within the provincial sphere. The attempt to
provide meaningful services to a particular
community could not oust primary provincial jurisdiction over the service providers’
labour relations.
NIL/TU,O Child and Family Services
Society v. B.C. Government and Service
Employees’ Union, [2010] S.C.J. No. 45,
S.C.C., per Abella J. (LeBel, Deschamps,
Charron, Rothstein and Cromwell JJ.
concurring), joint reason concurring by
McLachlin C.J. and Fish J. (Binnie J. con-
curring), Nov. 4, 2010. Digest No. 3029-
006 (Approx. 27 pp.)
CORPORATIONS
OPPRESSION – Plaintiff entitled to
interim damages against defendants
for the fair value of shares he owned in
a company.
Application for summary judgment on
plaintiff’s oppression remedy claim under
the Business Corporations Act (Ont.).
Plaintiff was an employee of W Ltd., an
engineering firm which owned an office
building in Mississauga. W Ltd.’s shares
were owned by a numbered company, 829.
In 1997 W Ltd. sold its engineering business. By 1999 plaintiff owned four per cent
of the shares of 829, which he had purchased for approximately $68,000. The
only substantial asset of 829 was its share-holding in W Ltd., and the only substantial
asset of W Ltd. was the office building. The
building was to be sold to defendant H. The
shareholders of 829 agreed to sell their
shares to H for $950,000. Plaintiff expected
to be advised that 829 had exercised its right
to purchase his shares for fair value. No steps
were taken to buy plaintiff’s shares in 829. W
Ltd. and 829 were dissolved.
HELD: Motion granted. While the
shareholders agreement for 829 allowed
two thirds of the shareholders to amend or
terminate the agreement, it required that
they give written notice to 829 and the other
shareholders of their intention to amend or
terminate the agreement. That was never
done. Plaintiff never agreed to sell his shares
and the provisions of the shareholders’
agreement allowing 829 to purchase shares
for cancellation at fair value were not followed. The business of 829 and W Ltd. was
carried on, and the powers of the directors
exercised, in a manner that was oppressive,
unfairly prejudicial to or unfairly disregarded the interests of plaintiff. Defendant A was the controlling mind of 829. He
failed to provide plaintiff with information
or respond to his enquiries. A failed to
ensure that holdback funds were paid to
plaintiff. He engineered the transactions
and reaped the benefit of selling the property. Interim compensation should be
awarded. The shareholders of 829 received
$4.41 per share. Defendants were jointly
and severally liable to pay plaintiff $27,099
plus interest, without prejudice to the right
of plaintiff to claim additional amounts.
Metcalfe v. Anobile, [2010] O.J. No.
4548, Ont. S.C.J., Sproat J., Oct. 26/10.
Digest No. 3029-007 (Approx. 13 pp.)
DAMAGES
(PERSONAL INJURY)
CONSIDERATIONS – Court deter-
mined that an April 2000 motor vehicle
accident was the cause of plaintiff’s injur-
ies despite a pre-existing condition and
two subsequent accidents.
Action for damages for injuries sustained
in a motor vehicle accident. Plaintiff was
involved in a rear-end collision with defendants’ vehicle in April 2000. Defendants
admitted liability for the accident. Plaintiff
sustained a whiplash injury. Plaintiff had
excellent career prospects at the time of the
accident and was physically active. One year
after the accident, he was in chronic pain,
anxious, severely depressed, and risked the
loss of his job due to poor performance. In
February 2001, he took long-term disability
from which he never returned. Plaintiff had
a history of pre-existing neck and back pain
that required chiropractic treatment, and
work-related stress. In addition, plaintiff
was involved in two subsequent rear-end
motor vehicle accidents in February 2002
and August 2003.
HELD: Action allowed. But for the first
accident, plaintiff would not have developed
the chronic pain, stress, anxiety disorders
and associated problems. Plaintiff’s pre-accident neck and back pain was not
unusual, and had always resolved with
treatment. Plaintiff suffered from chronic
pain syndrome. Plaintiff’s debilitating
physical and psychological maladies were
ongoing at the time of the subsequent accidents. Those accidents contributed to plaintiff’s damages, but did not cause them. His
current complaints were caused by the first
accident. Damages were globally assessed
for all three accidents, with 10 per cent and
20 per cent attributable to the second and
third accidents respectively. In the net
result, plaintiff was awarded general damages of $98,000, damages for future income
loss of $579,612 and damages for loss of
housekeeping capacity of $66,500.
McDonald v. Kwan, [2010] O.J. No.
4511, Ont. S.C.J., Frank J., Oct. 22/10.
Digest No. 3029-008 (Approx. 36 pp.)
DEBTOR & CREDITOR
SET OFF – Defendant not entitled to
claim an equitable set-off against money
owed to plaintiff on a personal loan.
Application by plaintiff for summary
judgment to recover money loaned to
defendant. Defendant argued that he had a
claim for set-off and a viable counterclaim
for damages against plaintiff. Plaintiff was
employed as a bookkeeper for a metal recycling business, M Co. She loaned defendant,
who was involved in the business, the sum of
$50,000. The parties’ agreement was
reduced to writing. It provided that the term
of the loan was between 12 and 24 months
and that defendant would pay interest at the
rate of $2,500 every two months. Demand
was duly made on the loan. Nothing was
paid against the principal but $4,500 was
paid in interest. The sum of $60,500 was
outstanding. M Co. closed in November
2008. In March 2009 plaintiff and two of
defendant’s former co-workers opened a
new metal recycling business. Defendant
claimed, by way of legal and equitable set-off, that plaintiff and others damaged his
economic interests in M Co. He alleged in
his counterclaim that plaintiff and others
breached a fiduciary duty owed to M Co. by
misappropriating confidential information
and by starting a competing business.
