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Page 14 OctOber 1, 2018 • Law times www.lawtimesnews.com clear from expressed language of s. 17.1 of Act. Secondly, Rule 30(2) would leave matter to court's discretion. There was no evidence that corporation could not pay for lawyer. Owner of cor- poration could be expected to be primary witness and general rule was that lawyer could not also be witness in proceeding. Notice of appeal filed was not acceptable notice of appeal and this alone was convincing that corporation should be represented by lawyer in hearing. Owner had already needed Court order to extend time to file appeal and had not arrived at Court ready to pro- ceed at designated time. Corpo- ration had not adduced sufficient evidence to convince that special or exceptional circumstances ex- isted. Order would provide that corporation had 90 days to file fresh as amended notice of ap- peal by counsel. Suchocki Accounting Ltd. v. The Queen (2018), 2018 Car- swellNat 2132, 2018 TCC 88, Patrick Boyle J. (T.C.C. [General Procedure]). Ontario Civil Cases Civil Practice and Procedure COSTS Scale and quantum of costs Court was entitled to consider offers employee did not accept Prior to employee's return from maternity leave, employer re- placed employee's f lexible start time with more rigid start time. Employee's action claiming damages for constructive dis- missal and violation of Employ- ment Standards Act and Human Rights Code was dismissed. Hearing was held to determine costs. Employee was ordered to pay employer $54,108.36 in costs fixed on partial indemnity basis, inclusive of fees, disbursements, and HST, based on 65 percent as used by parties in their calcula- tions. Court was bound by 2009 appellate decision wherein it was held that, other than in situation involving Rule 49.10 of Rules of Civil Procedure, elevated costs were only to be awarded on clear finding of reprehensible conduct. Employee's delays in reducing claim and responding to under- takings and frustration of prepa- ration of document brief did not rise to level of "reprehensible" conduct attracting award of costs at enhanced rate. Court was en- titled to consider offers employee did not accept although cost ramifications of R. 49 did not ap- ply because employee recovered nothing at trial. Time spent as set out in employer's bill of costs was reasonable. Amount claimed was relatively modest. Legal is- sues raised by pleadings were relatively complex. Peternel v. Custom Gran- ite & Marble Ltd. (2018), 2018 CarswellOnt 13444, 2018 ONSC 4881, Sheard J. (Ont. S.C.J.); ad- ditional reasons (2018), 2018 CarswellOnt 9125, 2018 ONSC 3508, Sheard J. (Ont. S.C.J.). DISPOSITION WITHOUT TRIAL Dismissal for delay Error in transcript played significant role in decision to allow appeal In August 2014, plaintiff condo- minium corporation brought action for damages arising from construction of condominium complex in 2004. Plaintiff al- leged negligent construction had resulted in visible defects in brick exterior. It claimed it first learned of deficiencies when it received inspection report in August 2012. It claimed dam- ages of $1 million jointly and severally from 23 defendants. As of February 2017, plaintiff had served only two defendants, municipality and warranty cor- poration. Six of remaining de- fendants claimed they had only learned of action as result of be- ing served with cross-claims in 2015 and brought motion to dis- miss action as against them for delay. Motion was dismissed on basis plaintiff had adequate ex- planation for delay, presumption of prejudice had been rebutted and all material witnesses and documents remained available with result fair trial remained possible. Defendants successful- ly appealed. Plaintiff appealed. Appeal allowed. Central error of fact identified by appeal judge was master's finding that docu- ments of individual defendants had been preserved. As she cor- rectly noted, this finding con- tradicted respondents' evidence that records had been purged. Unfortunately, however, typed version of master's handwritten reasons presented to and relied upon by appeal judge contained error. Typed version appeared to have incorrectly transcribed "institutional" as "individual". There was therefore no incon- sistency in master's finding. This unfortunate error in transcrip- tion played significant role in appeal judge's decision to allow appeal. York Region Standard Con- dominium Corporation No. 1039 v. Richmond Hill (Town) (2018), 2018 CarswellOnt 8546, 2018 ONCA 511, K. Feldman J.A., J.C. MacPherson J.A., and Paul Rouleau J.A. (Ont. C.A.); reversed (2017), 2017 Carswel- lOnt 18015, 2017 ONSC 6868, S.J. Woodley J. (Ont. S.C.J.). Construction Law CONTRACTS Breach of terms of contract Owner seeking to deviate from standard conditions in manner prejudicial to contractor ought to do so explicitly Action arose out of contract between plaintiff N Ltd. and defendant the Corporation of the Town of Oakville ("Town") for reconstruction of 1.2 km portion of road in town. N Ltd. brought action for payment for three categories of items, as fol- lows (all exclusive of HST): (a) unpaid quantities of unit-price line items specified in contract, in amount of $333,847.15; (b) un- paid claims asserted during proj- ect for cost of changes or extra work in amount of $196,785.63; and (c) unpaid claims for changes and extras discovered after action was commenced in amount of $320,304.11. Action allowed. N Ltd. was awarded $547,261.75 in total damages. Application of contra preferen- tem principle would suggest that ambiguity should be resolved against Town's interest. Par- ticularly in respect of changes to widely used standard contrac- tual terms, such as Ontario Pro- vincial Standard Specifications ("OPSS") General Conditions which were intended to provide consistent, standard and bal- anced terms and conditions for use throughout province, owner seeking to deviate from those standards in a way that may be prejudicial to contractor, ought to do so explicitly and clearly. Network Site Services Ltd. v. Town of Oakville (2018), 2018 CarswellOnt 7235, 2018 ONSC 2599, D.A. Broad J. (Ont. S.C.J.). Environmental Law STATUTORY PROTECTION OF ENVIRONMENT Approvals, licences and orders Developer only complained order was unclear after contempt motion Developer and its principal (developer) were convicted of undertaking development and interfering with and removing material from wetlands contrary to Conservation