Law Times

March 25, 2019

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LAW TIMES COVERING ONTARIO'S LEGAL SCENE | MARCH 25, 2019 15 No legislation after 1871 altered rules for selection of trustees. General or permissive provi- sions of Corporations Act, 1953 were not intended to prevail over earlier mandatory and specific provisions of myriad of special acts applicable to corporations with neither share capital nor let- ters patent such as MPGC. Judge had jurisdiction under s. 288(4) of Corporations Act to appoint trustees. Friends of Toronto Pub- lic Cemeteries Inc. v. Mount Pleasant Group of Cemeteries (2018), 2018 CarswellOnt 22169, 2018 ONSC 7711, S.F. Dunphy J. (Ont. S.C.J. [Commercial List]). Family Law COSTS in family law proCeedings generally Fees of excessive preparation should not have been visited upon unsuccessful party Parties were married in 1984, and separated in 2016, after 32 years of marriage. Husband was retired from own business, mother had been retail employee but was cur- rently unable to work. Largest as- set of family was husband's pen- sion, and property also included matrimonial home and camp property, three automobiles, and other interests. Wife brought suc- cessful application for divorce, support, and division of family property. Parties made submis- sions on costs. Husband was or- dered to pay wife costs in amount of $40,000, inclusive of disburse- ments and HST. Wife was largely successful on primary issues at trial and therefore, was presump- tively entitled to costs. Husband had not acted in bad faith or un- reasonably throughout litigation. Time expended by wife's counsel was excessive and resultant fees of excessive preparation should not have been visited upon un- successful party by way of costs award. Martin v. Martin (2019), 2019 CarswellOnt 1469, 2019 ONSC 920, J.S. Fregeau J. (Ont. S.C.J.); additional reasons (2018), 2018 CarswellOnt 19157, 2018 ONSC 6804, J.S. Fregeau J. (Ont. S.C.J.). Labour and Employment Law EMPLOYMENT LAW termination and dismissal There were no exceptional circumstances to justify longer reasonable notice period Plaintiff employee was president of institutional and strategic sales and executive vice president of sales for defendant employer when he was terminated without cause. At time of termination, employee was 53 years old and had been employed by employer for 22 years. Employee found full-time employment as chief executive officer 25 months after termination date and compensa- tion package was not less valuable than that provided by plaintiff employer. Employee brought motion for summary judgment of his action for relief for breach of employment contract. Mo- tion granted. This was appropri- ate case for summary judgment. Reasonable notice period was 24 months. Employee was entitled to reasonable notice of 24 months having regard to his age, years of service, senior position and lim- ited availability of similar em- ployment. There were no excep- tional circumstances to justify reasonable notice period of more than 24 months. Employee was entitled to payment of base salary of CDN $335,000 during notice period less amounts already paid and any amounts received by way of mitigation efforts. O'Reilly v. Imax Corpora- tion (2019), 2019 CarswellOnt 1044, 2019 ONSC 342, M.D. Fa- ieta J. (Ont. S.C.J.). Pensions PRIVATE PENSION PLANS praCtiCe in pension aCtions Relevance was determining factor for admissibility of evidence at trial Respondent was one of 24 colleg- es of applied arts and technology in province. CAAT was pension plan that represented employers and employees at all 24 colleges. CAAT was administrator of basic pension plan and supple- mentary pension plan known as RCA. Claimant was employed by respondent for 10 years as di- rector and then vice-president of human resources and was eligible for CAAT and RCA. Claimant took various steps to transfer or buy back his years of service with his two-previous employer. In 2012, claimant retired and began receiving his monthly life annu- ity issued by CAAT but there was gap between projected monthly pension and actual monthly pen- sion. Claimant brought action against respondent and CAAT for $2,960,576 as result of finan- cial loss generated between pro- jected monthly pension and actu- al monthly pension. Respondent and CAAT brought cross-claim against each other. Respondent brought motion to direct CAAT to provide answers to questions that had led to objection of refusal taken during oral examination. Motion granted. Rule 31.06 of Ontario Rules of Civil Procedure applied in this case. Order was made directing answers to ques- tions be communicated in writ- ing within 45 days. Relevance was determining factor for admis- sibility of evidence at trial and certain questions were relevant to determine when employees could intervene about pension entitle- ment, consistency of information shared by CAAT, information about training program offered to CAAT employees, CAAT guidelines, among other things. Certain questions were irrelevant or required opinion and were not appropriate questions. Brousseau c. La Cité collé- giale et Régime de retraite des collèges d'arts appliqués et de technologie (2019), 2019 Car- swellOnt 2609, 2019 ONSC 1251, M. O'Bonsawin J. (Ont. S.C.J.). Real Property CEMETERIES rights of owners of burial plots Contract gave applicant right to set price list for portion of cemetery operated by it Applicant and respondent en- tered into contract for develop- ment and management of non- profit cemetery. Applicant took position that it had right to set price list for burial plots in por- tion of cemetery which was op- erated by it. Application took position that price list set by it governed calculation of care and maintenance fund (CMF) con- tributions under Funeral, Burial and Cremation Services Act. Applicant brought application for ruling and series of declara- tions upholding its interpreta- tion of contract. Application granted. Applicant's interpreta- tion of contract prevailed. There was nothing in applicant's inter- pretation of contract which ran afoul of Act. Contract allowed applicant to set price for burial plots in portion of cemetery op- erated by it. Respondent did not