ent. In 2004 the union applied for
certification, filing evidence of employee
support through signed membership
cards. At that time, the Labour Relations Board had discretion to accept
proof of support by signed membership
cards, or to order a vote to determine
whether the union actually had majority
support. By the time the certification
order was issued in 2008, subs. 6(1) of
the Trade Union Act (Sask.) had been
amended so as to require an employee
vote by secret ballot before a certification order could be made. The Board did
not direct a vote, but used the membership cards to determine support and
issued the certification order. The chambers judge quashed the Board’s decision
on the basis that the Board should have
applied the amended version of Act in
deciding whether to certify the Union.
HELD: Appeal allowed. The chambers judge erred in quashing the Board’s
decision. The requirement for an
employee vote, added to the Act in 2008,
did not govern the determination of the
union’s certification application. The
evidence had been presented to the
Board and all of the legal arguments had
been made by December 2005. Accordingly, even if the amendment could be
described as purely procedural in nature,
there was no presumption that it applied
to the hearing. The parties were only
waiting for the Board’s decision. The
amendment did not apply to certification applications filed and argued before
the date it came into force.
Wal-Mart Canada Corp. v. United
Food and Commercial Workers, Local
1400, [2010] S. J. No. 590, Sask. C. A.,
per Richards J.A. (Klebuc C.J.S. and
Cameron J. A. concurring), Oct. 14/10.
Digest No. 3026-012 (Approx. 12 pp.)
LIMITATION OF ACTIONS
COMMENCEMENT – Court refused
to add plaintiff’s family physician to her
action after the expiration of the two year
limitation period.
Motion by plaintiff to amend her
statement of claim and add her former
family physician as a defendant. Plaintiff believed she was infected with tuberculosis (TB) while resident in a shelter
operated by defendant N Inc. Originally
she alleged that the TB clinic operated
by the city, Dr. J and N Inc. were responsible for her infection and later alleged
that she was misdiagnosed as having
only latent TB. She also alleged that
defendants took steps to alter documents to cover up their wrongdoing.
Plaintiff tested positive for exposure to
TB in a skin test in the fall of 2006
shortly after her time in the shelter. It
had been preceded by a negative test in
March 2006. Her family physician, Dr.
W, refused to refill a prescription given
to plaintiff by Dr. J.
HELD: Motion dismissed. The cause
of action was primarily an allegation of
negligence in the medical treatment ren-
dered and failure to follow protocols for
persons exposed to active carriers of TB.
Dr. W’s role in the medical treatment of
plaintiff ended in October 2007, when
she last treated plaintiff. The cause of
action for negligence in connection with
the medical treatment provided by Dr. W
would have run from that date. The lim-
itation period had expired. It would be
frivolous, vexatious and an abuse of pro-
cess to add Dr. W now.
MOTOR VEHICLE ACCIDENTS –
Plaintiff entitled to amend his statement of claim to add his own insurer
as a party defendant with respect to a
claim under the uninsured motorist
provisions of his insurance policy.
Motion by plaintiff for leave to amend
his statement of claim to add his own
insurer as a party defendant. The action
arose out of a 2005 motor vehicle accident. Plaintiff was a passenger in a
motor vehicle owned and operated by
defendants. He alleged that the accident
was caused by the negligence of defendants and that he suffered serious injuries as a result. He claimed damages of
$1.5 million. The police report indicated
that defendants’ insurer was T Co. and
provided a policy number. Plaintiff gave
notice of this claim to T Co. by letter of
May 25, 2007. T Co. did not respond. In
September 2008 plaintiff learned that T
Co. was not defendants’ insurer, but
rather their insurance broker. Defendants’ insurer was in fact Nordic. Nordic
advised that the subject vehicle had
been deleted from defendants’ coverage
prior to the accident. Plaintiff sought to
claim against his own insurer pursuant
to the uninsured motorist provisions of
his policy and subs. 265(1) of the
Insurance Act (Ont.) and under the Family
Protection Coverage of his policy (OPCF
44) in respect of amounts which might
exceed the limits of the uninsured automobile coverage.
