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Law Times • November 12, 2018 Page 19 www.lawtimesnews.com therefore motions judge made palpable and overriding error in stating inability to determine if wife's counsel, accountant or advisors were aware of terms of trust. No genuine issue for trial existed since husband's benefit would be gift or inheritance and therefore excluded property. Shinder v. Shinder (2018), 2018 CarswellOnt 14185, 2018 ONCA 717, S.E. Pepall J.A., C.W. Hourigan J.A., and David Brown J.A. (Ont. C.A.); reversed (2017), 2017 CarswellOnt 10868, 2017 ONSC 4177, J. Wilson J. (Ont. S.C.J.). Insurance AUTOMOBILE INSURANCE No-fault benefits Settlements in context of court actions require less protection Applicant was injured in automo- bile accident in 1990 and received some benefits until 1993, when respondent insurer terminated payment. Applicant commenced action against insurer in 1995, but action was settled in 2003. In 2014, applicant purported to rescind settlement notice. Arbi- trator decided as preliminary is- sue whether arbitration should proceed, given that full and final release had been signed. Arbi- trator concluded, that, based on binding effect of two Court of Appeal decisions, s. 9.1 of auto- mobile insurance Regulation 664 does not apply to settlements that occur after court action has been commenced. Arbitrator's order that applicant's claim was barred was upheld on appeal by Direc- tor's Delegate. Applicant brought application for judicial review. Application dismissed. Amend- ments to Regulation 664 which came into force in October 2003 did broaden application of regu- lation. Amendments to Regu- lation preclude all settlements, including those made in context of court action, before first an- niversary of accident that gave rise to claim, as set out in s. 9.6 (10). This is subject to exemptions provided for in s. 9.6(11), one of which is if settlement occurs in context of court action in which examinations for discovery have commenced. Encroachment on general principle enunciated in pair of Court of Appeal decisions is therefore very limited. It does not, however, follow that because Regulation now applies to some settlements occurring during course of action, it must apply to all settlements that take place in context of action. Director's Delegate correctly observed that amendments must be interpreted in context of exception that pair of Court of Appeal decisions estab- lished, and in that context, ss. 9.6 (10) and 9.6 (11) are seen to recog- nize mischief of premature settle- ments, but also acknowledge that mischief is diminished in context of court action. Director's Del- egate correctly conclude that hav- ing recognized that settlements in context of court actions require less protection, legislature would have employed specific, clear and unambiguous language, if it also intended to erode exception that pair of Appeal decisions created. Decisions of arbitrator and Direc- tor's Delegate were not only rea- sonable; they were correct. Sidhu v. Aviva Canada Inc. (2018), 2018 CarswellOnt 10577, 2018 ONSC 3710, Marrocco A.C.J.S.C., Harvison Young J., and Mew J. (Ont. Div. Ct.); appli- cation for judicial review refused (2017), 2017 CarswellOnt 12198, Jeffrey Rogers Dir. Delegate (F.S.C.O. App.). Labour and Employment Law EMPLOYMENT LAW Termination and dismissal Application to other employers did not demonstrate that employee would have accepted those jobs Fifty-nine year-old employee had worked full-time for employer's predecessor for 20 years on un- derstanding she could work from home three days per week to avoid 110 km commute. Two years after acquiring predecessor, employer changed employee's title, respon- sibilities, reporting requirements and bonus entitlement and ad- vised her she could no longer work from home. Employee resigned. Employee waited six weeks then applied for 30 positions and got no interviews. Employee brought ac- tion for damages for constructive dismissal. Motion judge granted employee's motion for summary judgment and awarded employee 20.5 months of salary less 10 per cent of 10.5 months' salary for contingency that she may find employment before expiry of 20.5-month period, $11,261 as compensation for underpayment of fourth quarter 2016 bonus, and compensation for lost benefits for 20.5 months. Motion judge determined employer construc- tively dismissed employee when it breached essential term of em- ployment