Law Times

December 3, 2018

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Law Times • December 3, 2018 Page 19 2018 ONSC 6460, C. MacLeod J. (Ont. S.C.J.); additional reasons (2018), 2018 CarswellOnt 11289, 2018 ONSC 4235, Calum Ma- cLeod J. (Ont. S.C.J.). PRACTICE ON APPEAL Miscellaneous Defendant was simply asking appeal court to reweigh evidence and arrive at different conclusion Motion judge allowed bank's motion for summary judgment and ordered payment to bank of $269,445.25. Process server for defendants' counsel filed Notice of Appeal in Divisional Court even though he was requested to file it in Court of Appeal. Notice of Appeal was accepted by Divisional Court office and appeal was perfected. Defen- dant brought motion to transfer appeal to Ontario Court of Ap- peal. Motion dismissed. Under s. 110 of Courts of Justice Act, court had jurisdiction to exer- cise its discretion and transfer appeal to Ontario Court of Ap- peal. Defendant did move ex- peditiously once it was known that there was problem but is- sue of whether appeal had merit could not be ignored. There were no alleged errors of law. It was apparent that defendant was simply asking appeal court to reweigh evidence and arrive at different conclusion. There was no prospect of defendant being able to establish palpable and overriding error of fact or mixed fact and law. It would be contrary to interest of justice to transfer appeal. The Bank of Nova Scotia v. Compas Inc. (2018), 2018 CarswellOnt 18111, 2018 ONSC 6522, C. Horkins J. (Ont. Div. Ct.). Constitutional Law CHARTER OF RIGHTS AND FREEDOMS Nature of rights and freedoms Right to vote in municipal elections, if provided by provincial government, must be consistent with Constitution Provincial legislature intro- duced bill that reduced num- ber of city council seats from 47 to 25 during election. City and other applicants brought application to challenge consti- tutional validity of bill. Applica- tion granted. Impugned Provi- sions of Bill substantially inter- fered with candidates' and vot- ers' right to freedom of expres- sion as guaranteed under s. 2(b) of Canadian Charter of Rights and Freedoms. As bill was en- acted in middle of ongoing election campaign, it breached municipal candidates' freedom of expression, and as it almost doubled population size of City wards, it breached municipal voter's right to cast vote that could result in effective repre- sentation. Provincial legislature has no obligation to consult and no obligation of procedural fair- ness. Electoral fairness is funda- mental value of democracy and f lows from political equality of citizens entrenched in consti- tution. Elections are fair and equitable only if candidates are given a reasonable opportunity to present their positions. Bill prevented candidates from hav- ing reasonable opportunity to present their positions. Once Province entered field and pro- vided electoral process, it was not entitled to suddenly and in middle of electoral process im- pose new rules that undermined otherwise fair election and sub- stantially interfere with candi- dates' freedom of expression. Comments in cases regarding effectual representation that were made in context of right of vote under s. 3 of Charter were applicable to consideration of right to freedom of expression. Although s. 2(b) does not guar- antee right to vote in munici- pal elections, if such expressive right has been provided by pro- vincial government, then right must be consistent with and not in breach of Constitution. City of Toronto et al v. Ontario (Attorney General) (2018), 2018 CarswellOnt 14928, 2018 ONSC 5151, Edward P. Be- lobaba J. (Ont. S.C.J.). PROCEDURE IN CONSTITUTIONAL CHALLENGES Standing No compelling reason why accident victim directly impacted by impugned provisions could not challenge legislation Section 267.5(1) of Insurance Act limited pre-trial recovery of lost income to 70 per cent of gross income and s. 280 of Act granted sole jurisdiction to Licence Appeal Tribunal to resolve Statutory Accident Ben- efits Schedule (SABS) disputes. Personal injury lawyer brought application to challenge con- stitutionality of provisions, al- leging they violated ss. 15 and 7 of Canadian Charter of Rights and Freedoms. Application was dismissed. Trial judge ruled that lawyer lacked both private and public interest standing to bring application. Lawyer ap- pealed. Appeal dismissed. Trial judge correctly determined that private interest standing was not made out. Lawyer failed to dem- onstrate that impugned provi- sions affected him personally and directly. Lawyer's experi- ence litigating insurance claims and his concern for properly ad- vising his clients and adequately settling their claims fell short of establishing that provisions had direct impact on him. Trial judge was correct in noting that lawyer had not been injured in automobile accident, was not claiming for lost income, and was not disputing SABS entitle- ment before administrative tri- bunal. Trial judge did not err in his assessment of three factors relating to public interest stand- ing. When read as whole judg- ment showed that trial judge did not analyze each factor sepa- rately. Trial judge correctly listed three factors and considered them in combination and with f lexibility required. Lawyer's scholarly contributions regard- ing Insurance Act did not ex- emplify genuine interest in out- come of application. Application was not proven to be reasonable and effective way of bringing case to court. Lawyer failed to provide compelling reason why auto accident victim who was directly impacted by impugned provisions could not challenge legislation. Trial judge's discre- tionary decision was entitled to deference and there was no rea- son to interfere. Campisi v. Ontario (Attor- ney General) (2018), 2018 Car- swellOnt 18564, 2018 ONCA 869, Paul Rouleau J.A., David Watt J.A., and David Brown J.A. (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 8166, 2017 ONSC 2884, Edward P. Beloba- ba J. (Ont. S.C.J.). Real Property SALE OF LAND Completion of contract It was not act of bad faith for vendors to insist on definitive closing date Vendors owned three contigu- ous properties that were prime property for redevelopment. Vendors agreed to sell proper- ties to purchasers on terms that changed over