Law Times

April 15, 2019

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LAW TIMES COVERING ONTARIO'S LEGAL SCENE | APRIL 15, 2019 15 candidates, some 3,704 votes behind winner. He sought court ordered recount. Appli- cation dismissed. On the whole, complaints had thread grasp- ing, conspiracy like quality to them. Each unanswered request became proof that something may have happened. Similarly, once requests were answered, answers invariably result in more questions and concerns that were then unanswered. To give but one example, applicant requested receipts showing how many voter kits were mailed out. Receipt from DataFix was eventually provided showing disbursement for postage. Ap- plicant then pointed to receipt and questioned why no receipt from Canada Post was provided and questioned how it was that DataFix managed to obtain such a low price for postage. He pointed to this as further proof of potential malfeasance and error. Kett v. The Corporation of the Township of Scugog (2019), 2019 CarswellOnt 1747, 2019 ONSC 942, J. Di Luca J. (Ont. S.C.J.). MUNICIPAL COUNCIL loCAl boArds Political interest of union in outcome of vote not captured by provisions of Municipal Conf lict of Interest Act Respondents were school board trustees. In 2014 election teach- ers' union made campaign do- nations of $400 to each of re- spondents and endorsed their respective candidacies. On January 16, 2018 school board passed motion that banned school board from engaging with entities who directly or indirectly supported abortion, contraception, euthanasia, stem cell research, or anything else considered in breach of Ro- man Catholic Church's views on sanctity of life. Respondents voted against motion. On Janu- ary 22, 2018 union wrote let- ter to school board setting out its disagreement with board's approval of motion. On April 21, 2018 union sent email to its membership encouraging them to defeat those trustees who voted in favour of motion. At May 1, 2018 board meeting, motion to suspend effectiveness of sanctity of life motion to al- low for comprehensive commu- nity consultation was passed. Applicant took position that respondents' views on motions were affected by endorsements and campaign donations from union which constituted indi- rect pecuniary interest contrary to Ontario's Municipal Con- f lict of Interest Act. Applicant brought motion for declara- tion that respondents breached s. 5(1) of Act. Application dis- missed. Applicant's submis- sions were devoid of any cogent or admissible evidence as to ex- istence of any form of direct or indirect pecuniary interest on part of respondents in matter of sanctity of life motion. Appli- cant acknowledged that he had no evidence that any of respon- dents made any agreement with union to vote in any particular way in exchange for contribu- tions or endorsements and it was uncontradicted evidence of each of respondents that they did not do so. Any political in- terest of union in outcome of vote on motions was not one captured by provisions of Act. There was no evidence of any relationship between respon- dents and union that would be captured by s. 2 of Act. Cauchi v. Marai (2019), 2019 CarswellOnt 1814, 2019 ONSC 497, Peter A. Daley R.S.J. (Ont. S.C.J.). MUNICIPAL LIABILITY oCCupier's liAbility Failure of municipality to block side path or post warning signs not amounting to reckless disregard Plaintiff fell off bicycle while riding on trail maintained by defendant municipality. Plain- tiff decided to ride off trail to avoid access control gate on trail. After clearing vegeta- tion, plaintiff was surprised by steep slope on other side of gate. Plaintiff applied brakes and went over front of bicycle. Plaintiff broke arm and suf- fered other injuries. Plaintiff brought action for damages for injuries suffered in accident. Action dismissed. Liability for personal injuries allegedly sus- tained while travelling on rec- reational trail was governed by Occupiers' Liability Act. Lower standard of care applied to per- son who entered property with recreational trail but left trail. Control gate itself gave plaintiff no warning there was steep hill ahead. Plaintiff, however, saw other such gates on hills on trail. Plaintiff admitted knowledge that trail went down into valley and that accident was caused by reaction in braking hard. If plaintiff remained on official trail through gate, steep incline and wooden fence would have been clearly visible, and plain- tiff would not have been going at speed requiring hard braking. Plaintiff made deliberate choice to avoid gate. Municipality took steps to ensure safety of trail us- ers. Although people were obvi- ously going around control gate, failure of municipality to block side path or post warning signs did not amount to reckless dis- regard. Turner v. Oakville (2018), 2018 CarswellOnt 17219, 2018 ONSC 5647, Miller J. (Ont. S.C.J.). Real Property LANDLORD AND TENANT residentiAl tenAnCies Unfair to landlord to make it responsible to bear burden of tenant's health problems Landlord applied to Landlord and Tenant Board to evict ten- ant for nonpayment of rent. Board was satisfied by land- lord's statement of account, noted that tenant had offered no particulars to rebut its con- tent and ordered tenant's lease terminated, fixing arrears at $10,285.55. On review, decision was upheld on basis that while tenant may have subjectively suffered symptoms, she sub- mitted no evidence to support her multiple requests for delay or failure to attend hearing. Tenant appealed and landlord brought motion to quash ap- peal but adjourned motion on basis that tenant had been pay- ing rent when due. It was term of order that if tenant defaulted on any terms, landlord could bring on adjourned motion to quash. Tenant failed to perfect appeal. Landlord brought motion to quash tenant's appeal. Motion granted; appeal quashed. Ap- peal was manifestly devoid of merit. Landlord was not re- sponsible to take care of ten- ant given board's finding that she owed substantial arrears of rent. It was unfair to landlord to make it responsible to bear bur- den of tenant's health problems. While court process provided automatic stay of board's deci- sion during appeal process, stay was temporary and depended tenant raising issues that were