contract, namely term entitling her to work from home 60 per cent of time, and when it arbitrarily set employee's fourth quarter 2016 bonus in manner contrary to terms of employment contract by giving her $6,739 rather than $18,000 she was en- titled to. Employer appealed; em- ployee cross-appealed. Appeal dismissed; cross-appeal allowed with costs of $15,000 as agreed upon. Even if motion judge made legal error concerning applicable test or factual errors concerning employee's commute, it would not be objectively reasonable to require sixty-year old employee who, more than 20 years earlier, had stipulated she would not ac- cept position if it required her to commute every day, to mitigate damages for employer's breach of contract by doing so. It was un- likely employer actually intended to permit employee to continue to work from home 60 per cent of time during notice period. It was open to motion judge to find that employee's application to other employers in GTA did not demonstrate that she would have accepted those jobs without work- from-home provision. Hagholm v. Coreio Inc. (2018), 2018 CarswellOnt 11352, 2018 ONCA 633, Janet Simmons J.A., Grant Huscroft J.A., and B.W. Miller J.A. (Ont. C.A.); re- versed (2017), 2017 CarswellOnt 21149, 2017 ONSC 7713, James W. Sloan J. (Ont. S.C.J.). Municipal Law COUNCIL MEMBERS Conflict of interest Council functioned as tribunal sitting in judgment on issue of whether counsellor's conduct came within requirements of bylaw Applicant was resident of Town- ship and brought application in that capacity although he was also mayor of Township. Respondent was resident of Township and counsellor representing ward. Mayor requested declaration that counsellor's participation in two meetings of Township vio- lated section 5 (1) (c) of Municipal Conf lict of Interest Act ("Act"). Application dismissed. Counsel- lor's participation in meetings of council dealing with her right to compensation under Bylaw, did not violate section 5(1) of Act. Participation and vote were in context of discussion involving benefit to which she was or may have been entitled within mean- ing of section 4(i) Act. In making its decision Council functioned as tribunal sitting in judgment on issue of whether counsellor's con- duct came within requirements of bylaw. As part of that function members of Council questioned counsellor and offered her op- portunity to respond. She availed herself of that opportunity as she had been invited to do. Furniss v. Nishikawa (2018), 2018 CarswellOnt 10651, 2018 ONSC 3674, T.M. Wood J. (Ont. S.C.J.). MUNICIPAL LIABILITY Miscellaneous Given failure of substantive claims, claim for punitive damages had no basis Appellant homeowners con- structed garage, accessing mu- nicipal road allowance in process. Respondent town told homeown- ers that they could not access garage via road. Town blocked this access route with concrete barriers. Homeowners brought action in promissory estoppel and negligent misrepresentation, against town. Action was dis- missed. Homeowners appealed from trial judgment. Appeal dis- missed. Attempt by homeowners to advance negligence claim on appeal was improper, as claim was not advanced at trial. Homeown- ers's other claims were properly dismissed by trial judge, based on facts and established law. Home- owners established no error in tri- al judge's reasoning. Given failure of substantive claims, claim for punitive damages had no basis. Town acted in good faith in put- ting up barriers. Visnjic Estate v. LaSalle (Town) (2018), 2018 CarswellOnt 16310, 2018 ONCA 803, C.W. Hourigan J.A., B.W. Miller J.A., and G.T. Trotter J.A. (Ont. C.A.); affirmed (2017), 2017 Carswel- lOnt 10390, 2017 ONSC 2082, J. Paul R. Howard J. (Ont. S.C.J.). It would be folly to use hindsight to ground otherwise unsupported allegations of bad faith and unfairness Bad faith. Property owner ac- quired vacant property in down- town core of municipality for de- velopment purposes. Company related to owner made application for amendment to zoning bylaw but withdrew application when municipality sought allowances for proposed rapid transit (RT) route. Municipal council later passed resolution approving plan that contemplated different path for RT system. Owner claimed its development would have pro- ceeded sooner if routing decision had been made earlier. Owner brought action against munici- pality for damages for negligence or for failure to act fairly