Appeal from an order allowing
respondent’s application to enforce a Letter of Request from a U.S. judge. The Letter of Request asked appellant to produce
documents maintained by or for three of
its former or current employees and to
produce a representative to be examined
in relation to the documents and to the
issues raised in proceedings pending in
the U.S. Those proceedings targeted various corporate entities relating to well-known candy brands and sprang from a
2007 investigation by the Canadian Competition Bureau into alleged price fixing
relating to the supply of chocolate confectionery products in Canada involving
appellant and others. The U.S. proceedings were dismissed against appellant on
jurisdictional grounds, but the U.S. pleadings continued to set out allegations
against appellant and its representatives,
alleging a connection between the conduct of the Canadian representatives and
the U.S. antitrust activities. Appellant
argued that respondent failed to establish
that the documentation and information
sought were relevant or necessary for use
in the U.S. proceedings or were not otherwise obtainable.
HELD: Appeal dismissed. The application judge considered and applied all of
the pertinent principles, did not accept the
Letter of Request at face value and
independently determined that it was
appropriate, as a matter of comity, to honour the Letter of Request. The Letter of
Request itself reflected the careful findings
of the U.S. judge and his conclusions as to
why the information requested was relevant to those proceedings. The decision
was entitled to considerable deference in
the Canadian application. Since the Canadian entity was no longer a party to the
U.S. proceedings, the information was not
compellable in any other fashion. The
sought-after information was necessary
for the trial and for the disposition of the
U.S. proceedings.
Treat America Ltd. v. Nestlé Canada,
Inc., [2011] O.J. No. 3802, Ont. C.A.,
per Blair J.A. (Feldman and Watt JJ.A.
concurring), Aug. 24/11. Digest No.
3119-006 (Approx. 9 pp.)
class and that class members with arbitration clauses in their service contracts should
be excluded from the class.
HELD: Motions allowed. FORC was
added as representative plaintiff as the
limitation issue was not clear. It was open
for defendants to plead that defence. The
issues were common, as the TSSA treated
all defective brakes as a group in making
the order. The class was identifiable and
the claims were sufficiently pleaded for
certification purposes. The class members
with arbitration clauses in their contracts
were not excluded, as questions remained
as to whether the clauses were in place at
the relevant times and, even if excluded,
the claims would only be excluded against
one of the two defendants.
Toronto Community Housing Corp.
v. Thyssenkrupp Elevator (Canada)
Ltd., [2011] O.J. No. 3746, Ont. S.C.J.,
Horkins J., Aug. 18/11. Digest No. 3119-
007 (Approx. 43 pp.)
CONFLICT OF LAWS
was an American citizen. The husband
was a Canadian citizen. The children were
born in New York State but had lived in
Canada continuously until the family
moved to New York State in 2010. The
mother commenced her divorce petition
in July 2011. The husband commenced his
application in Ontario in August 2011. An
emergency motion was heard in Canada in
the wife’s absence and the husband was
granted temporary custody. The husband
then moved in New York State to have the
divorce action dismissed for lack of jurisdiction. His request was denied.
HELD: Motion dismissed. The court
had jurisdiction to hear the husband’s
application for divorce and corollary relief
based on his ordinary residence in Ontario.
The New York State divorce petition was
issued prior to the husband’s application.
The New York Supreme Court had exclusive jurisdiction. The children were physically present in Ontario and substantial
evidence regarding their best interests was
available in Ontario. However, there was
an outstanding application for custody of
the children in New York State. The children were habitually resident in New York
State when they last lived with both parents. The court could not assume jurisdiction over them under the Children’s Law
Reform Act (Ont.).
McMurtrie v. McMurtrie, [2011] O.J.
No. 3777, Ont. S.C.J., Reid J., Aug. 22/11.
Digest No. 3119-009 (Approx. 9 pp.)
DAMAGES
(PERSONAL INJURY)
PRE-EXISTING CONDITION –
Plaintiff was a thin-skull victim at time
of two motor vehicle accidents but
would not have suffered chronic pain
and depression but for the combination
of the accidents.
Action for damages for injuries sus-
tained in two motor vehicle accidents.
Plaintiff was involved in motor vehicle
accidents in December 2004 and October
2006. As a result of the accidents plaintiff
suffered soft tissue injuries, chronic pain
and a depressive disorder. She became
extremely irritable, angry and hypercritical
and she required assistance with child
care, housekeeping and exercising. Plain-
tiff had been involved in a prior motor
vehicle accident in 2001 in which she suf-
fered soft tissue injuries to the right side of
her neck and mid-back, which caused
some muscle pain that occasionally flared
up, but did not restrict her activities. After
the 2004 accident, plaintiff made some
improvement, but still experienced pain
and restricted movement in her right
shoulder and neck. Plaintiff was pregnant
at the time of the 2006 accident. Plaintiff
was 47 years of age and was married with
two children. Prior to the accidents she
was in good health and was very active.
