Law Times

Law Times • JuLy 10, 2017 Page 15 www.lawtimesnews.com CASELAW excluded from ambit of s. 38 scheme which prohibited dis- closure of sensitive information. As part of overarching judicial duties to ensure proper admin- istration of justice and fairness in ex parte, in camera proceed- ings, designated judge could raise and address disclosure without application triggered by specified persons. Designated judge could receive disclosure of un-redacted information be- cause judge was not counsel for government's litigation oppo- nent within scope of meaning of disclosure in s. 18.1(2) of CSIS Act. Section 18.1 of CSIS Act must be interpreted in manner that allowed designated judge to perform his or her duties as independent adjudicator, and designated judge must be pro- vided un-redacted information in order to determine whether privilege existed or if any excep- tions applied. Parliament gener- ally explicitly stated in law when it intended that judges were to be prohibited from examining in- formation to determine whether claim of privilege was valid or to verify fact related to CSIS hu- man source. CSIS had elevated duty of candour toward desig- nated judges presiding over ex parte, in camera hearings, and consequences of strictly and lit- erally interpreting s. 18.1 of CSIS human source privilege would significantly impact ability of designated judge to ensure fair- ness and proper administration of justice. Strict and literal inter- pretation of s. 18.1 of CSIS Act was rejected, and based on read- ing of CSIS Act as whole and in practical context in which it was applied, CSIS human source privilege could not be applicable to designated judge. Legislator did not intend to restrict desig- nated judge's ability to properly fulfil duties of ensuring fairness and maintaining proper admin- istration of justice by limiting power to question and address appropriateness of communi- cated information over course of ex parte, in camera proceedings. Unnamed Person, Re (2017), 2017 CarswellNat 1301, 2017 CarswellNat 1302, 2017 FC 136, 2017 CF 136, Simon Noël J. (F.C.). Pensions FEDERAL AND PROVINCIAL PENSION PLANS Federal pension plans Application for disability pension dismissed Disability pension applicant claimed he was no longer able to work as mason after motor ve- hicle accident in 2008. Applicant provided some administrative services to his company until company went bankrupt in 2011 and performed some work in 2012. Applicant's application for disability pension under Canada Pension Plan was dismissed. So- cial Security Tribunal-General Division (SST-GD) dismissed applicant's appeal on basis that he did not establish that he suf- fered from severe disability be- cause he had capacity to work. Social Security Tribunal-Appeal Division (SST-AD) dismissed applicant's application for leave to appeal. Applicant brought ap- plication for judicial review. Ap- plication dismissed. Evidence es- tablished that applicant suffered injuries in 2008 motor vehicle accident and injuries impacted his work capacity in physically demanding occupation. SST-GD reasonably concluded that appli- cant possessed transferable work skills, retained capacity to work, had continued to work until 2012 in modified role, and ceased to work because he was not offered more work. SST-GD had no duty to request further medical information from applicant. It was not unreasonable for SST- AD to conclude that there was no reasonable chance of success on appeal and that arguments repeated submissions made be- fore SST-GD. SST-AD did not err in refusing to consider new evidence in support of applica- tion for leave. Bald allegation of ineffective assistance of counsel could not succeed. Recognizing strong presumption in favour of adequate representation and requirement to establish actual prejudice, applicant failed to demonstrate any basis justifying intervention. Glover v. Canada (Attorney General) (2017), 2017 Carswell- Nat 1890, 2017 FC 363, Patrick Gleeson J. (F.C.). Ontario Civil Cases Civil Practice and Procedure CLASS AND REPRESENTATIVE PROCEEDINGS Representative or class proceedings under class proceedings legislation Class plaintiffs permitted to plead unlawful means conspiracy claim Plaintiffs brought competition law class action on behalf of di- rect and indirect purchasers in two distribution channels in marketplace for rechargeable lithium ion batteries. Motion judge granted plaintiffs' motion to certify class action. Plaintiffs satisfied cause of action criterion only for statutory cause of action under ss. 36 and 45 of Competi- tion Act. Judge did not certify claim for umbrella purchasers because it was plain and obvious that umbrella purchasers did not have reasonable cause of action. Judge did not certify claims for unlawful means conspiracy and unjust enrichment because they failed to satisfy cause of action criterion and had been preclud- ed by statutory cause of action. Plaintiffs, with leave, appealed denial of certification of unlaw- ful means conspiracy claim and umbrella purchaser claims. Ap- peal allowed in part. Judge erred in denying certification of un- lawful means conspiracy claim. Court of Appeal had permitted amendment to plead unlaw- ful means conspiracy in similar case and on principle of stare de- cisis, this court was bound to fol- low that decision. Judge did not err in denying certification of umbrella purchaser claims. Four reasons advanced by defendants did not provide proper basis to conclude that umbrella pur- chasers did not have reasonable cause of action. Judge was right to conclude that allowing claims by umbrella purchasers would expose defendants to indetermi- nate liability. Claim of umbrella purchasers did not satisfy crite- rion under s. 5(1)(a) of Class Pro- ceedings Act. Plaintiffs failed to plead requisite elements of claim that could be advanced for um- brella purchasers. No common issues were proposed respecting claims of umbrella purchasers, nor was there proposed repre- sentative plaintiff for umbrella purchasers. Shah v. LG Chem, Ltd. (2017), 2017 CarswellOnt 6145, 2017 ONSC 2586, Kiteley J., Nordheimer J., and LeMay J. (Ont. Div. Ct.); reversed (2015), 2015 CarswellOnt 15099, 2015 ONSC 6148, Perell J. (Ont. S.C.J.). Construction Law CONSTRUCTION AND BUILDERS' LIENS Practice on enforcement of lien Motion by third party to validate fourth party claim nunc pro tunc granted Defendant