capable of being appealed suc- cessfully and on timely basis. One Superior Avenue In- corporated v. Sheridan (2019), 2019 CarswellOnt 2655, 2019 ONSC 1235, F.L. Myers J. (Ont. Div. Ct.). Error to conclude tenant substantially interfered with landlord absent analysis whether conduct constituted "substantial" interference Landlord served tenant notices to end tenancy based on two incidents: tenant (in her wheel- chair) and her husband alleg- edly entered elevator and hus- band assaulted another tenant using walker who attempted to use elevator (elevator in- cident), and tenant allegedly verbally demanded removal of two delivery trucks so she could access her vehicle (deliv- ery truck incident). Landlord and Tenant Board concluded that neither incident constitut- ed substantial interference, but tenant substantially interfered with landlord's lawful rights in maintaining rental building by pursuing abusive course of ac- tion in response to its attempt to assert its right to inspect unit for pest control purposes, and terminated tenancy. Ten- ant appealed. Appeal allowed. Decision was fundamentally f lawed. While board concluded tenant had substantially inter- fered with lawful rights and in- terests of landlord to keep units in good state of repair, board did not refer to what consti- tuted "substantial interference with the lawful rights and in- terests". Tenant had complied with notice to allow inspection, no infestation was found, and because she complied within seven days, that notice was void. There was no evidence to support those findings, and in reaching that determination, board committed error in law. Board concluded that tenant substantially interfered with landlord by her litigation con- duct in initiating Small Claims Court action for damages for pest control inspection without analysis as to whether conduct constituted "substantial" inter- ference, and in doing so board committed error in law. Hasselsjo v. Effort Trust (2019), 2019 CarswellOnt 1754, 2019 ONSC 990, Kiteley J., Wil- ton-Siegel J., and Myers J. (Ont. Div. Ct.). Torts DEFAMATION prACtiCe And proCedure Onus on plaintiff was not to show there was no possibility defence of fair comment could succeed Strategic litigation against pub- lic participation. Defendant S received cosmetic treatment services for her cheeks from plaintiff. S observed "volume loss" in both cheeks after first treatment, which caused her to change to different type of treatment. S remained dissat- isfied with results and posted negative review on one of de- fendant G Inc.'s websites and made revisions after receiving threats from plaintiff about le- gal action. Plaintiff commenced action against defendants in defamation. S was successful on motion to have action dis- missed pursuant to s. 137.1 of Courts of Justice Act as motion judge found S's comments were expressions on matter of public interest and while action had merit, plaintiff failed to estab- lish defence of fair comment was invalid. Plaintiff appealed. Appeal dismissed. Motion judge applied wrong test in de- termining whether plaintiff had shown S had no valid defence to claim as onus on plaintiff was not to show that there was no possibility defence of fair com- ment could succeed, but rather to show it was reasonably pos- sible that trier could conclude that defence would not suc- ceed. Considering entirety of S's comments and context in which they were made, reason- able trier could conclude S was stating facts and not opinions and therefore defence of fair comment would not be avail- able. However, as plaintiff had not provided quantification of its losses nor identified how those losses related to its overall business, it had not established any harm it suffered caused by S was sufficiently serious that public interest in permitting proceeding to continue out- weighed public interest in pro- tecting expression. Action was therefore properly dismissed. New Dermamed Inc. v. Su- laiman (2019), 2019 Carswel- lOnt 2538, 2019 ONCA 141, Doherty J.A., G. Pardu J.A., and I.V.B. Nordheimer J.A. (Ont. C.A.); affirmed (2018), 2018 Car- swellOnt 6255, 2018 ONSC 2517, Cavanagh J. (Ont. S.C.J.). (Ont. C.A.); leave to appeal refused (2018), 2018 CarswellOnt 8845, 2018 ONSC 3454, Cavanagh J. (Ont. S.C.J.). Ontario Criminal Cases Criminal Law CHARTER OF RIGHTS AND FREEDOMS Arrest or detention [s. 10] No legal obligation on police to permit contact with third party or inquire why detainee wished to make contact Accused was arrested after he crashed into back of tractor trailer that was travelling at speed limit and failed roadside screening test. Accused provid- ed two samples of his breath at police station, and was charged with driving over 80. Accused claimed, in part, that his right to counsel was denied because officer at station did not allow him to call friend who was po- lice officer. Accused was un- certain of what to do, he had no lawyer in mind but he rea- sonably believed that his friend knew several lawyers with whom he could speak. Accused brought successful application for order to exclude evidence because his rights under s. 10(b) of Canadian Charter of Rights and Freedoms were violated, and accused was acquitted at trial. Crown appealed acquittal. Appeal allowed. Acquittal was set aside and conviction was entered for one count of driving over 80. Trial judge erred in law in finding obligation on police to facilitate call with accused's friend who was police officer. When detainee did not indicate to police why they wished to contact third person, there was no legal obligation on police to permit contact with third party or make further inquiries on reason detainee wished to make contact. Trial judge did not ap- pear to have considered infor- mation police gave accused in context of information that had already been provided, which included standard caution and expressly telling accused he had right to contact "any lawyer". Totality of information provid- ed could not have led accused to believing he could not call law- yer unless he already had one. R. v. Mumtaz (2019), 2019 CarswellOnt 597, 2019 ONSC 468, Woollcombe J. (Ont. S.C.J.); reversed (2018), 2018 Carswel- lOnt 3349, 2018 ONCJ 139, G. Paul Renwick J. (Ont. C.J.). CASE LAW

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