Law Times

Law Times • augusT 6, 2018 Page 19 www.lawtimesnews.com child from previous relation- ship whom father stood in loco parentis to for child support purposes. Parties separated un- der unfortunate circumstances where police were involved and father was charged with assault- ing mother, but he had been acquitted of criminal charges. Father brought motion seeking joint shared custody of child; mother brought cross-motion for relief, including sole custody and primary residence of child. Motion dismissed; cross-mo- tion granted. Based on facts and circumstances of parties' sepa- ration, court was not persuaded that moving from status quo, where child was doing well, to joint and shared custody regime would be in best interests of child. Evidence raised too many doubts about ability of parties to harmoniously collaborate in joint and shared parenting arrangement. On interim ba- sis, primary residence of child would remain with mother. Fa- ther was to be given more time with child. Lupien v. Carmichael (2017), 2017 CarswellOnt 5119, 2017 ONSC 2215, M. Linhares de Sousa J. (Ont. S.C.J.). Guarantee and Indemnity GUARANTEE Contract of guarantee Chargee attempted to rely on other documents but none contained terms to constitute contract of guarantee Lack of signature. Chargee was transferee of charge pro- vided by debtor defendant and guaranteed by guarantor de- fendants. Charge matured and was not renewed and demand for repayment was not met, so chargee brought action against defendants for balance owing on charge. Chargee obtained default judgment against char- gor and one guarantor. Chargee brought motion for summary judgment against defending guarantor; defending guaran- tor brought cross-motion for summary dismissal of claim against him. Motion dismissed; cross-motion granted. Charge named all three defendants and evidence established par- ties contemplated loan would be secured by land and two guarantees but guarantor did not sign acknowledgement and direction as guarantor. Chargee relied on document it expected guarantor had signed, but he did not. Chargee attempted to rely on other documents, but none contained terms to con- stitute contract of guarantee. Chargee did not allege any oral agreement and doctrine of past performance did not overcome fundamental problem with guarantor not signing guaran- tee. There was no genuine issue for trial against guarantor. Deutsche Bank v. Mieszko Properties Inc. (2018), 2018 CarswellOnt 9800, 2018 ONSC 3815, A.D. Grace J. (Ont. S.C.J.). Insurance AUTOMOBILE INSURANCE General principles Ontario Disability Support Program and Ontario Works payments not deducted under award for past income loss Plaintiff suffered personal inju- ries arising from motor vehicle accident that occurred on May 28, 2011. Action was defended only by statutory third party insurer, A Co. Action and all crossclaims were dismissed against W. A Co. was automo- bile insurer of defendants, YR and SR. Jury trial was held. On February 1, 2017, jury awarded plaintiff $15,000 for pain and suffering and $35,000 for past loss of income. There were cer- tain deductibles under Insur- ance Act ("Act") that applied to jury's award. Parties agreed that those deductibles have reduced amount awarded for pain and suffering to nil, and amount awarded for past loss of income to $16,876.94. A Co. made two submissions on mo- tion for directions: whether Act require court to determine threshold issue where there had been no award for health care expenses or non-pecuniary loss; and whether benefits paid under Ontario Disability Sup- port Program ("ODSP") and Ontario Works ("OW") should not be deducted from award for past loss of income. There was no need for threshold deci- sion in unique circumstances of action. OW and ODSP pay- ments to plaintiff should not be deducted under award for past loss of income. A Co. had been unable to discharge its onus of establishing that OW and ODSP payments have any connection to 2011 automo- bile accident. It was clear that decision to grant ODSP ben- efits to plaintiff was only due to plaintiff 's HIV condition. Even though OW application and decision to grant benefits were included in parties' mate- rials, there was no evidence of why OW benefits were paid. A connection to 2011 automobile accident cannot be assumed in light of plaintiff 's tuberculosis and HIV conditions at time that applications were made for both types of social assistance benefits. Plaintiff 's submission that OW and ODSP payments were not "in respect of " 2011 automobile accident was ac- cepted. Grajqevci v. Rustaie (2017), 2017 CarswellOnt 5829, 2017 ONSC 2535, M.D. Faieta J. (Ont. S.C.J.). AUTOMOBILE INSURANCE Uninsured automobile coverage Insurance Act required that notice of termination be sent to insured to be effective Action arose out of catastrophic car accident involving vehicle owned by P, where driver was killed and passenger who was seriously injured sued P for damages. Insurer did not de- fend action on behalf of P be- cause it had cancelled owner's policy insuring vehicle for non- payment of premiums before accident occurred. P settled ac- tion for $234,574.33, passenger assigned judgment to plaintiff representing Motor Vehicle Accident Claims Fund, fund paid amount of judgment to passenger and it sued insurer for restitution based on unjust enrichment, claiming insurer had not effectively terminated policy and that policy remained in force at date of accident. Ter- mination issue arose because owner's policy was not obtained by P but by his wife A, it was A who was named as insured on policy even though she did not own vehicle, and insurer sent termination notice to A, named insured, and not to P, owner of vehicle. Trial judge found that Insurance Act required that notice of termination be sent to insured, that insured was owner of vehicle P, and that by sending notice only to A insurer did not effectively terminate policy which remained in force at date of accident. Trial judge also found that fund was en- titled to bring claim for restitu- tion. Insurer appealed. Appeal dismissed. Fund was entitled to obtain reimbursement from insurer for amount of judgment it paid to injured passenger. There was no written applica- tion so there was no