properly approaching their task. The comments were clearly prejudicial and warranted a remedy. The remarks were an isolated occurrence in the course of a week-long
trial. A single comment, though prejudicial,
was likely more easily remedied with a
timely correcting instruction to the jury.
The fact that the jury did not award any
punitive damages supported the view that
the correcting instruction was sufficient.
Bonaiuto v. Pilot Insurance Co.,
[2010] O.J. No. 1530, Ont. S.C.J., Young
J., Apr. 15/10. Digest No. 3003-006
(Approx. 5 pp.)
REPRESENTATION BY SOLICITOR
– Appellant was not deprived of the right
of representation at trial and failed to
establish a right to state-funded counsel
on his appeal.
Appeal from the dismissal of appellants’
medical malpractice action against respondents. Five years earlier, appellant ZH commenced an action on behalf of her son JH,
age 17. She alleged that he suffered psychological disorders as a result of a brain injury
attributable to the negligence of defendant
physicians in relation to his birth and the
lack of proper treatment thereafter. ZH
sued on her own behalf claiming damages
for psychological trauma. Her action was
summarily dismissed as statute-barred. JH
was ordered to advance his claim himself
upon reaching age 18, as he was under no
legal disability. An appeal from that order
was dismissed. JH’s action was dismissed
following a summary trial. Subsequent
applications for various forms of relief were
dismissed as an abuse of process. JH, now
age 22, filed an ancillary application to have
his mother appear on his behalf or to be
afforded state-funded representation. He
continued to maintain that he was disabled.
HELD: Appeal dismissed. The court
decided on a previous appeal that JH had
no legal right to have his mother represent
him, and there was no basis for granting a
privilege of audience to a non-lawyer. That
determination was upheld on an application for a review. There was no basis for
appointment of state-funded counsel for
litigation between private parties. There
was no basis for appellate interference with
the dismissal of JH’s action, as there was no
other possible conclusion on the evidence.
He was not deprived of a right of representation at that trial, as there was ample
opportunity for counsel to be retained.
Holland (Litigation guardian of) v.
Marshall , [2010] B.C.J. No. 678,
B.C.C.A., per Prowse, Mackenzie and
Lowry JJ.A., Apr. 20/10. Digest No.
3003-007 (Approx. 10 pp.)
STRIKING OUT PLEADINGS – The
fact that defendant bank named plaintiff
in an action on a credit card debt, even
though she had no liability, did not give
rise to a cause of action.
Motion by defendant bank to strike
plaintiff’s claim as disclosing no reasonable
cause of action. The bank argued the claim
was frivolous and an abuse of process. The
bank sued plaintiff and her husband with
respect to a credit card debt and obtained a
judgment. Subsequently, on appeal to the
Divisional Court, the bank acknowledged
that plaintiff had no liability. Plaintiff
brought a claim against the bank for defamation, nuisance, malicious prosecution,
harassment, intentional infliction of mental
suffering or abuse of process.
HELD: Motion granted. It was plain and
obvious that plaintiff could not succeed on a
claim for defamation. There was no sugges-
tion of a defamatory statement apart from
the statement of claim. There was also no
viable claim for nuisance or abuse of pro-
cess. The law was not clear if harassment
was in fact a tort. As such plaintiff was
entitled to proceed with the claim if the
requisite elements were met. It was argu-
able that a financial institution commen-
cing an action with full knowledge that it
had no legal claim, was engaging in outra-
geous conduct and plaintiff could prove a
reckless disregard of causing mental dis-
tress. It was not plain and obvious that
plaintiff cannot succeed in proving that
defendant’s outrageous conduct was the
actual and proximate cause of the emotional
distress. The elements of the tort of inten-
tional infliction of mental suffering were
similar to the tort of harassment and, again,
it was not plain and obvious that plaintiff
could not succeed. The motion turned on
the fact that the flagrant and outrageous
conduct was the act of commencing a law-
suit. To the extent that any action was based
upon statements in a pleading, the claim
was privileged and would disclose no rea-
sonable cause of action. The bank, while
successful, was not entitled to claim costs.
CONTRACTS
INTERPRETATION – Extrinsic evi-
dence was not required for the proper
interpretation of a contract.
Appeal from an order setting aside a
master’s decision granting summary dismissal of the action. Pursuant to a 10-year
contract, appellant agreed to supply styrene
monomer to respondent. The contract contained a formula for setting and adjusting
the quantity of styrene to be delivered in
each year and a formula for setting the
price. Many of the definitions in the contract relied on data published by third parties. The contract contained a clause that
anticipated that some of that data might
cease to be available and provided an
alternative dispute resolution mechanism
to use if any of the third party information
became unavailable during the 10-year
term of the agreement. Respondent argued
that the formula was no longer workable
under the terms of the contract and sought
the negotiation or arbitration of a new
price. The chambers judge held that the
master did not give correct effect to all the
terms of the agreement and that a trial was
required to decide what the parties understood the “manner” of calculation of the
contract price to involve and whether the
form of information to calculate the contract price had changed.