She had university degrees in commerce
and computer science. At the time of the
accidents plaintiff was not working.
Defendants admitted liability for the acci-
dents. However, they took the position
that the accidents simply aggravated
plaintiff’s pre-existing injuries and that
her depression was caused by other stres-
sors in her life.
CLASS ACTIONS
Classifieds
CERTIFICATION – Court certified
class proceeding against defendants
related to alleged defective brakes in
elevators.
Motion for certification of a class action
and for addition of First Ontario Realty
Corp. (FORC) as representative plaintiff.
Plaintiff brought the action for breach of
contract and negligence against defendants
who manufactured, sold and serviced elevators with emergency brake systems which
were ordered to be replaced by the Technical Standards and Safety Authority
(TSSA). The claim was for replacement of
defective goods and breach of service contracts for non-payment of replacement
costs. About 2000 brakes had to be replaced
across Ontario at a cost of $12,000 each.
FORC incurred the cost of replacing the
brakes. However, it sold its building after
the commencement of the action, prior to
the certification motion. Plaintiff argued
that former owners of buildings subject to
the order who replaced the brakes should
be members of the class. Defendants
claimed the limitation period expired for
those class members. Defendants also
argued the issues were not common to the
CONTRACTS – Court dismissed
application to stay plaintiffs’ action in
Ontario based on forum selection provi-
sion in distributorship agreement.
Application for an order staying plaintiffs’ action based on a contractual forum
selection provision and lack of jurisdiction
and for an order setting aside service of the
statement of claim. Plaintiff 167 claimed
damages for breach of contract, breach of
fiduciary duty, fraudulent or negligent
misrepresentation, breach of collateral
warranty and unjust enrichment. In 2005
167 entered into a distributorship agreement with a company that provided that
the agreement was made in Ontario and
was to be governed by Ontario law. In
2007 that company assigned all of its
assets to defendant. Defendant relied on a
2008 agreement that selected Israel as the
forum for disputes.
HELD: Application dismissed. There
was no reason to set aside the service of
the statement of claim outside Ontario.
167 did not consent to the assignment of
the 2005 agreement. The assignment was
therefore null and void under the agreement. The forum selection clause in the
2005 agreement did not apply. The subject matter of the claim was not the 2008
agreement. The forum selection clause in
the 2008 agreement did not apply. There
was a real and substantial connection
between plaintiffs’ claims and Ontario
and between defendant and Ontario. Fairness supported the assumption of jurisdiction in Ontario. The evidence was not
clear and convincing that Israel was
clearly a more appropriate forum for the
resolution of the dispute.
1673332 Ontario Ltd. v. Habonim
Industrial Valves & Actuators Ltd.,
[2011] O.J. No. 3774, Ont. S.C.J., Pepall
J., Aug. 22/11. Digest No. 3119-008
(Approx. 12 pp.)
MISSING HEIRS
Cogan & Assoc. International
probate research, locators
of missing heirs. Telephone:
519-770-0500, Fax: 519-770-0059.
www.heirtrace.com
RE: ESTATE OF KURT FRENKEL
Anyone having knowledge of a
Will or of any children of the late
Kurt Frenkel, of Toronto, Ontario,
who died on July 24, 2003, is
requested to contact Geary B.
Shorser, Barrister & Solicitor, 393
University Ave. Suite 2000, Toronto,
Ontario, M5G 1E6, Telephone
416-977-7749, fax 416-593-1352.
OWEN SOUND
downtown location — 250 10th
Street West. Large professional
office plus two workstations
available for rent. Shared reception,
boardroom, kitchen, office
equipment, internet, signage, and
parking. Suitable for a lawyer with
up to two support staff. Referral
work may be available. For further
information, please contact
procca@pacelawfirm.com
RE: ESTATE OF
MARK EDGAR VALE
Anyone having knowledge of a Will
of the late MARK EDGAR VALE of
Toronto, Ontario, who died on
August 12, 2011, is requested to
contact Anya-Deane Best, O’Flynn
Weese LLP, Barristers & Solicitors,
65 Bridge Street East, Belleville,
Ontario, K8N 1L8, Tel.
613-966-5222, fax 613-961-7991.
JURISDICTION – Court declined to
assume jurisdiction over proceedings
concerning custody and support of two
children because an application for custody was outstanding in New York
State.
Motion by the husband for custody and
support of his two children. The wife had
recently commenced a similar proceeding
in New York State. The parties were married in New York State in 1995. The wife
TO PLACE YOUR
CLASSIFIED AD
Please Call
Lynda Mills
905-415-5804 or 1-800-668-6481 ex. 804
lynda.mills@lexisnexis.ca
