Law Times

Law Times • January 21, 2013 dismissing appellants' motion. Appellants were farmers and owned 300 acres of land. They were currently facing development of wind farm project by company of approximately 150 huge wind turbines in vicinity of farm. Appellants opposed construction of project in close proximity to homes on basis that noise from wind turbines could cause adverse health effects, adversely affect well-being and decrease property values. Company needed renewable energy approval from Ministry of Environment. Appellants knew only recourse would be to appeal approval. Given tight timelines for appeal, appellants determined they needed to collect evidence before approval was granted. Chief medical officer of health for Ontario had written report. Appellants brought motion to compel out-of-court examination of non-party witness, Chief medical officer, pursuant to Rule 39.03 of Rules of Civil Procedure (Ont.). Master found it was heavy handed way of dealing with nonparty who had no obvious information that related to matters in issue. Master found that motion appeared to be abuse of process. Master awarded chief medical officer costs on substantial indemnity basis. Appeal allowed. Under Rule 39.03 there must be reasonable evidentiary basis that examination would be conducted on issue relevant to application and that witness would be in position to offer relevant evidence. Master erred in law in application of test. Master's reasoning reflected misunderstanding of nature of evidence appellants were seeking to elicit from Chief Medical Officer. There was sufficient basis upon which master should have concluded that chief medical officer had relevant evidence. Master erred in failing to consider relevance of chief medical officer's knowledge of ongoing investigations and follow-up. Master had no basis to conclude that appellants were attempting to obtain chief medical officer's evidence to avoid financial burden of retaining expert. Master erred in law and made palpable and overriding error in finding that motion amounted to abuse of process. Motion was not premature. Chief medical officer probably had evidence relevant to application and requirements of Rule 39.03 were met. Leave to appeal costs award was granted. Award of substantial indemnity costs was unwarranted and was set aside. Chief medical officer was required to appear to answer questions. Drennan v. 2270573 Ontario Inc. (July 18, 2012, Ont. S.C.J., Sanderson J., File No. DC-11-559) Decision at 209 A.C.W.S. (3d) 263 was reversed. 220 A.C.W.S. (3d) 700. Conflict of Laws CHOICE OF LAW Naming individual defendant was not independent claim against him Individual defendant brought Page 15 CASELAW motion to dismiss action on basis that court did not have jurisdiction. Action was for damages of $7.5 million for breach of contract and misrepresentation. Action against corporate defendants was dismissed by consent. Individual defendant was chief executive officer of corporate defendants. Fabricator agreement between parties contained choice of law provision and arbitration clause that stated that New Jersey would be jurisdiction that governed disputes. Action was subsequently commenced in New Jersey. Plaintiff maintained that individual defendant was not party to contract. Motion granted. Issue was whether action was against individual defendant personally so it was outside agreement in order to enable action to go forward without being affected by jurisdiction and arbitration clauses. Individual defendant was described in statement of claim as CEO and was not described in personal terms. References were to individual defendant as representative of corporate defendants. Only personal reference to individual defendant clearly contemplated dispute between corporate parties. Withdrawal of claims against corporate defendants reinforced view that plaintiff knew provisions of fabricator agreement prevented it from proceeding with action in Ontario. Language of statement of claim in entirety made it clear that dispute was with corporate defendants and that naming individual defendant as defendant was not independent claim against him but part of overall dispute between parties to agreement. No strong cause had been shown as to why clauses should not be enforced. Action could not proceed in Ontario. Bale-Eze Industries Inc. v. Frazier Industrial Co. (Aug. 28, 2012, Ont. S.C.J., Ray J., File No. CV09-0017-00) 220 A.C.W.S. (3d) 722. Damages PERSONAL INJURIES Complete absence of evidence that maintenance program implemented and operational Plaintiff sought damages for personal injury. Plaintiff was exercising at the defendants' fitness club. While using vertical leg press weight machine, plaintiff 's right foot slipped off foot platform that controlled movement of weights. He tried to restore locking device to prevent descent of weights but was unable to do so. When weights came down, portion of small finger on right hand was caught in falling weight sled and crushed. Accident effectively amputated end portion of small finger on dominant hand. Plaintiff had surgery. Plaintiff claimed that defendants failed to keep premises reasonably safe for its members. Plaintiff claimed that foot slipped off platform because he had, moments earlier, stepped in puddle of water near water foun- tain, which caused soles of shoes to become wet and slippery. He had tried to dry shoes and thought he had been successful. Plaintiff 's recovery was relatively quick but amputation was permanent and was serious disfigurement of plaintiff 's right hand. Plaintiff had to have further surgery to remove nail bed. Plaintiff continued to experience pain and sensitivity in finger. Judgment for plaintiff. Plaintiff established that, in circumstances, defendants failed to keep fitness club premises reasonably safe for members by taking reasonable care to protect them from foreseeable harm. Defendants had devised reasonable maintenance system for fitness club to ensure safety of members. However, there was complete absence of evidence that maintenance program was implemented and operational and was routinely followed. In circumstances, plaintiff established that accident that led to injury was caused by defendants' negligence in breaching statutory duty under Occupier's Liability Act (Ont.). But for defendants' breach of statutory duty to keep premises reasonably safe, plaintiff would not have suffered injury. Plaintiff was awarded general damages of $25,000; $780 for past wage loss; $20,000 for future care cost; and special damages of $3,105 for total of $48,885. Plaintiff was contributorily negligent. He knew machine he was operating was