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Construction Law

Construction and builders’ liens

Practice on enforcement of lien

Motion by third party to validate fourth party claim nunc pro tunc granted

Defendant in action brought under Construction Lien Act added third party without leave. Claim was not limited to contribution and indemnity. Third party added fourth parties without seeking leave. Fourth party claim was limited to contribution and indemnity. Plaintiff’s statement of claim and claim for lien were dismissed. Order said third party claim survived but said nothing about fourth party claim. Motion by third party to validate fourth party claim nunc pro tunc was granted. Fourth parties appealed on basis that limitation period for third party to bring claim had expired before leave was sought. Appeal dismissed. Motion judge correctly found that intention of order dismissing statement of claim and claim for lien, made on consent of third party, was to continue action on “ordinary track”. After disposing of lien claim entirely, order stated that third party claim, seeking damages for breach of contract and negligence in addition to contribution and indemnity, would “survive”. Since only claims for contribution and indemnity are permitted in construction lien third party proceedings under s. 56 of Act, third party claim that asserts other claims can only proceed on ordinary track. Accordingly, motion judge adopted only reasonable interpretation that could be given to order. Decision to allow third party to continue fourth party claim was correct. However, since third party proceedings continued on ordinary track, there was no need for nunc pro tunc order for leave.
Bentivoglio v. Groupe Brigil Construction (2017), 2017 CarswellOnt 7511, 2017 ONCA 413, H.S. LaForme J.A., K. van Rensburg J.A., and Grant Huscroft J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 3318, 2016 ONSC 1237, W.D. Newton J. (Ont. S.C.J.).

Civil Practice and Procedure

Class and representative proceedings

Representative or class proceedings under class proceedings legislation

Class plaintiffs permitted to plead unlawful means conspiracy claim

Plaintiffs brought competition law class action on behalf of direct and indirect purchasers in two distribution channels in marketplace for rechargeable lithium ion batteries. Motion judge granted plaintiffs’ motion to certify class action. Plaintiffs satisfied cause of action criterion only for statutory cause of action under ss. 36 and 45 of Competition Act. Judge did not certify claim for umbrella purchasers because it was plain and obvious that umbrella purchasers did not have reasonable cause of action. Judge did not certify claims for unlawful means conspiracy and unjust enrichment because they failed to satisfy cause of action criterion and had been precluded by statutory cause of action. Plaintiffs, with leave, appealed denial of certification of unlawful means conspiracy claim and umbrella purchaser claims. Appeal allowed in part. Judge erred in denying certification of unlawful means conspiracy claim. Court of Appeal had permitted amendment to plead unlawful means conspiracy in similar case and on principle of stare decisis, this court was bound to follow that decision. Judge did not err in denying certification of umbrella purchaser claims. Four reasons advanced by defendants did not provide proper basis to conclude that umbrella purchasers did not have reasonable cause of action. Judge was right to conclude that allowing claims by umbrella purchasers would expose defendants to indeterminate liability. Claim of umbrella purchasers did not satisfy criterion under s. 5(1)(a) of Class Proceedings Act. Plaintiffs failed to plead requisite elements of claim that could be advanced for umbrella purchasers. No common issues were proposed respecting claims of umbrella purchasers, nor was there proposed representative plaintiff for umbrella purchasers.
Shah v. LG Chem, Ltd. (2017), 2017 CarswellOnt 6145, 2017 ONSC 2586, Kiteley J., Nordheimer J., and LeMay J. (Ont. Div. Ct.); reversed (2015), 2015 CarswellOnt 15099, 2015 ONSC 6148, Perell J. (Ont. S.C.J.).

Civil Practice and Procedure

Class and representative proceedings

Representative or class proceedings under class proceedings legislation

Impossible to certify class action against American defendants

Plaintiffs B and P were two former junior hockey players, who played in defendant league based in both Ontario and two U.S. states. B and P claimed that league and its defendant member clubs had violated employment law, by not paying them at least minimum wage. B and P proposed class action, on behalf of three classes of players based in Ontario, Michigan and Pennsylvania. League and clubs claimed that B and P were not proper representative plaintiffs. League and clubs claimed that common issues could not be found between Canadian and American-based players, due to operation of American state law. B and P moved for certification of action as class action. Motion granted in part. Class action certified on issues of breach of employment standards and unjust enrichment. Action not certified against American clubs. B and P certified as representative plaintiffs. Criteria for class action was met for all pleaded causes of action. Issues of American law would make it impossible for common issues to be litigated, for all proposed plaintiffs. Preferable procedure would be for American-based plaintiffs to litigate matter in corresponding state courts. Identifiable class was certified as Ontario-based plaintiffs, between 2012 season and date of certification motion.
Berg v. Canadian Hockey League (2017), 2017 CarswellOnt 6227, 2017 ONSC 2608, Perell J. (Ont. S.C.J.).

Administrative Law

Prerequisites to judicial review

Jurisdiction of court to review

Examining board not entitled to grant fifth opportunity to prospective pharmacist to write licensing exam

Applicant A was prospective pharmacist. Respondent examining board would not grant A 5th opportunity to write licensing examination. A applied for judicial review of board’s decision. Application dismissed. Decision of board was not reviewable. Board did not violate any of its own processes, but only set out limit for writing examination at 4 attempts. Board was not empowered to grant A 5th attempt.
Aljawhiri v. Canada (Pharmacy Examining Board) (2017), 2017 CarswellOnt 6270, 2017 ONSC 2609, Kiteley J., Taylor J., and Matheson J. (Ont. Div. Ct.).

