THE LAWYERS WEEKLY
January 14, 2011| 15
DIGEST
OF RECENT DECISIONS FROM CANADA’S COURTS
Michael Hamilton, LL.B. E-mail: jandm@hfx.eastlink.ca
APPEALS
STAY PENDING APPEAL – Court
extended stay of judgment finding certain prostitution provisions of the
Criminal Code unconstitutional until April 29,
2011 or the hearing of an appeal.
Motion for a stay of judgment pending
appeal. Respondents were three former and
current sex trade workers who obtained a
judgment striking down certain prostitution provisions of the Criminal Code as
unconstitutional. The judge ruled that the
provisions were contrary to subs. 2(b) and s.
7 of the Charter and were not saved under s.
1. Enforcement of the impugned provisions
prevented prostitutes from reducing the
risk of harm inherent in their work in a
manner inconsistent with the fundamental
principles of justice. The judgment left
intact several other provisions related to
prostitution. The parties agreed to stay the
original judgment for 30 days pending the
predicate motion. The Crown sought extension of the stay until a full appellate review
had been conducted.
HELD: Motion allowed. The public
interest warranted a stay for a relatively
short duration to permit appellate review of
the decision. Maintenance of the status quo
minimized public confusion regarding the
state of the law in Ontario. Police were able
to continue enforcement practices that they
say provided a measure of safety to sex trade
workers, while government had the opportunity to consider a legislative response to
the judgment informed by a full appellate
review. On the other hand, maintenance of
the status quo left in place a legislative
framework that seriously impacted on the
physical security of individuals working in
an occupation that was not illegal per se.
However, there was no evidence as to how
the suspension of the impugned provisions
would measurably increase the safety of
prostitutes during the relatively short time
pending appeal. The invalidity of the
impugned provisions would leave
unregulated an area of activity associated
with serious potential short-term harm to
communities. Under such circumstances,
the balance of convenience favoured the
Crown and the relief sought. The judgment
was further stayed until the earlier of April
29, 2011, or until the appeal was argued.
Bedford v. Canada (Attorney General),
[2010] O.J. No. 5155, Ont. C.A., Rosen-
berg J. A., Dec. 2/10. Digest No. 3033-001
(Approx. 19 pp.)
BANKRUPTCY
& INSOLVENCY
ACT OF BANKRUPTCY – Court not
satisfied that debt owed to a single
creditor should result in an order in
bankruptcy against respondents.
Application for an order in bankruptcy
against respondents. Applicant supplied
respondents with gasoline, diesel fuel and
lubricants for their gas station. Respond-
ents fell into arrears on their account and, as
a result of information supplied, applicant
agreed to continue supplying fuel and to
extend credit of up to $50,000. When
agreed upon payments were not made,
applicant demanded payment of the entire
account of $84,959. When that was not
paid, applicant issued a statement of claim,
obtained summary judgment and issued a
writ of seizure and sale. Applicant was
unable to obtain an order authorizing the
sheriff to sell the gas station because one of
the respondent’s wives was on title. It
applied for an order in bankruptcy.
CIVIL PROCEDURE
DISCOVERY – Applicant failed to
establish a right to a Norwich order as it
would infringe on the privacy rights of a
number of young girls.
Application for Norwich orders to permit applicant to attend at respondent’s
business office to view membership photos
of female members between 12 and 20
years of age, make copies of relevant photos
and membership information and attend to
view respondent’s records for sign-in,
equipment rental and waivers for female
customers between the ages of 12 and 20
who may have used the premises on Jan. 10,
2010, and make copies of such documents.
Applicant hoped that by viewing the records he might be able to identify a young
female snowboarder who crashed into him
while they were both on the ski hill on Jan.
10, 2010 causing a significant injury to
applicant’s ankle.
HELD: Application denied. The issue
was the balancing of applicant’s interests in
obtaining information about the alleged
tortfeasor and the privacy interests of chil-
dren who were members of or who skied or
snowboarded at defendant’s property. Nor-
wich orders were granted in those situations
where the information sought was within
the knowledge of the information holder
and the granting of the order virtually guar-
anteed the identification of the alleged tort-
feasor or would provide other information
necessary to proceed with litigation. The
disclosure of personal records in this type of
situation did not fall within the governing
principles or the test for granting a Norwich
order. Applicant’s interests did not outweigh
the invasion of the privacy rights of a num-
ber of uninvolved young girls. Applicant
may have a cause of action against respond-
ent and other organizations. He therefore
had the ability to plead his cause of action.
