Law Times

January 21, 2019

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LAW TIMES COVERING ONTARIO'S LEGAL SCENE | JANUARY 21, 2019 15 Plaintiff contended that he was charged as form of revenge by government personnel. At close of Crown's case plaintiff ap- plied for non-suit and to have case dismissed. Plaintiff 's ap- plication was dismissed. Justice of peace found that basic evi- dence was sufficient for Crown to have proceeded with charge. Plaintiff was acquitted of charge. Plaintiff brought action against defendant province claiming negligent investigation, mali- cious prosecution, and breach of plaintiff 's rights under Canadian Charter of Rights and Freedoms. Defendant successfully brought motion for summary judgment dismissing plaintiff 's action. Plaintiff appealed. Appeal dis- missed as abandoned. Counsel for plaintiff informed that Notice of Abandonment was to be filed. Greensides v. Kawartha Lakes (City) (2018), 2018 Car- swellOnt 21422, 2018 ONCA 1056, Strathy C.J.O., Lauwers J.A., and Zarnett J.A. (Ont. C.A.); appeal dismissed as abandoned (2018), 2018 CarswellOnt 371, 2018 ONSC 359, E.M. Morgan J. (Ont. S.C.J.). Estates and Trusts ESTATES legaCieS and deviSeS Executors had ample authority to execute resolution calling for winding-up Applicant contended that certain gifts in will failed because chat- tels, equipment and property that were subject of bequests were owned by corporation T Ltd., shares of which fell into residue of estate. Deceased, and therefore estate, was holder of all outstand- ing shares of T Ltd.. Applicant relied on case law from other provinces concluding that gifts of corporate assets fail on basis that testator who is shareholder has no interest in assets of such cor- poration that could be disposed of in will. Applicant sought, inter alia, order that gifts failed. Appli- cation granted in part, on other grounds. Gifts of T Ltd. assets were valid. Case law referred to did not represent law in Ontario, at least where, as here, testator dis- posed of substantially all of assets of wholly-owned corporation. It could not be inferred that testator was confused regarding owner- ship of assets of business he ran for many years. Fact that testator made provision for all of assets of T Ltd. indicated that he effectively turned his mind to, and directed, winding-up and in-specie distri- bution of assets to beneficiaries. Executors had ample authority under corporate law to execute resolution calling for winding-up and to cause T Ltd. to take neces- sary steps to wind up its affairs and distribute assets to estate by way of liquidating distribution. Any uncertainty was resolved by powers granted in will. Trezzi v. Trezzi (2018), 2018 CarswellOnt 14781, 2018 ONSC 4710, H.J. Wilton-Siegel J. (Ont. S.C.J.). Labour and Employment Law EMPLOYMENT LAW termination and diSmiSSal Estimates for costs urged by employer were significantly underestimated Accountant (employee) who al- lowed membership in institute of chartered accountants to lapse worked for six years and eight months as president of medi- cal equipment manufacturer (employer) directed, owned and actively operated by brothers with signing authority, V and D. Employee asked that insurance policy be set up to divert portion of his pay into life insurance and employer remained owner and beneficiary. Premiums were not deducted after initial three-year employment contract ended and employment became indeter- minate and employer lost $6.8 million in failed expansion at- tempt. V initially terminated employee without alleging cause and confirming that employee would receive severance and all entitlements, but later alleged that employee owed them for life insurance premiums, wrote off $6.8 million loss without autho- rization, and misrepresented his status as chartered accountant. Employee was unemployed for 30 months. Employee brought successful claim for declarations related to insurance policy which was to be transferred to employee, and wrongful dismissal; employ- er brought unsuccessful counter- claim for $193,778 for overpay- ment related to insurance policy and $100,000 in punitive dam- ages. Parties made submissions on costs. Employer was ordered to pay employee costs in amount of $131,701.95, all-inclusive. Esti- mates for costs urged by employer were significantly underestimat- ed as case included complexities involving valuations for insur- ance policy, eight witnesses, and crossclaim that was dismissed in entirety. Amount sought by em- ployee would have been within reasonable expectation of unsuc- cessful employer. Hale v. Innova Medical Ophthalmics Inc. (2018), 2018 CarswellOnt 20974, 2018 ONSC 7343, Carole J. Brown J. (Ont. S.C.J.); additional reasons (2018), 2018 CarswellOnt 3518, 2018 ONSC 1551, Carole J. Brown J. (Ont. S.C.J.). Municipal Law ATTACKS ON BYLAWS AND RESOLUTIONS groundS Impugned bylaws were enacted without proper purpose Applicants owned renowned Glen Abbey Golf Course. Re- spondent town enacted five by- laws, and town council made resolution that approved conser- vation plan for golf course. By- laws and resolution all followed town's enactment of designation bylaw in which it designated golf course as cultural heritage prop- erty under Ontario Heritage Act. Bylaws included cultural heritage landscape conservation plan by- law (CHL bylaw), which required preparation of conservation plan for all protected heritage proper- ties with cultural heritage land- scape in town. Owner applied to quash bylaws and resolution. Application granted. CHL bylaw and conservation plan were at core of case, with validity of all of impugned bylaws turning on va- lidity of those two. Town stressed that physical features of prop- erty, and not its use, comprised its defining, cultural heritage ele- ments, but it was obvious from conservation plan that central heritage value of property was its ongoing use as high quality golf course. It was service business of golf course in continuing to host tournament, championship and recreational golf that was pre- served under conservation plan, and it was ongoing use that ren- dered golf course in compliance with conservation plan. By re- quiring alterations to golf course to be done in accordance with conservation plan, CHL bylaw and conservation plan effectively legislated not only for services but for "things provided by owner" in respect of "culture, parks, rec- reation and heritage", and town enactment to that effect was con- trary to s. 11(8)5 of Municipal Act, 2001. In enacting CHL bylaw and fashioning