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Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.

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Arbitration

PROCEDURE

Failure to have parties personally sign rules of arbitration did not render agreement null and void

Application by plaintiff for judicial review, pursuant to s. 17(8) of Arbitration Act, 1991 (Ont.), decision of arbitrator determining that Arbitration Agreement was valid. Arbitrator determined that failure to have parties personally sign rules of arbitration did not render Agreement null and void. Application dismissed. Arbitrator’s decision was correct. Articles 19 and 25 of Agreement when read in context of Agreement as whole, and Act, did not require parties to personally sign Arbitration Rules. To require parties personally to sign agreement to reflect each step in implementation of Agreement would produce cumbersome result at odds with authorization of legal representative to act on behalf of each of parties to arbitration proceedings and timely resolution of dispute as articulated in Act and Agreement.

Malkin v. Bulman
(Nov. 21, 2011, Ont. S.C.J., Thorburn J., File No. CV-11-428117) 210 A.C.W.S. (3d) 13 (6 pp.).

Conflict Of Laws

JURISDICTION

Plaintiff had no evidence establishing publication in Ontario

Defendant acted on recommendation of EC to declare plaintiff personae non grata within Olympic Movement and to recommend members of Olympic family not grant plaintiff accreditation or having dealings with plaintiff. Defendant posted decision on website. Plaintiff brought action claiming defamation, breach of duty of good faith, and abuse of process. Defendants brought motion to stay action on ground court had no jurisdiction. Motion was allowed. There was no evidence in record of motion that alleged torts were committed in Ontario. There was no evidence that allegedly defamatory material posted on website was ever viewed by anyone other than plaintiff. Plaintiff conceded plaintiff had no evidence establishing publication in Ontario. There was no evidence to suggest alleged misconduct with respect to abuse of process took place in Ontario. Impugned conduct took place in Athens, Greece. Plaintiff failed to establish real and substantial connection between defendants and Ontario or between plaintiff’s claim and Ontario. Consideration of fairness pointed in favour of refusing jurisdiction. It was international case. Swiss court would not recognize and enforce Ontario judgment in circumstances. Court would decline jurisdiction on basis that there was clearly more convenient forum for determination of dispute between parties. Most convenient forum was Switzerland. There was no justification for exercise of residual discretion to assume jurisdiction under doctrine of forum of necessity.

Elfarnawani v. International Olympic Committee (Nov. 15, 2011, Ont. S.C.J., Campbell J., File No. CV-10-00411056) 209 A.C.W.S. (3d) 539 (19 pp.).

Administrative Law

JUDICIAL REVIEW

Single judge could dismiss application for delay if case was clear

Motion by respondents to dismiss application for judicial review on grounds of delay. Following death of a chiropractic patient, an inquest was held and jury reached verdict and made recommendations in 2004. Applicant association and college applied for judicial review but had not yet perfected applications. Applicants argued single judge lacked jurisdiction to dismiss application for delay and delay was justified by difficulty obtaining transcripts of inquest. Motion allowed. Case law established single judge could dismiss an application for delay if case was clear. Delay in this case was extremely significant and inordinate. While the applicants had some difficulty in obtaining transcripts, they had received all transcripts of proceedings before jury by 2007 and respondent’s counsel was very co-operative in helping them obtain evidence. By 2008, applicants were fully aware they would not be able to obtain transcripts of submissions made in absence of jury as there was no requirement for recording in such circumstances. From that point on, there was no reasonable explanation for the continued delay. Allowing the application to proceed after delay of this magnitude was prejudicial to family of deceased, parties to proceedings, treating chiropractor and public interest.

Canadian Chiropractic Assn. v. McLellan (Nov. 9, 2011, Ont. S.C.J. (Div. Ct.), Harvison Young J., File No. 606/04) 209 A.C.W.S. (3d) 551 (11 pp.).