HELD: Application allowed. Plaintiff
was awarded $60,500. There was no dis-
pute about plaintiff’s claim. Defendant con-
ceded that he did not have an arguable
claim to a legal set-off. The defence of equit-
able set-off did not raise a genuine issue that
required a trial. It did not go to the root of
plaintiff’s claim and it was not so clearly
connected with her claim that it would be
manifestly unjust to grant judgment in
plaintiff’s favour prior to the adjudication of
the counterclaim. The $50,000 loan was
personal to defendant. It was not a loan to
M Co. The set-off related to an issue primar-
ily between M Co. and several former
employees. Defendant could continue to
pursue his counterclaim.
FAMILY LAW
CHILD WELFARE – Superior Court
judge should not have exercised his par-
ens patriae jurisdiction to order the
Office of the Children’s Lawyer to act in
six family law matters.
Appeal by the Office of the Children’s
Lawyer (“OCL”) from orders requiring it to
investigate or to represent the children in
six family law matters. The OCL had initially
refused to act. In each case, a Superior
Court judge found that there was a risk of
harm to the children and a concern of delay,
and ordered that the OCL become involved.
The judge exercised the parens patriae
jurisdiction of the court in ordering the
OCL to act. The OCL argued that the judge
exceeded his jurisdiction and erred in invoking the parens patriae jurisdiction of the
court. The OCL submitted that the judge
ought to have ordered the referral of the
matters to the OCL and requested that it
provide independent legal representation or
a social work report and, if that request was
refused, asked the OCL to reconsider its
refusal or to consider other alternatives. The
OCL further submitted that even if the
court had the power to exercise its parens
patriae jurisdiction to order the OCL to act,
that jurisdiction ought not to have been
exercised as the OCL would be ordered to
act in so many cases that it would not be
able to meet the requests made by Ontario
Court of Justice judges, who did not have
parens patriae jurisdiction.
HELD: Appeal allowed. Assuming, without deciding, that Superior Court judges
could, in the appropriate circumstances,
exercise their parens patriae jurisdiction to
order the OCL to act, that jurisdiction ought
not to have been exercised. The judge ought
to have respected the structure of ss. 89( 3.1)
and 112 of the Courts of Justice Act (Ont.),
which gave the OCL discretion in considering requests for its involvement. Prior to
exercising his parens patriae jurisdiction to
make an order, it was incumbent on the
judge to consider and avail himself of the
other available avenues for assistance that
were responsive to the specific factual problems before him.
A.C.B. v. R.B., [2010] O.J. No. 4558,
Ont. C. A., per Weiler J. A. (Blair, MacFar-
land, LaForme and Watt JJ.A. concur-
ring), Oct. 28/10. Digest No. 3029-010
(Approx. 18 pp.)
INSURANCE
(HOMEOWNERS)
COVERAGE – A clause in an insur-
ance policy precluded coverage for prop-
erty damage resulting from an insured’s
criminal act.
Appeal from dismissal of a direct
recourse action and breach of contract
action against defendant insurer. W and a
friend released diesel fuel from a tank sur-
rounded by machinery at a construction
site. Another companion subsequently
ignited the spilled fuel. The resulting fire
damaged equipment owned by R Ltd. The
companion who ignited the fuel pleaded
guilty to criminal mischief. W was never
charged. R Ltd. sued several parties for neg-
ligence, including W. Respondent was the
home insurer for the W family and partici-
pated in the negligence trial as a third party.
W was found negligent for the fire that
damaged R Ltd.’s equipment. When R Ltd.
was unable to satisfy its judgment, it sued
respondent pursuant to the direct recourse
provision in s. 530 of the Insurance Act
(Sask.). W sued respondent for breach of
contract. The trial judge dismissed the
action on the basis of a clause excluding
coverage for property damage resulting
from, as opposed to caused by, an insured’s
criminal act. The judge cited W’s intentional
pre-fire vandalism as found by the original
judge, as the criminal act.
INSURANCE (LIABILITY)
DUTY TO DEFEND – Respondent
insurer had a duty to defend applicant in
a 2006 action and was required to reim-
burse applicant for legal fees and dis-
bursement’s incurred.
Application for an order that respondent
insurer was obligated to provide a defence
and reimburse applicant for $105,821 in
legal expenses incurred in defending a 2006
action. Applicant had been the general contractor for the construction of a high-rise
residential condominium. It purchased
specific project wrap-up insurance from
respondent. It was sued for damages for
alleged defects and deficiencies in the construction of the project. Applicant forwarded the claim to respondent, which
denied coverage on the basis that there was
no coverage for the claims asserted.
HELD: Application allowed. Respondent
was required to provide a defence to applicant in the action and reimburse applicant
for the fees and disbursements incurred in
defending the action. Even though the wrap-up policy was intended to cover an insured’s
tortuous liability to others and was not
intended to cover the insured’s own defective
workmanship, the policy provided coverage
for damage to tangible property caused by
an occurrence. There was no restriction contained in the policy as to the types of property damage. A plain reading of the allega-