in action brought un- der Construction Lien Act added third party without leave. Claim was not limited to contribution and indemnity. Third party add- ed fourth parties without seek- ing leave. Fourth party claim was limited to contribution and indemnity. Plaintiff 's statement of claim and claim for lien were dismissed. Order said third par- ty claim survived but said noth- ing about fourth party claim. Motion by third party to validate fourth party claim nunc pro tunc was granted. Fourth parties ap- pealed on basis that limitation period for third party to bring claim had expired before leave was sought. Appeal dismissed. Motion judge correctly found that intention of order dismiss- ing statement of claim and claim for lien, made on consent of third party, was to continue action on "ordinary track". After dispos- ing of lien claim entirely, order stated that third party claim, seeking damages for breach of contract and negligence in ad- dition to contribution and in- demnity, would "survive". Since only claims for contribution and indemnity are permitted in construction lien third party proceedings under s. 56 of Act, third party claim that asserts other claims can only proceed on ordinary track. Accordingly, motion judge adopted only rea- sonable interpretation that could be given to order. Decision to allow third party to continue fourth party claim was correct. However, since third party pro- ceedings continued on ordinary track, there was no need for nunc pro tunc order for leave. Bentivoglio v. Groupe Brigil Construction (2017), 2017 Car- swellOnt 7511, 2017 ONCA 413, H.S. LaForme J.A., K. van Rensburg J.A., and Grant Hu- scroft J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 3318, 2016 ONSC 1237, W.D. Newton J. (Ont. S.C.J.). Labour and Employment Law PUBLIC SERVICE EMPLOYEES Termination of employment Canadian Security Intelligence Service Act granting exclusive authority to Security Intelligence Review Committee to review decisions to revoke security clearances As result of criminal charges laid against plaintiff, employer Canadian Security Intelligence Service (CSIS) first suspended then revoked plaintiff 's top se- cret security clearance. Upon revocation of security clearance, employer terminated plaintiff 's employment. Plaintiff com- menced action seeking damages for wrongful dismissal. Attorney General of Canada brought mo- tion to have claim dismissed on basis that there was complete process set out in Canadian Se- curity Intelligence Service Act by which employee of CSIS could challenge decision to revoke his/ her security clearance. Motion was dismissed. Appeal to Divi- sional Court allowed. Section 42 of Canadian Security Intelli- gence Service Act gave exclusive authority to Security Intelligence Review Committee to review de- cisions to revoke security clear- ances. Regime created by s. 236 of the Public Service Labour Relations Act relied upon by mo- tions judge was irrelevant. Fail- ure to consider s. 42 was error of law. Attempt to re-litigate issues which were subject of grievances was an abuse of process. McSweeney v. Canada (At- torney General) (2017), 2017 CarswellOnt 6957, 2017 ONSC 2886, Kiteley J., Spies J., and Matheson J. (Ont. Div. Ct.); re- versed (2016), 2016 CarswellOnt 6569, 2016 ONSC 1862, G. Dow J. (Ont. S.C.J.). Municipal Law ZONING Zoning bylaws Proper forum for disagreement with municipal decisions was ballot box, not courthouse Properties were owned by R Inc. and were listed as Priority 1 and Priority 2, respectively, on city's inventory of Heritage Resourc- es, pursuant to s. 27 of Ontario Heritage Act. A few days prior to R Inc.'s application for permit to demolish, applicant appealed zoning bylaw to Ontario Mu- nicipal Board ("OMB"). Appeal was dismissed by OMB. Appli- cant purported to file appeal un- der s. 25(1) of Building Code Act ("BCA") regarding Make Safe Order made and demolition per- mit issued by city for properties. Applicant further brought claim against city for neglect of duty contrary to s. 8(11) of BCA. Ap- plication dismissed. Decisions made by city employees and by city council were based on full information, subject to exten- sive public input, supported by expert evidence, and made in ac- cordance with statutory require- ments. Simply put, applicant dis- agreed with discretion exercised by city staff and city council members. Proper forum for ex- pression of such frustration and disagreement was ballot box - not courthouse. As private prop- erty owner R Inc. acted within its legal rights by giving proper notice of intent to demolish and by complying with prescribed timelines under Heritage Act. In fact, other than Heritage Act timelines, nothing would have prevented R Inc. from applying for demolition permit at earlier stage in proceedings, even with- out formal plan for development. Valastro v. London (City) (2017), 2017 CarswellOnt 3449, 2017 ONSC 773, M.A. Garson J. (Ont. S.C.J.). Real Property MORTGAGES Nature and form of mortgage Potential investor not having equitable mortgage over funds placed with debtor Debtor companies (debtors) of- fered investment opportunities related to development of cer- tain property (Property). Claim- ant transferred USD $285,000 to personal account of K, CEO of debtors. Securities commis- sion investigated debtors. Debt- ors were placed in receivership. Claimant brought motion as- serting equitable mortgage on Property, alleging his investment was intended to be in respect of pooled mortgage on Property. In alternative, claimant sought equitable lien on Property. Re- ceiver sought declaration that claimant did not have equitable mortgage against Property. Mo- tion dismissed. Receiver entitled to declaration sought. While claimant was clearly defrauded by K, he did not establish on bal- ance of probabilities that he and K had common intention to se- cure monies advanced by claim- ant against Property. While claimant might have intended to invest in pooled mortgage on Property, there was no evidence of any intention on K's part, on behalf of debtor, to effect such mortgage. Absent any indica- tion that debtor received monies paid by claimant to K, there was no basis to impose equitable lien in claimant's favour. Ontario (Securities Com- mission) v. Kotton (2017), 2017 CarswellOnt 4348, 2017 ONSC 1379, H.J. Wilton-Siegel J. (Ont. S.C.J.).

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