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November 26, 2018

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Law Times • November 26, 2018 Page 19 promises to pay outstanding invoices. Defendant made pay- ment in May 2011 which plain- tiff claimed was payment under main contract as in plaintiff 's view there was no separate con- tractual arrangement for main- tenance. In November 2011 plaintiff confirmed May 2011 payment and listed outstand- ing amounts still owing. Plain- tiff requested payment again in May 2012. In December 2012 plaintiff brought action against defendants claiming amounts still owing under contract. De- fendants brought motion for summary judgment dismiss- ing plaintiff 's claim on basis that 2-year limitation period under Limitations Act, 2002 had expired. Motion dismissed. Defendants did not establish that they would necessarily be successful on their limitation defence such that case should be dismissed summarily at this stage. Defendants did not es- tablish that legally appropriate time to sue was two years after August 2009 payment. Defen- dants' argument that limitation period began to run 16 days after delivery of each invoice therefore requiring separate ac- tions to be commenced when- ever there was delay in payment of particular invoice was not commercially reasonable, was unduly onerous on parties, and was potential waste of judicial resources. Civil action became appropriate when plaintiff had reason to believe it would not otherwise be paid. Plaintiff was promised further payment, there were no objections by de- fendant to invoices submitted or work done, and plaintiff in fact received further funds in May 2011 after receiving such prom- ises of payment. Newman Bros. Ltd. v. Uni- versal Resource Recovery Inc. (2018), 2018 CarswellOnt 10993, 2018 ONSC 4019, H.S. Arrell J. (Ont. S.C.J.). Evidence REAL EVIDENCE Videos Removing sound from videos when playing them for jury might not address prejudicial utterances Three videos of stand up roll- ercoaster ride were made by unknown persons. Plaintiff brought motion seeking to ad- mit videos into evidence. Mo- tion granted in part. It was not certain that jurors would be familiar with this type of roller- coaster ride, and it was helpful for jury to understand nature of equipment being discussed. Prejudice arose when video was being portrayed as first person experience, as in two of videos, which might not have been like plaintiff 's experience. Remov- ing sound from videos when playing them for jury might not address prejudicial utterances as jury might decide to play videos admitted as exhibits in jury room where there was no control over sound. Those two videos constituted similar fact evidence, effectively acting as second witness because of first party vantage point by sitting on ride, and they were inadmissible. Final video presented ride from vantage point of observer, per- son watching from ground. It was open to plaintiff to confirm that was ride he took. Video had been edited, but there was no ev- idence that it was done unfairly with intention to mislead. Final video was admissible. Wesselink v. Canada'a Won- derland Co. (2018), 2018 Car- swellOnt 17524, H.M. Pierce J. (Ont. S.C.J.). Municipal Law ATTACKS ON BYLAWS AND RESOLUTIONS Grounds Municipality went against its own integrity commissioner's findings to impose bylaw Respondent was municipal coun- cillor with appellant municipality, from 2010 to 2014. Under estab- lished bylaw, councillor was enti- tled to severance pay at end of his time on council. In councillor's fi- nal year on council, dispute arose as to postage expense incurred by councillor. Bylaw was enacted by municipality, deducting expense from councillor's severance pay. Councillor brought action in Small Claims Court, claiming that bylaw was invalid as it was enacted in bad faith. Small Claims Court action was stayed for lack of jurisdiction. Councillor brought Superior Court action for same relief. Councillor moved for sum- mary judgment, to have bylaw quashed. Motion was granted. Municipality claimed that mo- tion judge failed to address limi- tations issue, with claimed new cause of action being brought out of time. Municipality claimed that new cause of action was im- properly raised, in Superior Court action. Municipality claimed that entire bylaw should not have been quashed. Municipality appealed from motion judgment. Appeal allowed in part, as to remainder of bylaw not affecting council- lor. Appeal otherwise dismissed. Motion judge had ample evidence for bad faith finding. Municipal- ity went against its own integrity commissioner's findings to im- pose bylaw. Section of bylaw was specifically targeted at councilor, in violation of established stan- dards. Finding of bad faith was at least reasonable one, and not to be interfered with. Perrelli v. Richmond Hill (Town) (2018), 2018 Carswel- lOnt 18571, 2018 ONSC 6414, C. Horkins J., Bale J., and Labrosse J. (Ont. Div. Ct.); varied (2017), 2017 CarswellOnt 21616, 2017 ONSC 6062, P.W. Sutherland J. (Ont. S.C.J.). TAX SALES Miscellaneous Applicants should not be deprived of benefit of risk they took in commencing actions Distribution of surplus funds. Six investors loaned varying amounts totaling $3 million to respondent company. Repay- ment was secured by mortgage on company's property divided into two parts with first, for $2.5 million, having first priority and bearing interest at 10.5 percent and second, for $500,000, hav- ing second priority and bearing interest at 16.5 percent. When company defaulted on mortgage, four investors, the applicants, chose to bring actions against lawyer who had recommended investment rather proceedings to enforce mortgage. While law- suits were settled for substantial amounts, applicants still lost money on investments. Respon- dent municipality subsequently sold company's property for non-payment of taxes and paid surplus funds of $218,507.12 (after payment of tax lien) into court. When applicants brought application for payment out in accordance with their respective interests as first priority lenders, respondent investors, two inves- tors who had not pursued lawyer, contended applicants should be required to account for settle- ment funds prior to any distri- bution. Application granted. Section 380(1)(b) of Municipal Act, 2001 required proceeds of tax sale to be applied first to pay cancellation price and