mt_ignore
Legal Feeds
Canadian Lawyer
jobsinlaw.ca
Supreme Court | Federal Court | Federal Appeal | Ontario Civil | Ontario Criminal | Tax Court

Ontario Civil

Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.

Single or multiple copies of the full text of any case digested in the newspaper or sampled here can be obtained by calling Case Law's photocopy department at:
(905) 841-6472 in Toronto,
(800) 263-3269 in Ontario and Quebec, or
(800) 263-2037 in other provinces.
To request a case online

For more Case Law every week, subscribe to Law Times.

Conflict of Laws

JURISDICTION

Ontario had closest connection to contract action and was appropriate forum

Plaintiff was business incorporated in Ontario with head office in Toronto, and defendant was business incorporated in Wisconsin with head office in Wisconsin. Plaintiff brought action to collect royalty payments it claimed were due and owing under parties’ contract and sought accounting of all of defendant’s net sales, alleging it failed to provide accurate accounting as required by license agreement. Motion by defendant for order dismissing or staying action on basis court lacked jurisdiction simpliciter or was not convenient forum. Motion dismissed. Defendant clearly carried on business in Ontario, where it had actual physical presence, advertised, and sold products directly related to calculation of royalty payments in dispute. Rebuttable presumption of jurisdiction applied and defendant failed to rebut. Subject matter of litigation was directly related to monies made through defendant’s worldwide sales, which included those in Ontario. Ontario had closest connection to action and was appropriate forum. License agreements were signed by parties in Ontario and Wisconsin, plaintiff planned to call Ontario witnesses while defendant did not provided specifics about intended witnesses. There was no ongoing litigation in Wisconsin to which this action could be joined and no evidence in record regarding why Wisconsin law would apply so presumption was court would apply lex fori. While preamble to original agreement stated it was entered pursuant to Wisconsin law, more recent agreement and amendment contained no forum selection clause, and Ontario could apply foreign law anyway. Defendant did not meet burden to displace plaintiff’s choice of forum.
Orthoarm Inc. v. American Orthodontics Corp. (Mar. 30, 2015, Ont. S.C.J., Firestone J., File No. CV-14-511682) 252 A.C.W.S. (3d) 441.

Bankruptcy and Insolvency

PROPERTY

Tax obligations were given no special protection under Bankruptcy and Insolvency Act (Can.)

Applicant sought declarations that transaction between EFG and TFI was bulk sale; that transaction was void for failure to comply with Bulk Sales Act (Ont.) (“BSA”); that respondent was liable to account to trustee for value of property purchased in transaction; and for order requiring respondent to pay trustee consideration paid for transaction. Sale was found to be bulk sale and did not comply with BSA. Sale was declared void in part. Sale proceeds were used to pay secured creditor and TFI was not liable to any creditors for that amount. Parties could not agree on terms of formal order. Disagreement arose from fact that reasons failed to deal with disputed point. Plain and ordinary meaning of “value of stock in bulk” did not include HST exigible on goods sold. Principal meaning of value was worth, and there was no evidence that stock acquired by TFI was worth anything other than what it agreed to pay in arms’ length transaction. TFI had an offset for tax. Tax obligations and HST obligations were given no special protection under Bankruptcy and Insolvency Act (Can.), in bankruptcy situation. CRA might qualify as creditor under BSA, but that did not mean that HST owed to CRA qualified as part of value of stock in bulk that TFI acquired.
Ellen’s Food Group Inc. (Trustee of) v. TFI Foods Ltd. (Apr. 7, 2015, Ont. S.C.J., Penny J., File No. CV-14-10628-00CL) 252 A.C.W.S. (3d) 402.

Corporations

DIRECTORS

Defendant liable for payment of default judgment against corporation

Plaintiff had obtained default judgment against corporate defendants, but had been unable to recover. Plaintiff’s claim against respondent defendant was for repayment of US $1,000,000 debt and interest of $400,000, with liability arising from his alleged agreement to repay or by piercing the corporate veil. By means of defendant’s representations, plaintiff agreed to invest in energy project by way of US $1,000,000 loan, structured as convertible debenture: upon maturity, plaintiff had option of repayment with 30 per cent interest or converting investment to shares. Defendant directed funds to account controlled by corporate defendant, which he admitted was a shell and he personally and totally controlled funds. Issues arose on project and parties agreed to extension of one month with interest rate increased to 40 per cent. Plaintiff sent over 20 emails to defendant confirming terms of revised agreement and repayment obligations but he chose not to respond, other than sending text acknowledging he would make partial repayment of $700,000, though he did not repay anything, ignored repayment demands and now denied all liability. Motion by plaintiff for summary judgment of US $1.4 million. Motion granted in part. Defendant offered no credible evidence to address plaintiff’s allegations or explain his bald denials and some of his denials were contradicted by his own admission he received emails confirming he would cause $1.4 million to be repaid and his text message assuring he would repay $700,000. While loan agreement and debenture were not entered with defendant personally, and he did not execute guarantee, evidence established loan proceeds of US $1 million were transferred to company he controlled and had since disappeared without explanation. However, as defendant was not signatory or party to debenture, evidence fell short of establishing with necessary clarity that he had agreed to be responsible for repayment of interest provided for. Summary judgment for US $1 million granted against defendant but his personal liability for interest was a triable issue.
Irani v. Cheung (Mar. 24, 2015, Ont. S.C.J., Stewart J., File No. CV-13-494071) 252 A.C.W.S. (3d) 472.

