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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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Breach of informer privilege gave rise to private right of action

Plaintiff MS passed story from neighbour W that another neighbour’s son, P had stolen guns from W’s house and had taken them to school indirectly to police via friend R. R yielded to officer’s insistence that he needed MS’s name. Officer contacted MS, who eventually agreed to go to police station to provide statement. As part of Crown disclosure on prosecution of P, video recording of MS’s statement was provided. P’s father E began harassing MS and plaintiff family, including incident in which he drove truck at MS. Plaintiffs moved away from neighbourhood. Plaintiffs brought action against police services board and certain police officers. Action allowed. On its face, privilege gave rise to duty to informer to protect identity from disclosure and from reprisals. While informer privilege had overarching public purpose, breach of it, resulting in harm, gave rise to private right of action. There was sufficient proximity between parties to recognize private law duty to plaintiffs, taking into account any relevant policy considerations. There was no spectre of indeterminate liability, given uniqueness of this case in jurisprudence. Effect that police might be required to be more careful in what they promised potential informers was no reason to not recognize private law duty to informer. Evidence, including testimony of MS and R, as well as MS’s conduct after disclosure of identity and surrounding circumstances, established on balance of probabilities that MS only provided statement because she was given promise of anonymity. Brief and casual discussion of anonymity at end of recording of statement suggested that this was culmination of earlier discussion. Promise of anonymity given before MS made statement was clearly done to persuade her to tell what she knew. Officer did not qualify promise of anonymity in exchange for provision of information in any way. MS was entitled to informer privilege such that police should have taken steps to protect her identity from disclosure in P’s prosecution. MS’s consultation with R about conveying information to police did not constitute waiver of privilege.
Nissen v. Durham Regional Police Services Board (Feb. 26, 2015, Ont. S.C.J., Gray J., File No. 2602/02) 251 A.C.W.S. (3d) 514

Bankruptcy and Insolvency


Damages award for battery survived bankruptcy

Defendant punched plaintiff in jaw during recreational hockey game. Plaintiff broke jaw in three places. Defendant was found liable in damages for battery on basis that punch exceeded scope of plaintiff’s consent to application of force. Defendant went bankrupt before satisfying damages award. Plaintiff brought motion for declaration under s. 178(1)(a.1)(i) of Bankruptcy and Insolvency Act (Can.) that defendant was not released from obligation to pay damages. Motion judge held that damages award did not survive defendant’s bankruptcy. Plaintiff appealed. Appeal allowed. Fact that punch was intentional did not bring damage award within s. 178(1)(a.1)(i) of Act. Defendant must also have intended for punch to cause bodily harm. Inference that defendant wanted to cause significant bodily harm was inescapable. Defendant pulled off plaintiff’s helmet during recreational hockey game. Force of punch broke plaintiff’s jaw in three places. Punch was delivered in retaliation for high stick by plaintiff that was not deliberate. Fact that there was only one punch did not preclude finding that defendant intended to and did cause bodily harm to plaintiff. Motion judge erred in concluding that there was no intent to inflict bodily harm. Damages, interest and costs awarded survived defendant’s bankruptcy pursuant to s. 178(1)(a.1)(i) of Act.
Leighton v. Best (Mar. 18, 2015, Ont. C.A., P. Lauwers J.A., C.W. Hourigan J.A., and G. Pardu J.A., File No. CA C59426) 251 A.C.W.S. (3d) 385.



Financial agent not permitted to extend deadline for filing nomination campaign return

Application by financial agent for nominated candidate in next federal election to extend deadline for filing contestant’s nomination campaign return. Under Canada Elections Act, financial agent’s failure to provide nomination campaign return was offence that was punishable by fine and imprisonment. Financial agent stated that her failure to file return was due to inadvertence or honest mistake of fact in that she believed that it would not be required and that only after the filing deadline did she learn that nomination campaign return had to be filed. Motion dismissed. To disregard requirement that application to extend deadline be filed with chief electoral officer, and two-week limitation on making application to court to seek extension of deadline imposed by Act, would be inconsistent with presumption that Parliament avoided superfluous or meaningless words. Both pre-conditions were not intended to be ignored.
D’Agostino v. Elections Canada (Mar. 6, 2015, Ont. S.C.J., M. Faieta J., File No. CV-14-518251) 251 A.C.W.S. (3d) 83.

