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February 11, 2019

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LAW TIMES COVERING ONTARIO'S LEGAL SCENE | FEBRUARY 11, 2019 15 strated win-at-all-costs attitude that resulted in unreasonable litigation behaviour. Father act- ed in bad faith. Mother's failure to make offer to settle was also noteworthy in consideration of costs. Costs were awarded in amount of $45,000 inclusive of disbursements and HST, with award ref lecting court's disap- proval of father's conduct, ab- sence of offer by mother, and excessive time spent by mother's counsel and unnecessary dis- bursements. Rea v. Rea (2018), 2018 Car- swellOnt 16564, 2018 ONSC 5883, David A. Jarvis J. (Ont. S.C.J.); additional reasons (2018), 2018 CarswellOnt 9696, 2018 ONSC 3723, D.A. Jarvis J. (Ont. S.C.J.). CUSTODY AND ACCESS fActors to be considered in custody AwArd Joint custody provisions in separation agreement were unworkable and harmful to children Mother and father had two daughters L and M. Parties sep- arated and agreed to joint cus- tody and time sharing. Father engaged in serious misconduct during access visits and had his time sharing reduced to super- vised access. Father refused to exercise supervised access and had not seen children in more than a year. Mother brought ap- plication for sole custody. Ap- plication granted; mother was awarded sole custody with no access to father. Order was in children's best interests. Father failed to understand that his conduct was causing great harm to children. Children had been living with mother for most of their lives and had not seen their father in more than 12 months. Parents were not able to com- municate effectively about their children. Both parents had exposed children to details of conf lict but mother had shown insight into harm caused and worked to change. Father had no insight into consequences of his behaviour. Father disregarded rules of supervised access and displayed contempt. Father con- tinued to provide dairy products to M even though she had been diagnosed with lactose intoler- ance. Father also delayed in pro- viding his consent to children participating in therapy which necessitated mother obtaining interim order. Father refused to execute travel consents or pro- vide children's passports which required court order. Root of communication problems wass father. Joint custody provisions in separation agreement were unworkable and harmful to children. Mother was allowed to travel with children and obtain passports for them without fa- ther's consent. Van v. Palombi (2018), 2018 CarswellOnt 17245, 2018 ONSC 6228, J.P.L. McDermot J. (Ont. S.C.J.). Municipal Law MUNICIPAL LIABILITY prActice And procedure Resident had personal interest in litigation, being associated with group affected by alleged conf lict of interest Applicant resident was unsuc- cessful, in trying to find that respondent council member violated conf lict of interest law. Council member sought their costs of application, in amount of $27,474.38 on substantial in- demnity basis. Resident claimed that costs should be limited, as litigation was brought in public interest. Costs submissions made by both parties. Costs awarded to council member in amount of $25,000. Resident had personal interest in litigation, being as- sociated with group affected by alleged conf lict of interest. Resi- dent's approach to litigation was not as efficient as council mem- ber. Costs were awarded on en- hanced partial indemnity basis. Biffis v. Sainsbury (2018), 2018 CarswellOnt 14783, 2018 ONSC 4779, M.P. Eberhard J. (Ont. S.C.J.); additional reasons (2018), 2018 CarswellOnt 10650, 2018 ONSC 3531, M.P. Eberhard J. (Ont. S.C.J.). Real Property EASEMENTS pArticulAr eAsements Owner who grants easement over right of way need not expressly reserve right to invite public to use right of way Homeowners' property was sur- rounded by 90 acres of parkland owned by Ontario Heritage Trust (OHT) accessible only via 1 km driveway through park. Homeowners had right of way over driveway conferred by deed of easement when property was severed from park in 1993. OHT permitted public pedestrian ac- cess to trails via driveway, but pro- hibited public vehicular access. Judge dismissed homeowners' application for declaration they had exclusive right to use drive- way. Homeowners appealed. Ap- peal dismissed. Application judge found language in deed to be clear and unambiguous in that it made no reference of grant to transferee of exclusive rights to right of way. Application judge did not err in rejecting homeowners' argument that owner in fee simple interest who grants easement over right of way needs to expressly reserve right to invite public to use right of way. Homeowners did not iden- tify any palpable and overriding error made by application judge in concluding that they failed to establish substantial interference with right of way and that hikers' use of driveway had not created safety hazard; homeowners were seeking to re-argue application. Raimondi v. Ontario Heri- tage Trust (2018), 2018 Carswel- lOnt 15149, 2018 ONCA 750, S.E. Pepall J.A., L.B. Roberts J.A., and B.W. Miller J.A. (Ont. C.A.); affirmed (2017), 2017 Carswel- lOnt 9022, 2017 ONSC 3389, Daley R.S.J. (Ont. S.C.J.). REGISTRATION OF REAL PROPERTY certificAte of pending litigAtion (lis pendens) Significant undisclosed material facts were not put before court hearing motion Plaintiffs entered into agreement to sell property to defendant for purchase price of $2,250,000. Agreement included construc- tion of addition to be built by plaintiffs. Parties subsequently entered into amended agreement of purchase and sale for property for purchase price of $1,450,000. Defendant paid $1,450,000 in accordance with agreement and title was transferred to defned- ant. Schedules to amended agree- ment contemplated construction of addition by plaintiffs to occur after transfer of title for price of $800,000. Difficulties arose in relation to construction and de- fendant claimed that work was deficient and not performed in accordance with agreed schedule. Plaintiffs claimed that $395,000 was still outstanding on construc- tion contract. Plaintiffs registered construction lien on property. Lien was subsequently discharged and never perfected. Plaintiffs then brought ex parte motion for registration of certificate of pend- ing litigation (CPL) on title to property. Motion materials failed to mention that proceedings were originally commenced as construction lien action and that lien was not perfected. Plaintiffs proceeded ex parte to obtain CPL notwithstanding ongoing com- munications between counsel regarding plaintiffs' failure to per- fect lien. Plaintiff 's amended state- ment of claim clearly referenced liquidated damages in amount outstanding under construction contract. Ex parte motion was granted and CPL was registered. Defendant brought motion for order discharging CPL. Motion granted. Plaintiffs had no inter- est in land in question. Plaintiffs' claim was dispute regarding con- struction contract and was one of liquidated damges. Significant undisclosed material facts were not put before court hearing mo- tion for CPL. There was serious prejudice to defendant who could not obtain financing unless and until CPL was discharged. 