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March 18, 2019

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LAW TIMES COVERING ONTARIO'S LEGAL SCENE | MARCH 18, 2019 15 www.lawtimesnews.com chance of success and presented no reasonable ground for appeal. In tax matters, it was well estab- lished that Tax Court of Canada did not have jurisdiction to set aside assessment on basis of abuse of process or abuse of power and that courts had consistently held that actions of Canada Revenue Agency could not be taken into account in appeal against assess- ments. Paragraphs 12, 31 to 34, 37 to 41, 54, 55, 61 to 74, words "notwithstanding the taxpayer's request for an extension of time to present evidence" in paragraph 53, paragraph 1 on page 13 and paragraph 1(a) on page 14 were struck from fresh notice of appeal. King v. The Queen (2019), 2019 CarswellNat 39, 2019 TCC 2, RĂ©al Favreau J. (T.C.C. [Gen- eral Procedure]). INCOME TAX PArtnershiPs Minister incorrectly chose to use streamlined process instead of traditional process Minister of National Revenue is- sued notices of determination indicating that two partnerships had nil business losses because partnerships were not valid part- nerships, using "streamlined process" rather than "traditional process", where Minister could reassess each partner individu- ally to adjust partner's share of partnership's income or loss. Taxpayers, as designated partners of purported partnerships, ap- pealed, and brought applications to determine question of whether Minister could issue valid notice of determination under s. 152(1.4) of Income Tax Act in respect of purported partnership after concluding that no partnership existed. Applications granted. Minister may not issue notice of determination in respect of part- nership if Minister had concluded that partnership did not exist, and such notice of determination was invalid. Textual analysis showed that there was ambiguity in text of s. 152(1.4) of Act, as it could be in- terpreted to apply only to existing partnerships, or it could be broad enough to encompass question of partnership's existence. Contex- tual analysis of provisions related to s. 152(1.4) of Act supported taxpayers' interpretation because it resulted in system in which ss. 152(1.7) and 152(1.8) of Act worked harmoniously together. Minister's interpretation resulted in redundancy in s. 152(1.8)(a) and (b) of Act, prevented s. 152(1.8) of Act from applying where it logi- cally would apply, and created limitation periods that ignored rights of appeal and that were re- dundant and contradictory. Pur- posive analysis supported taxpay- ers' interpretation. To extent that outcome was absurd, it was not because of taxpayers' interpreta- tion of legislation, but because Minister incorrectly chose to use streamlined process instead of traditional process. Court was not bound by previous judgment be- cause questions in two cases were different. 2078970 Ontario Inc. v. 2078702 Ontario Inc. (2018), 2018 CarswellNat 3781, 2018 TCC 141, David E. Graham J. (T.C.C. [General Procedure]). Ontario Civil Cases Civil Practice and Procedure PARTIES Adding or substituting PArties Late, critical and unexplained disclosure after expiration of limitation period provided plaintiffs with revelation Deceased passed away after dental surgery. After surgery, deceased was discharged and waiting in lobby where he was found choking and in distress. Deceased was taken to emergen- cy room and treated, after which he was released to nursing home. Next day, when deceased could not breathe, he was returned to health centre and treated by re- moving with forceps surgical sponge which was obstructing deceased's throat. Deceased's be- haviour changed, he was unable to swallow, he could not accept feeding tube and he passed away within one year of surgery. Plain- tiffs brought action for medical negligence as result from defen- dants' negligent failure to remove medical sponge from deceased's throat after dental surgery. Plain- tiffs asserted that their claim was not known against radiologist until early 2015 when defendants delivered to plaintiffs various x- ray images taken and interpreted by radiologist. Plaintiffs brought motion to add radiologist to ac- tion after expiration of applicable limitation period. Motion grant- ed. Plaintiffs rebutted presump- tion of prejudice as no trial date had been set, case did not have complicated factual matrix, same medical evidence was to be relied on to prove claim and x-ray im- aging records remained in each of parties' legal files, among other things. Plaintiffs established spe- cial circumstances. Late, criti- cal and unexplained disclosure, well after expiration of limitation period provided plaintiffs with revelation of radiologist's involve- ment in treatment. Plaintiffs were precluded from commencing action against radiologist, since they never knew any radiograph existed or that radiologist inter- preted such radiograph. Estate of John Edward Gra- ham v. Southlake Regional Health Centre (2019), 2019 Car- swellOnt 398, 2019 ONSC 392, G.P. DiTomaso J. (Ont. S.C.J.). SUMMARY JUDGMENT requirement to show no triAble issue Resolution of credibility issues required trial Plaintiff widened her driveway and placed fence. Plaintiff then put house on market and en- tered into agreement of purchase and sale. Defendant's moved fence onto plaintiff 's driveway, claiming that plaintiff moved it when she replaced it. Plaintiff sold house, but for less than had been agreed upon with original purchasers. Plaintiff sued de- fendants for inducing breach of contract, nuisance and trespass. Defendants brought motion for summary judgment. Motion dismissed. Action involved is- sues of credibility, which could not be resolved on this record. Resolution of issues required tri- al. Case involved large number of witnesses. If issues raised on this motion were not resolved in defendant's favour after hearing oral evidence, further evidence would have to be heard on issue of whether purchasers breached their agreement with plaintiff. Himidan v. 2546579 Ontar- io Inc. (2018), 2018 CarswellOnt 9127, 2018 ONSC 3537, Schreck J. (Ont. S.C.J.). Conflict of Laws CONTRACTS choice of lAw Parties agreed to advance action without prejudice to their disagreement about appropriate forum Plaintiff Ontario (Ont.) corpo- ration C Ltd. acted as sales agent for defendant winery J Ltd. in Nova Scotia (NS). J Ltd. and