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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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Civil Procedure

Settlement

Motion judge did not err by enforcing settlement

Employee was dismissed and brought action for payment of bonus. Parties settled action at mediation. Two days later, employer learned employee was working for competitor. Employer alleged parties had not reached settlement and brought action against employee for breach of non-competition agreement. Employee brought successful motion for judgment in accordance with settlement. Employer appealed. Appeal dismissed. There was clear evidence to support finding that parties settled employee’s claim for payment of amounts owed to him on dismissal. Motion judge did not err by enforcing settlement in face of employee’s alleged post-termination breach of non-compete clause in employment contract. Motion judge’s determination that settlement did not include any claim by employer for alleged breach was reasonable.
Wilson v. Northwest Value Partners Inc. (Apr. 4, 2016, Ont. C.A., Robert J. Sharpe J.A., R.G. Juriansz J.A., and L.B. Roberts J.A., CA 60943) Decision at 257 A.C.W.S. (3d) 85 was affirmed. 265 A.C.W.S. (3d) 341.


Civil Procedure

Change of solicitor

Law firm was disqualified from representing plaintiff

Plaintiff and corporate defendant were competitors. Personal defendant was officer of corporate defendant. Defendants asserted law firm for plaintiff was in conflict of interest because partner of law firm acted for personal defendant in two mortgage transactions in which personal defendant disclosed confidential information to law firm. Defendants brought motion to remove law firm for plaintiff. Motion granted. Law firm was disqualified from representing plaintiff in proceedings. Personal defendant provided lawyer with confidential financial information that could be used to his prejudice if information were shared with plaintiff. There was no evidence that conflicts check was done when personal defendant retained law firm. There was no evidence that law firm established protective screen, cone of silence or ethical wall to ensure that personal defendant’s confidential information was not shared within firm. Motion was not abuse of process or part of calculated tactic to derail litigation. Immediate interests of defendants were directly adverse at time lawyer accepted retainer. Fact that two retainers were unrelated did not prevent application of bright line rule.
A Big Mobile Sign Co. v. Curbex Ltd. (Mar. 23, 2016, Ont. S.C.J., R.E. Charney J., Barrie CV-15-0329) 265 A.C.W.S. (3d) 500.


Family Law

Costs

In context of family law disputes, court need not find special circumstances to make costs award approaching substantial indemnity

After mother made false allegations that father had abused child, parties entered into custody agreement that was incorporated into consent order. Pursuant to agreement, father had custody of child and mother had supervised access. Agreement stipulated that if mother initiated confrontations or made comments pertaining to allegations of abuse, her access shall be suspended immediately at option of father. Agreement stipulated that father shall not relocate without first giving mother sixty days’ notice, and that father shall make best efforts to keep child in her current school. Father gave notice to mother that he intended to move with child on basis that it was better for child to grow up in community not privy to abuse allegations. Motion judge found that order did not contemplate move in question absent variation, and that there was no material change in circumstances to justify such variation. Motion judge made costs award on substantial indemnity basis and included costs in respect of earlier steps in proceeding. Father appealed motion judge’s decision, including costs disposition. Appeal dismissed. Costs for earlier appearances were properly before motion judge, having been adjourned from those appearances. Award of substantial indemnity costs by motion judge was not improper exercise of discretion. In context of family law disputes, court need not find special circumstances to make costs award approaching substantial indemnity.
Forrester v. Dennis (Mar. 16, 2016, Ont. C.A., Gloria Epstein J.A., S.E. Pepall J. J.A., and C.W. Hourigan J.A., CA C61051) 265 A.C.W.S. (3d) 154.

Conflict of Laws

Choice of law

Given strength of connections between company and Ontario, it could not be said company was engaged in “libel tourism”

Company was incorporated in US but sold cloud-based business automation software from offices around world, including Alberta office. Company had annual revenue of $5,160,400 in Canada and $3,783,474 in Ontario. Blogger wrote 18 blog posts or articles about company from home in Quebec and posted them on websites in San Francisco and Ireland and made them accessible through Twitter feeds. In 2015, blog was viewed over 105,000 times in over 160 jurisdictions, with 10,588 of viewers or readers located in Canada, presumably many of whom were in Ontario. Company brought action against blogger in Ontario alleging defamation. Blogger brought motion for order staying action. Motion dismissed. Given company’s business presence, customers and reputation in Ontario, test for jurisdiction was satisfied. Alleged tort was committed in Ontario. There was real, substantial connection between action and Ontario. There was no other forum in better position to dispose fairly and efficiently of litigation. Blogger failed to discharge burden of demonstrating that court should decline to exercise its jurisdiction and displace forum chosen by plaintiff. Suggestion that Quebec or US state where company did most of its business were more appropriate forums ignored fact that forum depended not on where blog was written but where it was read. Given strength of connections between company and Ontario, it could not be said company was engaged in “libel tourism.”
Sciquest Inc. v. Hansen (Mar. 14, 2016, Ont. S.C.J., Lederman J., CV-15-00535613) 265 A.C.W.S. (3d) 263.


