Law Times

Law Times • January 14, 2013 ONTARIO CIVIL CASES Appeal FRESH EVIDENCE Words "Superior Court of Justice" include Small Claims Court Appellant appealed dismissal of claim on basis that Small Claims Court lacked jurisdiction to grant relief. Parties entered into conditional sales agreement for financing of respondent's purchase of vehicle. Respondent defaulted on payment obligations and appellant repossessed vehicle. Vehicle was sold at auction. Appellant brought action seeking deficiency owed by respondent pursuant to terms of conditional sales agreement. Deputy judge determined that Small Claims Court did not have jurisdiction to grant relief under Part V of Personal Property Security Act (Ont.). Appeal allowed. Appellant was permitted to introduce new evidence on appeal. Evidence could not have been adduced at trial. Evidence was relevant and credible. If fresh evidence had been accepted it could have affected result. Deputy judge erred in interpreting s. 67 of Act as exclusive mechanism for dispute resolution for any issues arising under ss. 63 to 66 of Act. Deputy judge erred in interpreting reference to Superior Court of Justice in s. 67 to exclude Small Claims Court as being court of competent jurisdiction to adjudicate on compliance with Part V of Act. Section 67 of Act applied to claim for payment for collection of deficiency. Words "Superior Court of Justice" in s. 67 included Small Claims Court. Any applications made pursuant to s. 67 may be brought in Small Claims Court, as long as they complied with monetary limits. Appellant was entitled to judgment. Chrysler Financial Services Canada Inc. v. Misner (Aug. 10, 2012, Ont. S.C.J., Healey J., File No. DV-11-803) Decision at 220 A.C.W.S. (3d) 642 was reversed. 220 A.C.W.S. (3d) 641. Assessment APPEAL Consideration of vicinity not limited to boundaries of municipality Appellants appealed assessment review board's decision. Appellants appealed assessments on four car dealerships. In searching for comparables, board determined that for purposes of s. 44(3)(b) of Assessment Act (Ont.), "vicinity" may not exceed boundaries of municipality in which properties under appeal were located. Appeal allowed. Applicable standard of review was correctness. It was reasonable that similar properties bore similar level of municipal taxes and that inequities in assessment be reduced by lesser. That result was within s. 44(3)(b) of act but section was broader. It spoke of inequity of assessment with scope of assessment mandate extramunicipal. On rare occasions when sufficient similar properties Page 15 CASELAW could not be found to board's satisfaction within appellants' municipality then comparison was extra-municipal. Had legislature intended municipal boundary in s. 44(3) of act, it would not have used historic words or it would have stated exception. Consideration of "vicinity" in s. 44(3)(b) of act was not limited to geographical boundaries of municipality. Irber Holdings Ltd. v. Municipal Property Assessment Corp., Region No. 09 (Aug. 13, 2012, Ont. S.C.J. (Div. Ct.), Cunningham A.C.J.S.C., Crane and Wilton-Siegel JJ., File No. DC-10-392-ML) Decision at 65 O.M.B.R. 436 was reversed. 220 A.C.W.S. (3d) 469. Civil Procedure CLASS ACTIONS Concerns about memory deficits of representative plaintiff resolved This was motion for certification of proposed class action. Action arose out of fraud committed by individual. Thousands of investors lost money. Individual deposited money into various accounts at defendant bank. It was alleged that bank knowingly assisted individual in breach of trust, knowingly received fraudulent funds and/or was negligent in receipt of funds. Plaintiff sought to certify action. It was determined that plaintiff satisfied criteria in s. 5 of Class Proceedings Act, 1992 (Ont.), with exception of s. 5(1) (e). Litigation plan was found to be deficient and evidence raised concerns about plaintiff's health and ability to act as representative plaintiff. Motion was adjourned to provide plaintiff with opportunity to address issues. Motion granted. Litigation plan recognized that there was jury notice filed and that defendant could bring motion in future to strike it. Common issues dealing with negligence could be tried by jury. It was premature to decide whether jury notice should be struck out and litigation plan recognized existence of issue and fairly proposed that it be resolved at later date. There was now clear proposal for communicating with class members. Litigation plan addressed how damages would be managed and confirmed that any punitive damages would be shared on pro rata basis. Plaintiff had presented medical evidence that was accepted, which indicated that memory deficits had resolved. There was no longer concern regarding plaintiff's ability to act as representative plaintiff. Criteria in s. 5(1)(e) of Act had been met. Action was certified as class proceeding. Pardhan v. Bank of Montreal (Aug. 15, 2012, Ont. S.C.J., Horkins J., File No. 08-CV350772CP) Additional reasons to 215 A.C.W.S. (3d) 26. 