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January 7, 2019

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Law Times • January 7, 2019 Page 15 bursements. Plaintiff submitted defendants should be deprived of costs because they were in- sured and should have made offers earlier. It was found that plaintiff 's submission with re- spect to insurance defied logic. To deny defendants benefits of R. 49 would eliminate all in- centives for insurers to advance any offers. It was also found that plaintiff 's submission with re- spect to timing of offers could not be accepted. Given totality of evidence, there was nothing unreasonable in jury's failure to make any award for loss of earning capacity or competi- tive advantage. Plaintiff was en- titled to recover costs on partial indemnity basis in amount of $120,000 for fees, $15,600 for HST and $50,000 for disburse- ments. Defendants were entitled to recover costs on partial in- demnity basis as claimed. De- fendants were also entitled to re- cover costs of $2,000 on account of time wasted when plaintiff 's original opening statement had to be struck and mistrial had to be declared. Bosnali v. Michaud (2017), 2017 CarswellOnt 12638, 2017 ONSC 3943, Tzimas J. (Ont. S.C.J.). DISCOVERY Medical examination Permitting defendants to choose another psychiatrist raised concerns of abuse of process Choice of expert. At com- mencement of litigation, defen- dants arranged for psychiatric assessment of plaintiff with psy- chiatrist of defendants' choice, and that psychiatrist issued report and assessed plaintiff 's attendant care benefits entitle- ment. Defendants were aware of plaintiff 's substance abuse issues at time of first assessment and also presumably aware of need for retroactive assessment of attendant care benefits. De- fendants brought motion for order requiring plaintiff to at- tend another psychiatric assess- ment with different psychiatrist of defendants' choosing. Motion granted in part. Plaintiff was to attend second psychiatric as- sessment but with psychiatrist who prepared original report. Defendants were entitled to respond to plaintiff 's expert evidence and need for second report could be gleaned from compendium of expert reports filed, but there was nothing to indicate original psychiatrist chosen by defendants could not address issues at hand or was unavailable. Defendants did not allege bias on part of origi- nal psychiatrist of choice and psychiatrist affirmed he had no conf lict to interest. Permitting defendants to choose another psychiatrist raised concerns of abuse of process and requiring plaintiff to undergo excessive examination. Having different psychiatrist prepare separate medical report would not be compliant with spirit of legisla- tion. Kanani v. Economical In- surance (2018), 2018 Carswel- lOnt 10568, 2018 ONSC 3746, David J. Nadeau J. (Ont. S.C.J.). LIMITATION OF ACTIONS Estates Notice of objection to accounts does not commence proceeding Lawyer acting as estate trustee brought application to pass accounts, some of which pre- dated issuance of application by more than two years. In re- sponse, beneficiary filed notice of objection to accounts includ- ing objections to accounts pre- dating issuance of application by more than two years. Law- yer's motion to strike notice of objection was dismissed. Law- yer appealed. Appeal dismissed. Filing of notice of objection to accounts under r. 74.18(7) of Rules of Civil Procedure in re- sponse to application to pass ac- counts initiated by estate trustee was not captured by s. 4 of Limi- tations Act. Notice of objec- tion to accounts does not com- mence proceeding. Section 49 of Estates Act and rr. 74.17 and 74.18 of Rules created passing of accounts procedure in which estate trustee, not beneficiary, is applicant who commences proceeding. Section 4 of Limita- tions Act did not limit ability of person to respond or to partici- pate in proceeding commenced by another. Policy and practical implications of subjecting no- tice of objection to accounts to basic two-year limitation period in Limitations Act also weighed against accepting position ad- vanced by lawyer. Wall v. Shaw (2018), 2018 CarswellOnt 19383, 2018 ONCA 929, Doherty J.A. (ex officio), David Brown J.A. (ex officio), and G.T. Trotter J.A. (ex officio) (Ont. Div. Ct.); affirmed (2018), 2018 CarswellOnt 3974, 2018 ONSC 1735, G.M. Mulligan J. (Ont. S.C.J.). Estates and Trusts ESTATES Intestate succession Estate accounting revealed discrepancies as to cash available for distribution Deceased died intestate. Ap- plicants were deceased's two daughters, and respondent was their mother and deceased's common-law spouse. It was determined that beneficiaries gifted family home to mother, and that one daughter was en- titled to RRSP for which she was designated beneficiary but which had been transferred to mother. It was determined that there was no gift of personal property but that mother was entitled to support from estate, which was fixed at one half of that personal property. Parties made submissions on value of RRSPs and personal property, and mother sought order to vary or set side prior order on ground of subsequently-discov- ered fraud. Order not granted; valuation determined. Estate accounting revealed discrep- ancies as to cash available for distribution, some likely relat- ing to funeral expenses which appeared to be counted twice. Applicants asserted explana- tion, result of which was that, while not directly congruent with evidence at trial, funds in question were used to reim- burse daughter and friend for expenses incurred to benefit es- tate and mother. Fraud was not proven. Difficulty in valuing RRSPs was that while one half of funds should have gone to one daughter and other half to son, RRSPs were transferred to mother on understanding that monies were held in trust for daughter. Son received his share through expenses paid for by mother, and it was appropriate to set amount daughter was to receive at $32,262.80, one half of RRSPs received by mother net of taxes that mother paid. Arcon v. Arcon (2018), 2018 CarswellOnt 19273, 2018 ONSC 6277, W.D. Newton J. (Ont. S.C.J.); additional reasons (2016), 2016 CarswellOnt 8288, 2016 ONSC 2861, W.D. Newton J. (Ont. S.C.J.). TRUSTS Resulting trust Circumstances were inconsistent with