Law Times

Law Times • June 18, 2018 Page 15 www.lawtimesnews.com was to interpret lease in accor- dance with parties' intentions but he allowed principles of tril- ogy to override plain language of lease. Section did require land- lord to maintain fire insurance on building and tenant to pay proportionate share of cost but also contained notwithstand- ing provision. Clause applied despite landlord's covenant or tenant's contribution to cost of fire insurance policy. Plain meaning of section in isolation was that tenant remained liable for its own negligence notwith- standing landlord's covenant to purchase insurance and ten- ant's contribution for cost of that insurance. Reading lease as whole did not support differ- ent result. That another clause in lease that did require tenant to take out insurance for third party liability included ban on subrogation did not mean par- ties contemplated subrogation and chose to not include it in ap- plicable clause. It was not illogi- cal for lease to require tenants to insure for damages related to its own negligence. Lease did not show that parties contracted out of ordinary principles of neg- ligence law. Language did not make section inconsistent with lease as whole. Lease provided in clear, express and unambigu- ous language that tenant had benefit of insurance landlord had covenanted to purchase in all circumstances except where damage was caused by tenant's own negligence. Royal Host GP Inc. v. 1842259 Ontario Ltd. (2018), 2018 CarswellOnt 7754, 2018 ONCA 467, Alexandra Hoy A.C.J.O., R.G. Juriansz J.A., and B.W. Miller J.A. (Ont. C.A.); re- versed (2017), 2017 CarswellOnt 10331, 2017 ONSC 3982, M.A. Garson J. (Ont. S.C.J.). Judges and Courts CONTEMPT OF COURT Contempt in family law matters Mother in contempt of court for violating court order to return child to place of habitual residence Parties began dating in July 2013, separated August 2016, and had one child. In October 2016, mother left Ottawa to move to Sudbury, without noti- fying father of her intention. Fa- ther did not have visits following this departure; mother did, how- ever, invite father for supervised visits to Sudbury. Trial judge determined that mother return with child immediately to Ot- tawa, that provisional custody was granted to both parents, and scheduled visits per week were to be divided between two parents. Father alleged mother refused to return child to Ottawa in accor- dance to order, and that she did not want to allow father to have regular access rights. Father suc- cessfully brought motion to de- clare mother in contempt of trial judge's order. Mother appealed. Appeal dismissed. There was no issue that mother had violated court order. Mother's appeal arguments claiming fraud and lack of jurisdiction failed. Judges had jurisdiction to consider ha- bitual residence of child, which was determined to be Ottawa. Caron c. Perrier (2018), 2018 CarswellOnt 7066, 2018 ONCA 422, Paul Rouleau J.A., K. van Rensburg J.A., and G. Pardu J.A. (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 10109, 2017 ONCS 4093, A. Doyle J. (Ont. S.C.J.). Labour and Employment Law EMPLOYMENT STANDARDS LEGISLATION Civil actions Bald assertion that class existed not meeting barest requirements of Class Proceedings Act Employer was part of group of companies involved in paving and construction. Competitor purchased assets of employer and other related companies and continued certain employ- ees' employment. Employee was not among those employees, and his employment was terminated. Employee alleged employer had misapplied overtime exception that did not require payment of overtime unless employee worked in excess of 55 hours per week. Employee brought action against competitor and company related to employer for payment of overtime. Employee brought motion for certification of action as class proceeding. Motion dismissed. Employee did not refer to any other mem- ber of proposed identifiable class by name, nor did he provide any affidavit evidence from any proposed member that they met definition of proposed identi- fiable class. Highest that em- ployee's evidence could be said to have reached was merely bald assertion on his part that class existed. Such bald assertion did not meet barest of requirements of Class Proceedings Act, 1992. It was not obvious from eviden- tiary record that existence of more than one claim was appar- ent, and employee had not even named employer as defendant. In addition, claims would be in- dividualized, class proceeding was not preferable procedure, and no litigation plan had been advanced. Freeman Bartholomew v. Coco Paving Inc. and Lafarge Canada Inc. (2017), 2017 Car- swellOnt 16082, 2017 ONSC 6014, M.L. Edwards J. (Ont. S.C.J.). Municipal Law PLANNING Miscellaneous Road in unorganized Township was not public road Plaintiffs' brought motion for summary judgment seeking declaration that road in unor- ganized Township was public road, which could therefore be used by plaintiffs to access ru- ral property. Motion dismissed. Evidence did not support mak- ing of declaration that road was public road. There was no basis upon which to grant requested injunction, or damages. Blanchard v. Tripp (2018), 2018 CarswellOnt 7832, 2018 ONSC 3076, J.A.S. Wilcox J. (Ont. S.C.J.). SUBDIVISION CONTROL Subdivision plans Specificity of contractual terms were evidence of intent First developer was required to convey block of land in subdi- vision to municipality for fu- ture road purposes. Block was intended to facilitate future development of abutting lands owned by second developer. First developer anticipated sec- ond developer being required to provide compensation by way of cost sharing for installed servic- es. Block was currently used for municipal park purposes. Sec- ond developer's proposed devel- opment included block but did not contemplate construction of road on block. 