OF RECENT DECISIONS FROM CANADA’S COURTS
Michael Hamilton, LL.B. E-mail: firstname.lastname@example.org
ABANDONMENT – The appellate
court upheld a finding that appellant was
not entitled to reinstate an appeal after a
Application to vary the 2009 order of a
chambers judge dismissing an estate’s application to reinstate an appeal. Applicant was
a nephew of CH and the son of GH. CH died
in 1976. He had two sons and a daughter.
CH was a farmer. For 15 years after his
death, his two sons continued to farm the
land, and there seemed to have been some
division of operating proceeds between the
three siblings. When CH’s son JH died in
1992, the sister applied in British Columbia
for an order that the remaining executor,
applicant’s father, pass the estate accounts.
She obtained judgment against GH in 1996.
An appeal from the judgment was filed in
1996 but was dismissed as abandoned in
1998. Numerous proceedings followed and
applicant commenced several proceedings
to get relief against his aunt.
HELD: Application dismissed. The
chambers judge was entitled to take the
view that the delay of over 10 years in seeking to reinstate the 1996 appeal was simply
too long. There was no basis to interfere
with the judge’s decision refusing extensions
of time. Given the history of matters, an
order was appropriate requiring that no
further court proceedings could be filed by
applicant without first obtaining leave from
a justice of the court in chambers.
Booty v. Hutton,  B.C.J. No.
655, B.C.C.A., per Hall J.A. (Chiasson
and Garson JJ. A. concurring), Apr. 15/10.
Digest No. 3002-001 (Approx. 5 pp.)
CHARTER OF RIGHTS
RIGHT TO MAKE FULL ANSWER
AND DEFENCE – The court refused an
application by accused Senator for an
order requiring the Crown to provide
him with copies of the transcripts of a
Application for a stay of charges against
accused. Accused was a Senator charged
with defrauding the Canadian government,
breach of trust and obstruction of justice.
The Crown alleged that accused sent his
office assistant to cut trees on his property
during office hours, claimed excessive mile-
age for reimbursement and asked his assist-
ant to give false evidence. Accused argued
that he had been denied his right to make
full answer and defence because the Crown
had failed to provide him with the tran-
scripts of the Senate inquiry into his alleged
misuse of public resources. A clerk of the
Senate had sent a copy of the transcripts to
the RCMP so they could decide whether to
press charges against the accused. The
RCMP sought legal advice, then sealed and
returned the transcripts to the Senate on the
basis the transcripts were protected by par-
liamentary privilege. A number of witnesses
at the inquiry were also testifying in the
criminal proceedings. In a previous court
decision, a judge found that the testimony
provided at the Senate inquiry was pro-
tected by parliamentary privilege, so the
court would not make an order that the
transcripts be provided to accused. The
Crown argued that it did not have know-
ledge of the contents of the transcripts and
they were not relied on in the investigation,
so did not have to be disclosed.
AMENDMENT OF PLEADINGS –
Plaintiffs were permitted to amend their
statement of claim following discoveries
to add a claim for aggravated damages
against defendant insurer.
Motion by the plaintiffs to amend their
statement of claim to add a claim for aggravated damages of $150,000. Defendant
insurer objected on the basis plaintiffs were
barred by the Insurance Act (Ont.) from
adding a new cause of action. Plaintiffs
alleged that they were injured in a motor
vehicle accident. They applied for accident
benefits from the insurer but were refused.
The parties attended mediation, as required,
but nothing was agreed upon. The insurer
paid some benefits, but not most. Plaintiffs
then commenced an action against the
insurer and the other driver. Following discovery, plaintiffs brought their motion to
amend their statement of claim.
HELD: Motion allowed. The claim for
aggravated damages was not a new cause of
action. It was an additional remedy that
relied on the same factual situation. The
limitation period under subs. 281.1( 1) of the
Act simply required an action to be commenced within two years of a refusal to pay,
which plaintiff had done. Since claims
against insurers had to be mediated first,
there was a potential for delay in moving the
action forward. Plaintiffs did not have full
disclosure of the insurer’s actions that would
support their aggravated damages claim
until after discovery had been completed.
