Law Times

Law Times • January 14, 2019 Page 15 www.lawtimesnews.com credits. Taxpayers appealed. Ap- peals dismissed. Wife's appeal was technically allowed in part to extent of Minister's conces- sion regarding small amounts in charitable donations unrelated to main scheme. Charitable do- nation receipts were manifestly deficient on multiple grounds, by lacking dates of cash pay- ments, date of issuance, address on official statement, locality of receipt issuance, and reference to Canada Revenue Agency website. Given deficiencies as to form and content, taxpayers were not entitled to charitable deductions. Seepersad v. The Queen (2018), 2018 CarswellNat 6962, 2018 TCC 226, Randall S. Bocock J. (T.C.C. [Informal Procedure]). Ontario Civil Cases Civil Practice and Procedure COSTS Costs of particular proceedings Substantial indemnity costs appropriate given effect of unproven allegations of serious impropriety Plaintiffs were parents and daughter who brought action against another student and vice president of school. Defendants served jury notice. One juror fell ill so procedural matters were dealt with in juror's absence. When trial resumed, juror re- ported inability to serve due to anxiety so was discharged and parties agreed to continue with five jurors. Court workers report- ed plaintiff father gesturing to plaintiff daughter when she was in witness box and during her cross-examination, she suddenly produced cell phone and began playing audio recording of meet- ing that she surreptitiously made. Defendants brought successful motion to discharge jury. Par- ties made submissions on costs. Plaintiff father and mother were ordered to pay costs to defen- dants in amount of $201,155.36, inclusive of fees, disbursements and HST, on joint and several basis, and plaintiff daughter's li- ability was capped at $100,000 of total costs. Case was appropriate for substantial indemnity costs because of combined effect of un- proven allegations of serious im- propriety on part of defendants, plaintiffs' unrelenting insistence in correctness of their position, and manner in which plaintiffs' counsel conducted trial. There was no reduction in costs sought on account of plaintiffs' alleged impecuniosity. Plaintiff daugh- ter was not jointly and sever- ally liable with her parents for full amount of costs. Hajrizi v. Ottawa Carleton District School Board (2018), 2018 CarswellOnt 20271, 2018 ONSC 6644, Martin James J. (Ont. S.C.J.); additional reasons (2018), 2018 CarswellOnt 7262, 2018 ONSC 2649, Martin James J. (Ont. S.C.J.). DISPOSITION WITHOUT TRIAL Stay or dismissal of action Plaintiff 's reasonable expectation of finality was dependent entirely on correctness of its interpretation of agreement Plaintiff obtained approval from regional conservation author- ity to develop land, and defen- dants and association applied for judicial review of decision to approve project. Parties entered into settlement in which defen- dants, including association and members of association's execu- tive committee, promised that in any subsequent proceedings, they would not advance position that regional conservation au- thority resolutions were invalid or contrary to relevant environ- mental legislation. Plaintiff 's application to city for official plan amendment was defeated, plaintiff appealed, association was granted party status and de- fendant's president of association gave evidence that development would result in significant en- vironmental damage. Plaintiff 's application for development approval was dismissed and subsequently plaintiff brought action seeking damages, be- cause it alleged that defendants breached minutes of settlement, as president of association gave evidence at hearing. Defendants brought unsuccessful motion for order dismissing action pursu- ant to s. 137.1 of Courts of Justice Act and motions judge found that statements made by presi- dent in his testimony before city board were clearly expression as defined in s. 137.1(2) of Act, because expression was about environmental issue in public forum before public body, and matter was of public interest to community. Defendants satis- fied onus set out in s. 137.1(3) of Act and onus shifted to plaintiff to satisfy s. 137.1(4) of Act and it was found that plaintiff 's claim had substantial merit and was claim that should be considered by court. Defendants appealed. Appeal allowed. In weighing harm that plaintiff suffered as result of defendant's expression against public interest, motion judge relied almost exclusively on harm caused to plaintiff by loss of its reasonable expectation, that its litigation with defendants over proposed development, was finished. However, it was determined that plaintiff 's rea- sonable expectation of finality was dependent entirely on cor- rectness of its interpretation of agreement, and it was found that agreement could not reasonably be read as foreclosing president of association's evidence. Even if it was accepted that there was interference with plaintiff 's rea- sonable expectation of finality in litigation, and harm arose as consequence, there was no evi- dence of any other harm, and in particular, there was no evidence of any damages suffered or likely to be suffered as result of alleged breach of agreement. 1704604 Ontario Ltd. v. Pointes Protection Association (2018), 2018 CarswellOnt 14179, 2018 ONCA 685, Doherty J.A., D.M. Brown J.A., and Grant Hu- scroft J.A. (Ont. C.A.); reversed (2016), 2016 CarswellOnt 7322, 2016 ONSC 2884, E. Gareau J. (Ont. S.C.J.). Construction Law CONSTRUCTION AND BUILDERS' LIENS Practice on enforcement of lien Court entitled to assume that record on motion contained all evidence parties would present if there was trial Engineering company E Engi- neering Inc. provided software services to subcontractor on project to expand pollution con- trol plant. E Engineering Inc. obtained lien and brought lien proceedings. General contractor posted bond to vacate lien order. E Engineering Inc. successfully brought motion for summary judgment. Subcontractor So Ltd. appealed. Appeal dismissed. Motion judge made no error in holding that there was no genuine issue requiring trial of either action. Motion judge did not err in holding that evidence of amount owed by So Ltd. to Se Ltd. was evidence in relation to facts within knowledge of So Ltd., and not within knowledge of lien claimants S Engineering Ltd. or E Engineering Inc.. He held that So Ltd. had not put its best foot forward, and that court was entitled to