Law Times

September 4, 2017

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Law Times • sepTember 4, 2017 Page 15 www.lawtimesnews.com CASELAW decessors raised level of water in lake. Owners alleged company was trespassing on land by stor- ing water on owners' property. Common issue was certified on whether encroachment of wa- ter past contour line constituted trespass. After certification de- cision, parties retained survey- ors to obtain evidence of legal descriptions and boundaries of owners' lands surrounding lake, and to prepare expert reports. Company claimed new evidence showed properties around lake were acquired by hydro company and there was unopened road al- lowance around lake which was not included in owners' bound- ary line. Company brought mo- tion to decertify class action. Motion granted. Issue raised by owners was whether company was responsible in trespass for raising water level of lake, caus- ing erosion to occur such that water was now stored on some owners' lands. To decide that is- sue required evidence from each individual owner to determine legal boundaries of property purchased, and to determine whether water covered part of owner's property. Common is- sue as certified and presently defined did not meet criteria of s. 5(1) of Class Proceedings Act. Plaunt v. Renfrew Power Generation Inc. (2017), 2017 CarswellOnt 4237, 2017 ONSC 1868, Robert Smith J. (Ont. S.C.J.). Certification motion adjourned to allow proposed representative plaintiff to address certain requirements Corporation A Corp. provided document review services for law firms. Plaintiff was lawyer who performed document re- view work for A Corp. as inde- pendent contractor on her own schedule and on projects she se- lected. A Corp. was acquired by defendant partnerships. Plaintiff alleged independent contractors were actually employees entitled to benefits under Employment Standards Act, 2000. Plaintiff brought action against defen- dants for relief under Act. Plain- tiff brought motion for certifica- tion of action as class proceed- ing. Motion adjourned on terms. Only certain proposed common issues were certified in relation to partnerships, and matter was otherwise adjourned so certain other requirements could be ad- dressed, failing which motion would be dismissed. Current plaintiff had to be replaced by suitable representative plaintiff. Record did not establish that current plaintiff would vigor- ously and capably prosecute in- terests of class or do so in diligent and responsible fashion. Current plaintiff 's evidence was at best unreliable and at worst untruth- ful. Even if current plaintiff 's af- fidavit and factum were drafted by class counsel, it was obvious that neither document was re- viewed by current plaintiff be- fore it was sworn or filed with court, and she had not reviewed responding documents. Sondhi v. Deloitte Manage- ment Services LP (2017), 2017 CarswellOnt 5540, 2017 ONSC 2122, Edward P. Belobaba J. (Ont. S.C.J.). Reminder messages to wireless service customers were of no contractual effect Summary judgment. Plaintiff customer brought class action alleging defendant BM Inc. had wrongfully seized unused bal- ances remaining in customer's top-up account for pre-paid wireless services on stated ex- piry date and not after expiry date as required by contract. De- fendants successfully brought motion for summary judgment to determine common issue of whether defendant breached contracts of all class members. Court of Appeal dismissed plaintiff 's appeal. Court of Ap- peal found that plaintiff 's real complaint was that defendant's subsequent communications to its customer, made after they had purchased their top-ups and as top-up was about to expire, were misleading. This was essentially claim for misrepresentation or promissory estoppel, neither of which was before motion judge. Supreme Court of Canada did not grant or deny plaintiff leave to appeal, but directed that her case be remanded to Court of Appeal for disposition in ac- cordance with recent Supreme Court of Canada judgment. On reconsideration, judgment was affirmed. In view of plaintiff 's concession and Supreme Court's acknowledgment that Court of Appeal applied correctness stan- dard of review in this case, real issue was whether Court of Ap- peal improperly used surround- ing circumstances to interpret terms of service. Motion judge did not