gift of house BP died in 2015 without leaving will, and each of her children was entitled to one fifth share of her estate. Most significant asset was interest in house, legal title to which was held jointly by BP and defendant, BP's daughter. Defendant became sole legal owner as result of right of sur- vivorship. Plaintiffs contended that house formed part of estate because defendant acquired her interest by way of resulting trust. Plaintiffs brought action for orders to give estate legal and beneficial ownership of house. Action allowed. Defendant co- signed mortgage and contrib- uted her credit to acquisition of mortgage, paid money into joint account from which mortgage payments were withdrawn, and contributed to cost of utilities in return for opportunity to live with her own children in much better situation than they had lived in before. BP enlisted as- sistance of her employed adult children to enable her to acquire property, and offered them place to live when they needed it. Fact that BP needed co-bor- rower to qualify for mortgage did not determine whether she intended to give defendant property interest. House was ac- quired with BP's money, and BP treated house as if it belonged to her alone. There was no credible evidence that BP intended to confer beneficial ownership of house on defendant when house was purchased. Circumstances were inconsistent with gift of house to defendant. During her life, BP was sole beneficial own- er of house by way of resulting trust. After BP's death, defen- dant held legal title to house in trust for estate. Karen Patterson, Roxanne Edwards, Rohan Barnes and Sedan Lewis v. Nadeen Patter- son and The Estate of Barbara Patrick (2018), 2018 Carswel- lOnt 19371, 2018 ONSC 6884, J. Speyer J. (Ont. S.C.J.). Labour and Employment Law EMPLOYMENT LAW Termination and dismissal Employee's work was specialized and his ability to work for competitors was narrowed by non-solicitation clause Plaintiff employee was 57 years old and was employed by defen- dant employer for 31 years be- fore his dismissal without cause and without proper notice. Em- ployee was working as Direc- tor, Business Development in telecommunications business unit and earned base salary of $154,000, supplemented by benefits, bonus, and employee share purchase plan. Employee brought motion for summary judgment of his action for dam- ages for wrongful dismissal. Motion granted in part. Ap- propriate notice period was 26 months. Given employee's age and limited work experience with one company, his ability to secure comparable work will be affected. Employee's work was skilled and specialized and his ability to work for competitors was narrowed by one-year non- solicitation clause. Employee's skills in sales and business de- velopment could be of value in marketplace in number of con- texts. Telecommunications was burgeoning field. Employee was not at most senior levels of com- pany. Summary judgment was granted for damages for base salary, bonus and RRSP for 26 months. Employee was to pay on monthly basis base salary of $12,833.33, bonus of $484.47, RRSP of $513.33 and benefits of $1,283.33, without any reduc- tions. Mikelsteins v. Morrison (2018), 2018 CarswellOnt 19420, 2018 ONSC 6952, S. Nakatsuru J. (Ont. S.C.J.). Public Law ELECTIONS Offences and penalties Candidate could not rely on alleged misconduct of his own lawyer Applicant was unsuccessful candidate in 2014 municipal election, for office of mayor. Candidate did not file required campaign finance statement in time, following election. Can- didate was penalized under applicable election law, includ- ing being made ineligible to run in 2018 election. Candidate obtained ex parte order from judge, for extension of time to file materials for 2018 elec- tion. Respondent municipality claimed that candidate did not make full and fair disclosure on ex parte motion. Municipal- ity moved to set aside ex parte order. Motion granted. Court was not made aware of appli- cable law, which set out time limit for candidate to apply for relief. Deadline had long passed by time of ex parte motion. Candidate filed affidavit with several false statements. Can- didate knew that his financial statement had not been filed by original deadline. Candidate could not rely on alleged mis- conduct of his own lawyer. Baxter v. Town of Newmar- ket (2018), 2018 CarswellOnt 19338, 2018 ONSC 6827, Bale J. (Ont. S.C.J.). Real Property LANDLORD AND TENANT Premises Within commercial context permitted use clauses should be construed strictly if terms are unambiguous Lease for units in shopping plaza included 'permitted use' clause that outlined what type business tenant could carry on. Permitted use was for princi- pal business of quick service yogurt, smoothie and waff le restaurant. Tenant received no- tice stating that it was operating outside permitted use clause by selling sandwiches, wraps, health foods and coffee. Tenant brought application for declara- tion that its use was permitted. Landlord brought application for declaration that tenant was in breach of clause and for order that lease was terminated. Ap- plication by landlord granted. Within commercial context of multi-unit strip mall, permit- ted use clauses should be con- strued strictly if terms are clear and unambiguous, as clause was in this case. While case law showed that word "principally" can mean largest of several cat- egories, tenant had expanded number of food categories well beyond any common sense interpretation of word. To in- terpret permitted use clause to allow this type of expanded use would create commercial absurdity. Permitted use did not extend to tenant's current activities, and these new activi- ties were not ancillary. While it might be inferred that landlord previously knew of expanded use because of tenant's access to prior sandwich-restaurant ten- ant's equipment, such conclu- sion was not arrived at, particu- larly given that landlord and its business agent were not located in same municipality as shop- ping plaza. Waiver and estoppel were not applicable. Bryfam Enterprises Inc. v. Harbour Carrick Holdings Inc.; Harbour Carrick Hold- ings Inc. v. Bryfam Enterprises Inc. (2018), 2018 CarswellOnt 19278, 2018 ONSC 6623, W.D. Newton J. (Ont. S.C.J.). CASELAW

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