The Lawyers Weekly - October 28, 2011

was not disposed of in May 2010. At the time of the subsequent bail hearing, he was unable to get bail, in part because new allegations were made against him while he was released on outstanding charges and awaiting trial. The judge did not fail to properly consider society’s interest in the trial of respondent’s serious charges, as there was no factual background provided to the judge in order for him to put the seriousness of the offence into context.

R. v. Anjam, [2011] O.J. No. 4230,
Ont. S.C.J., Kelly J., Sept. 22/11. Digest
No. 3124-006 (Approx. 6 pp.)
CIVIL PROCEDURE
INTERVENTION – Proposed inter-
vener had no interest in application to
appoint receiver over assets and
undertakings of respondents.

Motion by Multicultural Consultancy Canada to intervene in a contested application to appoint a receiver over the assets and undertakings of respondent debtors. Respondents offered mortgage and financial products to the Muslim community throughout Canada. Applicant loaned funds to respondents to make mortgage loans to their customers which complied with Shari’a law. As security for its borrowings, respondents granted applicant general security agreements charging all of their personal property and assigned to applicant the real property residential mortgages made to their customers. The proposed intervener reviewed the on-going compliance of respondents’ lending with Shari’a principles and was opposed to applicant’s enforcement actions on religious grounds.

HELD: Motion dismissed. The proposed intervener had no interest in the receivership application. It was not a party to the debtor-creditor relationship and had no other contractual relationship with respondents. The credit facility and security documents between applicant and respondents were governed by Ontario law, as were the financing documents between respondents and its borrowers. It was not apparent from those documents that any need existed for a court to seek assistance on points of Shari’a law. The evidence did not disclose that the proposed intervener might be adversely affected by a judgment in the proceeding. Its participation as an added party was not necessary for the court to appreciate the potential impact of a receivership order on the Muslim purchasers, or mortgagors, who entered into financing agreements with respondents.

Central 1 Credit Union v. UM
Financial Inc., [2011] O.J. No. 4217,
Ont. S.C.J., Brown J., Sept. 26/11.
Digest No. 3124-007 (Approx. 11 pp.)
MAINTENANCE AND CHAM-
PERTY – Cause of action in debt could
be validly assigned and such assignment
did not violate rule against mainten-
ance and champerty.

Appeal from judgment for an amount owning on a loan. Plaintiff, defendant and M were friends and business associates before plaintiff and defendant had a fall-ing out. In 2001 M had loaned defendant $120,000 to purchase a property with his wife. The loan agreement called for quarterly payments and an eight per cent interest rate. In 2004, when M assigned the loan to plaintiff for collection, it was in default. Although plaintiff did not pay anything to M at the time of the assignment, they agreed that when plaintiff recovered the money, they would discuss how to share the proceeds. Plaintiff sued defendant for the balance of the loan. At trial, defendant claimed that there was no loan and instead the money was the refund of trust moneys that M held as part of a fictitious tax-saving scheme. The trial judge rejected defendant’s evidence and found that the loan agreement evidenced a loan transaction. In addition, she found that there was a valid assignment of the loan between M and plaintiff and that the fact that there was no consideration for the assignment did not detract from its validity. She awarded judgment to plaintiff. Defendant appealed on the basis that the loan agreement was not enforceable because of the law against maintenance and champerty.

HELD: Appeal dismissed. A cause of action in debt could be validly assigned and such an assignment did not violate the rule against maintenance and champerty.

Clark v. Werden, [2011] O.J. No.
4277, Ont. C.A., per Feldman J.A.
(Doherty and Epstein JJ.A. concur-
ring), Sept. 30/11. Digest No. 3124-008
(Approx. 6 pp.)
SETTLEMENT – Appellate court
upheld removal of appellant as settle-
ment administrator of class action.
Appeal from an order for appellant’s
removal as administrator of a court-
approved settlement of a class proceeding.
The class proceeding concerned illegal fees
charged in connection with payday loans.
Appellant was one of the defendants. The
action was settled in 2009 pursuant to a
court-approved settlement. The agree-
ment set out a claims process in which
class members could establish entitlement
to a settlement fund. Appellant was
appointed as settlement administrator to
manage the process. Problems arose after
appellant utilized the wrong formula to
calculate claims and issued conflicting
communications to class members
regarding entitlement and value of claims.
Appellant failed to meet deadlines to
address the issues. Class counsel brought
an application for appellant’s removal. The
chambers judge found that appellant had
understated claims, impeded audits and
acted without the necessary degree of dili-
gence and competence. The chambers
judge ordered the removal of appellant
and ordered its replacement by the claims
process reviewer.

EVIDENCE (CIVIL)
EXPERTS – Court refused to have
proposed financial expert retained by
wife removed as biased and ordered
husband to provide further disclosure
of his financial relationship with cor-
poration owned by current wife.

Motion by the husband to have a proposed financial expert retained by the wife removed as biased. Cross-motion by the wife to have the husband’s current wife and her corporation added as parties and further disclosure. The wife had applied to vary a 2005 child support order determining the husband’s income to be $60,000 per year. The wife alleged that the husband was transferring funds from his busi-nesses to his current wife’s corporation to show a reduced income for child support purposes. A forensic accountant retained by the wife provided affidavit evidence regarding the husband’s true income. The husband now sought to have those affidavits struck.

HELD: Motion dismissed. Cross-
motion allowed. There was no evidence
that the expert had made up her mind and
was acting as an advocate for the wife. The
expert had not provided any expert opin-
ions to date and indicated that she required
further disclosure. As there was evidence
indicating that there might well be finan-
cial interaction between the current wife’s
corporation and the husband, it was neces-
sary to explore that relationship so that the
trial judge could be fully informed as to
the husband’s true income for child sup-
port purposes. That was clearly in the best
interests of the children. The husband was
also ordered to provide the further disclo-
sure sought by the wife.

PAROL EVIDENCE RULE – Parol
evidence rule did not apply where there
was an allegation that the contract was
partially in writing and partially oral or
that a collateral contract existed.

Appeal from a judgment finding that the remuneration paid to respondent was to be net of income tax and other deductions. Respondent was hired by appellant as an instructor. The written memoranda sent by appellant to respondent clearly stated that compensation was to be clear of taxes. The written terms of the parties’ contract only referred to the amount of remuneration per week. The parties disagreed on whether the remuneration referred to in the written contract was to be net of income taxes and other deductions or gross. The trial judge found that the language of the written contract was clear, but also found, as a result of considering the evidence of prior oral discussions and the written memoranda, that the written contract was not intended to be the complete agreement between the parties. He admitted the evidence of prior discussions and memoranda to determine the question of whether the pay was to be gross or net. Appellant alleged that the decision contravened the parol evidence rule.

HELD: Appeal dismissed. The parol evidence rule did not apply where there was an allegation that the contract was partially in writing and partially oral or that a collateral contract existed. Although the statement of claim did not specifically refer to a collateral contract, the pleadings did allege that there was an express or implied term of the employment contract, such that the written document did not represent the final expression of the parties’ intention. Evidence relevant to determining that issue was thus admissible. The evidence as to appellant’s promise that compensation would be net did not contradict the express written terms of the contract, but rather filled the gap in the contract. Based on that evidence, it would not have been objectively commercially reasonable for instructors to accept the job if the pay was gross.

King v. Operating Engineers Train-
ing Institute of Manitoba Inc., [2011]
M.J. No. 311, Man. C.A., per Steel J.A.
(Monnin and Hamilton JJ.A. concur-
ring), Sept. 27/11. Digest No. 3124-011
(Approx. 17 pp.)

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