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Civil Procedure


Examination of second representative would not avoid further undertakings

Plaintiffs were hedge fund and customer of defendant’s prime brokerage unit. In absence of plaintiffs being able to meet margin requirements for accounts, defendant seized them and subsequently liquidated them. Plaintiffs alleged that defendant’s actions resulted in significant loss and they brought this action. Plaintiffs examined representative of defendant. Plaintiffs sought order granting them leave to examine for discovery second representative of defendant. Motion dismissed. Plaintiffs had not met test for leave to examine second representative. Court was not satisfied that plaintiffs had not been able to obtain satisfactory answers through undertakings. Fact that there were numerous undertakings did not establish that first representative failed to properly inform himself of issues. Defendant took long time to answer undertakings but there were many undertakings that involved many individuals. Examination of second representative would not avoid further undertakings. Examination of second representative would not expedite action.
Silvercreek II Ltd. v. Royal Bank of Canada (Oct. 24, 2014, Ont. S.C.J. [Commercial List], L.A. Pattillo J., File No. CV-11-9538-00CL) 245 A.C.W.S. (3d) 799.

Civil Procedure


Consolidation would result in delay where plaintiff in serious financial need

Plaintiff suffered injuries in motor vehicle accident and alleged that individual was responsible for accident. At time of accident plaintiff was insured by defendant. Plaintiff commenced action against individual seeking damages for personal injuries and economic loss. Plaintiff brought this action against defendant seeking same damages as in action against individual but based on uninsured, unidentified and underinsured coverage provisions of policy. Defendant applied to consolidate proceedings. Application dismissed. Actions shared common questions of fact and law and relief claimed arose out of same occurrence. Factors in favour of consolidation order and militating against order were considered. On balance, it was not appropriate for court to exercise its discretion and order consolidation. First action was scheduled for trial next month and consolidation would result in delay in circumstances where plaintiff was in serious financial need and should be permitted to pursue relief.
Da Costa v. TD Home and Auto Insurance Co. (Oct. 17, 2014, Ont. S.C.J., Douglas J., File No. Bracebridge CV-14-0265) 245 A.C.W.S. (3d) 782.

Civil Procedure


Undertaking to disclose certain information to spouse was inherent to relationship

Plaintiff alleged in her statement of claim that parties began romantic relationship in July of 2002 and engaged in protected sexual intercourse. Subsequently, they began to have unprotected sex on basis of defendant’s representations that he did not have any sexually transmitted diseases and that he had recently tested negative for HIV. Parties were married in August 2003. In spring of 2012, relationship broke down. In November 2012, plaintiff tested positive for Herpes Simplex Virus-Type 2 (HSV-2). Plaintiff claimed damages for sexual assault and battery, intentional or negligent transmission of HSV-2, intentional or negligent misrepresentation and breach of fiduciary duty. Defendant brought motion to strike portions of plaintiff’s statement of claim related to allegations of breach of fiduciary duty, as failing to disclose reasonable cause of action. Motion dismissed. Statement of claim, when read as whole, pleaded necessary elements for fiduciary duty. It was open to court to find that that undertaking to disclose certain information to spouse was inherent to spousal relationship. It was not plain and obvious that per se or ad hoc fiduciary relationship alleged to arise between parties from marriage would fail. There were no public policy concerns that would militate against that finding.
Vaseloff v. Leo (Oct. 3, 2014, Ont. S.C.J., Carole J. Brown J., File No. CV-13-493846) 245 A.C.W.S. (3d) 554.

Civil Procedure


Respondents were to submit to examination but they were merely witnesses

Applicant sued number of defendants for allegedly sending or causing to be sent unsolicited advertisements by facsimile transmission, which was tortious in state of Florida. Letters rogatory were issued in Florida court that requested co-operation of court to compel video testimony of respondents who resided in Ontario. Applicant applied for order enforcing letters rogatory. Application was granted. Applicant applied for costs. Application dismissed. Respondents were not parties to underlying Florida action or person against whom any substantive claim was being advanced. Respondents were to submit to examination but they were merely witnesses. Parties should bear own costs.
CIN-Q Automobiles Inc. v. Fleming (Oct. 8, 2014, Ont. S.C.J., Parayeski J., File No. 1445382) Additional reasons to 243 A.C.W.S. (3d) 328.  245 A.C.W.S. (3d) 530.