DISMISSAL OF ACTION – Court
declined to dismiss plaintiff’s action
against sole remaining defendant because
there was a genuine issue for trial of liability for a motor vehicle accident.
Motion by defendant SS for summary
judgment dismissing plaintiff’s claim on
grounds that there was no genuine issue for
trial or for failure to comply with undertakings. In 2000 SS was involved in a motor
vehicle accident with defendant SZ. Plaintiff
was a passenger in the SS vehicle. The accident report indicated that SZ failed to yield
right of way to SS’s vehicle and caused the
collision. Plaintiff claimed she suffered serious injuries and had been unable to work
since the accident. She sued SS, SZ and LL,
the owner of the vehicle driven by SZ. Plaintiff settled with SZ and LL for $239,407 but
continued the action against SS. SZ had
admitted liability in a letter and both SZ and
LL had signed a full and final release.
HELD: Motion dismissed. In the full
and final release SZ and LL did not admit
any liability with respect to the accident.
On her examination for discovery, plaintiff
acknowledged that she did not have any
memory at all of the events leading up to
the accident. The letter admitting liability
was not binding on plaintiff or determinative of the liability issue as against SS. It
was still open to the trier of fact to find
that SS was partially liable for the accident, and a finding of even one per cent
liability would permit plaintiff to recover
damages as against SS. There was a genuine issue for trial with respect to liability.
The trier of fact should have the opportunity to hear and see the witnesses. The court
was not satisfied that plaintiff deliberately
and intentionally did not comply with the
order to comply with the undertaking.
Shahbazloo v. Zhao, [2010] O.J.
No. 5179, Ont. S.C.J., Fragomeni J.,
Nov. 23/10. Digest No. 3033-004
(Approx. 6 pp.)
CLASS ACTIONS
CERTIFICATION – Appellate court
upheld certification of a class proceeding but stipulated that determination
of punitive damages would take place
after the determination of the individual issues.
Appeal from an order certifying the
action as a class proceeding. The infant
plaintiff allegedly contracted a rare and ser-
ious eye infection from use of a contact lens
solution manufactured and distributed by
defendants. Plaintiff alleged that defend-
ants were negligent in researching,
developing, testing, manufacturing, distrib-
uting and selling the solution. She further
claimed that the defendants engaged in
deceptive acts or practices contrary to the
Business Practices and Consumer Protec-
tion Act (B.C.). Plaintiff proposed a class
comprised of Canadian residents that pur-
chased or used the solution and subse-
quently contracted or were tested for the
infection, or those financially affected by the
recall. Common issues were proposed in
respect of negligence, punitive damages and
the statutory claims. The court found suffi-
cient evidentiary basis for plaintiff’s claims.
There was sufficient evidence to certify the
subclass of persons who contracted the
infection after using the solution. Nothing
precluded future certification of the remain-
ing subclasses given sufficient evidence. The
court had territorial competence over negli-
gence claims by non-residents, as there was
no basis to decline jurisdiction in favour of
courts in other provinces. Individual issues
did not dominate the common issues in a
manner that vitiated a class action as the
preferable manner in which to resolve the
common issues. Plaintiff’s litigation plan for
the proceeding was workable.
CORPORATIONS
LIABILITY OF CORPORATION –
Individual defendant liable for his com-
pany’s debt to plaintiff because he did not
advise plaintiff that he had incorporated.
Action to recover a debt of $78,798
owed by defendant C and/or his company.
C testified he incorporated his company on
the advice of plaintiff’s principal, K. K suggested he place the farm in his own name
as opposed to through his corporation.
After the debt accumulated, C testified he
and K had another conversation during
which he explained he was having business
difficulties because of an embezzlement
and a matrimonial dispute. C thought he
may have suggested that K place a lien on
the farm property. He testified he was surprised when he was named personally in
plaintiff’s debt recovery action. All the
invoices from plaintiff were addressed to
the company’s business name, to the attention of C. The business name did not
include the word “limited”. The cheques
did not set out the corporate identity.
