Law Times - sample

Law Times • march 19, 2018 Page 15 www.lawtimesnews.com bus routes entirely within munic- ipality of W. P ultimately decided against placing advertising on WT buses and fully refunded all monies that T paid to P. T brought action against P for breach of con- tract and against WT and W, al- leging they had breached his right to freedom of expression under Canadian Charter of Rights and Freedoms. W and WT brought motion for order setting aside service of statement of claim on WT, on ground that service out- side of Ontario was not autho- rized by Rules of Civil Procedure; order dismissing action on the ground that Ontario Superior Court of Justice lacked jurisdic- tion over subject matter of action; or in alternative, order staying ac- tion on ground of forum non–conveniens. Motion granted. Action stayed. T entered into contracts with P in Ontario. There was no contractual rela- tionship between T and WT. It was apparent that W was added as defendant since T could not assert Charter claim against P, as it was private entity. To overcome that difficulty, T made bald conclusion of law that was agent of W without any factual foundation. Pleading was fundamentally f lawed. Only relationship that existed between W and P was contractual and arose out of contract governed by laws of Manitoba. T's claim that WT breached his Charter rights was wholly dependent on finding of alleged agent–principal rela- tionship between W and P, which in turn could only possibly arise out of contract between W and P. That contract was entered into in Manitoba, by employees of W and employees of P's Manitoba office and was governed by laws of Manitoba. Counsel referred to number of cases regarding free- dom of expression in advertising. In every case, those matters were decided in province and in loca- tion where alleged breach took place. Reasonableness of limits on T's freedom of expression was best determined in Manitoba. Thain v. Pattison Outdoor Advertising LP (2017), 2017 CarswellOnt 10275, 2017 ONSC 3973, Robert N. Beaudoin J. (Ont. S.C.J.). PROCEDURE IN CONSTITUTIONAL CHALLENGES Costs Costs not to be reduced simply because they are being claimed for legal work done by salaried lawyer employed by Crown Applicant brought constitu- tional challenge to ss. 267.5(1) and 280 of Insurance Act. Ap- plication was dismissed. Sub- missions were made as to costs. Costs awarded to respondent province. Province noted its costs on partial indemnity basis were $244,000. In light of fact that applicant was individual, province said it would reduce its costs request by two-thirds. This was not case of public interest litigant who could justify pref- erential treatment. Applicant, albeit concerned personal inter- est lawyer, was found not to have private or public interest stand- ing. His constitutional argu- ments were devoid of factual un- derpinning and wholly without merit. Case law is clear that costs are not to be reduced simply be- cause they are being claimed for legal work done by salaried law- yer employed by Crown. Here, given high probability that ap- plicant's constitutional submis- sions would be dismissed on first principles, as indeed. they were, and given that some of heavy lifting on this application was done by intervener, reason- able costs claim on part of prov- ince would be at most $150,000. One third of this amount was $50,000. It was fair and reason- able to fix costs at $50,000 all- inclusive, payable forthwith by applicant to province. Campisi v. Ontario (2017), 2017 CarswellOnt 10424, 2017 ONSC 4189, Edward P. Belobaba J. (Ont. S.C.J.); additional rea- sons (2017), 2017 CarswellOnt 8166, 2017 ONSC 2884, Edward P. Belobaba J. (Ont. S.C.J.). Contracts PERFORMANCE OR BREACH Breach In absence of misrepresentation, purchaser could not justify breach Plaintiff vendor and defendant purchaser came to agreement, on sale of property. After agree- ment but before closing date, pur- chaser claimed vendor misrep- resented lot size. Purchaser also claimed that there was no clear title on property, violating agree- ment. Attempts to resolve issue failed, with purchaser not going through with agreement. Ven- dor claimed that purchaser was in anticipatory breach of agree- ment. Vendor brought action for relief on $60,000 deposit, as well as damages. Vendor moved for partial summary judgment, on issue of breach and deposit. Mo- tion granted. There was no evi- dence on part of purchaser, show- ing that survey was inaccurate. Municipal Property Assessment Corporation (MPAC) made error which it acknowledged and cor- rected. As there was no misrep- resentation, there was nothing for which purchaser could justify breach. There was no issue for trial on issue of breach. Nicolaou v. Sobhani (2017), 2017 CarswellOnt 20146, 2017 ONSC 7602, R.E. Charney J. (Ont. S.C.J.). Family Law CUSTODY AND ACCESS Factors to be considered in custody award Child to remain in primary custody of mother given concerns about father's mental health Parties were married for five years and had one child who was living with mother. Parties lived in Maryland during mar- riage, where father continued to live, and mother and child now lived in Ontario. Since parties separated father had sporadic su- pervised access visits with child. Mother claimed father had men- tal health issues. Mother brought motion for summary judgment seeking relief, including custody of child. Motion granted. Child had been in primary care of mother since separation. Father wanted legal custody while child was with him in United States, and for mother to have legal cus- tody while child was in her care in Canada, but that was not ten- able in law given that father was not exercising access on regular schedule. It would be unwork- able to impose custodial arrange- ment father sought. Given physi- cal distance between parties and unresolved issues around access, it was appropriate to award cus- tody of child to mother. Child's best interests were served by re- maining in primary custody of mother. Materials raised some is- sues about father's mental health, and father had not established that his access to child should be unsupervised at this time. Lawrence v. Riley (2017), 2017 CarswellOnt 4358, 2017 ONSC 1731, Van Melle J. (Ont. S.C.J.). Labour and Employment Law EMPLOYMENT LAW Termination and dismissal Compensatory damages insufficient to deter employer's malicious conduct in terminating employee following harassment complaint Plaintiff was dismissed from her employment with defendant. Plaintiff 's dismissal followed ha- rassment by another employee, which