All alleged errors potentially decisive to outcome of arbitration

Tenant was company that leased stadium from municipal landlord. Dispute resulted in settlement agreement that provided, inter alia, landlord could terminate lease in event of bona fide redevelopment plans for stadium. In event of termination, tenant had option to lease another municipal property. Landlord terminated lease pursuant to agreement. Parties were unable to reach agreement regarding another municipal property. Tenant alleged landlord breached agreement. Parties proceeded to arbitration, and arbitrator found in tenant’s favour. Landlord brought motion for leave to appeal. Motion granted. Three grounds for appeal put forth by landlord raised extricable legal errors in interpretation of settlement agreement. As such, these were questions of law as required by s. 45(1) of Arbitration Act, 1991 (Ont.), and not questions of mixed fact and law. All alleged errors were potentially decisive to outcome of arbitration. There was also arguable merit to position taken by landlord that arbitrator’s decision was at least unreasonable.
Ottawa (City) v. Coliseum Inc. (Sep. 9, 2014, Ont. S.C.J., J. Mackinnon J., File No. 14-60108) 245 A.C.W.S. (3d) 268.



Good reason to doubt correctness of decision to order mistrial

Parties had invested 13 days in trial when judge ruled respondent’s expert witness could not give evidence, so respondent indicated it would need to call many additional witnesses instead, and need more trial time. Additional trial time not available for nine months and judge ruled having trial heard in instalments of that nature could result in miscarriage of justice, so ordered mistrial. Motion by applicants for extension of time to seek leave to appeal and for leave to appeal mistrial decision. Motion granted. Applicants missed seven-day time period to seek leave to appeal by mere days and provided good reason, and there was no prejudice to respondent, so appropriate to extend time. There was good reason to doubt correctness of decision to order mistrial on basis of extended length of trial alone, when no other irregularities were identified. Issue of granting mistrial due to trial length was matter of great importance to all litigants and development of law.
Rosati v. Reggimenti (Sep. 23, 2014, Ont. S.C.J., G.A. Campbell J., File No. D/966/96) 245 A.C.W.S. (3d) 260.



Plaintiffs had avenues available within labour relations regime to challenge agreements

Plaintiffs were unionized masonry contractors in industrial, commercial and institutional sector of Ontario’s construction industry. Defendants were construction trade unions. Plaintiffs entered into independent contractor agreements with bricklayers. Plaintiffs alleged that defendants entered collective agreements and memorandum of agreement that prevented plaintiffs from continuing to enter into independent contractor agreements. Plaintiffs commenced action against defendants claiming that memorandum of agreement and collective agreements were unlawful and void, seeking injunctive relief and damages for conspiracy, intimidation, inducing breach of contract and/or causing loss by unlawful means. Defendants moved for order dismissing or staying action on ground that court had no jurisdiction over subject matter of action. Motion was granted. Motion judge stayed action on ground that essential character of dispute was labour relations over which Labour Relations Board had exclusive jurisdiction. Plaintiffs appealed. Appeal dismissed. Motion judge applied correct test and reached correct result. Essential character of dispute fell within board’s exclusive jurisdiction. Plaintiffs had avenues available within labour relations regime to challenge validity of memorandum of agreement and collective agreements. There was no deprivation of ultimate remedy plaintiffs sought. Motion judge did not err in refusing to grant interlocutory relief.
Limen Group Ltd. v. Blair (Sep. 23, 2014, Ont. C.A., Doherty J.A., S.E. Pepall J.A., and M. Tulloch J.A., File No. CA C59045) Decision at 242 A.C.W.S. (3d) 421 was affirmed.  245 A.C.W.S. (3d) 200.
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