any unjust en- richment before considering pos- sibility of joint family venture, however, there was no basis for overturning finding that parties' shared expenses arrangement resulted only in financial enrich- ment on both sides or in rejection of woman's unjust enrichment claims. Application judge erred in characterizing $5,000 lump sum as having been paid as part of common expense agreement, which was characterization not advanced by either party and un- supported by evidence. Reiter v. Hollub (2017), 2017 CarswellOnt 2943, 2017 ONCA 186, K. Feldman J.A., Gloria Ep- stein J.A., and B.W. Miller J.A. (Ont. C.A.); reversed (2015), 2015 CarswellOnt 18908, 2015 ONSC 6397, Pollak J. (Ont. S.C.J.). Health Law MALPRACTICE Negligence Patient's former counsel had misled expert witness Plaintiffs were patient and his wife. Defendant urologist per- formed prostate procedure on patient, with aim of stopping patient's incontinence. After surgery, patient claimed that he experienced complete inconti- nence. Patient claimed that urol- ogist's breach of standard of care was responsible for his condi- tion. Urologist denied this claim, and stated that incontinence was material risk of surgery that was explained to patient. Patient and wife brought action for dam- ages, in medical negligence. Ac- tion dismissed. Expert witnesses agreed that urologist had met standard of care in most areas. Patient's expert's claim that in- tra-operative care did not meet standard was not supported by evidence. Patient's former coun- sel had misled expert witness, as to what had taken place both with urologist and subsequent treating doctors. Patient's witness was un- able to be fully objective, as result. There was no proof that urologist performed surgery in manner other than proper one, which was described in urologist's notes.

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