Law Times

Law Times • OcTOber 15, 2012 TAX COURT OF CANADA Social Welfare include pensioners' rental income Appeal by pensioners from deci- sion by minister. Pensioners were in receipt of Guaranteed Income Supplement (GIS) pensions. Pensioners' income for GIS pur- poses was calculated by minister in accordance with base calendar year method. In calendar year 2008, pensioners earned rental income. Pensioners disposed of rental property in 2009. Minister included 2009 rental income to date of disposition of property in pensioners' 2010-2011 income for GIS purposes aſter making certain adjustments for sale of pension- ers' business. Appeal dismissed. By operation of s. 14(2)(c) of Old Age Security Act (Can.), Minister had statutory duty to include pension- ers' rental income in income for GIS purposes. No exception exist- ed to application of base calendar year method in present case. Parrotta v. Canada (Minister of Human Resources and Skills De- velopment) (May 18, 2012, T.C.C., Paris J., File No. 2011-2012(OAS)) 217 A.C.W.S. (3d) 221 (8 pp.). OLD AGE SECURITY Minister had statutory duty to ONTARIO CRIMINAL CASES Appeal Vetting of jury not abuse of process Appeal by accused from his con- viction for first degree murder. Crown's case was based on cir- cumstantial evidence and trial judge made this absolutely clear to jury. Accused and deceased were neighbours. Deceased's wife and accused were involved in intimate relationship. Wife refused to leave deceased. On evening that de- ceased was killed he was alone in his cottage. Accused knew this and he also knew that wife was spend- ing night elsewhere. He had key to deceased's cottage and he knew its layout. He was well-known to fam- ily dog and there were no signs of forced entry. Deceased was killed in his bed. Cause of death was blunt force trauma, which was consistent with blow to head from baseball bat. Week before deceased was killed accused had baseball bat. Baseball bat with deceased's blood was found in area where police officers saw accused two days af- ter murder. Accused claimed that police acted improperly by vetting members of jury pool for criminal records and for outstanding crimi- nal charges. Crown counsel at trial did not request these checks, knew nothing about them and saw no results. Appeal dismissed. Convic- tion was reasonable. Cumulative effect of circumstantial evidence was such that properly instructed jury could reasonably have found that accused unlawfully killed de- ceased, that unlawful killing was murder and that murder was GROUNDS planned and deliberate. Vetting of jury was not abuse of process. Checks had no impact on fairness of trial. For jury selection playing field remained level. R. v. Uhrig (July 3, 2012, Ont. C.A., Rouleau, Watt and Pep- all JJ.A., File No. C48468) 102 W.C.B. (2d) 18 (6 pp.). Appeal by Crown from sentence imposed on accused aſter she was convicted of seven counts of dangerous driving causing bodily harm. Accused and her friend en- countered vehicle occupied by six males and they flirted with them. Both drivers then engaged in high- speed race on residential street that had posted speed limit of 50 kilo- metres per hour. Cars collided and were destroyed. Accused's friend suffered serious injuries. Accused and driver of other vehicle and his passengers were also injured. Ac- cused received suspended sentence and she was placed on probation for two years. She was also subject to two-year driving prohibition. Issue of parity based on sentence imposed on driver of other vehicle was considered. Driver of other vehicle was charged with same offences as accused. He pleaded guilty to one count. His sentence was suspended and he was placed on probation for 18 months. Pro- bation included three months of house arrest. He was also subject to one-year driving prohibition. At time of collision accused was 40 and she had no criminal re- cord. Other driver was in his 20s and he also did not have criminal record. Appeal allowed. Sentence was set aside. It was replaced by nine-month custodial sentence and by five-year driving prohibi- tion. Probation order was set aside as there was no reason for it. Trial judge erred in misapplying parity principle. There were important differences between accused and other driver. She further erred by imposing sentence that did not ad- equately reflect principles of gen- eral deterrence and denunciation. These errors led judge to arrive at sentence that was demonstrably unfit. Trial