point to any provision of Act or regulations that suggested that cemetery could not have differ- ent price lists for different parts of cemetery. Contract clearly gave applicant right to set price list for portion of cemetery oper- ated by it and regulatory scheme under Act clearly based amount of CMF payable on price from price list. CMF was to be calcu- lated based on price list set by applicant. CMF on each plot was payable as and when plot was transferred to individual who would use interment rights. Muslim Green Cemeteries v. Toronto Muslim Cemetery (2019), 2019 CarswellOnt 766, 2019 ONSC 87, J. Copeland J. (Ont. S.C.J.). CONDOMINIUMS agreement of purChase and sale Creation of service units and mortgages were material changes On summary judgment motion, judge reduced amounts ow- ing under two mortgages given by condominium corporation ("TSCC") to developer. Developer had assigned mortgages to GPC. Summary judgment was granted in action brought by TSCC seek- ing relief under Condominium Act, 1998. GPC moved for sum- mary judgment on two vender take-back mortgages entered into when developer controlled board of TSCC. One mortgage related to HVAC equipment and other related to parking and stor- age units. Developer conveyed unsold units to TSCC, with developer-controlled TSCC giv- ing developer vendor take-back mortgage. Motion judge found developer's revised disclosure documents infringed s. 74 of Act and that both transactions were oppressive. GPC appealed. Ap- peal dismissed. Motion judge committed no error in deciding issue of materiality in assessing developer's revised disclosure documents. GPC's argument failed to keep distinct "material- ity" and clarity of information about material changes that must be provided. Creation of service units and mortgages in amounts of $2,228,100 and $1,026,000, which did not not appear in orig- inal disclosure statement, were material changes. Developer's disclosure relating to service unit mortgage was confusing and did not indicate clearly to purchasers what they were buying. Toronto Standard Con- dominium Corporation No. 2051 v. Georgian Clairlea Inc. (2019), 2019 CarswellOnt 842, 2019 ONCA 43, Robert J. Sharpe J.A., R.G. Juriansz J.A., and L.B. Roberts J.A. (Ont. C.A.); af- firmed (2018), 2018 CarswellOnt 9535, 2018 ONSC 2515, Akbarali J. (Ont. S.C.J.). LANDLORD AND TENANT assignment of lease Corporation did not withhold consent unreasonably Applicant, 219 Ltd., operated supermarket and leased part of premises pursuant to agreements made with respondent M Ltd. and respondent C Corp.. 219 Ltd. brought application for assign- ment of sublease so that it could exercise renewal option. Appli- cation dismissed. C Corp. had not withheld consent unreason- ably. Litigation should never have been commenced. C Corp. had accounted for 219 Ltd.'s strong financial status by reducing se- curity from amount it customar- ily sought – six months – to three months, with one month applied almost immediately against rent. Security requested by C Corp. al- lowed it to continue to protect its business interests. 2197088 Ontario Limited v. Cadogan Corporation (2018), 2018 CarswellOnt 7829, 2018 ONSC 3070, Ferguson J. (Ont. S.C.J.). Torts DEFAMATION fair Comment Resident admitted that application was matter of public interest Resident of municipality com- menced application concerning eligibility of town councillor for office but withdrew applica- tion. Resident was ordered to pay costs. Another town coun- cillor published article in online newspaper about application. Resident claimed article was defamatory and commenced action against councillor and mayor. Councillor and mayor subsequently commenced action against resident for defamation. Resident filed counterclaim for defamation, intentional or neg- ligent inf liction of mental suf- fering, harassment and abuse of power. Action by councillor and mayor was dismissed. Council- lor brought motion for summary judgment to dismiss resident's counterclaim. Motion granted. Statements in councillor's article were substantially true. Article did not allege malice on part of resident or insinuate nefarious purpose for resident's involve- ment with taxpayer's advocacy coalition. Councillor also made out defence of fair comment. Resident admitted that applica- tion was matter of public interest. McLaughlin v. Maynard (2018), 2018 CarswellOnt 9280, 2018 ONSC 3605, R. Ryan Bell J. (Ont. S.C.J.). Ontario Criminal Cases Criminal Law SENTENCING BY OFFENCE offenCes against the person and reputation Order prohibiting accused from communicating with members of deceased's family was issued Accused was driving himself and deceased home from club where they had been drinking when vehicle crossed centre line and crashed into building, caus- ing injury to accused and kill- ing deceased. Accused's blood alcohol content at time of crash was between 100 and 124 mg of alcohol in 100 ml of blood. Ac- cused testified that deceased took off his seatbelt and yanked steer- ing wheel, and that accused tried to yank steering wheel back and his next memory was of wak- ing in hospital. Deceased's act of grabbing steering wheel was in- tervening act, but jury found that accused's negligence and impair- ment were significant contribut- ing causes of deceased's death despite intervening act. Accused was convicted by jury of impaired driving causing death and crimi- nal negligence causing death. Accused was sentenced to five years' imprisonment on count of impaired driving causing death, and five years' imprisonment concurrent on count of criminal negligence causing death. Seven- year driving prohibition was im- posed, and order prohibiting ac- cused from communicating with members of deceased's family was issued. Accused had high level of alcohol in his system, was trav- elling at high rate of speed, and consequences of crime were dev- astating. Accused was young with unblemished record, had support in community, had long employ- ment history, had suffered greatly, was clearly remorseful, and was accepted into college program. R. v. Osman (2019), 2019 CarswellOnt 656, 2019 ONSC 327, R.F. Goldstein J. (Ont. S.C.J.). CASE LAW

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