assume that re- cord on motion contained all of evidence that parties would present, if there was trial. Summa Engineering Lim- ited v. Sona Construction Limited (2018), 2018 Carswel- lOnt 19939, 2018 ONSC 5733, C. Horkins J., Bale J., and Labrosse J. (Ont. Div. Ct.); affirmed (2017), 2017 CarswellOnt 16555, 2017 ONSC 6381, G.P. DiTomaso J. (Ont. S.C.J.). (Ont. Div. Ct.); af- firmed (2017), 2017 CarswellOnt 16557, 2017 ONSC 6380, G.P. DiTomaso J. (Ont. S.C.J.). Family Law COSTS In family law proceedings generally Comparison of what was sought in litigation rather than in offers to settle was primary rule in divided success analysis Husband brought successful ap- plication for review and varia- tion of spousal support. Parties both made offers to settle, none of which were accepted. Parties made submissions on costs. Costs awarded to husband. Offers to settle supported wife's submission that termination of spousal sup- port was dominant issue, however at trial wife sought large increase in support on compensatory analysis, indefinite support, and opposed imputation of income. Comparison of what was sought in litigation rather than in offers to settle was primary rule in di- vided success analysis. Husband's position seeking termination of spousal support was reasonable and successful, though not on his preferred date, and wife's position seeking increased and indefi- nite support was unreasonable. Wife was ordered to pay costs in amount of $35,000 plus HST. Lazare v. Heitner (2018), 2018 CarswellOnt 13841, 2018 ONSC 4861, H. McGee J. (Ont. S.C.J.); additional reasons (2018), 2018 CarswellOnt 9389, 2018 ONSC 3604, H. McGee J. (Ont. S.C.J.). Professions and Occupations BARRISTERS AND SOLICITORS Relationship with client Plaintiff sought to have trustee removed based on allegations of misappropriation of assets Testator retained law firm SE to prepare his 2010 will. Will named testator's two children, plaintiff and defendant, as trust- ees, and divided estate between them. Following death of testator, plaintiff sought to have defen- dant removed as trustee based on allegations of misappropriation of assets and breach of fiduciary duty. Defendant retained lawyer from law firm SE to represent her in litigation with plaintiff. Plain- tiff took position that SE could not represent defendant because of conf licts of interest and be- cause to do so would undermine public confidence in administra- tion of justice. Plaintiff brought motion to remove SE as counsel for defendant. Motion dismissed. Plaintiff was not former client of SE and did not retain SE. By his own admission plaintiff did not provide any confidential infor- mation to SE. Any information that was provided to law firm by testator for preparation of his 2010 will was not relevant to is- sues in this action which con- cerned alleged trustee miscon- duct on part of defendant. Estate was being administered under testator's 2010 will and there was no challenge to that will. Gloger v. Evans (2018), 2018 CarswellOnt 13602, 2018 ONSC 4919, M.E. Vallee J. (Ont. S.C.J.). Real Property EASEMENTS Particular easements Although successive grantees were not using right of way, they all regarded it as important right to be preserved Plaintiff, which was development corporation, acquired property in 2013 that had long history, and in late 19th century, predecessors of defendant granted right of way to plaintiff 's predecessors. There were numerous conveyances since right of way was granted, and right of way was subsequently included in successive convey- ances of respective properties. Plaintiff submitted development application to city to permit con- dominium project and, as was case with prior owners, incor- porated into project easement as mean of access. Defendant had acquired property in 1970's, and at time property already had wire fence with steel gate that enclosed most of easement and in 1980's one of defendant's tenants built deck. Plaintiff advised defendant that deck patio was encroaching on plaintiff 's right of way and should be removed but defendant refused. Plaintiff brought applica- tion for declaration that defendant was encroaching on plaintiff 's right of way; defendant brought application for declaration that it had obtained possessory title over right of way. Plaintiff 's application granted; defendant's application dismissed. It was found that based on evidence, there was nothing other than explainable non-use and evidence was insufficient to conclude that there was aban- donment of right of way as suc- cessive owners did not abandon easement. Apart from plaintiff, there was no evidence from any grantees of plaintiff 's right of way of what those grantees' intentions might have been with respect to right of way they purchased and then sold. It rather appeared that although successive grantees were not using right of way, they all regarded it as important right to be preserved and not to be aban- doned. Aragon (Wellesley) Devel- opment (Ontario) Corp. v. Pill- er Investments Ltd. (2018), 2018 CarswellOnt 13140, 2018 ONSC 4607, Perell J. (Ont. S.C.J.). Respondent's refusal to consent could not be considered vexatious Parties owned adjacent proper- ties. Respondent had access ease- ment over applicant's land. Ap- plicant was proposing to build one-story commercial office building. Applicant could con- struct larger building if it could install additional parking spaces in particular area, although this would block existing right of way. Applicant sought order that ease- ment be moved from its current location. Application dismissed. Main prejudice which would f low to respondent if easement was relocated was that it would be exposed to parking spaces or other development being con- structed on both sides of ease- ment instead of just one side, with potential for more congestion. There was also potential preju- dice associated with respondent's bank financing, as bank opposed relief sought. Level of prejudice was not high, but was not insig- nificant, and respondent's refusal to consent could not be consid- ered vexatious. In presence of some degree of prejudice, Court of Appeal had made clear that there was no room for this court to exercise discretion to grant relief requested. Respondent was not obliged to negotiate with ap- plicant. Respondent could rest on its legal entitlement as owner of easement. 8310 Woodbine Develop- ments Inc. v. 2261039 Ontario Limited (2018), 2018 Carswel- lOnt 12533, 2018 ONSC 4684, M. McKelvey J. (Ont. S.C.J.).

• Cover