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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 Practice and Procedure

Judgments and Orders

Final or interlocutory

Trial judge declared mistrial

Conduct of two jurors gave trial judge concern about appearance of trial’s fairness, but did not find there was reasonable apprehension of bias. Trial judge declared mistrial and discharged jury and ordered that he would remain seized of matter and it would be placed on list of jury trials commencing in September 2016. Defendant appealed. Plaintiffs brought motion to quash appeal. Motion granted. Order under appeal was interlocutory. Court expressly retained jurisdiction.
Williams v. Grand River Hospital (2016), 2016 Carswell­Ont 16447, 2016 ONCA 793, G.R. Strathy C.J.O., H.S. LaForme J.A., and K. van Rensburg J.A. (Ont. C.A.).


Civil Practice and Procedure

Disposition without trial

Stay or dismissal of action

Plaintiff had no cause of action against Public Guardian and Trustee

Plaintiff’s action was dismissed under R. 2.1 of Rules of Civil Procedure. Motion judge determined that Divisional Court was not suable entity and that claim against province for allegedly wrong decision of that court was frivolous and vexatious. He also held that there was no merit in plaintiff’s action against Public Guardian and Trustee for its conduct in settling prior actions on plaintiff’s behalf as settlements were approved by Divisional Court. In addition, he found that plaintiff had no cause of action against Public Guardian and Trustee for solicitor’s negligence because it did not act in capacity of plaintiff’s solicitor. Similarly, he concluded that Public Guardian and Trustee’s counsel owed its duties to Public Guardian and Trustee and not to plaintiff. Plaintiff appealed. Appeal dismissed. No error was seen in motion judge’s conclusion that plaintiff’s claim was devoid of merit or in his reliance on history of prior proceedings to address R. 2.1 issue. Prior proceedings formed subject matter of plaintiff’s action and were incorporated by reference into his statement of claim.
Kavuru v. Ontario (Public Guardian and Trustee) (2016), 2016 CarswellOnt 16562, 2016 ONCA 758, Janet Simmons J.A., H.S. LaForme J.A., and G. Pardu J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 18765, 2015 ONSC 7697, F.L. Myers J. (Ont. S.C.J.).


Debtors and Creditors

Receivers

Actions involving receiver

Action against court appointed receiver was stayed

Order was made staying action as against court appointed receiver and refusing leave to sue receiver. Plaintiff appealed. Appeal dismissed. Submission that motion judge erred in failing to find that receiver had already consented to action being commenced against it was rejected. No basis was seen to interfere with motion judge’s refusal to grant leave to sue receiver. This was discretionary decision. Motion judge found that there was no evidence tendered that plaintiff suffered damages and, having assessed record before her, she declined to draw such inference. No error was seen in her conclusion. It was reasonably based on evidence or lack of evidence placed before her on motion.
2027707 Ontario Ltd. v. Richard Burnside & Associates Ltd. (2016), 2016 CarswellOnt 17141, 2016 ONCA 819, Paul Rouleau J.A., K. van Rensburg J.A., and B.W. Miller J.A. (Ont. C.A.).


Conflict of Laws

Torts

Choice of law

The court held that Ontario did not have jurisdiction simpliciter

Motion judge stayed plaintiffs’ action against defendant on basis that it had no real and substantial connection to Ontario. Plaintiffs appealed. Appeal dismissed. None of presumptive factors set out in certain case law was satisfied on facts of case. Motion judge found that defendant was Alberta corporation, resident or domiciled in Alberta, and that accident giving rise to action occurred when plaintiff GC was staying at hotel while he worked temporarily in Alberta. These findings were open to motion judge on record before him, and they were fatal to claim that Ontario had jurisdiction simpliciter. There was no basis to pierce corporate veil, or to create new presumptive factor, simply because there was evidence that one of directors of corporation appeared to have resided in Ontario for period of time. Necessity argument was made because limitation period for bringing action in Alberta had expired, and plaintiffs would be unable to bring their action if they were not permitted to do so in Ontario. Forum of necessity doctrine was exception to real and substantial connection test, and operated only in extraordinary and exceptional circumstances. This was not appropriate case for exercise of court’s discretion. Plaintiffs made tactical decision not to bring their action in Alberta, and it would not be appropriate to relieve them of consequences of that decision. Effect was not given to plaintiffs’ argument that they were prejudiced by failure of defendant to provide them with information necessary for their defence of motion.
Cook v. 1293037 Alberta Ltd. (2016), 2016 CarswellOnt 17394, 2016 ONCA 836, R.A. Blair J.A., Gloria Epstein J.A., and Grant Huscroft J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 19523, 2015 ONSC 7989, Mulligan J. (Ont. S.C.J.).


