The Lawyers Weekly - May 14, 2010

DIGEST
OF RECENT DECISIONS FROM CANADA’S COURTS
Michael Hamilton, LL.B. E-mail: jandm@hfx.eastlink.ca

APPEALS
ABANDONMENT – The appellate
court upheld a finding that appellant was
not entitled to reinstate an appeal after a
10-year delay.

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, [2010] 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
& FREEDOMS

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 Senate inquiry.

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.

CIVIL PROCEDURE

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, [2010] O.J. No.
1453, Ont. S.C.J., Horkins J., Apr. 12/10.
Digest No. 3002-003 (Approx. 8 pp.)

COSTS – Plaintiff’s appeal from a
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, [2010] 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 Cuban divorce.