Family Law

DOMESTIC CONTRACTS

Exchange of correspondence sufficient to indicate intention to be bound

Parties were not married. Applicant sought payment out of proceeds of sale of home parties lived in. Applicant purchased home with own funds. Title was put in joint names. Cohabitation in house was brief. Respondent claimed one-half share based on unjust enrichment. Costs were ordered against respondent for litigation misconduct. Respondent’s counsel proposed settlement. Applicant’s counsel counter-offered and respondent’s counsel conveyed draft agreement and statutory declaration in terms proposed by applicant. Respondent argued counsel did not have authority to accept offer. Applicant brought motion to dismiss all claims for failure to pay costs. Applicant sought summary judgment. Judgment was granted in terms of agreement that applicant pay respondent $6,000 in full satisfaction of any interest in home. Motion date plea of poverty lacked credibility by lateness and lack of support by evidence of real inability to work or reasonable effort to prioritize costs payment. Analysis of deprivation experienced showed little connection to purchase of home. Respondent showed no unjust enrichment to applicant against which to assert corresponding deprivation. Summary judgment was proper approach to claim for unjust enrichment and that ground for claim against home proceeds was dismissed. Summary judgment was granted on claim of gift. Presumption of resulting trust was not set aside and operated to hold that respondent held title in trust for applicant. There was binding settlement resulting arising from correspondence between counsel. Contract was formed. Exchange of correspondence sufficed to indicate intention to be bound. Payout provisions were about implementation and were not essential terms. Subject to payment according to terms of agreement applicant was entitled to proceeds of sale free and clear of any interest of respondent.

Oliver v. Racette (Oct. 5, 2011, Ont. S.C.J., Eberhard J., File No. FC 10-92) 208 A.C.W.S. (3d) 698 (12 pp.).

Civil Procedure

COST

Absent protocol, costs to be awarded on partial indemnity basis

Applications of GTAA for aircraft seizures and detention orders for amounts owed by airline were allowed. Motions by lessors seeking declarations that none of airport authorities were entitled to seize or detain aircraft were dismissed. Under protocol negotiated by parties prior to hearing Airport Authorities and NAV Canada were entitled to be indemnified for payment of reasonable legal costs incurred with successful seizure applications subject to assessment. Protocol used phrase “reasonable legal costs, as assessed” which did not unequivocally express lessors would be liable for costs on substantial or full indemnity scale. Absent protocol costs were to be awarded on partial indemnity basis. Costs were fixed on partial indemnity basis in amount of $277,925 inclusive of disbursements and HST.

Skyservice Airlines Inc. (Re) (Oct. 27, 2011, Ont. S.C.J. (Comm. List), Morawetz J., File No. CV-10-8647-00CL) 208 A.C.W.S. (3d) 663 (7 pp.).

Aboriginal Peoples

REAL PROPERTY

Court did not have jurisdiction to interfere with interests in land

Application by husband for order for exclusive possession of matrimonial home. Parties were status Indians. During marriage, parties built home on land situated on reserve. Both parties had modest incomes, and neither party could afford to purchase interest of other. Application dismissed. Court did not have jurisdiction to interfere with interests in land on which matrimonial home was located. It appeared that it was band that ultimately decided who could be in possession of property. Band had not supported husband in his attempts to regain possession of home. Court did not have assurance that band would honour order granting possession to either of parties.

Syrette v. Syrette
(Oct. 14, 2011, Ont. S.C.J., Koke J., File No. 168/05) 208 A.C.W.S. (3d) 361 (10 pp.)

Animals

LIABILITY OF OWNER

No evidence risk created by number of dogs at property

Infant plaintiff was attacked by dogs owned by defendant grandmother. Defendant grandmother was dog breeder and had nine dogs. Township advised defendant grandmother that keeping nine dogs on property contravened by-law. Dogs were removed from premises and number of dogs were destroyed. Infant plaintiff brought action for compensation for damages suffered. Plaintiffs had judgment against defendant grandmother for amounts agreed upon less 25% for contributory negligence of infant plaintiff. Claim against township was dismissed. Dog owner was strictly liable for actions of dogs. There was finding of liability against dog owner for attack. There was no reliance by infant plaintiff, mother or grandmother on township to ensure infant plaintiff was safe in presence of dogs. Township would not have believed plaintiff was relying on township for protection from potential harm arising from presence of dogs. Township had by-law as to number of dogs permitted on property but had no ability to remove dogs or to impose other conditions on presence of dogs. There was no evidence risk was created by number of dogs at property. Fact there were multiple dogs at property did not lead to conclusion attack was foreseeable. Relationship between infant plaintiff and township did not give rise to duty of care. Infant plaintiff disobeyed rules regarding dogs and was deemed 25% contributorliy negligent. Mother was not negligent in allowing children to spend weekend with grandmother. Counterclaim against mother was dismissed. Dog owner’s counterclaim was dismissed. Township and plaintiffs were not negligent or played role in seizure of dogs and dog owner led no evidence to prove value of loss of dogs.

Kent (Litigation Guardian of) v. Laverdiere
(Sep. 16, 2011, Ont. S.C.J., Wilson J., File No. 03-CV-259012CM2) 208 A.C.W.S. (3d) 228 (34 pp.).
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