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April 16, 2018

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Law Times • apriL 16, 2018 Page 15 right to select and direct counsel, which were not costs incurred in "defending" action. Duty to de- fend contemplated apportion- ment of costs. Lefeuvre v. Boekee (2018), 2018 CarswellOnt 2091, 2018 ONSC 1010, C.F. de Sa J. (Ont. S.C.J.); additional reasons (2017), 2017 CarswellOnt 18699, 2017 ONSC 6874, C.F. de Sa J. (Ont. S.C.J.). Municipal Law ATTACKS ON BYLAWS AND RESOLUTIONS Practice and procedure Whether fill import and placement was normal farm practice within meaning of bylaw not pure question of jurisdiction Respondent farmer purchased property and took certain steps toward using property as a fruit farm. Town passed Site Altera- tion and Fill By-Law, which pro- hibited fill import and place- ment except where there was exemption. Town appealed under s. 8(2) of Farming and Food Production Protection Act, ("Act"), from order of Nor- mal Farm Practices Protection Board which approved farmer's proposed "normal farm prac- tice", subject to certain changes, under Act's s. 6(16). Appeal al- lowed in part. Paragraph (e) of order shall be amended as fol- lows: first sentence shall be de- leted and replaced with follow- ing: Fill Management Plan must be submitted to Chief Building Official for Town within 30 days after completion. This was not pure question of jurisdiction. It was matter of interpretation of Act. However, Board did not address interpretive issue in rea- sons for decision. Nor was there reasonable interpretation that could be made that supported decision to order fairly complex fill management plan to be en- forced by Town without it hav- ing any opportunity for input into it Omission was unreason- able and can be addressed now. Corporation of the Town of New Tecumseth v. Snieg (2018), 2018 CarswellOnt 912, 2018 ONSC 634, Abrams J., Matheson J., and Ryan Bell J. (Ont. Div. Ct.). MUNICIPAL LIABILITY Miscellaneous Divisional court could not make declaration of unconstitutionality Applicant was removed and ar- rested from city's bus station for distributing pamphlets while holding sign with two pictures of Falun Gong practitioners tortured or killed by Chinese authorities. Applicant brought application seeking declaration that decision of city to direct applicant to leave bus terminal infringed section 2(b) of Char- ter; order quashing decision of city; declaration that decision of city regarding applicant sharing message at station must be con- sistent with Charter. Applica- tion was transferred to Superior Court. Dispute could only be re- solved by declaration of uncon- stitutionality, which cannot be provided by court, need to pro- mote judicial economy, and the need for court to demonstrate awareness of proper law-making function did not support court's exercise of discretion to hear moot matter. Consequently, even if court could hear certio- rari relief sought, it was moot and court should not exercise its discretion to hear it. McLeod v. City of Brantford (2018), 2018 CarswellOnt 1896, 2018 ONSC 943, Matheson J., Glustein J., and Diamond J. (Ont. Div. Ct.). Real Property LANDLORD AND TENANT Renewal of lease Fitness club was in breach of lease agreement due to violation of non-compete clause Respondent was property man- agement company, who leased premises to appellant fitness club. Fitness club was condi- tionally allowed to extend lease for 5-year period. Company claimed that club was in breach of lease agreement. Company successfully applied to find club in breach. Breach was found due to violation of non-compete clause. Breach was also found due to lack of reporting of rev- enue by club. Club claimed appli- cation judge misinterpreted non- compete clause. Club appealed from application judgment. Appeal dismissed. Application judge made proper findings as to geographical location of club. Determination of geographical violation took place on basis of uncontested evidence. Promis- sory estoppel and waiver applied, as club committed misconduct over long period. Breaches were not technical in nature. Wittington Properties Lim- ited v. Goodlife Fitness Centres Inc. (2018), 2018 CarswellOnt 1283, 2018 ONCA 52, Janet Si- mons J.A., L.B. Roberts J.A., and I.V.B. Nordheimer J.A. (Ont. C.A.); affirmed (2017), 2017 