pitals. His action took issue with the
timeliness and effectiveness of treatment
that occurred between December 2006
and March 2007. Plaintiff contended that
defendants conspired to cause his premature death. He sought damages for
mental stress and pain and suffering, plus
punitive damages. He also sought regulatory sanctions against defendant physicians. The chambers judge ruled that the
statement of claim disclosed no question
to be tried. He found that it was impossible to read the statement of claim as
alleging a conspiracy with any specificity.
Plaintiff’s claim was struck with leave to
file a new statement of claim within 30
days. Plaintiff failed to file a new claim
and defendants were granted a desk order
dismissing the action. Plaintiff appealed
to have the orders set aside. He filed a
revised statement of claim seeking damages for medical malpractice.
HELD: Appeal dismissed. Even with
allowances for plaintiff’s status as a self-represented litigant, the amended statement of claim did not properly plead a
cause of action. There was no basis upon
which the claim should be allowed to proceed. No cause of action was pleaded
against defendant health authorities. The
allegations against defendant doctors did
not set out blameworthy conduct or the
adverse consequences giving rise to a
claim for damages. The substance of the
proposed amended claim did not plead
any wrongdoing by an individual, suggest
a breach of a standard of care, or allege
that the treatment of plaintiff was performed in a negligent manner.
Ahmed v. Carrere, [2010] B.C.J. No.
1851, B.C.C.A., per Newbury, Saunders
and Bennett JJ.A., Sept. 21/10. Digest
No. 3023-007 (Approx. 6 pp.)
CLASS ACTIONS
CERTIFICATION – Plaintiffs’ pro-
posed class action against defendant
related to charges in parking lots was
conditionally certified.
Motion to certify a class action. Defendant operated parking lots throughout
Canada. It charged parking fees by hourly
rates for parking in its stalls and a motorist who parked a vehicle at one of its lots
could be charged a violation fee if the
motorist did not pay for parking in
advance, paid for parking in advance, but
overstayed the allotted time, or if they
paid for parking but failed to display the
ticket. The pay system was enforced by
random patrols and if vehicles were found
in violation of the posted agreement, a
notice was issued and placed on the
vehicle’s windshield demanding payment
of the violation fee. Plaintiffs brought a
proposed class proceeding on behalf of all
persons who parked a vehicle or whose
vehicle was parked at a parking lot in
Ontario owned and/or operated by the
defendant and who were charged and
paid violations fees to defendant. They
alleged that the parking agreements
between defendant and motorists contravened the Consumer Protection Act
(Ont.), that the violation fee was
unenforceable as a contract of adhesion or
was an unenforceable penalty by reason of
improvidence and the inequality of bargaining power between the parties. Plaintiffs claimed damages of $50 million and
punitive and exemplary damages of $5
million. They also sought remedies for
unjust enrichment.
HELD: Motion allowed. The class
action was certified conditionally. Most of
the purported causes of action were
untenable or unsuitable for certification
as a class action. However, plaintiffs had
shown a reasonable cause of action based
on the false misrepresentation, unconscionable representation and unfair practice provisions of the Act, for unjust
enrichment based on breaches of the Act.
The proposed class was too broad. However, the class definition could be revised
to satisfy the criteria for certification.
Given the court’s findings about what
causes of action were certifiable and about
the appropriate class definition, a number
of the proposed common issues were not
certifiable as common issues, but others
were either acceptable or could be
restated. As the individual claims were
small and would be uneconomic to litigate, and a class action provided access to
justice, judicial economy and behaviour
modification, a class action was the preferable procedure. Neither of the proposed
representative plaintiffs were qualified to
be representative plaintiffs.
Graham v. Imperial Parking Canada
Corp. (c.o.b. Impark), [2010] O.J. No. 3898,
Ont. S.C.J., Perell J., Sept. 16/10. Digest
No. 3023-008 (Approx. 40 pp.)
ESTATES
EXECUTORS AND ADMINISTRA-
TORS – An estate trustee who was in a
conflict of interest with the estate was
not entitled to compensation.
Application by the estate trustees to
pass certain accounts. The issue was
whether one of the estate trustees, P,
should repay fees that she had received.
The testator died in 2004, leaving an
estate valued at approximately $7 million.
Shortly before his death, the testator, who
never married and had no children, made
a new will. In the new will, one of the
existing three trustees was replaced with P,
who was also given a veto over the decisions of the estate. Approximately one year
prior to the testator’s death, he loaned P
$145,000, which he obtained from placing
a mortgage on his home. She made
monthly payments into an account from
which the mortgage was paid, but stopped
the payments after the testator’s death and
did not disclose the loan to the other
executors. At the time of the testator’s
death, he owned two cats and three dogs,
one of which was considered to belong to
the testator’s handyman. Rather than finding new homes for the animals, P insisted
on moving all of the animals to her home
and submitted accounts totalling several
thousand dollars for their food and shelter
care. She also advised the other executors
that if she were required to repay the
$145,000 loan from the testator, she would
have to move out of her house and into an
apartment and have the animals destroyed.
A successful motion was brought to
remove P as an estate trustee.
HELD: Application allowed. On their
own, each of the complaints against P was
enough to disallow any compensation to
be paid to her. Taken together, they dem-
onstrated neglect and default in her duties
as executor and a failure to follow the
intention and desires of the testator. Con-
sequently, P was to receive no compensa-
tion on account of her having been a
trustee of the estate and she was to re-pay
to the estate any money received by her as
pre-payment of compensation for her hav-
ing been a trustee of the estate.