HELD: Appeal allowed. The action was
dismissed. The dispute was capable of summary disposition. There were no ambigu-ities in the wording of the contract that
would warrant extrinsic evidence about the
context in which it was entered into. The
proposed evidence respondent would tender at trial would be inadmissible. The
agreement contained no technical terms of
art and respondent was thus not entitled to
call evidence to explain the meaning of
words. The factual context in which the parties negotiated and signed this agreement
was clear from the undisputed portions of
the record and the agreement itself. The renegotiation clause had not been triggered.
On the proper interpretation of the contract, the intention of the parties was that
the price would be set by a neutral, knowledgeable third party, and the selected neutral third party had continued to publish the
benchmark price required.
Dow Chemical Canada Inc. v. Shell
Chemicals Canada Ltd., [2010] A.J. No.
432, Alta. C.A., per Watson and Slatter
JJ.A. and Kenny J. (ad hoc), Apr. 22/10.
Digest No. 3003-009 (Approx. 14 pp.)
CRIMINAL LAW
FORFEITURE OF PROPERTY – The
appellate court set aside that part of a
sentencing order that required forfeiture
of appellant’s property.
Appeal from the sentence imposed following appellant’s guilty plea to unlawful
production and possession of marijuana.
Appellant was a 63-year-old retired factory
worker who lived and worked on a 122-acre
farm. The farm was purchased for $122,500
and was valued at $313,000. Vacant property adjacent to the farm, also owned by
appellant was valued at $232,000. Appellant grew marijuana on less than one acre of
the farm property for about a year prior to
his arrest. The total value of the plants and
marijuana seized was $369,000. There was
no evidence appellant intended to sell the
marijuana on the street. He had no prior
record at the time he was arrested. His sentence included 12 months’ imprisonment
and a forfeiture order with respect to the
farm property. The Crown’s application for
forfeiture of the farm property described the
two parcels owned by appellant as a single
property. The Crown took the position the
ultimate order made was for partial forfeiture of the farm portion of the property only,
with appellant retaining the vacant land to
use as a residence if necessary. Appellant
had served his custodial sentence by the
time the appeal was heard. He only appealed
the forfeiture order.
HELD: Appeal allowed. The forfeiture
order was set aside. The court was unable to
determine whether appellant owned his
lands as two separate properties or as a single property. The sentencing judge erred in
analyzing the law relating to forfeiture. It
was not necessary in all but the most exceptional cases to make a forfeiture order. The
judge should have considered whether a
forfeiture order was disproportionate to the
nature and gravity of the offence, the circumstances surrounding its commission
and appellant’s record. The forfeiture order
was disproportionate. Marijuana was not
the most serious drug and appellant was not
doing anything to try to conceal his operation. There was no link between appellant
and organized crime. The property was not
being used in a manner to place public
safety at risk. The sentence was changed to
time already served.
R. v. Van Bemmel, [2010] O.J. No.
1468, Ont. C.A., per Gillese J.A. (
Feld-man and Sharpe JJ.A. concurring),
Apr. 14/10. Digest No. 3003-010
(Approx. 13 pp.)
EMPLOYMENT
& DISMISSAL LAW
MENTAL DISTRESS – An award of
damages for mental distress arising out
of the termination of respondent from
her employment was set aside.
Appeal from a small claims court deci-
sion awarding respondent general damages
of $7,000 for acute mental distress in con-
nection with the termination of her employ-
ment. Respondent had been employed for
16 months. She was represented by an agent,
claimed general damages of $1,000 and
punitive damages of $7,000. The trial judge
found appellant employer had dismissed
respondent without cause but with appro-
priate pay in lieu of notice. He dismissed the
claim for punitive damages on the basis that
appellant’s conduct had not met the test for
such an award. The judge awarded respond-
ent $7,000 in general damages for undue
mental distress and amended her statement
of claim accordingly
EVIDENCE (CIVIL)
OPINION EVIDENCE – A property
appraisal submitted by respondent on
the third day of trial was admissible.
Application for a ruling on the admissibility of an expert report. Respondent served
applicant with an appraisal report and indicated she intended to call the appraiser to
prove the value of the jointly owned matrimonial home. Applicant had been in possession of the matrimonial home since
shortly after separation. He wanted to purchase respondent’s share and had served an
appraisal report for that purpose and
intended to call his appraiser as a witness.
He served a fresh appraisal by the same
appraiser at the end of January 2010. The
original evaluation in 2007 was $385,000,
and in 2010 it was $325,000. In March
2010 respondent’s counsel indicated that
she would obtain an appraisal. The appraiser
visited the house on Mar. 25, 2010 and
respondent served the report on applicant
on Mar. 30, 2010, the third day of trial.
HELD: Application allowed. Respondent was permitted to call appraiser as a witness. The old version of Rules 23 and 24
applied to the ruling. Rule 23 provided that
an expert witness report must be served at
least 14 days before the start of trial, failing
which the party could not call the expert
witness unless the trial judge allowed otherwise. Applicant submitted that the court
should not exercise its discretion in favour
of respondent because she had failed to
abide by disclosure orders and been late in
providing documents. Applicant further
submitted that he would be substantially
prejudiced because he noted erroneous factual assumptions made by respondent’s
appraiser to which he would not be able to
respond because he already completed his
testimony. The predominant purpose of a
trial is to find the true facts in order to do
justice on the merits. Now that the trial had
been adjourned, applicant had ample time