Authorities Act and were ordered to rehabilitate and restore wetlands to conform with conservation authority's guidelines within six months. Eight months later, developer had not complied with order. Application judge granted con- servation authority's application for order finding developer in contempt, rejecting principal's evidence that he was unsure as to what order required him to do and finding developer chose to deliberately ignore clear, pre- cise order. Developer appealed. Appeal dismissed with costs to authority fixed at $5,000. While order developer was found not to have complied with could have been expressed in more specific terms, order had to be read in context of reasons, which was what application judge did. Application judge found order required developer to address four restoration conditions, that first condition was moot, that fourth condition was ambigu- ous and could not be subject of contempt order, and that second and third conditions requiring replacing of stripped organic material stockpiled on property and replanting of native veg- etative material removed from wetland were unambiguous and sufficiently clear for developer to be required to comply with them. Authority could have taken greater initiative in com- municating its requirements but developer never made in- quiries of authority as to reme- dial steps to be taken and only complained order was unclear after contempt motion. Appli- cation judge found developer's professed need for clarity of or- der disingenuous. Application judge's conclusion that devel- oper deliberately and wilfully ignored order and defied it in public way was deserving of def- erence and amply supported by record. Mississippi Valley Conser- vation Authority v. Mion (2018), 2018 CarswellOnt 13871, 2018 ONCA 691, Robert J. Sharpe J.A., R.G. Juriansz J.A., and L.B. Rob- erts J.A. (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 20, 2018 ONSC 104, R. Ryan Bell J. (Ont. S.C.J.). Estates and Trusts ESTATES Actions involving personal representatives Reasonable that estate trustee's costs as fixed should be payable in any event of cause Deceased's wills, which appoint- ed his wife as trustee, divided residue of his estate equally be- tween his wife and daughters, but did not provide for applicant, his long-time common law spouse. Applicant, who still lived in luxu- ry condominium she had shared with deceased, brought motion for interim support pending return of her application for ad- equate provision for her support from his estate and for other relief. Estate trustee brought motion for order concerning applicant's use of estate's condo- minium and posting pictures of its interior on social media. Ap- plicant's motion for interim sup- port was granted but her motions for other relief were dismissed or not decided and estate's motion was granted. Estate was entitled to partial indemnity costs fixed at $40,000. Following release of endorsement, letter was received from counsel for estate trustee indicating that when costs out- line was submitted, no offers to settle were included. Submissions were received and considered from estate trustee and applicant. Offer was relevant and appli- cable and was something which should have been considered in determination of costs. Offer was clearly more favourable to applicant than order for interim support. Having regard to offer, estate trustee's submission that costs order should be amended to provide that estate trustee's costs as fixed should be payable in any event of cause at conclu- sion of application was reason- able. Costs order was amended to provide that estate trustee was entitled to her costs of motion, fixed at $40,000 in total, payable by applicant in any event of cause at conclusion of application. Zavet v. Herzog (2018), 2018 CarswellOnt 12414, 2018 ONSC 4673, L.A. Pattillo J. (Ont. S.C.J.); additional reasons (2018), 2018 CarswellOnt 9608, 2018 ONSC 3398, L.A. Pattillo J. (Ont. S.C.J.). Insurance AUTOMOBILE INSURANCE Extent of risk Arbitrator's determination that party not principally dependent for financial support at time of accident not within range of reasonable outcomes On February 25, 2011, claim- ants LS and AB were injured in single vehicle automobile ac- cident while passengers in un- insured van. LS, who arrived in Canada in 1993, received $1,150 per month in Ontario Disabil- ity Support Program payments ("ODSP"). AB, who arrived in Canada in September 2010, had no source of income. At time of accident, they were living with PD, who was LS's son and AB's nephew. Three months previ- ously, claimants had been living with LS's daughter, DD, until daughter separated from her husband and left marital home. Claimants applied to PD's insur- er, S Co., for statutory accident benefits on basis that they were, at time of accident, principally dependent on PD. Arbitrator found that neither LS nor AB were principally dependent on PD at time of accident and On- tario's Motor Vehicle Accident Claims Fund was responsible for claims. Ontario appealed. Appeal allowed in part. Arbitra- tor used six–month period for AB's dependency analysis as op- posed to three–month period from DD's separation to accident date, which failed to take fully into consideration impact of matrimonial separation. Deci- sion contained no evidence that, in three months leading to ac- cident, there was basis on which reasonably to conclude that AB's principal financial dependency could be on anyone other than PD. Arbitrator's determination that AB was not principally de- pendent on PD for financial sup- port at time of accident was not within range of reasonable out- comes. Whether three–month dependency analysis is applied, or 12–month dependency analy- sis, nature of financial support relationship for LS had three components: LS herself, PD and DD. Unlike AB, LS had source of her own funding. On critical issue of whether PD was relied upon principally to provide fi- nancial support to LD at time of accident, it was reasonable for arbitrator to conclude that this was not established. Arbitrator's determination that S Co. was not priority insurer of AB was set aside. Appeal dismissed in rela- tion to LS. State Farm Mutual Insur- ance Company v. Her Majesty the Queen (2018), 2018 Carswel- lOnt 11309, 2018 ONSC 4258, Sanfilippo J. (Ont. S.C.J.); re- versed (2017), 2017 CarswellOnt 19973, Shari L. Novick Member (Ont. Arb. (Ins. Act)). CASELAW

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