The Lawyers Weekly - June 25, 2010

child pending trial of the mother’s cus-
tody application.

Motion by the mother for leave to relocate with the parties’ eight-year-old daughter to New Zealand pending trial to be reunited with her new husband. Her new husband moved to New Zealand in 2007. They married in 2008. The parties’ older daughter was currently enrolled at a university in New Zealand. There had been no court order or any formal agreement designating either parent as the sole custodial parent of the youngest daughter. However, it appeared that the mother was the de facto custodial parent of the child, with active and significant input from the father. The father had been an active, positive and engaged parent in his child’s life.

HELD: Motion dismissed. The only compelling reason to allow the child’s move to New Zealand would be the mother’s happiness. The existing custodial arrangement, although not formalized, appeared to embrace the child’s best interests as it maximized the contact between the child and both of her parents. To allow the move on an interim basis would prematurely determine the outcome of the mother’s custody application, without sufficient evidence being before the court.

Valyashko v. Poustovetov, [2010]
O.J. No. 2098, Ont. S.C.J., Quigley J.,
May 18/10. Digest No. 3008-016
(Approx. 5 pp.)

SETTING ASIDE ORDER – A gar-
nishment order should not have been set
aside because of a typographical error.

Appeal from a decision setting aside a pre-judgment garnishing order. Appellant sued for payment for environmental consulting services provided to respondent. It obtained a garnishing order before judgment. The garnishing order referred to the affidavit as having been sworn May 4, instead of the correct date, May 7. The date of May 4 was a typographical error. The judge found that the defect was a factual error which was prima facie misleading and confusing. Appellant argued that there was no confusion because the garnishing order, the affidavit that supported it, the writ and the statement of claim all were served together.

HELD: Appeal allowed. Although garnishing orders before judgment were an extraordinary remedy, strict compliance with the requirements for the remedy was required, but not perfect compliance. The concern was to ensure that the recipient of the garnishing order understood the substantive basis on which it was made. It was most unlikely that respondent was more than momentarily confused by the May 4 reference when it received a garnishing order dated May 7, and an affidavit sworn May 7. Any confusion was eliminated when appellant’s counsel advised counsel for respondent that there had been a typographical error. The May 7 affidavit adequately set out a liquidated claim.

Golder Associates Ltd. v. North Coast Wind Energy Corp., [2010] B.C.J. No. 968, B.C.C.A., per Chiasson J.A. (Finch C.J.B.C. and Donald J.A. concurring), May 25/10. Digest No. 3008-018 (Approx. 9 pp.)

Mosaic Potash Colonsay ULC v. United Steel Workers of America, Local 7656, [2010] S.J. No. 302, Sask. C.A., per Richards J.A. (Smith and Ottenbreit JJ.A. concurring), May 27/10. Digest No. 3008-019 (Approx. 9 pp.)

MORTGAGES
INSURANCE
(MOTOR VEHICLE)

UNIDENTIFIED MOTORIST COVERAGE – The girlfriend of plaintiff, who was a passenger in plaintiff’s vehicle at the time of an accident, could be an independent witness for the purposes of unidentified motorist coverage.

Motion by plaintiff to determine whether a passenger in an insured’s motor vehicle could be an independent witness to corroborate the insured’s evidence concerning the involvement of an unidentified motor vehicle. Plaintiff was involved in a single vehicle accident. He alleged that an unidentified motorist drove into his path, thereby requiring him to leave the roadway and causing him to strike a tree. His girlfriend at the time was a passenger in his vehicle and corroborated plaintiff’s evidence. Plaintiff had purchased the optional protection for losses caused by unidentified motorists. He sued his insurer for injuries suffered in the accident. The insurer argued that the girlfriend could not be perceived as an independent witness within the meaning of the section as she had sued the insurer as well for unidentified coverage and thus, she had an interest in the outcome of the case.

HELD: Motion allowed. The plain meaning of independent evidence was evidence other than that of the claimant which did not emanate from a spouse or dependant relative. If the drafters of the policy intended to further reduce the categories of individuals capable of providing corroborative evidence, they could have done so. Whether the evidence of plaintiff and his girlfriend was ultimately accepted by a trier of fact or a jury was not to be considered by a motions judge.

Pepe v. State Farm Mutual Automobile
Insurance Co., [2010] O.J. No. 2138,
Ont. S.C.J., Wilson J., May 20/10. Digest
No. 3008-017 (Approx. 6 pp.)
LABOUR RELATIONS
DEFICIENCY – Appellant bank was
entitled to recover its protective dis-
bursements for a mortgaged property.