HELD: Motion granted in part. Plaintiff
met the applicable test in respect of the claim
relating to the uninsured motorist coverage.
T Co. was put on notice of plaintiff’s claim in
May 2007 and did not respond. Nordic
failed to advise plaintiff of defendants’ lack of
insurance for many months after it was first
contacted by plaintiff and served with the
statement of claim. Plaintiff’s insurer was
added as a party defendant. The 12 month
limitation period applicable to the OPCF 44
claims began to run when plaintiff knew, or
ought to have known, that his claims would
exceed the $200,000 minimum motor
vehicle liability limits in Ontario. Plaintiff
had that knowledge when he issued his
statement of claim on Dec. 21, 2007 claiming $1.5 million in damages. As a result, the
time for commencing an action under the
OPCF 44 had expired.
Cilurzo v. Kando, [2010] O.J. No.
4267, Ont. S.C.J., Muir (Master), Oct.
6/10. Digest No. 3026-014 (Approx. 7 pp.)
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Appeal by the Motor Vehicle Accident
Claims Fund from an arbitrator’s decision
that it was responsible for payment of automobile accident benefits to G, a bicyclist
involved in an accident with an unidentified
motor vehicle in 2006. G submitted a signed
application for accident benefits on Dec. 19,
2006 that was received by the Fund on
March 7, 2007. An application for statutory
accident benefits required that a motor
vehicle accident police report be attached.
G’s application did not have a police report
but advised the Fund that the driver of the
vehicle which struck him had called “911” on
her cell phone to advise police of the accident. The police officer advised that his notes
had gone missing and it was possible he had
not written an official report. The Fund
received the 911 records on Sept. 8, 2008. It
was determined that L was the driver of the
vehicle which struck G. L was insured by
respondent P Co. The Fund notified P Co. on
Oct. 10, 2008 that it believed P Co. was
liable to pay the accident benefits to G.
HELD: Appeal allowed. The Motor
Vehicle Claims Act (Ont.) provides that an
insurer may not dispute its obligation to pay
benefits unless it gives written notice within
90 days of receipt of a completed application for benefits to every insurer who it
claimed was required to pay. The arbitrator
held that the Fund did not comply with the
notice requirement and did not provide
timely notice to P Co. There was not sufficient information for the Fund to determine
who the insurer of the unidentified motorist
was until the 911 record was obtained.
There was not a “completed application”
within the meaning of subs. 3(1) of the regulations to the Act until Sept. 8, 2008. The
limitation period did not begin to run until
then. P Co. was notified in time.
Ontario (Minister of Finance) v. Pilot
Insurance Co., [2010] O.J. No. 4205,
Ont. S.C. J., Cumming J., Oct. 4/10. Digest
No. 3026-015 (Approx. 7 pp.)
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ACCIDENT CLAIMS FUND – The
Motor Vehicle Accident Claims Fund
notified respondent insurer of its potential liability to pay accident benefits
before the expiration of the 90 day limitation period.
ACTIONS BETWEEN PARTNERS –
Court declined to grant summary judg-
ment to plaintiff for moneys allegedly
owed under partnership agreement.
Motion by plaintiff for summary
judgment. The individual defendants
moved to dismiss the action against
them. Plaintiff and defendant F Inc.
were construction companies. In 2001
they decided to seek out sewer projects.
F Inc. would bid on the contracts
because it had the requisite bonding
facility necessary to obtain them, and
plaintiff would carry out the work. In
May 2003 they entered into an agreement which provided that all jobs on
hand would be completed together. They
formed a partnership and agreed that all
profits would be divided 50/50. Financial statements prepared by F Inc.’s
accountants and dated June 30, 2004
showed a profit of $195,792. Plaintiff
moved to recover half of that amount.
Defendants alleged that plaintiff had
already been paid in full because it
retained other funds and did not put
them into the partnership.
HELD: Plaintiff’s motion dismissed.
There was no evidence that the parties
agreed that the determination of the
profit by the accounting firm was final
and binding on both parties. DL alleged
there were issues with the statements.
Plaintiff put forward no evidence with
respect to that allegation. The court was