err in answering breach of contract common issues as he did. Communications, being re- minder messages or expiry dates shown on customers' account pages, were of no contractual ef- fect and could not have been re- ferred to in interpreting contract or in answering common issues. Sankar v. Bell Mobility Inc. (2017), 2017 CarswellOnt 5104, 2017 ONCA 295, George R. Strathy C.J.O., H.S. LaForme J.A., and Grant Huscroft J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 4940, 2016 ONCA 242, G.R. Strathy C.J.O., H.S. LaForme J.A., and Grant Huscroft J.A. (Ont. C.A.). Court approving settlement of class action relating to diesel vehicles Approval of settlement. Class action relating to diesel vehicles was certified. Proposed settle- ment was worth $2.1 billion and covered 105,000 class members. Motion was brought for court approval of settlement. Motion granted. Settlement was fair and reasonable and in best in- terests of class. Settlement was proportionate to US settlement. Amounts payable under settle- ment agreement were measured against legal benchmark. Reme- dy of rescission, and full refund of purchase price, provided under s. 18(1) of Consumer Protection Act was not available because ve- hicles had been driven and could not be returned. Class mem- bers would receive more under settlement than they would have received under tort law, which provided damages of price paid minus value received. Class members would have option to return vehicle for buyback price plus damages payment of $5,100 to $8,000, or keep vehicle and obtain emissions modification and damages payment of $5,100 to $8,000. In one example, class member would receive $8,208 more under settlement than under tort approach if he chose buyback option and $3,250 more if he kept vehicle, and analysis would provide similar results for other class members. Quenneville v. Volkswagen Group Canada Inc. (2017), 2017 CarswellOnt 6142, 2017 ONSC 2448, Edward P. Beloba- ba J. (Ont. S.C.J.). Constitutional Law CHARTER OF RIGHTS AND FREEDOMS Nature of rights and freedoms Plaintiff 's s. 15 Charter rights violated by police racial profiling Plaintiff, who was black, was stopped by police officers while walking down city street on win- ter night. Encounter, in which plaintiff was verbally hostile, led to officer P punching plaintiff before he was handcuffed for some 30-45 minutes. Plaintiff 's action against Police Services Board was allowed with award of $27,000, but with trial judge declining to find that officers' conduct was racially motivated. Plaintiff appealed. Appeal al- lowed. Although there was no direct evidence of racial profil- ing, there was circumstantial evi- dence from which such inference could be drawn and trial judge committed palpable and over- riding error in failing to con- sider such evidence. There was no reasonable basis for officers to suspect plaintiff of criminal behaviour, but they respectively indicated that they suspected him of breach of bail conditions and of weapons possession. Only reasonable inference was that of- ficer's views of plaintiff were co- loured by fact that he was black and by conscious or unconscious belief that black men had pro- pensity for criminal behavior. Officers' unreasonable beliefs led them to assault, unlawful deten- tion and unreasonable search, blatantly and aggressively vio- lating his constitutional rights. Officers' explanations about why they stopped plaintiff were infected with racial stereotypes. Plaintiff 's rights to equal pro- tection and equal benefit of law under s. 15 of Canadian Charter of Rights and Freedoms were clearly violated. Elmardy v. Toronto Police Services Board (2017), 2017 CarswellOnt 4868, 2017 ONSC 2074, H. Sachs J., Nordheimer J., and Spies J. (Ont. Div. Ct.); varied (2015), 2015 CarswellOnt 6690, 2015 ONSC 2952, F.L. My- ers J. (Ont. S.C.J.). Family Law COSTS Family property applications Successful party on primary claim entitled to costs on partial indemnity basis Parties shared home owned by man during their six-year com- mon law relationship. Woman claimed interest in $410,000 in- crease in equity in man's home during parties' cohabitation based on unjust enrichment due to her contributions to common living expenses and to main- tenance and repair of home. Prior to trial, man offered to pay woman $5,000 in full sat- isfaction of her claim, which offer was not accepted. Trial