THE LAWYERS WEEKLY
September 17, 2010 | 17
DIGEST
OF RECENT DECISIONS FROM CANADA’S COURTS
Michael Hamilton, LL.B. E-mail: jandm@hfx.eastlink.ca
APPEALS
DISMISSAL FOR DELAY – Court
declined to set aside the dismissal of appli-
cant’s appeal for delay because the appeal
was without merit.
Application to restore an appeal struck
because of applicant’s failure to file his factum on time. The factum was only a week
late and applicant provided a reasonable
explanation in that he had changed counsel
and was unable to retain new counsel in time
to meet the deadline for filing his factum.
The issue was whether or not the appeal had
any chance of success. Applicant was appealing from two case management orders. The
first order directed a trial on the issue of
whether or not the parties had a settlement
agreement, and directed that no trial proceed
on the issue of whether or not the agreement
was unconscionable until the first issue was
determined. Applicant took the position that
those directions substantially changed a
prior order directing a trial on the issue of
whether the settlement agreement existed.
HELD: Application dismissed. No
material change was made to the original
order by the two directions of the case
management judge. Applicant was argu-ing semantics in taking the position that
the directions revised the issue and scope
of the trial, varying it improperly. Applicant’s appeal lacked any chance of success,
given the court’s reluctance to interfere
with the discretion exercised by a case
management judge.
Toliver v. Koepke, [2010] A.J. No. 945,
Alta. C.A., O’Brien J.A., Aug. 25/10.
Digest No. 3018-001 (Approx. 4 pp.)
BANKS & BANKING
LINE OF CREDIT – Plaintiff bank
was awarded judgment for $59,413
from defendant as guarantor of a line of
credit agreement.
Motion for summary judgment on a line
of credit agreement. In September 2003
defendant executed a business credit agreement with plaintiff bank. The primary debtor
was M Inc. and defendant guaranteed its
performance. From 2003 to January 2009,
M Inc. made regular payments on account of
the indebtedness. In January and February
2009, because of slow business conditions,
M Inc. failed to make payments. In March
2009, the bank wrote to M Inc. reminding it
that a minimum deposit to its line of credit
was due. Defendant swore that he attended
the bank and attempted to deposit a personal
cheque for $10,000. The teller refused to
accept the cheque and defendant found out
later that the bank had frozen the account.
Two further demand letters were sent by the
bank and it issued a statement of claim in
February 2010.
HELD: Motion granted. Since there was
uncontradicted evidence from defendant
that he offered a cheque for $10,000 to a
teller and that it was refused, the court
accepted that evidence. However, defend-
ant accepted the refusal of his cheque,
made no inquiry of the bank about it for
nearly four months, all the while not
attempting to make any other payment to
the account, which plainly required a min-
imum monthly deposit. The notice provi-
sion in the agreement did not require
receipt. Even if the teller had been mistaken
about not accepting his payment, a simple
error of that sort would not constitute bad
faith. There was no implied term of the
agreement that the right to terminate the
agreement would not be exercised in bad
faith or in the absence of default by the bor-
rower. The bank was not obliged to give 30
days’ notice before it called the loan. The
loan was in default for nearly seven months
and legal proceedings were not taken until
the following February. There was no con-
duct on the part of the bank that might
justify release of a guarantor from his duty
to pay the debt. In any event, the agreement
made defendant liable as primary debtor.
Plaintiff was granted judgment for $59,413.
CIVIL PROCEDURE
COSTS – Trial judge erred by
allowing plaintiff to recover fees paid
to outside counsel to attend a hearing
before the Worker’s Compensation
Appeals Tribunal.
Appeal from an order related to costs
and disbursements. Police responded to a
neighbour’s call and entered plaintiff’s
place of employment. Believing that he
was engaged in wrongdoing, six officers
inflicted serious injuries that required
emergency surgery and hospitalization.
Plaintiff sued defendant police and the
city for battery and gross negligence. The
trial judge dismissed the claims against
the police defendants personally due to
insufficient evidence regarding the standard of care. The issue of the city’s vicarious liability for the officers’ conduct was
put to the jury. The jury found the city
vicariously liable for a battery committed
by the police and awarded damages.
Defendants appealed the trial judge’s
costs award entitling plaintiff to recover
legal fees of $8,400 as a disbursement.
The fees were paid to the lawyer retained
by plaintiff’s counsel to oppose an application by defendant police before a Worker’s Compensation Appeals Tribunal. The
judge found that it had been necessary
and reasonable to retain the lawyer as a
specialist in the Tribunal process. The
application had been unsuccessful. The
Tribunal rejected the police argument
that plaintiff’s injuries occurred in the
course of his employment.
HELD: Appeal allowed. The judge did
not err in holding that the Tribunal lawyer’s
fees were only recoverable as a disbursement
in their full amount. The fees were not
capable of assessment at a lower amount or
taxation, as the Tribunal lawyer was not
counsel of record in the trial proceeding.
However, the judge acted on erroneous principles in exercising his discretion to permit
recovery of the Tribunal lawyer’s fees. The
judge erred in characterizing the fact that the
issue arose late in the action as urgent, and
misapprehended the differences between the
Tribunal and Supreme Court procedures in
citing them as justification for hiring counsel.