and in good faith. Municipality brought motion for summary judgment dismissing action. Motion grant- ed. Owner was attributing bad faith and unfairness to decision that was never made, since appli- cation for zoning bylaw amend- ment had been withdrawn before outcome was known. Even if ear- lier request by municipal staff for five-metre road allowance could have been construed as "decision" by municipality, there was no evi- dence to support allegation that same was made other than fairly and in good faith. Adoption by council of different route almost two years later did not cast dark light on conduct of municipal staff and consultant retained by municipality. It would be folly to use hindsight to ground other- wise unsupported allegations of bad faith and unfairness. In ab- sence of bad faith, immunity pro- vision in s. 450 of Municipal Act, 2001 was full answer to owner's claim. Danforth (London) Ltd. v. London (City) (2018), 2018 CarswellOnt 10960, 2018 ONSC 4203, A.D. Grace J. (Ont. S.C.J.). Real Property MORTGAGES Interest Over-holding fee had effect of overcompensating second mortgagees while depleting assets available to other creditors Owner of property granted sec- ond mortgage that provided that if it was not renewed on or before maturity date, second mortgag- ees could charge over-holding fee equivalent to three months' in- terest. Maturity date lapsed, sec- ond mortgage was not repaid or renewed and second mortgagees claimed that over-holding fee be- came payable. Owner filed notice of intention to file proposal under Bankruptcy and Insolvency Act, and court approved sale of prop- erty. Second mortgagees brought motion for order requiring owner to pay over-holding fee of $63,900. Motion dismissed. Over-holding fee was penalty that contravened s. 8 of Interest Act and could not be enforced. Over-holding fee was arbitrary and was at discretion of second mortgagees. On its face, over-holding fee was not genuine pre-estimate of damage. Second mortgagees had not suffered any loss and had been made whole from sale proceeds. Second mort- gagees had not expended any re- sources or incurred any costs as result of second mortgage not be- ing discharged or renewed upon its maturity date. Over-holding fee had effect of overcompensat- ing second mortgagees while de- pleting assets available to other creditors. 1482241 Ontario Limited (Re:) (2018), 2018 CarswellOnt 16980, 2018 ONSC 5925, Hainey J. (Ont. S.C.J. [Commercial List]). MORTGAGES Sale Knowledge of another address not sufficient to displace clear wording allowing service of notice of sale to address provided in mortgage Plaintiff purchased condomini- um and obtained mortgage from defendant bank. Mortgage stated that address for service was prop- erty address. Plaintiff left Canada for Guyana for extended period of time. Property was rented, but tenant vacated and no one resided at property thereafter. Default under mortgage occurred when condominium lien was registered on title to property, arising from special assessment. Bank paid amount owing under lien, issued notice of sale, and entered agree- ment to sell property. Plaintiff brought action in small claims court and was awarded damages of $25,000. Bank appealed. Ap- peal allowed; decision set aside. Deputy judge's finding that there was no provision per se in Mort- gages Act for serving at "address for service" on registered mort- gage was not correct. Section 33 of Act is clear; it sets out ways to effect service, including, "where mortgage provides specific ad- dress, to such address". Mortgage provided specific address, and that was where bank sent notice of sale. Deputy judge's decision was contrary to binding appel- late authority that confirmed that bank satisfied its obligation under s. 31(1). There was no evi- dence that bank knew mail sent to property address would not reach plaintiff, or that plaintiff filed documents to amend mortgage to provide new address for service or filed change of address with Canada Post. Mortgagee's knowl- edge of another address is not suf- ficient to displace clear wording of s. 33(1) that allows service of notice of sale by registered mail to address provided for service in mortgage. Ali v. Royal Bank of Canada (2018), 2018 CarswellOnt 16387, 2018 ONSC 5849, C. Horkins J. (Ont. Div. Ct.); reversed (2017), 2017 CarswellOnt 21712, E.C. Prattas D.J. (Ont. S.C.J.). CASELAW

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