judge dismissed woman's ac- tion and awarded man his costs, on partial indemnity basis, in amount of $20,211.29. Woman appealed and offered to settle for $57,747.50, including trial and appeal costs, but man did not accept. Appeal was allowed in part. Woman was awarded $5,000 plus interest, represent- ing return of one-time amount she had given man towards mortgage on property. After hearing of appeal, parties agreed that successful party should re- ceive partial indemnity costs in amount of $9,500, inclusive of disbursements and taxes. Man awarded $9,500 for costs of ap- peal. Parties had differing views as to who was "successful party" and appropriate costs awards of trial and appeal. Appeal was primarily claim for constructive trust, on which issue he was suc- cessful. Accordingly, man was entitled to his costs in agreed- upon amount of $9,500. Given history of matter, there was no reason to interfere with trial judge's award of costs of trial. Reiter v. Hollub (2017), 2017 CarswellOnt 4887, 2017 ONCA 285, K. Feldman J.A., Gloria Ep- stein J.A., and B.W. Miller J.A. (Ont. C.A.); additional reasons (2017), 2017 CarswellOnt 2943, 2017 ONCA 186, K. Feldman J.A., Gloria Epstein J.A., and B.W. Miller J.A. (Ont. C.A.). Municipal Law SUBDIVISION CONTROL Severance of land Application to sever portion of land within agricultural zoning denied Applicant owned and operated golf course on 114 acres of land that was zoned environmental and agricultural and lay within band of land that fell within gen- eral agricultural zoning. Prior owner of golf course construct- ed 3,000 square foot house on land, but applicant no longer re- quired house as ancillary use to golf course and wished to sever two acres on which it was situ- ated. Ontario Municipal Board dismissed applicant's request to designate Special Policy Area amendment to county's Official Plan respecting two-acre portion of its land, which application was condition precedent to severance application. Board concluded that as sound matter of planning policy, amendment to Official Plan should not be permitted. Appellant appealed. Appeal dismissed. Questions of law in- volved in appeal were all matters of planning law, including Offi- cial Plan, provincial policy state- ments, and applicable provisions of Planning Act. Those issues lay within Board's core competence. Board found that house was built as ancillary to golf course and if no longer needed for that pur- pose, it could be used for other golf club purposes, but it could not be severed and thus trans- formed into residential use. Vice- Chair's interpretation of Official Plan, provincial policy state- ments, and Act were consonant with his statement of principle and was reasonable. 2341066 Ontario Ltd. v. Oxford (County) (2017), 2017 CarswellOnt 4921, 2017 ONSC 2117, H.A. Rady J., D.L. Corbett J., and J. Fregeau J. (Ont. Div. Ct.); affirmed (2014), 2014 Car- swellOnt 12421, Steven Stefanko V-Chair (O.M.B.). Professions and Occupations BARRISTERS AND SOLICITORS Negligence Claim that law firm was negligent constituting collateral attack on judgments Client became judgment debtor after failing to defend legal pro- ceedings in Italy. Client retained law firm to represent him in en- forcement proceedings in Ontar- io. Creditor obtained order en- forcing judgment in Ontario, and client unsuccessfully appealed. Law firm brought action against client for payment of amount owing. Client brought counter- claim for damages for negligence and breach of contract. Law firm brought motion for summary judgment dismissing counter- claim. Motion granted. There were no triable issues in counter- claim. Claim that law firm was negligent in enforcement pro- ceedings was collateral attack on judgments in those proceedings and could not succeed. Client could not sue law firm on theory that initial prior judgment was wrong or would have been differ- ent but for law firm's negligence. Further, allegations of negligence were known prior to appeal hear- ing and should have been ad- dressed there. In addition, alle- gations of negligence against law firm were devoid of substance since judge who rendered initial prior judgment was fully alive to arguments client alleged were not made properly. Lang Michener LLP v. King (2017), 2017 CarswellOnt 4802, 2017 ONSC 1917, D.L. Corbett J. (Ont. S.C.J.).

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