In addition, there was insufficient evidentiary basis for the finding that trial counsel
lacked the requisite skill to deal with the Tribunal matter himself. The case did not fall
within the limited and exceptional circumstances that permitted recovery of external
counsel’s fess as a disbursement.
Baiden v. Vancouver (City) Police
Department, [2010] B.C.J. No. 1602,
B.C.C.A., per Neilson J.A. (Frankel and
Smith JJ.A. concurring), Aug. 16/10.
Digest No. 3018-003 (Approx. 7 pp.)
DEEMED UNDERTAKING RULE –
Defendant was granted leave to be
relieved of the deemed undertaking rule
in order to use transcripts from plaintiffs’
examinations in criminal proceedings to
lay a private information.
Motion by defendant for leave to be
relieved from the deemed undertaking rule.
Defendant sought to use the transcripts from
the examinations for discovery in a private
prosecution for perjury. Plaintiffs commenced an action against defendant for
damages for assault. The action was successful, although defendant had appealed the
judgment. Defendant was also criminally
convicted of assault against plaintiffs.
Defendant alleged that plaintiffs had perjured themselves in examinations for discovery in the assault claim.
HELD: Motion allowed. Defendant did
not intend to use the examination for discovery transcripts for the purposes of
impeachment. Rather, he sought to use the
transcripts for the purposes of laying a private information against plaintiffs. Therefore, the exception in R. 30.1.01( 6) of the
Rules of Civil Procedure was not applicable. Defendant’s actions were not an abuse
of process. He met the onus of establishing
that the interests of justice in granting relief
from the deemed undertaking rule outweighed any potential prejudice to plaintiffs. However, defendant breached his
undertaking by providing a copy of the
transcripts to the Crown Attorney’s Office.
He was subject to a costs sanction.
Bowman v. Zibotics, [2010] O.J. No.
3393, Ont. S.C.J., Hourigan J., Aug. 11/10.
Digest No. 3018-004 (Approx. 5 pp.)
INTERVENTION – Justice for Chil-
dren and Youth was granted leave to inter-
vene in appeals by the Office of the Chil-
dren’s Lawyer concerning representation
of certain children whose parents were
engaged in matrimonial litigation.
Motion by Justice for Children and Youth
for leave to intervene in a series of appeals by
the Office of the Children’s Lawyer. The
Office appealed from an order directing it to
represent certain children whose parents
were engaged in matrimonial litigation on
the basis of exigent circumstances. The
appeals were set to be heard on Sept. 3, 2010,
and no responding materials had been filed.
The Office conceded the expertise of the
group in the area of children’s rights but
opposed the application to intervene.
HELD: Motion allowed. The children
whose interests would be affected by the
appeals would not have a voice if the group
was not granted intervenor status. The
group could provide assistance to the court
on the issue of the impact of the United
Nations Convention on the Rights of the
Child on the Office’s discretion to decide
whether or not to investigate and to report
on particular situations.
CLASS ACTIONS
CERTIFICATION – Chambers judge
did not err in finding that individual issues
overwhelmed the common issues in a pro-
posed class action.
Application for leave to appeal the dismissal of an application to certify a multi-jurisdictional class action. The action was for
damages for injuries suffered as a result of
exposure to warfare compounds. Applicant
alleged that between 1940 and 1976, he was
exposed to various forms of airborne contaminants at five different military establishments in Canada while on duty with the
Canadian Forces. The chambers judge dismissed the application on the grounds that
the proposed class had the potential to be
unreasonably over-inclusive. Applicant failed
to satisfy the requirement of an identifiable
class. The judge also found that a class action
was not the preferable procedure for the
resolution of the common issues as they were
too weak to advance the litigation in any
meaningful respect and were overwhelmed
by the individual issues. Finally, he determined that applicant would not fairly and
adequately represent the interests of the class
as he had no knowledge of the litigation process, and was more interested in the pursuit
of his personal claim. Applicant argued that
the judge erred in using a predominance of
individual issues approach.
HELD: Application dismissed. There was
questionable merit in the grounds of appeal
as a whole, and a lack of demonstrable
importance that the issues on the appeal
presented. The chambers judge concluded
that individual issues overwhelmed the common issues and that the common issues were
not strong enough to advance the litigation,
not that the presence of individual issues was
a bar to certification. He was entitled to make
that determination. Applicant’s arguments
were therefore bound to fail on appeal.
Spurr v. Canada, [2010] S.J. No. 466,
Sask. C.A., Ottenbreit J.A., Aug. 13/10.
Digest No. 3018-006 (Approx. 8 pp.)
PARTIES – Court allowed an amend-
ment to the statement of claim in a class
action to include class members from the
province of Quebec.
Motion by plaintiff to amend the statement of claim to delete references to a former
defendant and to amend the certification
order by removing from the class definition
the words “except in the province of Quebec,”
so that the class proceeding would become a
national class action. Plaintiff represented a
class of cattle farmers who sued the government as a result of the closure of international orders to Canadian cattle and beef
products following a 2003 diagnosis of a
single case of mad cow disease in an Alberta
cow. The Crown was alleged to have been
negligent as regulator of the cattle industry in
