Law Times

Law Times • sepTember 24, 2018 Page 15 www.lawtimesnews.com offer by respondent, commenc- ing application was not reason- ably necessary to ensure proper administration of estate. Ap- plicants misused their author- ity as majority estate trustees, and application was brought as improper, vexatious and unnec- essary proceeding to punish re- spondent, with whom they did not get along. Running up costs of quarter million dollars osten- sibly to recover $30,000 painting was shocking and reprehensible. Respondent was justified in not accepting counter-offer, and it did not stop his entitlement to costs on substantial indemnity basis. Newlands Estate (2018), 2018 CarswellOnt 7702, 2018 ONSC 2952, Spies J. (Ont. S.C.J.); additional reasons (2017), 2017 CarswellOnt 21582, 2017 ONSC 7111, Spies J. (Ont. S.C.J.). Family Law DOMESTIC CONTRACTS AND SETTLEMENTS Effect of contract Setting aside support provision in marriage contract would result in unconscionable circumstances for mother's children Parties began cohabiting in 2010, married in 2011, had one child together, and separated in 2014. Mother had two chil- dren from previous relation- ship, and these children lived with parties during their rela- tionship. Parties executed mar- riage contract which stated that husband stood in loco parentis to mother's children, and that he would financially support them upon separation as if they were his own children. Hus- band brought application to set aside child support provisions in marriage contract. Applica- tion dismissed. Mother's claim for support was made under Di- vorce Act, so husband's attempt to invoke s. 33(4)(a) of Family Law Act, permitting court to set aside support provision in do- mestic contract, was invalid. Further, setting aside support provision in marriage contract would result in unconscionable circumstances for mother's chil- dren since husband bargained to preserve his business wealth in exchange for promise to sup- port children. Knight v. Knight (2018), 2018 CarswellOnt 8440, 2018 ONSC 3294, C.S. Nelson J. (Ont. S.C.J.). Labour and Employment Law EMPLOYMENT STANDARDS LEGISLATION Termination of employment Employee could have procured other employment but did not exercise proper industry in the search Plaintiff employee was un- skilled general labourer with 28 years' experience at employer CC. Employer terminated em- ployee without cause, along with 41 other employees, due to the elimination of all of pro- duction functions at Scarbor- ough plant. Employee brought summary judgment motion against former employer, de- fendant CC. Employee brought action seeking 24 months' com- mon law notice, less 34 weeks' pay he received from employer under Employment Standards Act ("ESA") following termi- nation on May 12, 2016. Em- ployer brought motion seeking summary judgment dismissing action. Action dismissed; em- ployer's motion granted. Only reasonable inferences to draw from employee's evidence was that he did not consider em- ployer' opportunities at all, since he had decided by early June 2016 that he would seek retraining as welder rather than return as an unskilled labourer, or his review of available op- portunities was not reason- able as there was no evidence of any inquiries he made as to the available positions which he knew (or ought to have known) about from employer's news- letter of May 18, 2016. Under either conclusion, employer met its onus to establish that employee did not meet obliga- tion to reasonably mitigate his damages by applying for the available comparable positions. Consequently, employee could have procured other employ- ment of approximately similar kind reasonably adapted to his abilities, but did not exercise proper industry in the search. Employee made his choice to retrain for personal reasons. He wanted to obtain more control of hours and he was worried about future job security by re- maining as unskilled labourer given his beliefs about changes in Ontario's manufacturing sector and economic condi- tions at termination. Benjamin v. Cascades Can- ada ULC (2017), 2017 Carswel- lOnt 6278, 2017 ONSC 2583, Glustein J. (Ont. S.C.J.). Municipal Law MUNICIPAL COUNCIL Local boards Court had no discretion to override application of provision establishing time for filing notice of appeal In 2004 applicant owner pur- chased commercial build- ing that remained vacant ever since, and respondent city had jurisdiction over building. City received numerous complaints from public, including con- cerns about structural integrity of property and mould growth. Pursuant to Building Code Act, 1992 and city's property standards bylaw, city's property standards officer became in- volved and issued 2011 order to remedy. Owner did not initially exercise right of appeal, city laid charges against owner for fail- ing to comply with 2011 order, and owner later filed notice of appeal, which was commenced outside 14-day period set out in s. 15.3(4) of Act. Owner was found guilty of failing to com- ply with 2011 order to remedy, and appeals were unsuccess- ful. City received further com- plaints, investigated, 2014 order to remedy was issued, which was confirmed by property standards committee. Owner appealed 2011 and 2014 orders. Appeals dismissed. Court had no discretion to override appli- cation of s. 15.3(4) of Act, appeal of 2011 order was dismissed as being out of time, and owner remained bound by 2011 order. In appeal under s. 15.3(4) judge could hear case afresh, admit some or all of record used be- fore committee or craft some other evidentiary arrangement to suit judge. Having wide open appeal process provided safe- guard against failures of due process on part of officer or committee and against deci- sions inf luenced by improper considerations. Burden was on owner to satisfy appellate court that it should differ from deci- sion being appealed. Few of fac- tors that might attract judicial deference were present here, as property standards commit- tee did not have special exper- tise, process engaged was akin to committee meeting, and no reasons for decision were giv- en. Owner had not established that 2014 order was misguided, wrong or unreasonable, evi- dence did not disclose any im- proper conduct on part of city in undertaking