Estates and Trusts


Dependants’ relief legislation

Proceeds of life insurance policy for father payable to mother to extent of father’s support obligations

Deceased father SC was required by court order to maintain mother AC as irrevocable beneficiary on life insurance policy and to pay child and spousal support. Father’s new partner ED applied under Succession Law Reform Act (SLRA) for dependants’ relief. Trial judge determined that proceeds of policy were included in father’s estate and available for dependants’ claims under SLRA. Appeal judge dismissed mother’s appeal. Mother appealed. Appeal allowed. Mother was entitled to payment of policy’s proceeds to extent of father’s support obligations, past and future, existing at time of his death, and calculated in accordance with terms and duration of support orders in effect at date of death. Policy was transaction effected by father before his death within meaning of s. 72(1) of SLRA, so proceeds were deemed to form part of his net estate. Appeal judge erred in holding that mother did not fall within s. 72(7) of SLRA unless she was secured creditor with security interest in policy. Where, at time of his death, spousal or child support payor owned insurance policy that was subject to court order requiring designation of support recipient as irrevocable beneficiary, s. 72(7) of SLRA protected from claw back in s. 72(1) of SLRA that part of policy’s proceeds needed to satisfy payor’s obligations to support recipients, calculated in accordance with support orders in place at time of death. Full amount of policy’s proceeds was not automatically excluded from claw back in s. 72(1) of SLRA.
Dagg v. Cameron Estate (2017), 2017 CarswellOnt 6557, 2017 ONCA 366, David Doherty J.A., David Brown J.A., and B.W. Miller J.A. (Ont. C.A.); reversed (2016), 2016 CarswellOnt 4876, 2016 ONSC 1892, Aston J., Swinton J., and Pattillo J. (Ont. Div. Ct.).

Civil Practice and Procedure


Costs of appeals

Costs reserved to application judge after matter sent back for redetermination

Husband applied to terminate spousal support and life insurance obligations on basis that he was planning to retire and sought to reduce obligations leading up to retirement date. Application judge found that husband’s retirement and consequent reduction in income was material change in circumstances, that parties’ assets and income would be about equal after husband’s retirement and terminated husband’s spousal support and insurance obligations effective on anticipated retirement date. Wife appealed and order was made directing amount of spousal support and insurance benefits to be sent back for redetermination. Issue arose as to costs. Wife was awarded costs in amount of $13,000 for appeal. Wife largely prevailed on main issue, namely whether spousal support and insurance benefits should be terminated or reduced. That appropriate reduction to support and insurance obligations remained open for determination by another application judge constituted unusual circumstance supporting departure from general principle that successful party on appeal be granted costs. As result, costs of application were reserved to application judge.
Schulstad v. Schulstad (2017), 2017 CarswellOnt 4797, 2017 ONCA 246, K.M. Weiler J.A., Paul Rouleau J.A., and L.B. Roberts J.A. (Ont. C.A.); additional reasons (2017), 2017 CarswellOnt 1170, 2017 ONCA 95, K.M. Weiler J.A., Paul Rouleau J.A., and L.B. Roberts J.A. (Ont. C.A.).

Civil Practice and Procedure


Offers to settle or payment into court

Bankrupt’s consultants ordered to pay costs after rejecting settlement offer

Bankrupt re-sold telephone equipment. In May 2012, bankrupt began paying consultant, C, and C’s company $10,000 per month. In November 2013, bankrupt began receiving loans from new lender it reported as revenue. In March 2015, bankrupt’s old lender brought application for bankrupt’s receivership. In April 2015, receiver and manager were appointed. In July 2015, bankrupt was assigned into bankruptcy. At October 2015 examination under s. 163 of Bankruptcy and Insolvency Act (BIA), C testified he had no contact with and could not name any of bankrupt’s customers or suppliers. Trustee in bankruptcy brought successful motion for order requiring C and C’s company to repay $159,330 transferred during year prior to March 2014 (relevant period) to estate of bankrupt under s. 96 of BIA. Hearing was held to determine costs. C and C’s company were jointly and severally liable to pay trustee its costs fixed in amount of $15,356.99 inclusive of disbursements and taxes. Trustee’s offer to settle proceeding for $100,000 met procedural requirements of Rule 49 of Rules of Civil Procedure. There was no basis to depart from usual approach of ordering costs payable to winner or from enhancement of costs provided under Rule 49. Trustee beat amount of its offer and was entitled to costs to day of offer on partial indemnity basis and thereafter on substantial indemnity basis. Trustee’s lawyer’s rates and hours were well within reasonable range. Small increase as penalty for time spent responding to late filed material and for cross-examination without leave was properly included in bill of costs.
National Telecommunications Inc., Re (2017), 2017 CarswellOnt 5573, 2017 ONSC 2376, F.L. Myers J. (Ont. S.C.J. [Commercial List]); additional reasons (2017), 2017 CarswellOnt 3184, 2017 ONSC 1475, F.L. Myers J. (Ont. S.C.J. [Commercial List]).
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