992426 Ontario Inc. v. Koenpack Canada Inc. (2018), 2018 CarswellOnt 16362, 2018 ONSC 4769, T. Maddalena J. (Ont. S.C.J.). Torts NEGLIGENCE cAusAtion Final cause of accident was non-repair of intersection Vehicle operated by defendant first motorist was carrying plain- tiffs, who were four children. This vehicle failed to yield right of way upon entering highway. Vehicle operated by appellant second motorist "T-boned" first motor- ist's vehicle. Second motorist had consumed alcohol and was ex- ceeding the speed limit. Children in first motorists' vehicle were all seriously injured. Children and their family members brought actions against both motorists, as well as appellant city. Plaintiffs claimed that non-repair of road by city was at least partial cause of accident. Trial judge apportioned liability at 50 percent to first mo- torist, and 25% to each of second motorist and city. Trial judge concluded that to be in a reason- able state of repair, approach road that first motorist was driving on required painted stop line where it met highway. Trial judge also found that sightlines for vehicles approaching the intersection were not appropriate, and could not meet reasonable state of re- pair standard. Trial judge held breaches of city were causes of accident. City and second motor- ist appealed from trial judgment. Second motorist appealed from trial judgment. Appeal allowed. Uncontentious evidence was that accident was caused by S's failure to stop her vehicle before entering the intersection. First motorist's failure to observe second mo- torist's vehicle and her failure to yield the right of way to second motorist's vehicle also caused ac- cident. Final cause of accident was non-repair of intersection. Even if M had been driving pru- dently, he could not have avoided the collision. It could not be said M's negligence caused or contrib- uted to the collision. Smith v. Safranyos (2018), 2018 CarswellOnt 15343, 2018 ONCA 760, G.R. Strathy C.J.O., L.B. Roberts J.A., and David M. Paciocco J.A. (Ont. C.A.). Conclusion that plaintiff was not person of ordinary fortitude was open to motion judge on evidence In 2002, plaintiff discovered mould in basement of home purchased new from defendant in 1997 and defendant imme- diately retained environmental consultant to carry out reme- diation work. Consultant issued two reports confirming work had been completed and home was safe for occupancy. Plaintiff subsequently sold home for more than appraised value and com- menced action claiming dam- ages of $500,000, later increased to $6 million, for, among other things, physical, emotional and psychological injuries. In 2014 and 2015, defendant served ex- pert reports from toxicologist, forensic psychiatrist and engineer concluding plaintiff had suffered no personal injury or damage to property as result of mould ex- posure. Plaintiff served expert report from forensic psychologist concluding plaintiff had devel- oped adjustment disorder with mixed anxiety and depressed mood as result of mould that had negatively affected all aspects of his life. Defendant brought suc- cessful motion for summary judgment dismissing action on basis that plaintiff 's claims for psychological and emotional in- juries were too remote. Plaintiff appealed. Appeal dismissed. Mo- tion judge did not ignore or reject evidence that plaintiff was person of ordinary fortitude and did not err in concluding that plaintiff 's loss was not foreseeable conse- quence of faulty home construc- tion. Conclusion that plaintiff was not person of ordinary fortitude was open to motion judge on evi- dence, which included opinions from experts. Decision did not rest on proposition that all claims for damages for psychiatric and emotional injury from negligent home construction were fore- closed. Conclusion that plaintiff 's damages were too remote was based on analysis of specific evi- dence and conduct of parties. Capelet v. Brookfield Homes (Ontario) Limited (2018), 2018 CarswellOnt 14892, 2018 ONCA 742, Robert J. Sharpe J.A., K. van Rensburg J.A., and David Brown J.A. (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 19386, 2017 ONSC 7283, P.J. Monahan J. (Ont. S.C.J.). Ontario Criminal Cases Criminal Law CHARTER OF RIGHTS AND FREEDOMS ArbitrAry detention or imprisonment [s. 9] No evidence to exclude where identification evidence existed regardless of any claimed Charter violation Knowing that accused was dis- qualified from driving, officer conducted stationary patrol near accused's house. Officer followed vehicle associated with accused, discovered that it was owned by accused's partner after tracing li- cence plate, and saw that male was driving. Officer stopped vehicle to check licencing as part of "tar- geted policing" and accused was arrested. Accused was charged with five counts of driving while disqualified. Accused applied to exclude evidence based on ar- bitrary detention. Application dismissed. This was traffic stop under s. 216(1) of Highway Traffic Act, falling centrally into circum- scribed purpose of road safety. Motorist was required to provide identification evidence on traf- fic stop, but officer knew accused from prior experience. Identifica- tion evidence existed regardless of any claimed Charter violation, so there was no evidence to exclude. Officer acted in accordance with his obligations to ensure persons using road were properly licenced and insured. Officer properly used powers given to him under statute. There was no arbitrary detention and accused was not prejudiced by stop. R. v. Gore (2018), 2018 Car- swellOnt 13830, 2018 ONSC 4551, Rick Leroy J. (Ont. S.C.J.). CASE LAW

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