Civil Procedure


Motion judge erred in setting aside default judgment

Respondents, injured in car accident, applied for statutory accident benefits from own insurer, Intact Insurance. Intact paid most benefits, but claimed that two health service providers, Osler Rehabilitation and Assessment Direct, submitted invoices for excessive amounts and number and frequency of visits could not be justified. Intact settled with respondents. Respondents agreed to release Intact and Intact agreed to hold harmless and indemnify respondents from “any claims” brought by two service providers for outstanding accounts. Osler and Assessment sent demand letters to respondents, but Intact refused to act because neither Osler nor Assessment had commenced action. Respondents nevertheless commenced actions alleging Intact breached hold harmless agreements. Intact delivered notice of intent to defend in each action, but did not deliver statements of defence. Respondents moved promptly to obtain default judgment and noting of default. Intact moved to set aside defaults. Motion judge accepted that Intact moved promptly, had at least arguable defence and that setting aside defaults would not adversely affect integrity of administration of justice but refused to set aside defaults on ground Intact did not have reasonable explanation for default and respondents would be more prejudiced by granting Intact indulgence than Intact would be prejudiced by refusal to set aside defaults. Intact’s appeal allowed. Court has discretion to set aside default “on such terms as are just”. Motion judge considered relevant factors, but erred in refusing to set aside defaults because Intact had reasonable explanation and respondents would not have been prejudiced. Proper interpretation of hold harmless agreements was fundamental to Intact’s submission it had reasonable explanation but motion judge stopped short of interpreting the agreements. On plain wording, agreements did not come into effect until either Osler or Assessment sued respondents. Letters were “demands” for payment, not “claims”. Although Intact ought to have delivered statement of defence, it had reasonable explanation or excuse for not doing so. Setting aside defaults would cause no prejudice to respondents. Intact could not prevent either service provider from suing respondents and was entitled to resist paying full amounts on ground accounts were allegedly unjustified. Intact would be prejudiced if defaults not set aside because it could become liable for outstanding accounts it disputed and may not have obligation to pay. Shortness of period between delivery of statement of claim and noting of default, 45 days, was consideration on question of prejudice.
Intact Insurance Co. v. Kisel (Mar. 26, 2015, Ont. C.A., Laskin J.A., Simmons J.A., and Watt J.A., File No. CA C59338, C59339) Decision at 243 A.C.W.S. (3d) 556 was reversed.  251 A.C.W.S. (3d) 51.

Civil Procedure


Order under s. 25 of Class Proceedings Act, 1992 (Ont.) was required

Plaintiffs were passengers on train that derailed. Action was certified as class action and had 45 class members. Defendant confessed judgment for four of five common issues. Parties participated in mediation, but it was not successful. Defendant made offers to settle. Class counsel refused to communicate offers to settle to class members on basis that it was premature to do so. Parties were not able to agree on how to proceed. Plaintiffs brought motion for order granting judgment on common issues; order appointing adjudicator; order setting terms of order under which adjudication would be conducted; and awarding plaintiffs costs of certification motion and of action. Motion granted. Common issues that defendant confessed to were not dispositive of action and action was about to enter individual issues stage. Order under s. 25 of Class Proceedings Act, 1992 (Ont.), was required. Section 25 of Act required court to define issues to be resolved in further hearing that would constitute individual issues stage of class action; determine who would decide issues; give necessary directions relating to procedures for individual issues stage; and set reasonable time limit for individual claims. Before resort could be made to s. 25 of Act, common issues stage must formally be brought to end and parties agreed judgment should issue for four common issues. With grant of judgment and entry into individual issues stage, there should be assessment of costs of class action up to completion of common issues stage. Class counsel was correct not to disseminate offers to settle until common issues stage had formally concluded. Before offers could be disseminated, common issues stage of class action had to be formally completed by judgment ordered; individual issues litigation plan needed to be negotiated and settled; offers to settle needed to be amended to undifferentiated lump sums; and notice to class members under s. 18 of Act had to be prepared.
Lundy v. VIA Rail Canada Inc. (Mar. 23, 2015, Ont. S.C.J., Perell J., File No. CV-12-447653-00CP) 250 A.C.W.S. (3d) 563

Civil Procedure


Judge must adopt overall contextual approach on motion to set aside dismissal for delay