220 A.C.W.S. (3d) 471. Family Law COSTS Would be unfair to have financial success at trial negated by amount of legal fees This was application for costs. Issues concerned parenting issues, interpretation of cohabitation agreement, child and spousal support. Parties were successful in settling majority of parenting issues. Wife's interpretation of cohabitation agreement was accepted and she obtained equal share of value of matrimonial home. Wife was awarded substantial payment of retroactive child support. Father was not entitled to spousal support. Both parties presented multiple offers to settle. Application granted. Success was shared on parenting issues. Wife was substantially successful on balance of issues. Parties' offers to settle did not trigger mandatory application of Rule 18(14) of Rules of Civil Procedure (Ont.). Issues were important to parties but were not overly complex. There was high level of conflict. Although high amount of legal fees incurred by both parties was unfortunate, it could not be said that wife's legal fees were unreasonable. It would be unfair to wife to have her financial success at trial negated by amount of legal fees it took to obtain that success. In circumstances, wife should be awarded substantial portion of costs. She was successful on majority of issues, which took up greater portion of trial. Husband was ordered to pay costs of $80,000 to wife. Vigneault v. Massey (Aug. 21, 2012, Ont. S.C.J., Linhares de Sousa J., File No. FC-11-59) Additional reasons to 217 A.C.W.S. (3d) 416. 220 A.C.W.S. (3d) 572. SUPPORT Spousal support advisory guidelines not legislation but only guidelines Appeal by wife from award by arbitrator for spousal support. Parties were married for 17 years, had three children, and separated in 2002. Wife waived any claim for spousal support prior to June 2008. Parties went to arbitration. Arbitrator fixed husband's income at $616,624 for 2009, imputed income of $35,000 and imposed spousal support of $2,750. Parties returned to arbitration in 2011. Arbitrator found husband's income in 2010 to be $607,949 and determined that wife sustained economic disadvantage from marriage and breakdown. Arbitrator refused to apply spousal support advisory guidelines (SSAG). Arbitrator awarded spousal support of $3,500 per month. It was determined that arbitrator did not err in not applying SSAG. SSAG were guidelines to advise on reasonable range of support and not legislation. Original separation agreement did not make reference to SSAG. SSAG specifically did not apply to cases where spouses earned more than $350,000 per year. Arbitrator reviewed facts of case in light of objectives of spousal support in Divorce Act (Can.). Second award had to be looked at in connection with first award that reviewed factors and objectives of spousal support before quantifying support and referred to net disposable www.lawtimesnews.com income as preferred methodology to calculate support. Myers v. Vickar (Sep. 4, 2012, Ont. S.C.J., Mesbur J., File No. 02FP-281213-0001) 220 A.C.W.S. (3d) 602. Labour Relations STRIKES Arbitrator had authority to award damages against union for breach of collective agreement Union sought judicial review of arbitrator's decision awarding damages against union. Employer filed grievance alleging contraventions of collective agreement and Canada Labour Code by union. Grievance expressly sought compensatory and punitive damages. Arbitrator rejected union's argument that he could only award declaratory relief and found Article 9.99 of collective agreement gave him broad remedial powers. Arbitrator ordered compensatory and punitive damages against union because of illegal strike. Application dismissed. Standard of review was reasonableness. There was reasonable line of analysis that justified and explained outcome arbitrator reached. Arbitrator's conclusion that Article 9.99 gave him broad remedial