culminated in Decem- ber 2016 incidents when other employee elbowed plaintiff and blocked her access to drawer. De- fendant told her that she could take time off and that they would "figure issue out in new year". In- stead defendant delivered letter to plaintiff 's home notifying her of termination of her employ- ment. Plaintiff brought claim for damages for wrongful dismissal as well as for aggravated, punitive and other damages. Defendant did not defend claim. Plaintiff brought motion for default judg- ment. Motion was granted in part. Motion judge declared that plaintiff had been wrongfully dismissed and awarded plain- tiff damages in lieu of notice of three months' salary of $10,000. Motion judge directed that bal- ance of claims proceed to uncon- tested trial. At trial plaintiff was awarded aggravated damages of $20,000 and punitive damages of $10,000. Plaintiff was harassed in workplace and defendant, rather than investigating, terminated plaintiff 's employment. Defen- dant's conduct was malicious, oppressive and high-handed. Compensatory damages were insufficient to deter such con- duct. Manner of termination of employment was beyond cold and brusque and was cowardly. Manner of termination of em- ployment aggravated plaintiff 's pre-existing depression. This was appropriate case for award of aggravated or "moral" damages. Horner v. 897469 Ontario Inc. (2018), 2018 CarswellOnt 372, 2018 ONSC 121, W.D. New- ton J. (Ont. S.C.J.). Municipal Law MUNICIPAL CONTRACTS Tenders Plaintiffs could not establish they would have been successful bidders so could not succeed in recovering damages Defendant municipality O used plaintiffs, related companies, for its biosolid disposal obligations. When contract between parties was to expire, O issued call for tenders for collection, haulage, storage and/or disposal of bio- solids. Plaintiff R Ltd. submit- ted bid. O agreed to purchase plaintiff G Inc.'s biosolids storage facility property for $7 million. Agreement of purchase and sale contained termination clause that gave O right to terminate as consequence of its due diligence inquiries into advisability of pur- chase. O awarded tender to only other bidder, whose bid included different method of disposing of biosolids, dewatering. Bidder's process eliminated need for stor- age facility so O purported to ter- minate agreement and requested return of $250,000 deposit. Plaintiffs brought action alleging that tender was awarded improp- erly to bidder and O breached agreement by wrongly exercis- ing termination clause; O coun- terclaimed for return of deposit. Action dismissed; counterclaim allowed. Combined reading of agreement to tender terms and conditions and tender terms and conditions themselves led to con- clusion that contractual health and safety handbook was inte- gral and essential part of prelim- inary contract governing tender process. Bidder did not submit health and safety handbook and bid was non-compliant. O's deci- sion to accept bid was in breach of preliminary contract. How- ever, trial judge held that plain- tiffs had not proven, on balance of probabilities, that O would have awarded tender to R Ltd. if bidder's bid had been disquali- fied. There was great advantage to bidder's process, as it solved fi- nancial and logistical problem of storing biosolids and eliminated need for O to acquire expensive storage facility. Trial judge found it was more likely that O would have refrained from awarding tender to either bidder and it would have issued new tender with view to soliciting compli- ant tenders offering dewatering component that would com- pete with haulage and storage process used by plaintiffs. As plaintiffs could not establish that they would have been successful bidders, they could not succeed in recovering damages for lost profits they would have made under contract that would have resulted from successful bid. Plaintiffs appealed. Appeal dis- missed. It was open to trial judge, on evidence, to conclude that it was more probable that O would have re–tendered contract. It was open to the trial judge on the evi- dence to reach this conclusion. In particular, 2010 tendering pro- cess had disclosed to O that its preferred option of adopting de- watering process was viable and therefore could be subject of new and different tendering process. Graillen Holdings Inc. v. Orangeville (Town) (2017), 2017 CarswellOnt 9540, 2017 ONCA 520, Janet Simmons J.A., Paul Rouleau J.A., and L.B. Roberts J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 8716, 2016 ONSC 3687, Stinson J. (Ont. S.C.J.). ZONING Nature and scope Waste wood stockpiling and grinding was accessory use to greenhouse operation Respondent operated green- house and garden centre on property neighbouring appli- cant's property. Portion on which greenhouses operated was zoned rural commercial. Respondent received deliveries of wood, which it stored and ground into woodchips on portion of prop- erty zoned agricultural. Wood- chips were used as fuel to heat greenhouses. Respondent ob- tained environmental compli- ance approval from Ministry of the Environment and Climate Change with respect to grind- ing. Applicant brought applica- tion for declaration that waste wood stockpiling and grinding was not permitted under zoning bylaw and was not accessory use. Application dismissed. Evidence in support of applicant's com- plaints about noise, pollution, fire hazard and property devalu- ation was subjective and specu- lative. Applicant's complaints woodchips were being shipped away, which was not accessory use, was denied by respondent and not supported by compelling evidence. Storage and grinding of woodchips occurred on portion of property zoned agricultural, which was not stated permitted use and, as biomass was not pro- duced on site, was not farming, so was not permitted use under by- law. Wood storage and grinding was accessory use to greenhouse operation. While it occurred in different zones, lot on which stor- age and grinding occurred and greenhouses operated was same. Storage and grinding was natu- rally and normally incidental to principal use of greenhouse op- eration, and was clearly subor- dinate and exclusively dedicated to principal use. Greenhouses required fuel source, and use of cheaper biomass fuel contributed to profit. Respondent's agreement with county about conditions on use of wood did not create im- permissible conditional zoning; conditions simply defined acces- sory use. Hutchinson v. Corporation of Norfolk County (2018), 2018 CarswellOnt 265, 2018 ONSC 181, D.J. Gordon J. (Ont. S.C.J.). CASELAW

• Cover