for four assault charges. Those convictions
did not add anything to the jury’s analysis of
her credibility. The balance of her criminal
record, together with the other evidence
that had been admitted about her background and lifestyle, was more than enough
to alert the jurors that they should exercise
great caution in assessing her credibility.
R. v. Bomberry, [2010] O.J. No. 3286,
Ont. C. A., per O’Connor A.C.J.O. (Laskin
and Gillese JJ.A. concurring), Aug. 4/10.
Digest No. 3016-012 (Approx. 11 pp.)
FRANCHISES
CANCELLATION OF AGREEMENT
– Defendant franchisee was restrained
from terminating franchise agreements
pending trial of the action.
Application for an interlocutory injunc-
tion restraining defendant from terminat-
ing applicants’ franchise agreements pend-
ing resolution of their claims in underlying
litigation. Plaintiffs operated grocery stores
as franchises under defendant’s Low Equity
Program (LEP). They started an action
against defendant with respect to its oper-
ation and administration of the LEP, claim-
ing breach of contract, breach of duty of fair
dealing under the Arthur Wishart Act
(Franchise Disclosure) (Ont.), breach of
fiduciary duty, and negligence. They with-
drew funds from their franchise businesses
to fund the litigation. Defendant alleged
that the withdrawal of funds for legal fees
breached their franchise agreements. It
issued notices of default requiring plaintiffs
to return the funds, failing which their fran-
chise agreements would be terminated.
HEALTH LAW
telephone calls. Plaintiffs discovered that K
Inc. had discharged mortgages or assigned
them to others. Plaintiffs commenced an
action and an interim order was made freezing the assets of K Inc. and BS.
HELD: Motion granted in part. Based
on the evidentiary record, plaintiffs satisfied the test for a Mareva injunction as
against defendants BS and K Inc. The
terms should be varied. BS should be free
to earn a living and provide for his family
and have resources to engage legal counsel.
His current assets and bank account should
be frozen, but he may open a new bank
account and acquire and dispose of new
assets pending trial. The case against those
to whom mortgages were assigned by K
Inc. was built largely on circumstantial
evidence. Plaintiffs did not shown that
there was a serious risk that those defendants would remove property or dissipate
assets before judgment.
Ghaeinizadeh v. Ku De Ta Capital Inc.,
[2010] O.J. No. 3217, Ont. S.C.J., Perrell
J., July 26/10. Digest No. 3016-015
(Approx. 11 pp.)
NEGLIGENCE – Trial judge failed to
consider the possibility that an earlier
delivery by c-section could have pre-
vented injuries to the child.
Appeal from the dismissal of appellants’
action against respondents related to brain
injuries sustained by appellant DR at birth.
DR’s mother was admitted to the hospital
after her membranes ruptured. Labour-inducing medication was administered.
Progress was not sufficient to have DR
INSURANCE
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delivered. The nurses observed four
decelerations of his heart rate in the minutes leading up to his birth by emergency
c-section. There was no evidence that those
events were disclosed to a physician. DR
went into fetal distress. He was delivered
severely compromised. The brain injury
DR sustained in the time leading up to his
birth left him with cerebral palsy, a developmental disorder, and developmental delays.
He was unable to walk on his own, to feed
himself, to read or to speak clearly. His
family sued the hospital where he was born,
claiming his brain injury could have been
avoided had he been delivered earlier. The
judge concluded that there was no negligence on the part of the hospital or its staff
in dealing with DR. He found that the
cause of DR’s oxygen deprivation prior to
birth could not be determined on the evidence. The judge also rejected the assertion
that the hospital doctors and nurses waited
too long and experienced an emergency
situation flowing from their negligence and
inaction. He accepted the expert evidence
stating that DR’s brain injury likely took
place in the space of 10 minutes from when
his distress was discovered.