powers was eminently reasonable. Such powers were consistent with policy that labour disputes arising during life of collective agreement were to be resolved without stoppage of work. Arbitrator reasonably relied on language of s. 57(1) of Code. French version of collective agreement did not render arbitrator's interpretation unreasonable. Arbitrator had authority to award damages against union for breach of collective agreement. Decision was within range of possible, acceptable outcomes given words of collective agreement and code. Canada Post Corp. v. C.U.P.W. (Aug. 14, 2012, Ont. S.C.J. (Div. Ct.), Pierce R.S.J., Swinton and Tucker JJ., File No. 11-DC-1720) Application for judicial review from 204 L.A.C. (4th) 4, 105 C.L.A.S. 30 was refused. 220 A.C.W.S. (3d) 625. Professions BARRISTERS AND SOLICITORS Lawyer's duty of care did not extend to reviewing applicable limitation periods with client Plaintiff appealed dismissal of action. Plaintiff injured in motor vehicle accident and retained defendant lawyer to deal with insurer. Plaintiff set out scope of retainer in letter to lawyer. There was negotiated buyout of plaintiff's long-term disability claim with insurer. Plaintiff claimed that she also retained lawyer to handle all of legal matters arising from injuries or that lawyer owed her duty to advise her with respect to other potential claims. Trial judge held that evidence established that retainer between parties was as set out in plaintiff's letter and there was no ambiguity concerning scope of retainer. Trial judge found that lawyer did not breach standard of care and there was no duty of care beyond retainer. Appeal dismissed. There was no basis in evidence to extend lawyer's duty of care to put in writing what plaintiff already understood, that she had not retained him for tort and accident benefit claims. There was no basis to interfere with trial judge's finding that plaintiff had not established that lawyer's duty of care extended to reviewing applicable limitation periods with her. Broesky v. Lust (Oct. 16, 2012, Ont. C.A., Goudge, Simmons and Juriansz JJ.A., File No. C53731) Decision at 330 D.L.R. (4th) 259, 199 A.C.W.S. (3d) 1333 was affirmed. 220 A.C.W.S. (3d) 636. Assessment officer provided no reasoning for reduction in hourly fees and reduction was arbitrary Client retained solicitors to assist her in matrimonial dispute. Solicitors rendered 29 monthly accounts and charged total of $224,757 in fees, disbursements and GST. Assessment officer reduced bills from $224,757 to $101,111. Motion granted. Assessment officer's decision was fundamentally flawed and certificate could not be confirmed. Assessment officer erred in finding that matter was not legally or factually complex. Finding was fundamental to assessment because it justified undervaluation of solicitors' work that needed to be done. Assessment officer erred in imposing entirely new set of rates instead of accepting hourly rates provided for by retainer agreement. Assessment officer provided no reasoning for reduction in hourly fees and reduction was arbitrary. There must be expert evidence if there was deep challenge to solicitor's skill and competence and there was no expert evidence called by client. There was no evidentiary basis for assessment officer's view that solicitors did not demonstrate required degree of skill and competence. Assessment officer's rejection of team approach was clearly unreasonable and was error in principle. Assessment officer reduction of solicitors' hours was unreasonable in light of appropriateness of team approach. There was no reasonable basis for assessment officer's determination that number of case conferences was excessive. Client was fully aware that repeated contacts with solicitors were costing money. Accounts were transparent, complete, plainly worded, detailed as to what each person did and when and calculated fee for each person by disclosing and multiplying hourly rate by number of hours. It was appropriate for court to make final determination. Hours of law clerk were excessive and must be reduced but hourly rate was not reduced. Assessment officer's assessment of disbursements was accepted except for reduction of Quicklaw fee. Total amount owing was $208,822 for fees, disbursements and GST and client owed $12,822. Bales Beall LLP v. Fingrut (Oct. 10, 2012, Ont. S.C.J., Lauwers J., File No. CV-09-97681-00) 220 A.C.W.S. (3d) 637. LT

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