Car- swellOnt 7410, 2017 ONSC 1426, Pollak J. (Ont. S.C.J.). LANDLORD AND TENANT Term of lease Relief from forfeiture not protecting party from all forfeitures but only those with penal consequences M Inc. leased premises from R Ltd., out of which M Inc. operat- ed retail pharmacy. Both parties brought its own application for proper interpretation of lease. Fundamental issue on both ap- plications was to determine whether M Inc.'s lease contained automatic right of renewal or whether it required M Inc. to no- tify R Ltd. of intention to renew lease and, if so, when. R Ltd.'s application dismissed; M Inc.'s application granted. M Inc. did enjoy right of automatic renewal of its lease. Relief against forfei- ture did not protect party from all forfeitures but only those with penal consequences. Penal consequences were those where value of what was forfeited was out of all proportion to dam- age. In addition, it must be un- conscionable for non-breaching party to retain right, property or money forfeited. Comparison of two factors favoured M Inc.. M Inc. had lost benefit of lease extensions to 2027. In compari- son, there was no evidence of any prejudice to R Ltd. from M Inc.'s delay in exercising option or otherwise. It would be un- conscionable for R Ltd. to retain benefit of M Inc.'s renewal rights. Roxville Investments Limited v. Manahree Inc. (2017), 2017 CarswellOnt 14541, 2017 ONSC 5306, Koehnen J. (Ont. S.C.J.). SALE OF LAND Completion of contract Verbal agreement, even if made, could not be used for sale of land Plaintiff purchasers and de- fendant company/vendor en- tered into agreement of purchase and sale. Purchasers agreed on sale price, and indicated they would be developing residential- commercial complex. Purchas- ers failed to meet deadline for deposit, on sale price. Vendor immediately terminated agree- ment. Purchasers claimed that agreement was revived, by ver- bal agreement. Vendor claimed that agreement could only be modified in writing. Both par- ties moved for summary judg- ment, for their respective posi- tions. Purchasers also moved for certificate of pending litigation, should summary judgment not be granted. Vendor's motion granted; purchasers' motion dismissed. Vendor was entitled to terminate agreement. Breach was more than technical one, which triggered provisions of agreement. Verbal agreement, even if made, could not be used for sale of land. Cultural con- siderations of handshake agree- ments by parties with Chinese background were not supported by evidence. Terms of written agreement were clear. In any event, meeting between parties was not shown to have produced new agreement. Xu v. 2412367 Ontario Lim- ited (2017), 2017 CarswellOnt 11395, 2017 ONSC 4445, Fa- vreau J. (Ont. S.C.J.). SALE OF LAND Remedies Since defendant committed pivotal breach of contract, plaintiffs entitled to restitution of interest paid Plaintiffs purchased defendant's shares in company that owned commercial plaza, petting zoo, and other land. Plaintiffs had option to purchase petting zoo using vendor take back mort- gage and to purchase other land for which defendant was to ob- tain severance. They made pay- ments towards petting zoo and other land, but title was never transferred to them. Plaintiffs brought action against defen- dant for rescission of agreement for purchase of petting zoo and for specific performance of agreement for purchase of other land. Plaintiffs' motion for sum- mary judgment was granted in part. They were granted reces- sion of agreement for purchase of petting zoo and were awarded $122,246 for principal amount paid towards purchase, but were not entitled to payment of inter- est paid to delay closing of trans- action. Appeal was dismissed. Cross-appeal allowed in part. Motion judge erred by denying return of any interest paid relat- ing to petting zoo based on find- ing that interest was paid to delay closing. Interest was to be paid, whether or not closing was de- layed, because it was component of original purchase price. Since it was defendant who committed pivotal breach of contract, plain- tiffs were entitled to restitution of interest paid. However, there was no error in motion judge's math- ematics leading to his ultimate calculation of principal owed. Motion judge erred by not grant- ing plaintiffs prejudgment inter- est on damages awarded for pet- ting