conduct in delaying matters the court
ordered that the termination take effect
Jan. 1, 2009. Applicant had therefore
overpaid respondent by $34,300, which
was to be repaid by respondent. That
amount and any money that she received
through her forgeries should be set off
against whatever entitlement she might
receive as an equalization of the increase
in applicant’s pension for the three years
that were not equalized.
Barber v. Barber,  O.J. No.
806, Ont. S.C.J., Lalonde J., Feb. 24/11.
Digest No. 3044-012 (Approx. 9 pp.)
ACCESS TO INFORMATION –
Judge made no error in finding employee
of respondent had authority to waive
privilege in solicitor’s opinion letter.
Appeal from an order for disclosure of
a legal opinion. Respondent inquired as
to whether a particular road was private
or public and, if it was public, which level
of government had the responsibility for
maintaining it. An area manager for
appellant sent respondent an email
which referred to a legal opinion obtained
from a government lawyer and summarized its reasons. Respondent applied for
access to the opinion under the Freedom
of Information and Protection of Privacy Act (N.S.). Her request was denied
on the basis that the information was
subject to solicitor-client privilege. On
appeal to the court the judge found that
the legal opinion was subject to solicitor-client privilege, but that it had been
impliedly waived by the area manager.
The judge ordered that the legal opinion
be disclosed to respondent.
HELD: Appeal dismissed. In deciding
that solicitor-client privilege could be
waived other than by an order-in-council
by the Executive Council, the judge made
no error that attracted appellate intervention. The framework the judge suggested
for determining when a government actor
could waive privilege was consistent with
the principle of distributed government
authority. The judge made no palpable or
overriding errors in finding that the area
manager had authority to waive privilege
and that he demonstrated an intention to
waive. Consequently, the entire opinion
letter was to be disclosed.
Peach v. Nova Scotia (Department of
Transportation and Infrastructure
Renewal),  N.S.J. No. 114,
N.S.C.A., per Oland J.A. (Fichaud and
Bryson JJ.A. concurring), Mar. 4/11.
Digest No. 3044-013 (Approx. 12 pp.)
ducted a CT angiogram. Plaintiffs claimed
the doctors failed to meet the required
standard of care in their treatment of CM
prior to her death.
HELD: Action allowed. CM’s diastolic
heart murmur and her enlarged ascending
aorta constituted a serious danger sign.
Those responsible for her care opted to
continue to treat her for a pulmonary
embolism because they believed that dissection and the risk of rupture of the aorta
had been ruled out. While Dr. NH was not
required to do anything more than report
his findings, a comment to ensure that the
treating doctors were alert to the risk of
rupture would have been helpful. However, the standard of practice did not
require Dr. NH to go the extra step and
make such a comment. The failure by Dr.
MS to have CM seen by a cardiologist was
not a failure to meet the required standard
of practice. Dr. SH did not exercise that
degree of care and skill which could reasonably be expected of a normal prudent
practitioner. His failure to immediately
evaluate CM’s cardiac condition fell below
the standard of care. The action was
allowed against Dr. SH but dismissed
against the other two doctors. The amount
of damages had been agreed by the parties.
Manary v. Strban,  O.J. No.
784, Ont. S.C.J., Kent J., Feb. 23/11.
Digest No. 3044-014 (Approx. 10 pp.)
DISCRIMINATION IN THE PROVISION OF FACILITIES OR SERVICES –
Decision of Human Rights Tribunal that
complainant was entitled to special diet
allowance quashed as unreasonable.
Application by Ontario for judicial
review of a decision of a Human Rights
Tribunal. The Ontario Disability Support Program Act and the Ontario Works
Act provided that eligible recipients were
entitled to receive a special diet allowance
if an approved health professional confirmed that a recipient of benefits or a
member of a benefit unit required a special diet because of a medical condition,
with certain limits. The complainant W
alleged that the special diet program discriminated against her by failing to include
hypoproteinemia. The only evidence was
that of a registered dietician who recommended that W add one additional low fat
meat serving per day at a cost of $36. The
Tribunal held that diet modifications were
generally recognized for hypoproteinemia
and that W had satisfied the conditions for
the special allowance.
HELD: Application allowed. The decision was quashed. There was no evidence
before the Tribunal to support the finding
that there was general recognition in the
medical community that a particular diet
helped treat W’s disability. That was fatal
to W’s position. The dietician’s report did
not establish that there was a medical condition of hypoproteinemia. Even if a protein deficiency, by itself, was a recognized
medical condition of hypoproteinemia, it
could not be assumed from the dietician’s
evidence that eating additional protein
from food sources would be an appropriate treatment. The outcome of the decision
Ontario (Minister of Community and
Social Services) v. W. (Litigation guardian of ),  O.J. No. 881, Ont. Div.