Appeal from a decision holding that appellant bank was not entitled to recover its protective disbursements while still holding title to the mortgaged property at the time of its deficiency judgment application. Respondent defaulted on the mortgage and appellant foreclosed. Appellant then purchased the property at a sheriff’s sale in order to resell it privately. Before selling the property, appellant applied for deficiency judgment, including its costs of maintaining the property until sale. In denying appellant protective disbursements, the chambers judge held that, since the ultimate sale price was speculative, it was possible that appellant might receive a windfall which would be secured on the back of respondent if the protective disbursements were approved.

HELD: Appeal allowed. By paying protective disbursements, appellant protected not only its own interests but also those of respondent. Denying a mortgagee recovery for such expenses would serve as a disincentive to incurring them. Protective disbursements were not designed to improve or enhance the property, but to protect its value pending sale.

Bank of Nova Scotia v. Allen, [2010] N.S.J. No. 307, N.S.C.A., per MacDonald C.J.N.S. (Saunders and Beveridge JJ.A. concurring), May 28/10. Digest No. 3008-020 (Approx. 6 pp.)

JURISDICTION – The arbitrator did
not have jurisdiction to consider issues
other than those identified in the union’s
written grievance.

Appeal by the employer from a decision upholding a jurisdictional decision by an arbitrator. The employer operated a potash mine. It hired a firm, T Inc., to rehabilitate an underground travelway. No workers were laid off while T Inc. completed its work. The union representing the employer’s workforce filed a grievance, alleging the employer improperly contracted out the work done by T Inc. The union later reframed its position, arguing that the work was improperly contracted in. “ Contracting in” referred to the situation when the employer hired a separate workforce to work side-by-side with the union members. The arbitrator found that he had authority to deal with the reframed grievance because contracting in was subsumed in contracting out. He sustained the grievance. The decision was upheld on judicial review.

HELD: Appeal allowed. The court’s decision was set aside and the arbitrator’s decision was quashed. The arbitrator erred in finding that he had jurisdiction to deal with the contracting in argument advanced by the union. He was confined to dealing with those issues raised in the written grievance filed by the union to which the employer had replied. Contracting in was essentially the opposite of contracting out and was not subsumed in the concept of contracting out. It was not within the

NEGLIGENCE

CONTRIBUTORY NEGLIGENCE – The verdict of a jury dismissing appellant’s action for damages for injuries sustained when she fell off respondent’s deck was not perverse.

Appeal from the dismissal of appellant’s action against respondent. Appellant attended a bonfire party held at respondent’s property. Shortly after arrival, she fell from a deck at the rear of the home and broke her ankle. She contended that the injury exacerbated her pre-existing depression, resulting in a suicide attempt. Construction of the deck was completed on the evening of the party. The deck was a flat surface 31 inches above the ground and did not have a railing. Respondent never obtained a building permit and the deck did not comply with the Ontario Building Code. Appellant sued respondent for negligence. She testified that it was dusk and she could see the edge of the deck. She stated that she stepped off the edge of the deck expecting to meet a step or the ground. She also testified that she was given no warning about the drop. Respondent submitted that he informed appellant that he had just finished building the base on the deck and warned her of the absence of a railing. His testimony was inconsistent with his examination for discovery conducted five years earlier. Other issues included the sufficiency of lighting on the deck, whether temporary stairs were attached to the deck, and whether appellant was advised to use the stairs. A judge and jury dismissed the action. The jury found that respondent did not fail to take reasonable care to ensure appellant’s safety. The jury also found that appellant failed to take reasonable care to ensure her own safety by paying close attention to her footing in an unfamiliar environment. Appellant appealed on the basis that the jury’s verdict on liability and damages was perverse.

HELD: Appeal dismissed. The jury’s verdict on liability was not perverse. There was evidence that respondent took reasonable steps to ensure appellant’s safety through lighting, installation of visible temporary stairs, and the warning to be careful due to absence of a railing. The jury accepted respondent’s evidence and gave clear answers on the questions related to liability.

Ouderkirk v. Clarry, [2010] O.J. No. 2223, Ont. C.A., per Armstrong J.A. (Feldman and Epstein JJ.A. concurring), May 28/10. Digest No. 3008-021 (Approx. 8 pp.)

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