judge erred in misapplying parity principle SENTENCE APPEAL R. v. Rawn (July 9, 2012, Ont. C.A., Epstein, Weiler and Watt JJ.A., File No. C53457) 102 W.C.B. (2d) 33 (15 pp.). ONTARIO CIVIL CASES Bankruptcy and Insolvency ARRANGEMENTS Application by debtors for initial order under Companies' Credi- tors Arrangement Act (Can.). Debtors were related entities in- volved in replication and distri- bution of CDs and DVDs across North America and Europe. Debtors experienced significant declines in revenue as result of economic downturn. Debtors were hoping to sell substantially all Requested relief beyond that usually considered at initial hearings but appropriate CASELAW of their business as going concern. Application granted. Debtors met all qualifications established for relief under act. Requested relief went beyond what was usually considered at initial hearings but requested ate in circumstances of this case. Debtors had spent considerable period of time reviewing their al- ternatives and had done so in con- sultative manner with their senior secured lenders. Senior secured lenders supported application notwithstanding that they would suffer significant shortfall on their positions. Certain sensitive finan- cial information was sealed. Cinram International Inc. (Re) (June 25, 2012, Ont. S.C.J. (Comm. List), Morawetz J., File No. CV-12-9767-00CL) 217 A.C.W.S. (3d) 11 (32 pp.). relief was appropri- Motion for certification of breach of duty to warn claim in products liability class action alleging that representative plaintiff and other members of proposed class expe- rienced neuropsychiatric adverse events (PAEs) including suicidal and homicidal ideation as conse- quence of ingesting prescription drug prescribed as treatment for tobacco addiction. Allegation was that monographs dated January 2007, December 2007 and May 2008 failed to warn of risks. May 2010 monograph contained black boxed warning which plaintiffs accepted as warning adequate to satisfy duty to warn. Order stay- ing action as against United States defendant which did not manufac- ture drug in Canada as there was no basis in fact for duty to warn claim which did not. Position of shareholder, even a controlling shareholder, Duty to warn where product distributed through learned intermediary Civil Procedure CLASS ACTIONS insufficient to impose manufac- turer's duty. Motion for certifica- tion against Canadian defendant granted. Plaintiff adequately pleaded duty to warn claim in neg- ligence where product is distribut- ed through learned intermediary. Plaintiff's expert not qualified to give opinion about whether drug actually caused PAEs but was as a practicing in a manufacturer qualified to express opinion about whether and when drug mono- graph would be adequate to pro- vide treating doctor with informa- tion needed about possible adverse side effects. Expert also qualified to report and provide evidence of pa- tients who had experienced PAEs during or aſter using drug. Plain- tiff's expert as member of intended audience for the publication and as professional familiar with issue of product monographs quali- fied to express opinion for certi- fication motion about adequacy of monographs to satisfy duty to warn. Contemporaneous or near contemporaneous PAEs experi- enced by those using the drug also provides some basis in fact to claim there was failure to warn by manu- facturer. clinical psychiatrist Parker v. Pfizer Canada Inc. www.lawtimesnews.com (June 21, 2012, Ont. S.C.J., Perell J., File No. 08-CV-368950CP) 217 A.C.W.S. (3d) 22 (31 pp.). Trial dealt with issues of eligibility for spousal support and quantum. What should have been relatively short and simple trial over quan- tum of support that might have lasted three days at most became ten-day marathon which was un- duly lengthened and complicated by other decisions taken along way. Respondent shall pay sum of $12,000 to applicant by way of costs with bi-weekly payments to be made in amount of $175. Rowe v. Piche (June 1, 2012, Ont. C.J., Klein J., File No. FO 148-08) Additional reasons to 212 A.C.W.S. (3d) 194. 