dangerous if shoes were wet. He was negligent in failing to ensure shoes were not wet before using machine. Plaintiff 's negligence was operative cause of accident. Plaintiff put himself in position of foreseeable harm and he failed to take reasonably precautionary measures. In circumstances damages were apportioned equally. Plaintiff was awarded damages of $24,442. Dhaliwal v. Premier Fitness Clubs Inc. (Aug. 15, 2012, Ont. S.C.J., Campbell J., File No. 07-CV326369PD2) 220 A.C.W.S. (3d) 853. Family Law CUSTODY Mother could not unilaterally terminate relationship with grandparents because it was no longer convenient Parties had two children. Order provided for joint custody with primary residence with mother. Father had access. All through children's lives parents permitted paternal grandparents to take on great role in children's upbringing. One child had special needs and difficulty making friends. Mother brought motion to vary order to permit mother to relocate. Father brought crossmotion for custody of children, shared parenting arrangement or extended access. Paternal grandparents were parties to motion to vary and requested that mother not be permitted to move with children. Paternal grandparents sought specified access. Mother's request to relocate with chilwww.lawtimesnews.com dren was denied. Mother could not unilaterally terminate children's relationship with paternal grandparents because it was no longer convenient for mother. Children wished to spend more time with father and paternal grandparents. Contact between children and parents and grandparents would be maximized if children remained in area. Move would be divesting to children who were accustomed to strong extended family care arrangements. There was no material change in circumstances that warranted shared parenting regime. Access was to be Thursday after school to Monday morning every second weekend. On off week there was to be one evening of access per week. Access for grandparents was set out. Vander Byl v. MacLeod (Sep. 27, 2012, Ont. S.C.J., Lafrance-Cardinal J., File No. 08-1087) 220 A.C.W.S. (3d) 778. Relocation found to be for purpose of frustrating father's access rights Child was residing in Toronto with mother. Order provided best interests of child required child to reside in Ottawa with primary residence with mother or with father if mother insisted on living elsewhere. Mother contravened orders by relocating with child. Relocations were not justified by mother's fear for mother and child's safety. Relocations were found in part to be to frustrate father's access rights. Father sought interim order for custody and primary residence of child. Father had loving relationship with child. Child resided with father for three weeks. Mother refused to provide basic health information to father despite repeated requests. Mother continued unsubstantiated allegations of child and spousal abuse against father. It was in best interests of child that custody and primary residence of child be with father. Mother was to have liberal access with view to establishing situation of joint custody and shared parenting in near future. There was no basis to conclude father assaulted mother as mother claimed. Claims were further attempt to frustrate father's access. There was no indication child's safety or welfare would be jeopardized in father's care. There was no suggestion father would prevent mother from having relationship with child. Mother was not capable of acting in best interests of child to make honest effort to allow father to be involved in child's life. Mother lacked stability. Parental assessment was not required for award of custody to father. Otari v. Otari (Aug. 30, 2012, Ont. S.C.J., Annis J., File No. FC11-2540) 220 A.C.W.S. (3d) 765. Support order based on imputed income would interfere with father's ability to attend to children's needs Parties had three children. Mother had primary care of children since separation. Parties agreed on joint custody with primary residence to mother and liberal access to father. Mother argued agreement was made in hopes of reconciliation which ultimately failed. Mother sought sole custody. Father argued there never was reconciliation. Parties followed joint custody regime for eight years. Father had permanent disability in wrist suffered during seizure by police. Father had pending lawsuit against police. Father lost employment. Father received social assistance. Father had no knowledge about extent of medical follow-up required for child with medical condition. Claim for support was denied and arrears under past orders were expunged. Father was not intentionally unemployed. There was no evidence of potentially available employment for father in current condition. Support order based on imputed income would likely interfere with father's ability to attend to children's needs and transport for access. Mother was to have sole custody and father was to have liberal access. Order for joint custody was no longer in effect based on parties attempted reconciliation and cohabitation after first separation. Parties were unable to work co-operatively. There was no evidence parties were able to communicate effectively to address needs of children. Stefanec v. Stefanec (Sep. 21, 2012, Ont. S.C.J., Seppi J., File No. 940/08) 220 A.C.W.S. (3d) 768. Planning ZONING Operations were not prior conforming uses because they were never lawful uses Respondents founded salvage yard business that involved open storage and recreational travel trailer for office. Zoning designation for land authorized use as salvage yard. Applicant enacted interim control bylaw that froze development on designated lands pending review of land use policies. Applicant sought order declaring land use contravened zoning bylaw in force since 2000 and sought injunction restraining continued operations. Judgment issued in favour of applicant. Bylaw did not contemplate open salvage yard operation. Word "establishment" in bylaw meant brick and mortar. Respondent could not establish outside storage as lawful use in designated area without erection of building or structure. Respondents' operation did not comply with bylaw. Respondents did not have site plan approval or building permits. Respondents' operations were not prior conforming uses because they were never lawful uses under exiting bylaw. Bias/ bad faith assertion was collateral to core issue and was not developed with factual or evidentiary grounding. Stone Mills (Township) v. Rebel Scrap Metal Inc. (Sep. 24, 2012, Ont. S.C.J., Leroy J., File No. CV11-237-0000) 220 A.C.W.S. (3d) 841. LT

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