zoo. Motion judge erred by not awarding plaintiffs $1,955.03, representing amount they paid for municipal property taxes on petting zoo. Since plaintiffs paid those taxes with view to eventual closing of sale of property, they were entitled to return of money, together with interest, in light of failure to close. D'Ascenzo v. Nichols (2017), 2017 CarswellOnt 10919, 2017 ONCA 604, J.C. MacPherson J.A., E.A. Cronk J.A., and M.L. Benotto J.A. (Ont. C.A.). Remedies INJUNCTIONS Availability of injunctions Bylaw prohibiting smoking sisha in indoor public places not contrary to Canadian Charter of Rights and Freedoms Applicants owned and operated restaurant where water pipes were made available for smoking sisha. Respondent city passed bylaw that prohibited smoking sisha in indoor public places. Ap- plicants received offence notice for contravening bylaw, and they applied for declaration that by- law was unconstitutional in that it contravened s. 15 of Canadian Charter of Rights and Freedoms, and was inconsistent with pres- ervation and enhancement of multicultural heritage of Cana- dians, contrary to s. 27 of Char- ter. Applicants brought motion for interlocutory injunction restraining city from enforcing bylaw. Motion dismissed. City conceded that applicants met low threshold of establishing se- rious issue to be tried, and issues raised were not frivolous or vex- atious. Applicants' evidence on irreparable harm was not strong but it established that sales went down after restaurant stopped using water pipes. Reduction in sales was quantifiable, but it did not measure applicants' market loss and impact on its business and reputation. Corporate ap- plicant might not have standing to claim damages for discrimi- nation, which could result in harm to applicants that could not be cured. Applicants delayed in bringing application, but de- lay was not sufficient to negate finding of irreparable harm. Ap- plicants failed to establish that balance of convenience favoured granting injunction. Applicants identified group, Arab-Canadi- ans, and identified concerns or particular interests that could be impacted, that they would not be able to take part in common cul- tural activity of smoking sisha. If injunction was granted, it would diminish city's clear authority to regulate smoking and protect public health. Weighing tempo- rary limits to possibly important cultural tradition and financial impacts on applicants against public interest and increased risk to public of negative health consequences, balance tipped in favour of public interest and of limiting risk to health of public. Mahmoud and Lebanese Pal- ace Inc. and Itaif v. City of Ot- tawa (2017), 2017 CarswellOnt 13216, 2017 ONSC 5138, Pierre E. Roger J. (Ont. S.C.J.). Torts NEGLIGENCE Defences People not held to standard of perfection in determining appropriate standard of conduct in emergency Following dispute over drug deal, G left his own car and got into passenger seat of car L was driving. G then got out of pas- senger seat, walked around to driver's side window, broke window, and reached into car. L drove away, swerving vehicle to disengage G who was trying to get into L's car. G fell, struck his head, and died. Police took state- ments from passengers in L's and G's cars, including passenger B. L was charged with and pleaded guilty to driving while prohib- ited and breach of recognizance. Police determined G's death was accidental. G's family members brought action in negligence for damages under Family Law Act. Defendants successfully brought motion for summary judgment to dismiss on basis that dam- ages were caused by G's own negligence. Family members ap- pealed. Appeal dismissed. Mo- tion judge correctly held that de- fendant acted reasonably in con- text of emergency. Law was not so unreasonable as to hold people to standard of perfection in de- termining appropriate standard of conduct in emergency. It was no error to conclude that L did not anticipate G's actions, which included attack and attempt to force his way into L's vehicle. Isaac Estate v. Matuszyn- ska (2018), 2018 CarswellOnt 2632, 2018 ONCA 177, S.E. Pep- all J.A., Grant Huscroft J.A., and P. Lauwers J.A. (Ont. C.A.); af- firmed (2016), 2016 CarswellOnt 14614, 2016 ONSC 3617, H.A. Rady J. (Ont. S.C.J.). CASELAW

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