FAMILY LAW
PROCEDURE – Mother failed to
establish the necessity for an expert
report on the father’s finances suffi-
cient to justify payment of interim dis-
bursements.
Application by the mother for preliminary interim disbursements in connection with her litigation costs. The child
was born in 2006 as a result of a relationship between the parties in 2005. The
child had resided with applicant mother
since birth but father had some access
over the years. Initially, father paid $2,500
monthly in support, then $1,500 in 2008,
then $727 in 2009. The father filed an
extensive affidavit regarding his background and financial situation. He was
paying child support of $1,587 monthly
based on an estimated annual income of
$195,000. He had assets of approximately
$4.7 million and an estimated annual
income of $200,000. The mother had
completed her education and anticipated
obtaining employment in the near future.
Because of the complexity of respondent’s
financial affairs and business interests the
mother claimed to require the services of
an expert to review his disclosure and prepare a report, with an estimated cost of
between $25,000 and $37,000.
HELD: Application dismissed. Interim
disbursements have generally been
granted in the form of a loan or in a situation where applicant had a strong prima
facie case. The mother was already heavily
indebted and if she lost her application to
increase child support, there was no realistic possibility of repayment. The father’s
financial situation was not necessarily
complex. In requesting funds for a report
at such an early stage, the mother appeared
to be questioning the credibility of the
father’s financial statements without having tested his disclosure through questioning and cross-examination. The
mother failed to establish the report’s
necessity.
McIlvenna v. Pinkowski, [2010]
O.J. No. 3963, Ont. S.C.J., Del Frate J.,
Sept. 20/10. Digest No. 3023-010
(Approx. 4 pp.)
PROPERTY – Trial judge erred in
determination of wife’s interest in the
husband’s fishing enterprise.
Appeal by the husband from a judgment
awarding the wife a 33 per cent interest in
his fishing enterprise together with indefinite spousal support of $2,000 per month
based on an imputed annual income of
$50,000. The parties married in 1978 and
separated in 2002. At the time of separation, the wife was 42. She had a grade 11
education and limited work experience.
The wife was unable to work due to health
problems. Since the breakdown of the marriage, the wife had had sporadic employment earning minimal income. The trial
judge awarded the wife an interest in the
business based on the fact that a collateral
mortgage was placed on the matrimonial
home to secure a loan for the business, the
husband’s withdrawal of RRSPs and the
wife’s contribution by performing child
care and household duties.
HELD: Appeal allowed in part. The
trial judge erred to the extent that she
considered contributions to the fishing
enterprise other than the wife’s participation in the mortgage on the matrimonial
home. The judge erred in finding that
money from an RRSP had been provided
to the business and in finding that accelerated payment of the mortgage on the
fishing enterprise was made by the husband prior to separation, resulting in a
loss of income for the family. The wife’s
contribution to child care and household
management was not a factor to be considered in the determination of spousal
entitlement to an interest in a business
asset. Taking into account the size of the
mortgage and the minimal but continuing
risk to the matrimonial home until the
house was sold, a payment of $30,000
was ordered to compensate the wife for
her contribution to acquisition of the fishing enterprise. The judge did not err in
the amount awarded for spousal support.
Snook v. Snook, [2010] N.J. No. 285,
Nfld. & Lab. C.A., per Welsh J.A. (Wells
and Barry JJ. A. concurring), Sept. 20/10.
Digest No. 3023-011 (Approx. 13 pp.)
PROPERTY – Trial judge erred
when he failed to comply with the limit-
ation period by limiting dissipation of
assets to the two year period immedi-
ately preceding separation.
Appeal from a judgment awarding an
unequal division of the family home and
other family property. The award was
made on the basis that the husband had
dissipated family property through the
expenditure of $156,000 on gambling
over the 10 years which immediately preceded the permanent separation of the
parties. The husband contended that the
trial judge erred when he found that the
husband’s actions amounted to “
dissipation” as defined in s. 2 of The Family
Property Act (Sask.) and were substantially detrimental to the parties’ financial
standing. He also argued that the trial
judge failed to comply with the two year
limitation period in para. 28(1)(b) of the
Act by not limiting the alleged dissipation
to the period between May 11, 2005 and
May 11, 2007.
HELD: Appeal allowed in part. The
husband’s gambling losses relative to his
income, his inability to meaningfully contribute to the cost of maintaining the
family home, and the resulting long-term
financial jeopardy which flowed from his
gambling collectively amounted to an
extraordinary circumstance for the purposes of subs. 22(1) of the Act. However,
the trial judge erred when he failed to
comply with the two year limitation period in para. 28(1)(b), which clearly applied
to distributions of family property, including claims of dissipation. The matter was
referred back to the judge for a re-deter-mination of the amount dissipated only in
the two years immediately prior to the
parties’ permanent separation.
Phillips v. Phillips, [2010] S.J. No.
548, Sask. C.A., per Klebuc C.J.S.
(Sherstobitoff and Richards JJ.A. con-
curring), Sept. 23/10. Digest No. 3023-
012 (Approx. 14 pp.)
INSURANCE (LIABILITY)
DUTY TO DEFEND – A pollution
liability clause in an insurance policy did
not apply to preclude applicant insurer’s