conservation plan for golf course, town was seeking to accomplish indirectly what it could not do directly, use heritage designation to compel particu- lar use of property. Regulation by CHL bylaw and conservation plan of provision of "service or things" by private landowner in respect of "culture, parks, recre- ation and heritage" amounted to direct contradiction to prohibi- tion in s. 11(8)5 of Municipal Act. In s. 11(8)5 of Municipal Act legis- lature expressly established areas where municipalities were not to tread, but that was precisely where town has gone in CHL bylaw and conservation plan. Impugned bylaws were enacted without proper purpose under Municipal Act and in direct contradiction to specific statutory limitation of town's authority, they were ultra vires town's authority to enact them, and impugned bylaws, in- cluding conservation plan, were quashed. Clublink v. Town of Oakville (2018), 2018 CarswellOnt 20877, 2018 ONSC 7395, E.M. Morgan J. (Ont. S.C.J.). PLANNING miSCellaneouS Building inspector erred in determination that generator was building Appellant mining company operated mine project. Mining company appealed against Or- der to Comply issued against it by inspector, pursuant to s. 25 of Building Code Act ("Act"). Or- der required appellant to obtain building permits for generator building as well as several trailers located at entrance to mine site. Appeal allowed in part, and part of order that required building permit for generator was rescind- ed, but part relating to trailers was affirmed. In all of circum- stances of case, in terms of object of Act, the kind of occupancy the generator would see, nature of generator and enclosure, and regulations that governed safety issues surrounding generator's use and access to it, Building In- spector erred in determination that generator was building with- in meaning of Act, and Order to Comply with respect to generator was unreasonable. FNX Mining Company Inc. v. City of Greater Sudbury (2018), 2018 CarswellOnt 13601, 2018 ONSC 4912, A.D. Kurke J. (Ont. S.C.J.). Real Property SALE OF LAND agreement of purChaSe and Sale Agreements were null and void due to purchaser's failure to waive condition Purchaser entered into three sep- arate agreements of purchase and sale for three contiguous proper- ties for redevelopment, condi- tional upon purchaser receiving "final, unappealable and official Order" of Ontario Municipal Board (OMB) granting appeal and approving proposed devel- opment, defined in agreements as "OMB Decision". Handwrit- ten changes (drafted by parties, not their lawyers) required pur- chaser to deliver written notice that OMB condition was fulfilled or to waive it within seven days of "verdict" or "official verdict", but terms were not defined in agree- ments. OMB released its decision granting appeal and approving development, but formal order was withheld pending comple- tion of site plan process and zon- ing bylaw amendment approval. Parties agreed that "OMB Deci- sion" was not issued because there was not as yet final, unappealable and official order. Transactions did not close. Purchaser brought action for specific performance. Motion judge dismissed vendors' motion for summary judgment to dismiss action on ground that agreements were null and void due to purchaser's failure to waive OMB condition within one week of receiving OMB's verdict, and granted purchaser's motion for summary judgment for declara- tion that agreements were valid and enforceable. Vendors ap- pealed. Appeal dismissed. Court agreed with motion judge's con- clusion that "verdict" and "offi- cial verdict" had same meaning as "OMB Decision". Purpose of agreements was to permit pur- chaser to make final decision on whether to be bound by agree- ments depending on OMB's final conclusion regarding proposed development, for which pur- chaser required final order before making that decision. Shaun Developments Inc. v. Shamsipour (2018), 2018 Car- swellOnt 14072, 2018 ONCA 707, P. Lauwers J.A., B.W. Miller J.A., and I.V.B. Nordheimer J.A. (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 530, 2018 ONSC 440, Cavanagh J. (Ont. S.C.J.). Remedies DAMAGES general damageS Since assaults plaintiff endured life of trauma, pain and loss When he was student at elemen- tary school plaintiff was sexually abused by teacher M. Plaintiff lat- er suffered from major depression with dysthymia, post-traumatic stress disorder, substance abuse, and personality disorder of anti- social and borderline type. Plain- tiff brought action against teacher and school board for damages for assault. School board admitted liability for plaintiff 's damages in negligence. Action granted; plain- tiff was awarded general and ag- gravated damages of $250,000.00. Plaintiff proved on balance of probabilities that sexual abuse he experienced from M, liability for which was admitted by school board, was major cause of his adult mental disorders. Plaintiff was vulnerable victim because of his learning disability and was easy target for predator. Plain- tiff was required to be isolated within school setting to work on his learning issues and he was left essentially unsupervised. Plaintiff was required to attend school or face punitive consequences and was young, sexually inexperi- enced boy of 13- and 14-years of age. M was much older and was plaintiff 's science teacher and in position of trust and authority over him. Abuse drastically inter- fered with plaintiff 's enjoyment of life, his ability to work and his ability to form and maintain satis- fying, meaningful and stable rela- tionships with his family, friends and domestic partners. Effects were ongoing and severe and un- likely to improve in future. Since assaults plaintiff endured life of trauma, pain and loss. At time of offences plaintiff was young boy with learning disability and M was his teacher who was in posi- tion of trust. Sexual assaults in- cluding rubbing plaintiff 's geni- tals over his clothing happened well over 100 times and there were five acts of forced oral sex. Offences took place over two-year period at plaintiff 's school. Con- sequences for plaintiff as victim of M's wrongful behaviour were severe and life-altering. Plaintiff established that his general and aggravated damages should be on higher end of spectrum. Any low- er award would ignore severe im- pact of sexual abuse on plaintiff. K.M. v. Marson (2018), 2018 CarswellOnt 10760, 2018 ONSC 3493, H. MacLeod-Beliveau J. (Ont. S.C.J.). CASE LAW

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