Criminal law

Proceeds of crime

Application judge correctly applied two-step process mandated by the Civil Remedies Act

Appellant was traveler who was stopped at airport security check. Traveler was found to have US$100,000 in tightly-wound bundles concealed inside socks in his luggage. Traveler also had US$4,877 in his pocket and small amount of cocaine in wallet. Traveler claimed that US funds were combination of tips when he worked at casino, gambling winnings, and proceeds from insurance settlement. On application, trial judge found that funds were proceeds from unlawful activity and that traveler was not legitimate owner. Application judge granted Attorney General of Ontario forfeiture of US$104,877 under ss. 3 and 8 of Civil Remedies Act (Ont.). Traveler appealed from order. Appeal dismissed. Application judge correctly applied two-step process mandated by Act. Application judge found, on balance of probabilities, that traveler was acting as cash courier. Traveler had no cogent explanation to disprove this, given evidence against him. Forfeiture was appropriate remedy under circumstances.
Ontario (Attorney General) v. $104,877 in U.S. Currency (In rem) (Jan. 25, 2016, Ont. C.A., Doherty J.A., G. Pardu J.A., and M.L. Benotto J.A., CA C59589) Decision at 245 A.C.W.S. (3d) 93 was affirmed. 264 A.C.W.S. (3d) 946.


Civil Procedure

Class actions

Terms of settlement were revised in class action

Class action on behalf of bank employees against bank was certified as class proceeding and settled for first time in August 2014. First settlement did not stipulate final compensation amount and set out simple claims process. Claims process required class members to submit claims for unpaid overtime by Oct. 15, 2014 and bank was to respond to claims by Nov. 28, 2014. Class members who were unsatisfied with bank’s response could appeal decision to independent arbitrator. In early November, representative plaintiff discovered that bank was taking steps appearing to be in breach of claims process, class counsel brought motion to address those concerns, and bank brought its own motion to extend deadline for responding to claims. Appeal process set out in settlement was suspended until resolution of motions and parties resolved issues in dispute without further judicial intervention. Parties agreed to new payment approach and terms of settlement were revised. Under revised settlement, bank agreed to pay further $20.6 million in addition to $18.7 million paid out to date, resulting in total payout amount of $39.3 million to approximately 1600 class member claimants. Revised settlement based additional payments on thresholds that bank had used during claims process and claims were divided into two categories consisting of claims that had been partially reduced and those that had been completely rejected. Under revised settlement, claimant’s total recovery inclusive of amounts already paid was capped according to certain percentages. Other key provisions in revised settlement provided for extension of deadline for claims consideration to Dec. 31, 2014, that no further information need be submitted, that payments to claimants would be subject to tax and source deductions, and that compensation bands and payments were final. Explanations given by bank for concerns raised by claimant were accepted. Discussion with counsel satisfied court that no class member was losing money that was otherwise hers to receive. Each class member submitted claim that was subjected to one of three levels of scrutiny depending on amount claimed. Bands and payouts within those bands reflect claim review experience within each band and could be justified as fair and reasonable when compared to alternative or protracted litigation and uncertain recoveries. Revised settlement was fair, reasonable, and in best interests of class. Bank’s proposal to pay class counsel $2.3 million in legal fees separate and apart from revised settlement amount was fair and reasonable.
Fulawka v. Bank of Nova Scotia (Mar. 18, 2016, Ont. S.C.J., Edward P. Belobaba J., 07-CV-345166CP) 264 A.C.W.S. (3d) 853.


Communications Law

Telephones

Motion judge correctly held that prepaid wireless phone card expired at end of last day of active period

Bell Mobility’s top-ups allow customers to add credit to prepaid wireless phone card accounts to extend active period in which to access Bell’s wireless network. Bell’s practice was to claim unused funds the day after end of active period. Appellant’s certified class action alleged Bell collected those funds improperly because contract provided Bell had to wait until second day after end of active period and, in alternative, that Ontario gift card regulations forbid imposition of expiry dates on prepaid phone cards. Motion judge granted summary judgment, answering common issues in Bell’s favour, and dismissed class action. He held gift card regulation did not apply and ruled Bell did not breach its contract. He held Bell intended, and subscribers understood, that agreement would expire at end of relevant active period and unused funds would be claimed by Bell after that time unless account topped up before expiry. He noted that information on prepaid cards and PIN receipts used to activate top ups was consistent with language of subscriber agreements, with brand brochures and pamphlets and with information on Bell’s websites. Appellant appealed, arguing motion judge failed to consider prepaid wireless contract as whole and in finding gift card regulation inapplicable. Appeal dismissed. Motion judge correctly held that card expired at end of last day of active period. Bell intended, and subscribers understood, that agreement would expire at end of relevant active period and unused funds would be claimed by Bell after that time unless account was “topped up” before expiry. Motion judge entitled to rely on other documents, in addition to initial agreements, that formed part of contractual relationship between parties. Modern contracts often made partly on paper and partly on internet. Not unusual to find contract terms in several “documents.” Where parties enter into interrelated agreements, court required to look to all those agreements to determine construction. Motion judge’s interpretation of contract, based on Bell’s terms and conditions of service and other documents available at time of contracting, was correct. Gift card regulations prohibit expiry date on future performance of gift card agreement but do not prohibit agreement being time-limited. Customers were buying defined period of wireless service. Purchaser could decide when to activate service in order to begin that period. Bell required to perform agreement once consumer decided to activate. Fact that service purchased was for defined period was not breach of regulation.
Sankar v. Bell Mobility Inc. (Apr. 4, 2016, Ont. C.A., G.R. Strathy C.J.O., H.S. LaForme J.A., and Grant Huscroft J.A., CA C60176) Decision at 249 A.C.W.S. (3d) 564 was affirmed. 264 A.C.W.S. (3d) 562.


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