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Page 14 January 15, 2018 • Law Times www.lawtimesnews.com CASELAW learning disability and was di- agnosed with attention deficit hyperactivity disorder (ADHD). Taxpayer claimed disability tax credit for her 19-year-old son. Minister made determination under Income Tax Act that son was not eligible for tax credit. Taxpayer appealed. Appeal dis- missed. Son did not have severe and prolonged mental or physi- cal impairments with effects markedly restricting his abil- ity to perform mental functions necessary for everyday life. Son graduated from high school on time, had part-time job, played guitar and video games, was enrolled in music and digital media college program and was taking driving lessons. Son had no vision, speaking, hearing, walking, eliminating, feeding and dressing impairment. Son and taxpayer developed strate- gies to alleviate his difficulty re- membering things or processing information. Effects of ADHD were not severe enough to meet meaning of "markedly restrict- ed" required to qualify for dis- ability tax credit. Vrantsidis v. The Queen (2017), 2017 CarswellNat 5434, 2017 CarswellNat 6317, 2017 TCC 204, 2017 CCI 204, Réal Favreau J. (T.C.C. [Informal Pro- cedure]). Ontario Civil Cases Business Associations POWERS, RIGHTS AND LIABILITIES Contracts by corporations Company co-founder obtaining order to enforce rights under governance agreement Parties were involved in com- mercial dispute concerning op- erations of company co-founded by LL. Parties signed governance agreement which gave LL certain rights concerning replacement of members of board of directors of company. LL's application to enforce those rights was grant- ed. Application judge found that other shareholding entities were in breach of governance agree- ment, that there was no conf lict with shareholders' agreement, that governance agreement was stand-alone document inde- pendent of shareholders' agree- ment, and that arbitration clause did not apply. Application judge determined, in alternative, that LL's oppression remedies would apply, and that had he sent mat- ter to arbitration he would have issued interim injunction. Other shareholding entities appealed, contending that application judge erred in interpreting con- tract, should have stayed ap- plication in accordance with arbitration clause in sharehold- ers' agreement, and erred in his alternative findings regarding oppression remedy and interim injunction. Appeal dismissed. Application judge did not err in his interpretation of gover- nance agreement. Application judge made clear, thorough and extensive findings of fact which he correctly applied to law. Ap- plication judge did not err with respect to alternate remedies. Application judge concluded that injunction was appropriate because damages would be im- possible to calculate and proof of damages would be nearly im- possible. As to oppression rem- edy, LL had reasonable expecta- tion that commitments made by other shareholding entities would be honoured and failure to do so would prejudice her. Lord v. Clearspring Spec- trum Holdings L.P. (2017), 2017 CarswellOnt 20420, 2017 ONCA 1016, Doherty J.A., M.L. Benotto J.A., and B.W. Miller J.A. (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 5287, 2017 ONSC 2246, F.L. Myers J. (Ont. S.C.J. [Commercial List]). Civil Practice and Procedure DISPOSITION WITHOUT TRIAL Stay or dismissal of action Motion to dismiss denied as claims not frivolous, vexatious or abuse of process Plaintiff client was represented by defendant law firm K Co. in his claim for damages arising from motor vehicle accident (MVA). Defendant law firm D LLP rep- resented other party in MVA ac- tion. Client settled MVA action for much less than his lawyer had assured him he would get. Client brought action against both law firms on basis that law firms mis- appropriated funds to provide client with smaller settlement. Motion judge granted law firms' motion and dismissed action under R. 2.1.01 of Rules of Civil Procedure as being frivolous, vexatious or abuse of process. Judge found that statement of claim provided no particulars of breaches of fiduciary duty, neg- ligence, fraud, misappropriation and dishonesty. Client appealed. Appeal allowed. Pleading alleged that law firms conspired to de- fraud client, which was distaste- ful but not entirely implausible. Rule 2.1 of Rules was reserved for clearest of cases. There was noth- ing on face of statement of claim that showed client to be vexa- tious litigant. There was no sug- gestion that client would abuse process of court. Law firms' mo- tion was premature. Statement of claim did not assert claim that was frivolous, vexatious or abuse of court's process. Khan v. Krylov & Company LLP (2017), 2017 CarswellOnt 16235, 2017 ONCA 625, S.E. Pepall J.A., P. Lauwers J.A., and Grant Huscroft J.A. (Ont. C.A.). Construction Law CONTRACTS Breach of terms of contract Pre-arbitration process not applying to claims connected to claims already submitted to arbitration Arbitration arose out of proj- ect for construction of slurry pipeline from nickel mine in mountains of Madagascar to coast. Applicant challenged in- ternational commercial arbitral award, arguing that portions of award were made without juris- diction, were made in breach of procedural fairness and violated public policy. Application judge upheld award in its entirety. Ap- plicant appealed. Appeal dis- missed. It was open to tribunal to find that pre-arbitration dis- pute resolution process did not apply to claims of one party that were closely connected to claims already submitted to arbitration by other party. Tribunal dealt with prolongation costs claim. Tribunal relied on contractual term that permitted respondent to withhold retention monies until applicant cured defects in its work. Applicant was not pre- vented from presenting its case on issue, nor could it have been surprised by tribunal relying on contractual provision that it had addressed in its own submis- sion. Certain argument of appli- cant was essentially complaint about arbitral fact-finding, un- der guise of procedural fairness argument. Costs were within discretion of tribunal, and ap- plicant had not demonstrated that it was prevented from pre- senting its case with respect to costs or that decision was result of any error in principle. While court may set aside arbitral award if it