0First devel- oper brought application against municipality for compensation for value of block. Application dismissed. First developer had no interest in block. This par- ticular block was conspicuous in its absence from provisions dealing with reconveyance and cost sharing. Agreement specifi- cally spoke to what lands were subject to reconveyance and cost sharing provisions. Specificity of contractual terms were evidence of intent, and it was duty of court to carry out intention of agree- ment. First developer had ac- cepted terms of agreement and had chosen not to appeal any of its contractual obligations to Ontario Municipal Board. DiBattista Developments v. City of Brampton (2017), 2017 CarswellOnt 16034, 2017 ONSC 6178, Thomas A. Bielby J. (Ont. S.C.J.). ZONING Zoning bylaws Power to grant zoning variations fell within authority of municipal Committee of Adjustments AE brought appeal to over- turn decision of Chief Building Officer("CBO"). Decision was to revoke building permit issued to AE for construction of two-fam- ily dwelling on property. Appeal dismissed. Intensification of use at scale proposed by AE consti- tuted enlargement of legal non- conforming use for property. Therefore, AE must make appli- cation to municipal Committee of Adjustments ("COA") for zon- ing variations, pursuant to ss. 44 and 45 of the Planning Act. AE had been provided with option to do so, in accordance with order dated September 30, 2016. Power to grant zoning variations fell within authority of COA. It did not fall within authority of CBO. Elbasiouni v. Brampton (City) (2016), 2017 CarswellOnt 4874, 2017 ONSC 1556, Barnes J. (Ont. S.C.J.). Torts DEFAMATION Nature of defamation Email that implied plaintiff was lawyer who did not act with integrity constituting defamation Plaintiff, lawyer, and his wife owned condominium in Costa Rica. After plaintiff resigned as president of homeowners asso- ciation, defendants sent emails to all 37 condominium owners in four countries. Defendant M alleged plaintiff resigned over accusations of theft, and later sent email purporting to apologize but attached personal email plaintiff had sent to her. Defendant P, who was also law- yer, then sent email that implied plaintiff was lawyer who did not act honestly and with integ- rity, and P had not apologized. Plaintiff brought action seeking damages for defamation. Ac- tion allowed. Defendants had been noted in default so facts al- leged in statement of claim were deemed to have been admitted. Elements of tort of defama- tion were established by facts. Impugned statements in M's email alleging theft or criminal behaviour and in P's email al- leging behaviour that was dis- honest, lacking in integrity and unethical were false and would tend to lower plaintiff 's reputa- tion in eyes of reasonable per- son. Reputation of lawyer was of paramount importance. Facts demonstrated that defamatory statements made by defendants in emails referred to plaintiff. Defamatory emails were pub- lished since they were sent to 36 people other than plaintiff. All elements of tort of defama- tion were established by facts and, on balance of probabilities, falsity and damage to plaintiff 's reputation were not only pre- sumed but were established by evidence. McNairn v. Murphy (2017), 2017 CarswellOnt 5011, 2017 ONSC 1678, Robert N. Beau- doin J. (Ont. S.C.J.). DEFAMATION Practice and procedure By requesting costs plaintiff asking court to set precedent that award appropriate when comments not matter of public interest Plaintiff brought application to sever two properties, which seemed to have brought ten- sions in community to head. Defendant made negative com- ments about plaintiff to neigh- bour and to others, and plaintiff brought defamation action. De- fendant brought motion seek- ing dismissal of action pursuant to s. 137.1 of Courts of Justice Act on basis that it was SLAPP proceeding but motion was dis- missed. Plaintiff sought award of substantial indemnity costs of $42,505.86 or partial indem- nity costs of $32,612.59 both in- clusive. Application dismissed. Section 137.1(8) of Act creates presumption against costs unless "such an award is appropriate in the circumstances". By request- ing costs plaintiff was asking court to set precedent that award appropriate when comments not matter of public interest. If Legis- lature wanted to make exception to s. 137.1(8) based on a finding that no public interest engaged by comments it would have done so. Danger in using this basis alone for cost award was poten- tial deterrent effect, resulting in overly cautious use of legislation. MCCA RT H Y- OPPEDIS - ANO v. MUTER (2018), 2018 CarswellOnt 7540, 2018 ONSC 2875, S.E. Healey J. (Ont. S.C.J.); additional reasons (2018), 2018 CarswellOnt 5459, 2018 ONSC 2136, S.E. Healey J. (Ont. S.C.J.). NEGLIGENCE Practice and procedure Improper information disclosed to court in jury's request for direction and correcting charge provided promptly Sufficiency of correcting charge. Plaintiff brought action against defendant for damages arising from motor vehicle accident, and matter was tried before jury. Jury was instructed that parking truck on highway was contra- vention of s. 170(12) of Highway Traffic Act (HTA). Jury foreman engaged in some internet legal research while at home for week- end and found regulation under Insurance Act known as Fault Determination Rules. Foreman discussed regulation with other jurors, and jury submitted ques- tion to court about use of regu- lation, which indicated illegally parked vehicle was 100 per cent at fault. Trial judge delivered corrective charge that, among other things, directed jury that regulation was irrelevant, and jury ultimately found defen- dant 27 per cent at fault. Plain- tiff brought motion for mistrial. Motion dismissed. Improper information had been disclosed to court in jury's request for di- rection, and correcting charge had been provided promptly. Correcting charge had been suf- ficient in circumstances, and there was no cogent reason to believe jury had declined to fol- low it. Particulars provided by jury in support of its verdict in- cluded reference to s. 170(12) of HTA, and jury should be taken at its word. While s. 170(12) of HTA did not contain word "ille- gal" as used by jury, "illegal" was term of general usage connoting contravention or violation of law and was not concept specific to regulation. If jury had applied regulation, plaintiff would have been found 100 per cent at fault, whereas jury's apportionment was amply justified by evidence. Patterson v. Peladeau (2018), 2018 CarswellOnt 7600, 2018 ONSC 2625, Charles T. Hack- land J. (Ont. S.C.J.). CASELAW

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