written or oral misrepresentation by A and no basis for insurer to raise misrepresentation as ground of appeal. Insurance policy at is- sue was valid, and it was owner's policy so insured under that policy was P, owner of vehicle. Notice of termination was only sent to A who was not insured because she did not own vehicle, and because notice of termina- tion was not sent to insured as required by statutory condi- tion 11(1), it was not effective to terminate policy. Trial judge did not err by refusing to admit proposed similar fact evidence. Nothing in Act expressly or by necessary implication made Act bind Crown, Crown enjoyed immunity, it was not required to bring action under s. 258(1) of Act, and action was not statute- barred. Trial judge did not err in law by granting judgment based on unjust enrichment rather than requiring fund to bring claim under s. 258(1) of Act. Finding of unjust enrichment was supported by record, and there was no reason to interfere with trial judge's conclusion that insurer was unjustly enriched at expense of fund. Ontario (Finance) v. Trad- ers General Insurance (Aviva Traders) (2018), 2018 Carswel- lOnt 9810, 2018 ONCA 565, K. Feldman J.A., J.C. MacPherson J.A., and Grant Huscroft J.A. (Ont. C.A.). Labour and Employment Law EMPLOYMENT LAW Termination and dismissal Employment contract did not exclude other employment so not treated as deductible mitigation income Defendant put plaintiff on pro- gressive discipline program known as Goals Achievement Process (GAP). Defendant al- leged plaintiff did not meet performance standards, and at- tempted to demote her to first assistant. Plaintiff refused to ac- cept demotion and was fired for cause. Plaintiff brought action alleging wrongful constructive dismissal which was allowed. Employer appealed on grounds that amounts plaintiff received from employment at other stores during balance of notice period should have been deducted. Appeal dismissed. Employer is generally entitled to deduction for income earned by dismissed employee from other sources during common law notice pe- riod. Here employment contract did not exclude other employ- ment so not treated as deductible mitigation income. Employer knew of plaintiff 's working for grocery store. Income from sec- ond supplementary employer was modest sum of $600 so not considered by court. Central issue was whether reasonable person in employee's position would have accepted offer. Trial judge effectively found that ob- jective standard had not been met. Reasonable person would not have been expected to have accepted the demotion. As find- ing of mixed fact and law finding subject to appellate intervention only if palpable and overriding error. Brake v. PJ-M2R Restau- rant Inc. (2017), 2017 Carswel- lOnt 7619, 2017 ONCA 402, K. Feldman J.A., Eileen E. Gillese J.A., and S.E. Pepall J.A. (Ont. C.A.); affirmed (2016), 2016 Car- swellOnt 3867, 2016 ONSC 1795, Kevin B. Phillips J. (Ont. S.C.J.). Municipal Law ATTACKS ON BYLAWS AND RESOLUTIONS Practice and procedure Economic burdens on landlords not protected by Canadian Charter of Rights and Freedoms or Ontario Human Rights Code Landlord owned buildings in vicinity of university and col- lege and rented to students. Municipality enacted bylaw that imposed special licencing requirements on rental proper- ties with multiple, economically independent tenants. Landlord was charged with operating rental unit without valid licence. Landlord brought application for judicial review of bylaw. Ap- plication dismissed. Standing was not itself impediment in circumstances of this case, even though alleged discrimination focussed on rights of tenants rather than landlords, and eco- nomic burdens on landlords were not protected by Canadian Charter of Rights and Freedoms or Ontario Human Rights Code. Landlord had been charged un- der bylaw, so pending prosecu- tion gave her direct interest in validity of bylaw as it related to her or others within its ambit. As person charged, landlord had right to argue bylaw was in- valid because it infringed rights of others. This f lowed from principle that no one should be prosecuted under law that was unconstitutional. Fodor v. North Bay (City) (2018), 2018 CarswellOnt 9787, 2018 ONSC 3722, C. Horkins J., Thorburn J., and Pomerance J. (Ont. Div. Ct.). Real Property LANDLORD AND TENANT Rent Interpretation of land market value was res judicata and subject to issue estoppel Respondent owned apartment building, and applicant was owner of property. Relation- ship was governed by 99 year ground lease. Rent was to be re- set every 25 years, under s. 4 of ground lease. Parties agreed that property would be valued on hypothetical basis "as if it were unimproved". Dispute over in- terpretation went to arbitration in 1990, with subsequent appli- cation for judicial review, both finding in favour of respon- dent. Arbitration panel found that word "unimproved" only allowed land market value to disregard existence of physical improvements, and that it did not permit parties to disregard existence of ground lease and legal encumbrances that accom- panied it. Applicant sought dec- laration that interpretation of land market value was res judi- cata or subject to issue estoppel as result of court decision or, al- ternately, declaration that inter- pretation should include highest and best possible use of land, as if property were unimproved and unencumbered, including as if property were available for free hold condominium devel- opment. Application dismissed. Doctrine of issue estoppel ap- plied in favour of respondent, and interpretation of ground lease contained in arbitration decision governed. Applicant was estopped from re-litigating matter. Court had dismissed ap- plication for judicial review on basis that arbitration decision was not patently unreasonable. Court's discussion wherein it disagreed with arbitration pan- el's interpretation of contract was obiter dicta. Ratio of court decision was that arbitration panel's interpretation of ground lease was not to be disturbed. The Manufacturers Life In- surance Company v. Parc-IX Limited (2018), 2018 Carswel- lOnt 9622, 2018 ONSC 3625, T. McEwen J. (Ont. S.C.J.). CASELAW

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