The insurer could not use the Act to shield
itself from aggravated damages claims once
an action had been commenced.
Dimartino v. Gacek,  O.J. No.
COSTS – Plaintiff’s appeal from a
1453, Ont. S.C.J., Horkins J., Apr. 12/10.
Digest No. 3002-003 (Approx. 8 pp.)
cost award at trial was allowed and the
matter remitted to the trial judge to
allow plaintiff to argue that the $15,000
statutory deduction should not be con-
sidered in making a costs award.
DISCOVERY – Defendant was
entitled to use examinations for dis-
covery of plaintiff from an action related
to a prior motor vehicle accident.
Motion for and order granting defendant
leave to use transcripts from an examination of discovery from a previous action
involving plaintiff. Plaintiff was involved in
a motor vehicle accident with defendant. A
statement of claim was issued, defence filed
and examinations for discovery had proceeded. Defendant learned that plaintiff
was in a previous motor vehicle accident
and may have sustained overlapping injuries with respect to the two accidents.
Defendant requested an order for production of examinations for discovery for the
previous action. Plaintiff cited his privacy
rights and the deemed undertaking rule
which provided that parties were not to use
evidence or information for any purposes
other than those of the proceedings in
which the evidence was obtained. Defendant relied on an exception to the rule.
HELD: Motion granted. Plaintiff had
produced all of his medical records. The
limited exception under the deemed under-
taking rule which allowed the use of evi-
dence obtained in one proceeding to
impeach the testimony of a witness in
another proceeding applied. Any privacy
claimed by plaintiff would already have
been compromised by disclosure of medical
records which he has already provided.
Defendant, upon reviewing the previous
examinations for discovery, may use them to
impeach the testimony of plaintiff in this
proceeding if so warranted.
MEDICAL EXAMINATIONS – Plain-
tiff was entitled to increase her claim for
damages but was ordered to undergo a
further psychiatric assessment.
Motion by plaintiff to amend the statement of claim to substantially increase the
claim for damages. Motion by defendants
for an order for further examination for
discovery, for plaintiff to attend a psychiatric
assessment and for a life care planner
assessment. The action arose out of a motor
vehicle accident in 2003. Plaintiff alleged
that as a result of defendants’ negligence she
suffered impairments to her neck, back,
shoulders and legs, and suffered headaches,
dizziness, depression and anxiety arising
out of the injuries. In 2008 plaintiff forwarded to defendants medical reports from
two doctors which suggested for the first
time that she ought to be deemed catastrophically impaired. As a result of that
finding, plaintiff would be putting forward a
claim for future care costs. Plaintiff’s counsel objected to defence being entitled to
conduct a life care planer assessment.
HELD: Motions granted. Plaintiff was
entitled to increase its claim for damages.
On all of the evidence, the defence established that a further psychiatric assessment
of plaintiff was necessary and its motion
should be granted in the interest of fairness.
While such an assessment may to some
extent be stressful for plaintiff, it would be
unfair to the defence to allow her to put
forward that claim without allowing them
to have an independent occupational therapy and attendant care assessment report.
Kozhani v. Gelbart,  O.J. No.
1384, Ont. S.C.J., Granger J., Apr. 08/10.
Digest No. 3002-006 (Approx. 3 pp.)
CONFLICT OF LAWS
FOREIGN JUDGMENTS – The
Ontario court recognized as valid a
divorce granted in Cuba.
Motion for an order that the divorce
granted to applicant and respondent R in
Cuba was recognized as a valid divorce in
Ontario. R supported the motion, as did
applicant’s current wife, B. Although R and
B were listed as respondents, all parties
were, in fact, applicants. M and R were married in Cuba in 2004. They had a daughter.
M immigrated to Canada in 2006 and R
followed soon thereafter. They became
permanent residents of Canada and lived in
Ontario. They separated in 2007. M and R
believed they required a divorce from Cuba,
so they travelled there and obtained a
divorce through a notary. M then met B and
married her in Cuba. When M applied for B
to immigrate to Canada, Immigration Canada refused to recognize the validity of the
HELD: Motion allowed. There was no
evidence of any breach in Cuba of the rules