Fuller sued CPI, supplier of patent management systems, for negligence and breach of contract, alleging CPI failed to monitor dates when patent maintenance fees became payable. Fuller alleged CPI negligently relied on incorrect representations of R, Toronto-based patent lawyer against whom Fuller also brought claim. Fuller granted R extensions to file statement of defence, but did not require CPI to file defence, instead focusing attention on claim against R. R died and CPI filed its statement of defence five days later. Fuller failed to set action down within required time-limit. Registrar’s status notice not received by solicitors for Fuller because registrar sent notice to wrong address. Subsequent order dismissing action also sent to wrong address. Upon becoming aware of dismissal, counsel for Fuller took position that registrar had no jurisdiction to dismiss because status notice not served in accordance with rules. However, failure to properly serve status notice is mere irregularity. Counsel for Fuller continued settlement discussions with R’s insurer, ultimately bringing application to set aside dismissal about three months after becoming aware of dismissal order. Motion judge dismissed motion. Fuller’s appeal allowed and action reinstated. Judge must adopt overall contextual approach when considering relevant factors. Two-part test requiring plaintiff to provide acceptable explanation for delay and show that defendant would suffer no non-compensable prejudice if action proceeded may be adopted. Defendant’s conduct in litigation also relevant. Weight of authority favours deciding matters on merits, particularly where delay results from error by counsel. Motion judge placed little weight on fact that status notice not properly served and that Fuller moved to set aside order reasonably quickly. Delay due in large part to counsel’s mistaken view that registrar lacked jurisdiction. Motion judge also failed to consider that Fuller lost opportunity to prevent action being dismissed by delay because status notice went to wrong address. In considering prejudice, motion judge erred in failing to consider CPI’s passivity and failed to link question of prejudice to whether fair trial still possible. CPI did not plead non-compensable prejudice and nothing occurred between issuance of status notice and motion to set aside dismissal order that increased prejudice to CPI. Fair trial was still possible.
H.B. Fuller Co. v. Rogers (Mar. 16, 2015, Ont. C.A., K.M. Weiler J.A., Gloria Epstein J.A., and David Brown J.A., File No. CA C59444) Decision at 244 A.C.W.S. (3d) 556 was reversed.  250 A.C.W.S. (3d) 591.

Civil Procedure


Request for access to plaintiff’s electronic documents was speculative fishing

Plaintiff brought action for damages from trip and fall. Plaintiff claimed that injuries reduced enjoyment of life and incapacitated her from employment. Defendant brought discovery motion seeking orders for plaintiff to provide various documents, including information on electronic devices from social media and on-line gambling accounts; border records; husband’s border records; banking records; and to attend at examination for discovery to answer questions relating to production of information. Application granted in part. Plaintiff had no home computer since 2012. Facebook was only social media provider she used. Plaintiff denied online gambling or gambling anywhere but particular casino and there was no evidence to contrary. Plaintiff was not required to produce content of private section of Facebook account. There was no reason to expect private page to contain documents that would tend to give more than content of public page to enable defendant to procure admissions to dispense with formal proof or destroy plaintiff’s case, know case it was to meet, eliminate or narrow issues or avoid surprise at trial. Defendant was not entitled to plaintiff’s electronic documents stored on iPhone and iPad. Defendant’s request for access to plaintiff’s electronic documents was speculative fishing. No electronic document was identified that had bearing on work capacity or enjoyment of life issues. There was no evidence of failure to disclose. Particulars of Internet sites visited by plaintiff did not correlate with and was not measure of how much time plaintiff could work on computer at desk or length of functional focus or assessment of reasoning capacity. Plaintiff was not required to produce computer devices, electronic documents, Internet site records or metadata to defendant for forensic analysis. There were significant privacy interests at stake in plaintiff’s electronic documents and search for metadata allowed access to everything in computer memory. Plaintiff was to authorize release of casino records. Plaintiff was regular patron at casino and distraction activity might indicate workplace capacity in form of focus, concentration, reason and ability to stay on task. Proportionality was not in issue and privacy interest was minimal. Plaintiff was to provide border records. Plaintiff implicitly accepted relevance of border crossing activity but husband’s border crossing records were not relevant. Plaintiff was to produce copy vehicle loan application and purchase agreement. Bank records were not relevant to issues of plaintiff’s work capacity or enjoyment of life. Plaintiff was to attend examination for discovery.
Merpaw v. Hyde (Feb. 20, 2015, Ont. S.C.J., Rick Leroy J., File No. CV-08-1473) 250 A.C.W.S. (3d) 403.
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