defendant D Ltd. terminated sales agency agreements and indicated intention to hire C Ltd.'s employee, defendant JH. C Ltd. brought action in Ont. for unpaid invoices, breach of contract, inducing breach of contract, and breach of non- solicitation provision of em- ployment agreement. Master granted defendants' forum non conveniens motion and stayed C Ltd.'s action on ground that NS was more appropriate forum although Ont. had jurisdiction simpliciter. Master found that defendants, key witnesses and C Ltd.'s office were in NS and that burden for defendants to liti- gate matter in Ont. outweighed that for C Ltd.. Master found no choice of law provision in JH's employment agreement but noted that agreement was between C Ltd.'s NS division and JH, who lived in NS. C Ltd. appealed. Appeal dismissed. Master's reasons did not con- tain neither error of law or clear and serious error in determina- tion of facts. Given wording of Ont. judge's endorsement, it was reasonable for master to con- clude that he had been directed to proceed with forum non conveniens motion in advance of C Ltd.'s summary judgment motion and that scheduling of summary judgment motion was weak factor. Master's interpreta- tion of agreement between par- ties was reasonable, that parties had agreed to advance action without prejudice to their dis- agreement about appropriate forum. Master did not mischar- acterize elements of forum non conveniens test or blur distinc- tion between that test and juris- diction simpliciter. Master's as- sessment of factors was entitled to deference. Churchill Cellars Ltd. v. Haider (2019), 2019 CarswellOnt 2217, 2019 ONSC 1143, Marroc- co A.C.J.S.C. (Ont. Div. Ct.); af- firmed (2018), 2018 CarswellOnt 4780, 2018 ONSC 2013, Master M.P. McGraw (Ont. S.C.J.). ESTATES will chAllenges Trial judge relied on testator's knowledge of her holdings in family corporations Deceased left his estate to his spouse (mother) pursuant to will. Mother had executed mir- ror will which left estate to hus- band, with residue split uneven- ly between two sons, F and L. In 2014, mother executed codicil which dramatically changed will in which estate trustee was changed, will gave specific be- quests to grandchildren and completing disinherited F. Mother died in March 2016. F challenged validity of codicil. Trial judge upheld validity of codicil holding that L had satis- fied his burden of proving due execution of codicil and knowl- edge of its contents. Further, L met his burden of proving tes- tamentary capacity and that L had successfully rebutted any inference of coercion or undue inf luence. F appealed. Appeal dismissed. Evidence supported factual finding that mother had knowledge of her assets. Trial judge relied on testator's knowl- edge of her holdings in fam- ily corporations. There was also evidence of designated capacity assessor and practicing geriatric nurse consultant, whose report stated that she was satisfied that mother knew what her assets and her net worth were. More- over, mother's former solicitor also felt strongly that she was knowledgeable with respect to her assets. Quaggiotto v. Quaggiotto (2019), 2019 CarswellOnt 1871, 2019 ONCA 107, S.E. Pepall J.A., G.T. Trotter J.A., and Harvison Young J.A. (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 764, 2018 ONSC 345, Steven Rogin J. (Ont. S.C.J.). Insurance ACTIONS ON POLICIES PrActice And Procedure Limitation period began to run day after plaintiff made indemnification claim which insurer failed to satisfy In May 2012, plaintiff, passenger on bus, struck face on interior bar of bus when driver braked suddenly after unidentified driver cut bus off. In February 2014, plaintiff notified bus driver and transit company that she in- tended to pursue tort action, and statement of claim was issued in March 2014 against bus driver, transit company and her per- sonal insurer. In 2017, plaintiff 's insurer amended its defence to deny it was plaintiff 's insurer for purposes of unidentified mo- torist coverage, claiming transit company's insurer was first loss insurer for unidentified motor- ist coverage. Plaintiff brought motion to amend statement of claim to add transit company's insurer as defendant. Motion granted. As plaintiff sought damages, as well as declaratory relief, s. 16(1)(a) of Limitations Act did not apply. Claimant could not be said to know there was loss caused by omission of unidentified motorist insurer until she had asserted claim against unidentified motorist insurer to trigger legally enforce- able obligation. Consequently, limitation period began to run day after plaintiff made indem- nification claim which transit company's insurer failed to sat- isfy. Since plaintiff made motion to add bus company's insurer as defendant before making claim that it failed to satisfy, limitation period had not expired. Rooplal v. Fodor (2018), 2018 CarswellOnt 22690, 2018 ONSC 4985, V.R. Chiappetta J. (Ont. S.C.J.). Municipal Law DEFINITIONS miscellAneous Purchase option not granting authority to register on title interest in additional land Corporation of town own ad- joining blocks of land. Town and F Inc. each had right to acquire land from the other in certain circumstances. F Inc. registered Notice of Option to Purchase on title to part of town land. Town brought application seek- ing declaration that F Inc. did not hold option to purchase en- tire block of Town land against which Notice was registered. Town also sought order deleting registration of Notice from title to part of town land. Applica- tion allowed. Section 62(2) did not apply since F Inc.'s purchase right relating to additional town land was not trust interest. Nei- ther s. 71(1) nor s. 10 of Purchase Option and Cost Sharing Agree- ment provided F Inc. with au- thority to register on title inter- est in additional town land that F Inc. did not have. Its purchase right was not an option to pur- chase. Accordingly, F Inc. was not entitled to register notice of option to purchase on title to that property. Notice of Option to Purchase was directed to be deleted from title to that part of additional town land requested by town (being parts 6, 14 and 15 of Plan), and Land Registry Office was directed to take nec- essary steps to give effect to that direction. Pelham (Town) v. Fonthill Gardens Inc. (2019), 2019 Car- swellOnt 1262, 2019 ONSC 567, R.A. Lococo J. (Ont. S.C.J.). CASE LAW

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