second to be paid to all persons having interest in land (except owner) according to their priority at law. To achieve statutory objec- tive of providing inexpensive and uncomplicated means of distributing proceeds, s. 380(7) provided court broad discretion to determine entitlement. Order for accounting proposed by re- spondent investors would defeat purpose. Applicants should not be deprived of benefit of risk they took in commencing actions against lawyer. Respondent in- vestors should not be rewarded for choosing not to take such risk. Surplus funds were ordered to be paid out in accordance with all six investors respective inter- ests as first priority lenders. Kotzeff v. Seniorscare Cor- poration (2018), 2018 Carswel- lOnt 17244, 2018 ONSC 6173, Hurley J. (Ont. S.C.J.). ZONING Zoning bylaws It was structural aspects of Golf Course that made it championship course and cultural heritage landscape C Corp. and C Ltd. (together, "C"), were owner of Golf Course. C ap- plied to demolish Golf Course and redevelop it as residential community. Town opposed plan and designated Golf Course and property on which it was situ- ated heritage site under section 29, Part IV, of Ontario Heritage Act ("OHA"). Town was ordered to process C's s. 34 application. Golf Course was both composed of structures and overall was structure for purposes of s. 34 of OHA. C had right to make ap- plication to town under s. 34(1) of OHA for demolition and/or removal of buildings on Property and of other structures of which Golf Course was comprised. This included component parts of Golf Course: tees, greens, haz- ards, fairways, cart paths, berms, embankments, and other related constructions and infrastructure. It was evident that it was structur- al aspects of Golf Course – rout- ing, shape and slope of fairways and greens, elevated mounds and berms for audience viewing, creation of sand traps and other hazards, underground irriga- tion and drainage engineering, routing and installation of cart paths, etc. – that made it cham- pionship course and, from town's point of view, a cultural heritage landscape in first place. It was architecture of Golf Course, and not just some superficial, non- structural gardening or groom- ing of landscape, that had made this Golf Course what it was. Town of Oakville v. Club- link (2018), 2018 CarswellOnt 17810, 2018 ONSC 6386, E.M. Morgan J. (Ont. S.C.J.). Failure to grant interlocutory relief in clear circumstances would send very poor message Respondents grew marihuana in neighborhood not zoned for that type of activity. Township moved for interlocutory injunction restraining respondents from growing, cultivating, processing or otherwise producing marihua- na at property. Motion granted. Interlocutory injunction was is- sued enjoining respondents from growing, cultivating, processing or otherwise producing mari- huana, and from permitting any other party to do so, at property. Breach began in July 2014. Not- withstanding ongoing attempts by Township to enforce By-Law, breach continued. It was clear that VD had no intention of ceasing operation in present location. In other words, he was thumbing his nose at Township. He has had more than three years to come into compliance with Zoning By- Law, but he refused to do so. Fail- ure to grant interlocutory relief in clear circumstances of this case would send very poor message. It would seriously undermine ju- risdiction and authority of Town- ship and ability to enforce bylaws. And it would permit, if not pro- mote, ongoing clear breach. There were, moreover, more concerns than just those relating to odour complaints. There were identified electrical and fire hazards associ- ated with present use of property that created risks to community. Tay (Township) v. Fan (2018), 2018 CarswellOnt 17791, 2018 ONSC 6375, Boswell J. (Ont. S.C.J.). Natural Resources WATERS AND WATERCOURSES Riparian rights Any riparian rights that purchasers had to property were extinguished by applicable limitations act Appellants were purchasers of subject land, who commis- sioned survey of land after pur- chasing property. Survey found that purchasers' property abut- ted that of respondent residents' association. Purchasers claimed that they had title to extended shoreline between properties. Purchasers' application for de- claratory relief was dismissed. Purchasers appealed from judg- ment. Respondent Crown cross- appealed from costs order made in its favour. Appeal dismissed. Any riparian rights that pur- chasers had to property were extinguished by applicable limi- tations act. Mihaylov v. Long Beach Residents' Association (2018), 2018 CarswellOnt 18563, 2018 ONCA 871, Paul Rouleau J.A., David Watt J.A., and David M. Paciocco J.A. (Ont. C.A.); af- firmed (2018), 2018 Carswel- lOnt 3337, 2018 ONSC 14, E.M. Morgan J. (Ont. S.C.J.). Ontario Criminal Cases Criminal Law DISCLOSURE Crown disclosure [Stinchcombe] Duty to preserve evidence did not oblige police to create evidence Accused was arrested for im- paired driving at roadside and taken to police station, where he refused to provide breath sam- ple. In-car cameras in police car would normally have recorded accused's arrest and interac- tions with police, but cameras were not working that night. At trial, accused sought stay of proceedings on ground that absence of in-car footage vio- lated his rights under Canadian Charter of Rights and Freedoms ("Charter"). Trial judge found no breach of accused's Charter rights and convicted accused of impaired driving and refus- ing to provide breath sample. Accused appealed. Appeal dis- missed. Accused's argument on disclosure was misconceived. Unlike cases relied on by ac- cused, police did not have mate- rial evidence and then lose, de- stroy, or fail to preserve it. Here, evidence did not exist. Crown could only disclose what it had, and duty to preserve evidence did not oblige police to cre- ate evidence. Similarly, whilst it would have been ideal had footage of accused's arrest and transport existed, police had no obligation to create recording or even turn on camera. Accused did not have constitutional right to adequate investigation. In- adequate investigation did not, in and of itself, equal breach of accused's right to make full an- swer and defence. R. v. Deesasan (2018), 2018 CarswellOnt 11476, 2018 ONSC 4180, S.A.Q. Akhtar J. (Ont. S.C.J.). CASELAW

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