Law Times

Law Times • OcTOber 15, 2018 Page 15 www.lawtimesnews.com throughout process as owners had no previous experience in custom home building. Parties initially agreed to final pur- chase price of $450,000 which was increased to $540,000 af- ter builder requested increase and promised there would be no additional changes or re- quests for money. During con- struction, builder presented breakout agreements for items that were already included in contract and agreed to repair deficiencies without additional payment. After owners took possession, builder delivered invoice showing $523,000 as owing, filed lien on property for non-payment, and failed to repair deficiencies. Builder brought action for damages in amount of $523,068.52 for services and materials sup- plied and unjust enrichment and owners counterclaimed for breach of contract and unjust enrichment. Action dismissed and counterclaim allowed. Builder was liable for cost of de- ficiencies as claimed by owners in amount of $65,112.86. Build- er's last-minute dump of costs documents was violation of production order and records did not show relationship to subject project. Agreement was not for builder to build house for unknown amount, allowing cost to randomly escalate while house was being built. L made clear that owners had to know cost to build house before they agreed to go ahead with project. Final and all-inclusive price was $540,000 with no agreement for payment of extras and price was not increased by breakout agreements. Marcos Limited Building Design Consultants v. Lad (2018), 2018 CarswellOnt 8618, 2018 ONSC 3273, Seppi J. (Ont. S.C.J.). Family Law COSTS In family law proceedings generally Father was awarded costs on substantial indemnity basis for unreasonable behaviour Ruling was made with respect to application by mother re- garding custody of and access to parties' child. Father award- ed costs of $41,534.03. Father was entirely successful at trial and was entitled to his costs. Mother acted in unreasonable manner throughout proceed- ings. She was unreasonable in denying or limiting father's ac- cess to child. Her draft order at trial was unreasonable. Moth- er's egregious behaviour called for her to pay costs of trial. Mother was self-represented at trial, and her unsophisticated handling of litigation could not be used to penalize her on costs issue. Father acted reasonably during trial. He made two of- fers to settle prior to trial, both of which mother refused, and both of which provided more favourable access schedule to mother than final order. Trial was necessary due to mother's one-sided demands on custody and access issues; because at times, she completely ignored court orders and withheld ac- cess; and because of her base- less claims of assault by father. Father's bill of costs was reason- able in circumstances. While he should have his costs on full indemnity basis under R. 24(8) of Family Law Rules for bad faith, since mother was self- represented and obviously un- advised about how she should have proceeded, father was awarded costs on substantial indemnity basis under R. 24(5) for unreasonable behaviour. Mother ordered to pay father costs in amount of $41,534.03. Santos v. Pantelidis (2017), 2017 CarswellOnt 5016, 2017 ONSC 1949, McWatt J. (Ont. S.C.J.); additional reasons (2017), 2017 CarswellOnt 1319, 2017 ONSC 674, McWatt J. (Ont. S.C.J.). Labour and Employment Law EMPLOYMENT STANDARDS LEGISLATION Termination of employment Purpose of ESA was to protect interests of employees by requiring employers to comply with certain minimum standards Employer's manufacturing plan closed resulting in mass ter- mination for purposes of Em- ployment Standards Act (ESA). Class action was brought on be- half of 74 former active employ- ees. Motion judge concluded that s. 58(2) required employer to serve and post form 1 infor- mation when it gave notice to employees and that failure to file form 1 in timely manner in- validated 13 months of working notice employer provided. Em- ployer appealed. Appeal allowed in part. Motion judge erred in finding that form 1 notice had to be given on date employees were given notice. Under s. 58 of ESA form 1 notice must be given on first day of statutory notice period. Since employer was 12 days late in serving and posting form 1 notice, class members were entitled to further 12 days' pay in lieu of notice. Purpose of ESA was to protect interests of employees by requiring em- ployers to comply with certain minimum standards, including minimum periods of notice of termination. Tying require- ment to provide form 1 notice to when employer gives what it intends to be common law rea- sonable notice, in excess of stat- utorily required minimum no- tice period, was not consistent with object of ESA. Legislative history of ESA and Ministry of Labour's interpretation of statu- tory provisions supported this conclusion. Wood v. CTS of Canada Co. (2018), 2018 CarswellOnt 15252, 2018 ONCA 758, Alexan- dra Hoy A.C.J.O., D.M. Brown J.A., and Gary Trotter J.A. (Ont. C.A.); reversed (2017), 2017 Car- swellOnt 15043, 2017 ONSC 5695, Sproat J. (Ont. S.C.J.). Municipal Law ATTACKS ON BYLAWS AND RESOLUTIONS Grounds Representations of level playing field by city did not equate to promise Applicants were union and individual taxi drivers. Ap- plicants sought to quash bylaw of respondent city, which they claimed was enacted in bad faith. In alternative, applicants sought judicial declaration and directions. City opposed appli- cants' relief. Applicants applied for above-noted relief. Applica- tion dismissed. Applicants had procedural right to be heard. Doctrine of legitimate expecta- tions did not apply to this case. Representations of level playing field by city did not equate to promise. Bylaw in question was passed almost unanimously. There was insufficient evidence for claim that bylaw was passed, for collateral purpose. It was not clear whether city was respon- sible for compensating taxi li- cense holders, for diminution of investment in taxi plate. Bylaw was not discriminatory in its application. Private transporta- tion companies were not given unfair advantage. Unifor, Local 1688 v. The City of Ottawa (2018), 2018 CarswellOnt 8707, 2018 ONSC 3377, M. Linhares de Sousa