Insurance

Automobile insurance

All disputes concerning entitlement to accident benefits are governed by scheme

Dispute resolution process under Insurance Act. Insured W was injured during incident when garage door fell on him after moving vehicle out of garage. Insurer A Co. denied insured’s application for accident benefits on ground that incident was not “accident” as defined by s. 3(1) of Statutory Accident Benefits Schedule (SABS). Insured applied for mediation as contemplated by dispute resolution process scheme under s. 279 of Insurance Act. Insurer brought application for determination of whether insured was involved in “accident” as defined by s. 3.1 of SABS on basis that it was preliminary issue that had to be determined before scheme applied. Application judged dismissed application. Judge held that scheme governed all disputes concerning entitlement to accident benefits, including whether claimant was involved in accident and qualified as insured person under SABS. Judge found that this was not appropriate case for application. Insurer appealed. Appeal dismissed. Judge was correct in holding that it governed all disputes concerning entitlement to benefits, including whether claimant was involved in accident. Scheme established comprehensive alternative process to courts. While court proceedings might provide more expeditious process where it was determined claimant did not qualify as insured person, court proceeding would be duplicative where claimant did qualify as insured person. Having regard to purposes of Act and scheme, “insured person” as it appeared in scheme can reasonably be read as encompassing all persons claiming entitlement to benefits under SABS whether or not it was ultimately determined that they were entitled to benefits.
Ayr Farmers Mutual Insurance Co. v. Wright (2016), 2016 CarswellOnt 16494, 2016 ONCA 789, Simmons J.A., E.E. Gillese J.A., and C.W. Hourigan J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 15632, 2015 ONSC 6219, P.R. Sweeny J. (Ont. S.C.J.).


Conflict of Laws

Contracts

There was no error in analysis of juridical advantage

Plaintiff signed employment contract in Ontario, but worked for over one year in New York. Plaintiff was dismissed for cause and brought wrongful dismissal action in Ontario. Defendant brought motion to stay plaintiff’s action on basis that, relative to New York State, Ontario was forum non conveniens. Motion was dismissed. Defendant appealed. Appeal dismissed. There was no error in master’s analysis of juridical advantage. Master’s analysis included finding that Ontario law would likely apply and that New York State was “at will” jurisdiction that does not recognize, and would not be accustomed to applying, principles of wrongful dismissal and right to reasonable notice that are familiar to judges in Ontario. This was legitimate factor to take into account, and there was nothing to contrary in Supreme Court of Canada decision cited by defendant. Master merely recognized existence of juridical advantage for plaintiff to have case decided by judge who is accustomed to applying governing legal concepts that are simply not part of New York law. Ontario Court of Appeal has recognized that juridical advantage may be particularly relevant where claims are simply unknown under U.S. law.
Machado v. Catalyst Capital Group Inc. (2016), 2016 CarswellOnt 16911, 2016 ONSC 6719, Molloy J. (Ont. Div. Ct.); affirmed (2015), 2015 CarswellOnt 15650, 2015 ONSC 6313, Master D.E. Short (Ont. S.C.J.).


Civil Practice and Procedure

Final or interlocutory

Order dismissing summary judgment motion was not final order

S was driving his wife’s car with others, including K, as passengers. S stopped at store and K took over driving and got into accident, injuring S. S brought claim under “uninsured automobile coverage” provisions in s. 5 of Policy, “inadequately insured motorist” provisions in Endorsement, and s. 265 of Insurance Act. Insurer brought unsuccessful motion for summary judgment to dismiss S’s action. Motion judge determined that it was not clear that vehicle was taken by K without consent, held that s. 265(2) of Act and policy were ambiguous, interpreted policy and Act as meaning that vehicles owned by insured or spouse, if insured, were uninsured automobiles when taken without consent and that, if K took vehicle without consent, K was inadequately insured motorist under policy. Insurer appealed. Appeal dismissed. Motion judge’s order dismissing summary judgment motion was not final order. Motion judges dismissing summary judgment motions were presumed to be simply explaining there was no genuine issue requiring trial and not making determination binding on parties at trial. As it was unclear whether motion judge in this case intended determination to be binding on parties at trial, ambiguity regarding consent meant motion judge’s conclusions were not be taken as anything more than explanation for finding that there was genuine issue for trial. S’s concession that trial judge was free to conclude that wife’s automobile was not “uninsured automobile” because it was owned by S’s spouse was consistent with view that order was interlocutory and not final. Motion judges dismissing summary judgment motions were urged to invoke R. 20.04(4) and make clear in orders and reasons when they intended their determinations of law to be binding on parties at trial.
Skunk v. Ketash (2016), 2016 CarswellOnt 17669, 2016 ONCA 841, Alexandra Hoy A.C.J.O., P. Lauwers J.A., and M.L. Benotto J.A. (Ont. C.A.).

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An Ontario court has upheld a finding of partial liability against a City of Ottawa bus driver for a fatal crash, even though another driver involved was impaired. Is this a reasonable finding?
Yes, findings of liability should factor in whether a person is a professional driver.
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