217 A.C.W.S. (3d) 115 (5 pp.). Trial that should have lasted three days became 10-day marathon Family Law COSTS Human Rights Legislation REMEDIES managers not liable for damages constituted gap in reasons Application for judicial review of decision of Human Rights Tribu- nal of Ontario declining to impose any personal liability on principals and managers of corporation for their failure to recognize and ad- dress poisoned work environment and for terminating complainant's employment and application for judicial review of decision of Hu- man Rights Tribunal of Ontario dismissing request for reconsid- eration of decision. Applications allowed and matter remitted to tribunal for reconsideration. Tri- bunal's decisions did not disclose any reasonable basis for failure to find principals and managers of corporation jointly and severally li- able for any of the damages award- ed against Failure to articulate why Failure to expressly articulate rea- son why managers should not be found personally liable for dam- ages constituted gap in tribunal's reasons. Any finding that their role was not central in what occurred would corporate employer. their distinct and separate duties as managers to address poisoned work environment and fact it was their decision to terminate com- plainant. Unreasonable for tribu- nal to have limited its remedial relief to award of damages against inoperative corporation without providing reason specifically ad- dressing its findings regarding managers given overriding pur- pose of human rights legislation to provide remedy to complain- ant. Award of damages for injury to dignity, feelings and self-respect included not only managers dis- criminatory acts but also those of agent. Possible that tribunal could reasonably find managers jointly and severally liable for only por- tion of damages awarded against corporate employer. Deference to administrative decision-making process requires that matter of ap- portionment be remitted to tribu- nal for reconsideration. be unreasonable given Ontario (Human Rights Com- mission) v. Farris (June 29, 2012, PAGE 15 Ont. S.C.J. (Div. Ct.), Sachs, Swinton and Wilton-Siegel J., File No. 494/11) 217 A.C.W.S. (3d) 146 (14 pp.). Limitations Appeal by condominium unit owner and tenant from judgment enforcing condominium corpora- tion's declaration and bylaws. Unit owner leased five units to tenant that operated grocery store. Lease expressly allowed tenant to display its wares on sidewalk even though this was in violation of condomin- ium corporation's declaration and by-laws. Tenant displayed mer- chandise on sidewalk in front of its store. In 2005, corporation agreed to allow tenant to display merchan- dise on sidewalk subject to certain conditions. Tenant breached con- ditions. In 2007, corporation and tenant reached more comprehen- sive agreement that required ap- proval from corporation's board of directors. Tenant breached agree- ment so corporation never sought approval. Other unit owners con- tinued to complain about tenant's use of sidewalk. Corporation suc- cessfully brought application in 2009 against unit owner and ten- ant for compliance with declara- tion and bylaws. Appeal dismissed. Application judge had not erred in finding application was not time- barred. There was evidence before application judge to support find- ing that two-year limitation period had not expired because of repeat- ed and varied nature of tenant's misconduct. Even if only those breaches that occurred within two- year limitation period had been ac- tionable, those incidents alone had been more than sufficient to entitle corporation to relief requested. Toronto Standard Condominium Corp. No. 1633 v. Baghai Devel- opment Ltd. (June 19, 2012, Ont. C.A., Rosenberg, Simmons and Armstrong JJ.A., File No. C52283) 217 A.C.W.S. (3d) 209 (31 pp.). Two-year limitation period had not expired because of repeated misconduct REAL PROPERTY Torts Motion by defendant to strike out statement of claim without leave to amend on grounds that claim did not disclose reasonable cause of action. Plaintiff alleged that his civil rights had been compromised by actions and words of counsellor which caused his partner to end their relationship and put him out of her house where he had resided for a number of years. Motion al- lowed. Claim in pith and substance was for interference with family relationship which historically had been referred to as alienation of af- fections. Tort of alienation of affec- tion does not exist in Canada. Plain and obvious that claim as pleaded disclosed no reasonable claim. Edwards v. Morneau Shepell Ltd. (June 22, 2012, Ont. S.C.J., Bielby J., File No. CV110000357800SR) 217 A.C.W.S. (3d) 242 (8 pp.). LT DOMESTIC RELATIONS Tort of alienation of affection does not exist in Canada INTERFERENCE WITH

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