36580    Michele Ashley, Michael Ashley v. Robin Welsh

Family law – Family assets – Pension death benefit

The respondent, Ms. Welsh was the wife of the deceased, Mr. Poisson, up until the time of his death in June, 2012. At the time, they had been living separate and apart for several years. The applicants are the adult children of Mr. Poisson. Mr. Poisson had been a member of a pension plan through his place of employment at the time of his marriage and had designated Ms. Welsh as the beneficiary of his pension death benefits. Mr. Poisson and Ms. Welsh separated for a period of time in 2002 and during that time, Mr. Poisson changed that designation to his children. Mr. Poisson and Ms. Welsh reconciled and continued to live together until their final separation in August, 2007. A few months later, they entered into a separation agreement that dealt with their assets, including Mr. Poisson’s pension benefits. The separation agreement provided that Ms. Welsh was to be “considered the sole surviving spouse and shall receive all benefits payable to a surviving spouse under the plan.” Mr. Poisson was not in receipt of his pension at the time of his death. The plan administrators determined that given the terms of the separation agreement, Ms. Welsh alone was entitled to the pension death benefit. She sought a declaration that she was the sole beneficiary. The applicants maintained that she was only entitled to a proportionate share. The Ontario Superior Court of Justice stated that the wife was entitled to 51.3 percent of the pension death benefit and applicants were entitled to 49.87 percent. The Court of Appeal allowed the appeal and said the wife is entitled to entire pension death benefit.

36528    Bao Duc Nguyen v. Iwin Lee, 1634502 Ontario Inc., Phuoc Nghia Ly, Va Lay Duong

Commercial law – Creditor and debtor law – Commercial loan agreement.

The applicant, Bao Duc Nguyen, and respondent, Iwin Lee, were parties to a loan agreement dated September 25, 2004. The loan was for $135,000, consisting of an initial $70,000 and a further $65,000 advanced by the applicant at the time of the agreement. The applicant brought an action against the respondents for the repayment of the $135,000. The central issue at trial was whether and to what extent the loan had been repaid. The applicant claimed that no payments had been made, and the respondents asserted that there had been an overpayment.

The Ontario Superior Court of Justice allowed the applicant’s action, in part, awarding damages and pre-judgment interest against the respondent, Iwin Lee, in the amount of $57,566. The Ontario Court of Appeal dismissed the applicant’s appeal.

36386   Sanofi Pasteur Limited v. UPS SCS Inc., Honeywell Limited, Honeywell International Inc., Automation Components Inc., Industrial Technical Services (ITS) Inc., Airon HVAC Service Ltd., Airon HVAC and Control Ltd., United Parcel Service of America Inc., UPS Supply Chain Solutions Inc., UPS Supply Chain Solutions General Services Inc., Maple Reinders

Constructors Ltd., Maple Reinders Construction Ltd., Maple Reinders Group Ltd. and Heraeus Sensor Technology USA

Commercial law — Contracts — Privity of contract

The respondent, UPS SCS, Inc. (“UPS”), stored vaccines for the applicant, Sanofi Pasteur Limited, in a dedicated, temperature-controlled warehouse. As required by the storage contract between them, Sanofi insured its vaccines under an all-risks policy. The warehouse cooling system malfunctioned and vaccines worth just over $8 million were unsaleable. Sanofi was fully indemnified by its insurer. Sanofi’s insurer subrogated itself to Sanofi and commenced an action against UPS and a number of other defendants, who then commenced third party claims against additional parties.

The motion judge dismissed Sanofi’s action in its entirety on a summary judgment motion. The Court of Appeal dismissed the appeal provided UPS pays $102,000 to Sanofi within 10 days. If such payment is not made within 10 days, the Court of Appeal concluded it would allow the appeal and order a trial.

36592   Society of Notaries Public of British Columbia v. Lawrence Brian Jer, Jun Jer, Janette Scott, Rashida Samji, Rashida Samji Notary Corporation, and Samji & Assoc. Holdings Inc.

Law of professions – Notaries – Statutory indemnity fund

The class action concerned in this application arises out of a fraudulent, or “Ponzi”, investment scheme promoted by the respondent, Rashida Samji. Through her professional corporation, Samji & Associates Ltd., Ms. Samji practiced as a notary public at all material times. She told investors that their money would be held by her in her trust account, would not be at risk and would not leave her account without their consent and instructions. The fraudulent scheme was uncovered prior to March 2012, when the plaintiffs filed their Notice of Civil Claim. The proceeding at issue was limited to the plaintiffs’ claim for recovery of their pecuniary loss from a special fund maintained by the applicant, Society of Notaries Public of British Columbia, under s. 20 of the Notaries Act, R.S.B.C. 1996, c. 334. That section sets out the availability of compensation for victims of fraud from a special fund maintained by the Society, providing the funds were entrusted to or received by the notary “in the person’s capacity as a member”. At trial, the only contested issue was whether or not the funds invested by the class members were entrusted to and received by Ms. Samji in her capacity as a notary public.

The Supreme Court of British Columbia answered the question of whether or not the funds invested by the class members were entrusted to and received by Ms. Samji in her capacity as a notary public, in the affirmative. The B.C. Court of Appeal dismissed the Society’s appeal.