J. (Ont. S.C.J.). MUNICIPAL COUNCIL Local boards Ombudsman did not have jurisdiction to investigate alleged non-compliance Respondent city was subject of appellant provincial ombuds- man's report. Ombudsman challenged city boards' private deliberations and issuing of reasons in private, after holding public hearings. Ombudsman issued complaint, and prepared report. City applied for judi- cial review of report, seeking declaratory relief. Application was granted in part. Reviewing court found that city boards were not local boards under law, and were outside ombudsman's jurisdiction. Reviewing court did not grant broader declara- tory relief, as to ombudsman's jurisdiction. Ombudsman claimed reviewing court was in error, on issue of what was local board. City claimed that even if boards were considered local, deliberations were exempt from being mad public. Ombudsman appealed from reviewing court's judgment. City cross-appealed. Appeal dismissed; no judgment made as to cross-appeal. City boards did not provide essential services, as to day-to-day opera- tion of city. As investigative and adjudicative bodies, city boards' function was different than those identified as local boards. Ombudsman did not have ju- risdiction to investigate alleged non-compliance. Cross-appeal was moot due to result of appeal. Ontario Ombudsman v. Hamilton (City) (2018), 2018 CarswellOnt 8627, 2018 ONCA 502, Doherty J.A., H.S. LaFor- me J.A., and Himel J. (ad hoc) (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 13203, 2017 ONSC 4865, W. Matheson J., J.K. Trimble J., and L.C. Sheard J. (Ont. Div. Ct.). Real Property INTERESTS IN REAL PROPERTY Creation of estates There was insufficient evidence plaintiffs' possession was adverse with intention of excluding defendants throughout statutory period Plaintiff 's father and uncle acquired adjacent waterfront parcels of land and each built cottage on either side of sand dune, leaving berm as privacy barrier and creating shared driveway to road which parties both used to access cottages by car and foot. Father's parcel be- came Lot 55 and uncle's became Lot 54 on Plan. Father installed fence from corner of his cottage to berm, removed part of berm, installed retaining wall and un- derground septic system, and created new driveway. Surveys later revealed that property line between lots ran through plain- tiffs' cottage and septic system, that shared driveway and pri- vacy barrier were on Part 2 of Lot 54, that fence was on Part 3 of Lot 54, and that shared drive- way was within Part 6 of Lot 54. Plaintiffs brought application for declaration they were own- ers of Parts 2 through 6 of Lot 54 on basis of adverse posses- sion. Application granted only with respect to Part 3. Plain- tiffs established all elements of three-prong test for adverse possession with respect to Part 3 where fence was located but not for Parts 2, 4, 5 or 6. Installation of fence and retaining wall on Part 3 were clear acts of owner- ship excluding defendants and restraining them from acting in any manner whatsoever on that portion of Part 3. Plaintiffs' actual possession of area of Part 3 was open, notorious, peaceful, adverse, actual and continuous and requirements for adverse possession were met for un- interrupted period of at least ten years prior to conversion of property to Land Titles sys- tem. Plaintiffs' 10-year actual possession of Part 2 was open, known to defendants, peaceful, adverse, actual and continuous, but there was dearth of evidence that during that time, plain- tiffs intended to exclude de- fendants from such use as they could make of Part 2 that was not occupied by septic system. There was insufficient reliable evidence of actual possession of either or both of Parts 4 and 5 that was open, notorious, ad- verse, actual and continuous by plaintiffs and that defendants were ever intended to be exclud- ed from either or both of Parts 4 and 5. Plaintiffs' claim to Part 6 of Lot 54 on basis of adverse possession was also dismissed. While evidence was that both parties used shared driveway to access cottages both on foot and by car between 1946 and 2008, there was insufficient evidence plaintiffs' possession was adverse, in sense of being without defendants' permission or that plaintiffs' possession of driveway was with intention of excluding defendants through- out statutory period. Gauld v. McFalls (2018), 2018 CarswellOnt 13014, 2018 ONSC 4734, L.C. Templeton J. (Ont. S.C.J.). REGISTRATION OF REAL PROPERTY Certificate of pending litigation (lis pendens) Non-disclosure of material fact on ex parte application grounds for setting aside order Plaintiffs were granted certifi- cate of pending litigation (CPL) on residential property held by defendants. Plaintiff agreed to have CPL vacated upon defen- dant's paying $600,000 from sale proceeds. Defendants paid money into court. Master dis- missed application to vacate CPL and found amount repre- sented specific fund compris- ing security for plaintiff 's claim pursuant to Rule 45.02 of Rules of Civil Procedure. Defendants appealed. Appeal allowed. CPL vacated and money released to defendants. Plaintiff 's lawyer B had email from defendant's lawyer M asking for notice of any motion. Master would have refused to hear matter on ex parte basis had M's email to B been brought to his atten- tion. Only reason $600,000 was available to potentially meet part of Rule 45.02 test was that CPL had been ordered in cir- cumstances in which it would not have been ordered if proper disclosure made. B should have given B short notice of motion so he could attend and give de- fendant's side. Non-disclosure of material fact on ex parte ap- plication grounds for setting aside order. Defendant awarded substantial indemnity costs of $38,944.80 for motions and $20,000 for appeal inclusive. Award based on significance of issues for defendant under Rule 57.01(1)(d), and fact that non- disclosure of material facts on ex parte motion constituted im- proper step in proceeding under Rule 57.01(1)(f )(i). Natale v. Testa (2018), 2018 CarswellOnt 12184, 2018 ONSC 4541, E.M. Morgan J. (Ont. S.C.J.); reversed (2018), 2018 CarswellOnt 7143, 2018 ONSC 2823, Master D.E. Short (Ont. S.C.J.). CASELAW

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