Conflict of Laws

JURISDICTION

Ontario had closest connection to contract action and was appropriate forum

Plaintiff was business incorporated in Ontario with head office in Toronto, and defendant was business incorporated in Wisconsin with head office in Wisconsin. Plaintiff brought action to collect royalty payments it claimed were due and owing under parties’ contract and sought accounting of all of defendant’s net sales, alleging it failed to provide accurate accounting as required by license agreement. Motion by defendant for order dismissing or staying action on basis court lacked jurisdiction simpliciter or was not convenient forum. Motion dismissed. Defendant clearly carried on business in Ontario, where it had actual physical presence, advertised, and sold products directly related to calculation of royalty payments in dispute. Rebuttable presumption of jurisdiction applied and defendant failed to rebut. Subject matter of litigation was directly related to monies made through defendant’s worldwide sales, which included those in Ontario. Ontario had closest connection to action and was appropriate forum. License agreements were signed by parties in Ontario and Wisconsin, plaintiff planned to call Ontario witnesses while defendant did not provided specifics about intended witnesses. There was no ongoing litigation in Wisconsin to which this action could be joined and no evidence in record regarding why Wisconsin law would apply so presumption was court would apply lex fori. While preamble to original agreement stated it was entered pursuant to Wisconsin law, more recent agreement and amendment contained no forum selection clause, and Ontario could apply foreign law anyway. Defendant did not meet burden to displace plaintiff’s choice of forum.
Orthoarm Inc. v. American Orthodontics Corp. (Mar. 30, 2015, Ont. S.C.J., Firestone J., File No. CV-14-511682) 252 A.C.W.S. (3d) 441.

Family Law

CUSTODY

Child should be vaccinated in her best interests

Parties had one child, who was now 10 years old. Parties had dispute over whether or not to vaccinate child. Mother chose naturopathic health regimen that required children not to participate in immunization process while father wanted child to be immunized. Consent order provided parties with joint custody and included term that parties agreed to not vaccinate child until she reached 12 years of age and then she could decide for herself whether to be vaccinated. Mother planned to travel with child to Germany. While father agreed trip was in best interests of child, he would only give his consent for child to travel if she was vaccinated for certain diseases, including measles. This was motion to determine whether child should be vaccinated. Motion granted. Pursuant to parens patriae jurisdiction, amicus curiae was appointed to represent child. Amicus was needed not only to make legal submissions, but also to ensure that proper and complete evidence was before court in order to make important decision that had implications beyond this family. Best interests of child had to be considered and fact that parties entered into agreement that was incorporated into court order on consent was only one consideration. Court was not bound by terms of consent order in deciding what was in child’s best interests. Absolute prohibition on vaccinations for child prior to age 12 was not in child’s best interests. Agreement did not reflect any reasoned analysis or consideration of issues that was required in order to decide whether to vaccinate child. Parents arbitrarily set age of 12 as when child could make own decisions. Child was not in position that would allow her to consider and understand all relevant information and appreciate consequences of decision to vaccinate. Child was in conflict of loyalty between parents and she should not be placed in such position. Medical decision-making was incident of custody. Evidence of mother’s expert witnesses was not neutral and objective and it was not helpful. Public policy expressed in legislation favoured vaccinations of children. There was sufficient evidence, on balance of probabilities, that child should be vaccinated in her best interests. Benefits far outweighed minimal risk of side effects. Father was granted decision-making ability with respect to vaccinations and child should receive vaccination prior to travelling to Germany.
G. (C.M.) v. S. (D.W.) (.Apr. 10, 2015, Ont. S.C.J., R.J. Harper J., File No. FS-809-13) 252 A.C.W.S. (3d) 288.