time. Purchasers paid deposit, and parties agreed on definitive closing date, but purchasers' mortgagee withdrew financing. Vendors refused to extend closing and retained de- posit. Purchasers brought action against vendors for specific per- formance. Vendors brought mo- tion for summary judgment dis- missing action. Motion granted. Law of abortive real estate trans- actions was well established, and facts of this case were generally uncontested or uncontestable. Vendors established they had not agreed to further extension. In any event, purchasers should have realized nothing could be finalized until amendment in writing was signed, and no such amendment was signed. It was not act of bad faith for vendors to insist on definitive closing date, and their personal motivations for refusing to grant extension were not relevant. Vendors had not been responsible for mort- gagee's withdrawal of financing and had done nothing dishon- est. Time Development Group Inc. (In trust) v. Bitton (2018), 2018 CarswellOnt 11862, 2018 ONSC 4384, Perell J. (Ont. S.C.J.). SALE OF LAND Remedies Purchasers not entitled to damages for lost bargain where no wrong ful appropriation of benefit by vendors Property was subject to mort- gage registered in 1989 securing $250,000 loan with 12 per cent annual interest, but vendors made no mortgage payments in over 20 years before signing agreement of purchase and sale in 2016 for $500,000. Unable to convey clear title, vendors pro- posed termination of contract by mutual release and return of deposit. Purchaser closed power of sale agreement with mortgag- ee for $687,500, of which ven- dors had no notice. Purchaser brought motion for summary judgment for $187,500 from ven- dors as damages for loss of bar- gain and for return of $25,000 deposit. Motion granted. Ven- dors were in breach of implied term of agreement of purchase and sale that they would deliver evidence of mortgage discharge prior to closing, consequently, purchaser was entitled to re- turn of deposit. Purchasers were not entitled to damages for lost bargain as there was no wrong- ful appropriation of benefit by vendors. Benefit that purchaser assumed it was denied was il- lusory and did not in fact ex- ist, therefor, vendors had no liability to purchaser for loss of bargain. Purchaser's contract of purchase and sale with vendors held promise of bargain, but this promise was based on ven- dors' mistaken belief that they still had equity in property, but reality was that mortgagee had complete control of property. Purchaser's power of sale con- tract was negotiated between it and mortgagee without any ef- fective notice or participation of vendors. Birchcliffe Core-Harbour Inc. v. Pinnock (2018), 2018 CarswellOnt 17845, 2018 ONSC 5805, Dietrich J. (Ont. S.C.J.). Tax INCOME TAX Special rules "Charitable activities" to be read to include political activities in furtherance of organization's charitable purposes Canada Revenue Agency (CRA) restricted ancillary, non- partisan political activities of registered charitable organiza- tion to ten per cent of charity's resources to meet requirement that "substantially all" of its re- sources be devoted to charitable activities. CRA deemed sub- missions to legislative bodies or officials to be charitable, but subjected communication of policy messages to public to ten per cent rule. Charity brought application to challenge con- stitutionality of CRA's inter- pretation of "substantially all" requirement in s. 149.1(6.2) of Income Tax Act (Act), and to challenge distinction between "charitable activities" and "po- litical activities" in ss. 149.1(6.2) (a) and (b) of Act, on basis of vio- lation of freedom of expression in s. 2(b) of Canadian Charter of Rights and Freedoms. Applica- tion granted. CRA's application of s. 149.1(6.2) of Act imposed restrictions on all expressive ac- tivity by charity. There was no way to pursue charity's chari- table purpose while restricting its politically expressive activity to ten per cent of its resources. There was no justification for interpretation of s. 149.1(6.2) of Act that drew distinction be- tween charitable activities and non-partisan political activi- ties in nature of public policy advocacy as long as it was done in pursuit of overall chari- table purpose. Interpretation by CRA of "substantially all" requirement in s. 149.1(6.2) of Act by limiting to ten per cent charitable organization's use of resources for political activities violated s. 2(b) of Charter and was not saved by s. 1 of Char- ter. "Charitable activities" used in s. 149.1(6.2) of Act was to be read to include political activi- ties, without quantum limita- tion, in furtherance of organi- zation's charitable purposes. Sections 149.1(6.2)(a) and (b) of Act were declared of no force and effect pursuant to s. 52(1) of Constitution Act, 1982. Canada Without Poverty v. AG Canada (2018), 2018 Car- swellOnt 11573, 2018 ONSC 4147, E.M. Morgan J. (Ont. S.C.J.). Ontario Criminal Cases Criminal Law JURY Charging jury Trial judge gave proper limiting direction on use of prior inconsistent statements made by accused's partner After being stopped at RIDE program and accelerating away, accused was convicted of driving while disqualified and f light from police. Accused ap- pealed convictions based on trial judge's charge to jury. Ap- peal dismissed. Trial judge was not compelled to direct jury on accused's silence when police arrived at his home as evidence of his guilt. Issue was clearly that accused had had called law- yer, not that he failed to speak to police. Trial judge gave proper limiting direction on use of prior inconsistent statements made by accused's partner T. Direction to jury on prohibited use of prior inconsistent state- ments was clear. Trial judge did not err by telling jury that they could draw adverse inference against alibi evidence offered by T due to her refusal to speak to police. It was appropriate for trial judge to explain to jury that they could consider T's refusal to be interviewed in evaluating her alibi evidence. R. v. Rockey (2018), 2018 CarswellOnt 11517, 2018 ONCA 646, M.L. Benotto J.A., G.T. Trotter J.A., and David M. Pa- ciocco J.A. (Ont. C.A.); reversed (2018), 2018 CarswellOnt 3811, 2018 ONSC 1754, Hurley J. (Ont. S.C.J.). CASELAW

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