its statutory re- sponsibilities, deficiencies had not been remedied, and 2014 was confirmed. Costs payable by owner were fixed at $40,000, inclusive of HST and disburse- ments. Balroop v. Quinte West (City) (2017), 2017 CarswellOnt 8237, 2017 ONSC 3352, Graeme Mew J. (Ont. S.C.J.). Professions and Occupations BARRISTERS AND SOLICITORS Employment of lawyer In terms of prejudice, there was no practical difference between returning documents or sealing them Insured brought action against insurer for damages for breach of contract. Counsel for in- sured disclosed hundreds of documents to counsel for in- surer. Four documents that were covered by solicitor-client privilege had inadvertently been disclosed. Counsel for insurer refused to return privileged documents but agreed to seal them pending determination by court. Insured brought motion for declaration that subject doc- uments were privileged and for order removing insurer's coun- sel from record. Motion granted in part. Documents were privi- leged, and privilege had not been waived or lost, though privilege could be protected by measures short of remov- ing insurer's counsel. Counsel was required to return sealed copies, refrain from disclosing their contents, and not par- ticipate in any examination or cross-examination of insured's witnesses. While it would have been better for counsel to have deleted documents rather than seal them, she did take immedi- ate steps to prevent any further breach of privilege. Prejudice was presumed, and review of certain documents by counsel gave rise to risk of prejudice, but correspondence from in- sured's counsel suggested no motion for removal would have been brought if documents had simply been returned. In terms of prejudice to insured, there was no practical difference be- tween returning documents or sealing them as was done. Rea- sonably informed member of public would be satisfied that by imposing remedies short of removing insurer's counsel, no use of confidential information would occur, though insured could renew motion if remedies prove to be insufficient. Drake Holdings Ltd. v. Chubb Insurance Company of Canada (2018), 2018 Carswel- lOnt 12049, 2018 ONSC 4494, Schreck J. (Ont. S.C.J.). Real Property MORTGAGES Sale Two unanswered requests for mortgage statement suspended tenant's right to enforce mortgage After owner defaulted on mort- gage on property, tenant's com- panies (tenant) tried to acquire property. Tenant bought mort- gage and attornment of rents and tried to terminate lease and re-negotiate rent. owner brought action against tenant seeking rental arrears and injunction re- straining tenant from enforcing mortgage; tenant was ultimately permitted to deduct $240,000 rent it then owed from owner's mortgage arrears. After assign- ing mortgage to credit union for 16 months, tenant purported to make first sale of property to itself as mortgagee under power of sale. After credit union reassigned mortgage to ten- ant, tenant purported to make second sale and then third sale to itself. Trial judge dismissed tenant's mortgage action for payment and possession, find- ing first sale invalid because credit union owned mortgage at time and second and third sale invalid due to tenant's lack of good faith in dealings with owner, failure to provide updat- ed mortgage statement to owner to ref lect reduction in mortgage balance due to attornment of rent contrary to ss. 22(2) and (3) of Mortgages Act, and because original notice of sale was in- valid as it failed to state correct amount for redemption. Trial judge found that owner retained title throughout, ordered tenant to pay rental arrears, and found that, with amounts owing under mortgage now paid in full, ten- ant had no further rights under mortgage. Tenant appealed. Appeal dismissed. Two unan- swered requests for mortgage statement suspended tenant's right to enforce mortgage under s. 22(3) of Act until trial resolved outstanding factual issues and reconciled mortgage and rent accounts. As second and third sale were executed while ten- ant's enforcement rights were statutorily suspended, both were invalid. Nor could in- complete, incorrect schedule to tenant's affidavit be deemed to constitute mortgage statement within meaning of s. 22 of Act. Mortgage balance in schedule was based on amount and al- location of rental arrears which court later rejected as wrong. Radically misleading statement was strategic tactic of tenant which prejudiced owner's abil- ity to assess its position under mortgage. 1173928 Ontario Inc. v. 1463096 Ontario Inc. (2018), 2018 CarswellOnt 12216, 2018 ONCA 669, P. Lauwers J.A., M.L. Benotto J.A., and I.V.B. Nord- heimer J.A. (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 886, 2017 ONSC 588, A.K. Mitchell J. (Ont. S.C.J.). SALE OF LAND Completion of contract Purchaser did not elect to terminate agreement, but sought alternate closing date Parties entered into agreement of purchase and sale (APS) for detached home, with closing date of April 29, 2015. Purchaser intended to live in home with his family. APS provided for vacant possession on closing. Purchas- er subsequently learned that there was tenant in home. Ven- dor took position that APS did not require vacant possession on closing. Transaction did not close on scheduled date. Pur- chaser brought application for specific performance. Applica- tion granted. Vendor breached APS by clearly stating that ven- dor would not provide vacant possession. Terms of APS were clear that vacant possession was to be provided. There was nothing in APS to "otherwise provide" that purchaser would assume property with tenant. Fact that MLS description of property noted that it was ten- anted was irrelevant given terms of APS. APS included "entire agreement" clause. Whatever understanding vendor had as result of comments from his own real estate agent before APS was signed, APS by its terms represented whole agreement as between parties. There was no waiver of condition; purchaser insisted on vacant possession in all communications. Purchaser did not elect to terminate agree- ment, but sought alternate clos- ing date. Sivasubramaniam v. Mo- hammad (2018), 2018 Carswel- lOnt 7710, 2018 ONSC 3073, R.E. Charney J. (Ont. S.C.J.). CASELAW

• Cover