Courts

JURISDICTION

Fresh analysis on appeal revealed that England was more appropriate forum

Respondents, HB, his wife and children, alleged that appellant MB and co-defendants compelled HB’s abduction, incarceration and torture in Iran. Respondents commenced proceedings and obtained default judgment. Superior Court took jurisdiction as forum of necessity. MB’s motion to set aside default judgment granted on consent, with terms permitting MB to challenge forum. Parties agreed it was impossible to litigate in Iran but MB, citizen of Iran living and studying in England, asserted Ontario action should be stayed in favour of England. By time motion argued, MB voluntarily returned to Iran to face prosecution and unable to leave. Respondents were Canadian citizens who immigrated after leaving Iran and living in England for three years. HB and his wife had business interests in England, owned property there and travelled there from time-to-time. MB claimed he had no connection with Canada and had been denied visas to enter and/or visit Canada. Motion judge dismissed motion to stay Ontario proceedings, finding MB had not met burden of proving England was clearly more appropriate forum. Appellants’ appeal allowed. MB’s sole objection was that Ontario was not forum conveniens. MB’s efforts to obtain temporary visa to enter Canada for purpose of defending action, as well as efforts to obtain short-term special ministerial visa or permit were unsuccessful. Evidence supported inference he would be denied entry to Canada in future and motion judge erred in finding otherwise. Her conclusion on important issue of MB’s ability to defend himself in each country turned on faulty reasoning. Motion judge concluded that deferring to English court might deprive respondents of certain rights and noted that respondents relied on Canadian law, including international covenants ratified by Canada, while MB provided no evidence that international covenants relied on by respondents had been adopted under English law. However, it was not MB’s burden to prove that English law would afford same benefits as Canadian law. Fresh analysis of forum non conveniens question revealed that objectives of ensuring fairness and providing efficient process for resolving dispute would be better met through litigation in England. Although respondents resided in, and preferred to litigate in, Canada, MB had no connection to or ability to enter Canada. Both parties had some connection to England. With one exception, all witnesses other than respondents resided outside of Canada. MB consented to action proceeding in England. England was more appropriate forum; Ontario action stayed.
Bouzari v. Bahremani (Apr. 21, 2015, Ont. C.A., R.G. Juriansz J.A., Paul Rouleau J.A., and K. van Rensburg J.A., File No. CA C58082) Decision at 235 A.C.W.S. (3d) 936 was reversed.  252 A.C.W.S. (3d) 249.

Constitutional Law

CHARTER OF RIGHTS

Police conduct during G20 summit was prima facie constituted infringement of rights

During G20 summit in Toronto, appellant and friends went downtown to demonstrate. They were stopped by police officers who told them they would have to submit to search of their bags. Appellant refused, eventually abandoning plans. Previous day, demonstrators had engaged in looting, violence and vandalism. Police arrested large groups of protesters en masse. Appellant applied for declaration that police officers violated his rights to freedom of expression, peaceful assembly and liberty and declaration that officer committed tort of battery by grabbing and pushing him. Sergeant adopted strategy of stopping people and requiring them to submit to weapons search on his own initiative. Other teams deployed to patrol streets did not implement this strategy. Other persons passed by without being stopped. Application judge held that officers’ conduct authorized under test for ancillary police powers and  that alleged battery was de minimis at worst and was justified under s. 25 of Criminal Code (Can.), which permits peace officer to use “as much force as is necessary” in course of law enforcement duties.  Appellant’s appeal allowed. Power exercised was power of individual officers to target demonstrators and, with intention of preventing crime, to require demonstrators submit to search if they wished to proceed down public street. Police conduct was prima facie infringement of freedom of expression under Canadian Charter of Rights and Freedoms and common law right to travel unimpeded down public highway. Demonstrating is well-established expressive activity. Demonstrating around G20 site lawful and reasonably expected. Civil liberty to move unimpeded on public highways is part of long common law tradition. Police stop clearly resulted in infringement of appellant’s common law liberty. Test for ancillary police powers requires determination of whether police conduct falls within general scope of any duty imposed on officer by statute or common law and, if so, whether execution of conduct in question involved justifiable use of powers associated with engaged duty. Parties agreed officers’ conduct fell within scope of police duty to preserve peace and prevent damage. Application judge failed to adequately assess whether police power exercised and resulting interference with appellant’s liberty was necessary for performance of the duty. Even assuming officers faced “imminent” risk of repeat of previous day’s lawlessness, power they exercised was not effective nor rationally connected to purpose. Protestors turned away could easily have reached downtown core by another route and no evidence previous violence was initiated by demonstrators. Those engaged in violence acquired improvised weapons at scene rather than carrying them to scene in backpacks. Basis for targeting would-be demonstrators did not rise to level of reasonable suspicion.  Contact by officer was much more than “touching”. It was kind of unnecessary manhandling that would offend dignity of person and serve to intimidate that person. Elements of tort of battery were met. Section 25 of Code not applicable as officer did not possess statutory or common law authority for his actions.
Figueiras v. Toronto Police Services Board (Mar. 30, 2015, Ont. C.A., Paul Rouleau J.A., K. van Rensburg J.A., and G. Pardu J.A., File No. CA C58771) Decision at 239 A.C.W.S. (3d) 631 was reversed.  252 A.C.W.S. (3d) 61.
<< Start < Prev 1 2 3 4 5 6 7 8 9 10 Next > End >>
Page 1 of 40

  • 25 years of Law Times
    25 years of Law Times This January marks exactly 25 years since we began publishing. After a year of celebrating our 25th year, Law Times and Canadian Lawyer editor-in-chief Gail…
  • A walk down memory lane
    A walk down memory lane As Law Times celebrates its 25th year of publishing, we talk to founding editor Jim Middlemiss about the paper's early years and some of the…
  • Wrongful Conviction Day
    Wrongful Conviction Day October 2nd marked the first annual Wrongful Conviction Day by the Association in Defence of the Wrongly Convicted. Kabeer Sethi spoke with the organizers of…
More Law Times TV...

Law Times poll

Should the Law Society of Upper Canada begin regulating law firms in addition to individual lawyers?
Yes
No