HELD: Appeal allowed. A new trial was
ordered on the issue of liability. The judge
made no finding of fact that precluded the
family’s assertion that DR would have been
born uninjured had he been delivered earlier. He nonetheless rejected that theory in
dismissing the family’s action. The judge
erred in considering causation first, finding
that there was nothing to show negligence
on the hospital’s part caused the oxygen
deprivation, prior to considering the applicable standard of care. There was sufficient
evidence to establish that labour was not
progressing for DR’s mother for several
hours prior to his birth, and the standard of
care required nurses observing that to notify
doctors. There was no evidence any nurses
did inform any doctors of that situation. The
judge’s errors prevented him from considering the possibility that DR could have
been born without his brain injury had a
c-section been performed earlier based on
the failure of labour to progress.
Randall (Litigation guardian of) v.
Lakeridge Health Oshawa, [2010] O.J.
No. 3227, Ont. C.A., per Juriansz J.A.
(Gillese and LaForme JJ.A. concur-
ring), July 28/10. Digest No. 3016-014
(Approx. 16 pp.)
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MAREVA INJUNCTIONS – Plain-
tiffs were entitled to an order continuing
the terms of a Mareva injunction against
two defendants.
Motion for an order continuing the terms
of a Mareva injunction, for payment of
mortgage receivables into court, and for certificates of pending litigation. Plaintiff PG
and defendant BS were close friends. They
started a mortgage administration and lending corporation known as G Corp. as a
vehicle to invest G family money in mortgages to be administered by BS. In 2005,
after PG moved to Asia, BS incorporated
defendant K Inc. for the same purposes as G
Corp., which was dissolved. The investors in
K Inc.’s mortgages were mostly friends and
family of PG. They invested over $2 million.
K Inc. was to arrange loans to borrowers
who would provide security by mortgages of
real property. K Inc. would be the mortgagee
paying interest monthly to investors by on-line transfers. In May 2009 K Inc. stopped
making payments and BS did not respond to
SUBROGATION – Insured was not
entitled to amend its claim to pursue a
subrogated action on behalf of an insurer.
Appeal from a decision allowing respondent C Corp.’s application to amend its action
against them to pursue a subrogated claim
on behalf of its third insurer, G Inc. G Inc.
had fully indemnified C Corp. against claims
by the estates of miners killed when a helicopter carrying them to the mine went
down. G Inc. had defended the actions
against C Corp., after the two other insurers
refused to do so, on a reservation of rights
basis. More than two years after paying
$6,400,000 in satisfaction of all the claims,
G Inc. applied to amend the statement of
claim in C Corp.’s action against its other
two insurers to set up a contribution claim.
The application proceeded on the basis of
an admission by G Inc. that its ability to
pursue a contribution claim against the
other insurers was statute-barred. G Inc.
was successful in the lower court. The court
noted that any claim by G Inc. against the
other insurers directly was statute-barred,
but that the limitation defence was defeated
because amending C Corp.’s action would in
no way have prejudiced the other insurers.
The appellate court overturned the decision, holding that the proposed amendments to C Corp.’s statement of claim were
too radical. The two other insurers then
moved to dismiss C Corp.’s action against
them, to dismiss a second application by G
Inc. to amend the C Corp. statement of
claim, and to dismiss an action commenced
by G Inc. against them separately in the
wake of the appeal decision. The court dismissed the applications by the two insurers,
noting that neither issue estoppel nor abuse
of process applied.
HELD: Appeal allowed. Because the
three policies provided coverage for the
same perils, C Corp. was not entitled to pursue the other two insurers where it had
already been fully indemnified by G Inc. A
claim by G Inc. for contribution was in substance different from a claim by C Corp. on
its behalf. C Corp. was not entitled to double
recovery in the present case.
Insurance Co. of the State of Pennsyl-
vania v. Cameco Corp., [2010] S.J. No.
445, Sask. C. A., per Smith J. A. (Cameron
and Lane JJ.A. concurring), July 30/10.
Digest No. 3016-016 (Approx. 29 pp.)