is in conf lict with public policy of state, tribunal's award did not come close to meeting test in issue. Consolidated Contractors Group S.A.L. (Offshore) v. Am- batovy Minerals S.A. (2017), 2017 CarswellOnt 18866, 2017 ONCA 939, George R. Strathy C.J.O., K. van Rensburg J.A., and G.T. Trotter J.A. (Ont. C.A.); af- firmed (2016), 2016 CarswellOnt 18812, 2016 ONSC 7171, Penny J. (Ont. S.C.J.). Evidence OPINION Experts Physician from United States not qualified as expert given lack of experience and impartiality Patient was transported to hospital after being found un- conscious and nonresponsive as result of drug overdose. She was resuscitated and placed on ventilator. Several days later, having observed no spontane- ous breathing in previous 36 hours, two critical care physi- cians declared her dead accord- ing to criteria for neurological determination of death (NDD) set out in Canadian Medical Association Journal (CMAJ). Patient's family brought ap- plication to have death certifi- cate revoked, obtained interim order preventing patient from being removed from ventilator and retained physician from United States with history of opposition to declarations of "brain death" to provide opin- ion evidence. It was found that physician's evidence would be logically relevant since it might assist court in understanding functioning of body, particu- larly brain. It was also found that complexity of medical is- sues would require assistance of properly qualified expert. Phy- sician was not, however, found to be such an expert. While it would be necessary to deter- mine whether CMAJ set out proper criteria for NDD, phy- sician had no training or expe- rience with respect to CMAJ guidelines or their application. Physician had observed patient on two occasions but been un- able to conduct any actual ex- amination or assessment since he was not licensed to practice in Ontario or anywhere else in Canada. Physician had signifi- cant training and experience treating premature babies but appeared to have little experi- ence in critical care of adults. There was no evidence of scien- tific support for physician's con- clusions with respect to body movements or recommended treatment. Finally, there was ba- sis for concern physician lacked independence and impartiality required to provide assistance to court. Prejudicial impact of physician's opposition to very concept of "brain death" would greatly outweigh any probative value of his evidence. Physician should not be qualified as ex- pert even if he met legal criteria. McKitty v. Hayani (2017), 2017 CarswellOnt 16282, 2017 ONSC 6321, Shaw J. (Ont. S.C.J.). Insurance ACTIONS ON POLICIES Practice and procedure Plaintiffs excluded from each other's examinations for discovery given risk of tailoring evidence Exclusion of co-parties. Plain- tiffs' house and contents were completely destroyed by fire. Plaintiff brought action con- cerning alleged failure of insur- er to pay full amount of contents claim. Motion judge made order confirming plaintiffs' right to attend each other's examination for discovery. Insurer appealed. Appeal allowed. Motion judge erred in law when she found she was bound by decision of Court of Appeal in Liu Estate. Liu Estate was distinguishable from this case which dealt with ability to exclude co-party from examination for discovery of other co-party. It was clear that decisions dealing with discov- eries and other hearings were no applicable to matter at hand because they did not reference rule 52.06 and did not pertain to trial judge excluding party from trial. Motion judge erred when she concluded that there was no evidence asserting that there was possibility of plaintiffs par- roting each other's evidence or tailoring their evidence, which was speculative. All factors fa- voured exclusion of plaintiffs from each other's examinations as there was risk that evidence of co-parties would be tailore. Lazar v. TD General Insur- ance Co. (2017), 2017 Carswel- lOnt 4317, 2017 ONSC 1242, Sachs J., Stewart J., and Spies J. (Ont. Div. Ct.). Punitive damages not appropriate even though no payment made for three years Plaintiff 's inn was destroyed by fire. Insurance claim was made to its insurer. Insurer suspected arson, which ultimately could not be established. No payment was made under policy until almost three years after fire. Plaintiff successfully brought action for damages and was $478,509 for replacement costs, $248,397 for lost profits and $217,373.20 for punitive damag- es. Issue arose as to costs. Plain- tiff awarded costs in amount of $210,000 and disbursements in amount of $115,000. Plaintiff became entitled to $600,000 more than they would have been had it not proceeded to trial. Punitive costs were not ap- propriate. Disbursements were appropriate except for one con- cession. Witness fees were not reduced because accountant provided valuable assistance in calculation of damages. J.I.L.M. Enterprises & In- vestments Limited v. INTACT Insurance (2017), 2017 Car- swellOnt 18114, 2017 ONSC 6886, W.D. Newton J. (Ont. S.C.J.); additional reasons (2017), 2017 CarswellOnt 1088, 2017 ONSC 357, W.D. Newton J. (Ont. S.C.J.). Protected defendant nonetheless vicariously liable for employee's negligence Vicarious liability. Plaintiff boarded bus to work. Bus driver engaged bus in forward mo- tion and then braked abruptly before plaintiff had taken seat. Driver's operation of bus caused plaintiff to fall in aisle of bus, striking part of passenger seat with leg as she fell. Plaintiff brought action against M Inc. as owner and operator of bus. Plaintiff brought motion to find M Inc. vicariously liable for negligence of its driver and M Inc. brought cross-motion for order that M Inc. was not li- able in its capacity of protected defendant under s. 265.5(5) of Insurance Act. Plaintiff 's mo- tion granted; M Inc.'s motion granted. M Inc. was protected defendant as owner of bus but as driver's employer, M Inc. was nonetheless vicariously li- able for driver's negligence in operation of bus. Subsection 267.5(10.1) does not limit expo- sure of person having vicarious liability to liability of protected defendant, but to amount of damages for which protected defendant is liable, if found li- able. Legislature must be taken to have intended that vicarious- ly liable person's damages must be subject to reductions found

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