Ct., per Cunningham A.C.J.S.C.J., Jennings and Wilton-Siegel JJ., Feb. 24/11.
Digest No. 3044-015 (Approx. 10 pp.)
DUTY TO DEFEND – Applicant not
entitled to choose and instruct lead
counsel in action against it but did not
forfeit its coverage under its liability
Application to determine the respective rights and obligations of the parties
as insurer and insured. Applicant purchased liability insurance of $2,000,000
with respondent insurer. Applicant
installed a security system at a warehouse and, within the period it was to
provide monitoring services, the roof of
the warehouse collapsed as a result of
excessive snow load. The occupant of the
warehouse suffered damages alleged to
be in excess of $7,000,000. The occupant
of the warehouse commenced an action
alleging applicant contributed to its loss
by failing to notify it when the roof collapsed. Applicant sought an order per-mitting it to choose and instruct lead
counsel, together with an order confirming that it had not forfeited its insurance coverage by advising counsel
appointed by respondent to cease and
desist from defending the action and by
commencing third party proceedings
HELD: Application allowed in part.
Applicant was not permitted to choose and
instruct lead counsel but it had not
deprived itself of the right to a defence and
insurance coverage from respondent.
There was no reasonable apprehension of
conflict of interest on the part of counsel
appointed by respondent and applicant
was not entitled to engage independent
counsel at respondent’s expense.
137328 Canada Inc. (c.o.b. Alliance
Security Systems) v. Economical Mutual
Insurance Co.,  O.J. No. 751, Ont.
S.C.J., Smith J., Feb. 22/11. Digest No.
3044-016 (Approx. 9 pp.)
GUARANTEE – Court granted dec-
laration that defendant corporation had
guaranteed a $135,000 loan secured by
mortgage on condominium.
Action for a declaration that defendant
A Corp. guaranteed a $135,000 loan and
that a debt to A Corp. was extinguished.
Defendant M and his corporation, defendant 155, lent money to plaintiffs and A
Corp. M agreed to lend the individual
plaintiffs, H and L, $135,000. A $135,000
mortgage was registered on a condominium, purchased in L’s name, in favour of
155. A document called a guarantee was
signed and witnessed, in which A Corp.
guaranteed payment of the loan and
requiring A Corp. to give L a General
Security Agreement (GSA) over all of its
assets and permitted her to register the
security under the PPSA. L did not obtain
the GSA or register anything under the
PPSA. In November 2006 M loaned A
Corp. and plaintiff F Ltd. $440,000. The
loan required H and L to execute a share
pledge agreement of their A Corp. shares
in favour of M. After A Corp. and F Ltd.
defaulted on the loan, M exercised his
rights under the guarantees given by H
and L and the share pledge agreements,
and became owner of all of the shares in A
Corp. The $440,000 mortgage was discharged. M, who had no knowledge of the
A Corp. guarantee until it was produced in
plaintiffs’ motion record in 2010, caused A
Corp. to pay him the $22,678 outstanding
on the note as of Jan. 11, 2011. The underlying issue was the validity and effect of
the guarantee L obtained from A Corp.
and the effect of M’s actions pursuant to
the share pledge agreements that provided
some of the security for the $440,000
loan. The amount of $200,000 from the
sale of the condominium was held in trust
to the credit of the action. As of Jan. 15,
2011, $222,795 was outstanding on the
HELD: Action allowed in part. When
M exercised his rights under the share
pledge agreement his seizure of the shares
only released H and L from their obligations as guarantors and did not extinguish
A Corp.’s primary obligations under its
promissory note and the security it provided. M acted correctly when he caused A
Corp. to pay him the $22,678 outstanding
on the note. M had the obligation of ensuring that A Corp. met its obligation under
the balance of the note and its obligation
to L under its guarantee of the $135,000
NEGLIGENCE – Court found
defendant obstetrician liable for dam-
ages for failing to meet required stan-
dard of care.
Action for damages for negligence. In
August 2003 CM, a 28 year old woman,
died in hospital from a ruptured aorta.
She was pregnant at the time. The child
was due to be delivered in September
2003. The child was delivered by caesarean section and survived. CM had been
admitted to the obstetrical floor of a hospital and was under the care of Dr. SH. Dr.
MS, a respirologist, became involved in
CM’s care. Dr. NH, a radiologist, con-
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FAMILY LAWYER —
Are you diligent, empathetic,
knowledgeable and have a passion
for family law? Full details at:
RE: ESTATE OF
Anyone having knowledge of a
Will of the late, Richard Goddard,
of the City of Toronto, in the
Province of Ontario, who died on
or about February 13, 2011, is
requested to contact, Robert G.
Coates, Barrister & Solicitor at tel:
416-925-6490 fax 416-925-4492
To place your
1-800-668-6481 ex. 804