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February 25, 2019

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LAW TIMES COVERING ONTARIO'S LEGAL SCENE | FEBRUARY 25, 2019 15 wellOnt 175, 2018 ONSC 193, Hélène C. Desormeau J. (Ont. S.C.J.). DIVISION OF FAMILY PROPERTY miscellaneous Absent agreement, judge not obliged to order payment to be made by way of set-off Husband brought application for equalization of net family property and sale of matrimo- nial home. Wife asked for equal- ization and exclusive possession of matrimonial home. Interim minutes of settlement provided that matrimonial home would be transferred to wife, and equalization of family property would be addressed later. Equity in home was $256,519 and hus- band's share was $128,260. Trial judge calculated equalization payment owed by husband to wife as $144,934. Judge ordered husband to pay wife equaliza- tion payment of $166,674, which included 15 per cent gross-up for income tax, by way of pen- sion rollover and ordered wife to pay husband $128,560 for his interest in matrimonial home. Wife appealed and alleged that judge ought to have set off value of husband's interest in matri- monial home against equaliza- tion payment owed, with bal- ance payable by pension roll- over. Appeal dismissed. Judge had jurisdiction to make order. Judge concluded that parties were not in agreement as to how equalization payment was to be made or how husband would be compensated for transferring his interest in home to wife. In absence of agreement between parties to that effect, judge was not obliged to order payment to be made by way of set-off against equalization payment owed to wife. Judge was aware of all cir- cumstances, including fact that order would require wife to sell home from which she operated home daycare, and took them into consideration when balanc- ing parties' interests. Result did not ref lect unreasonable exer- cise of discretion, and there was no basis to interfere. Lauzon v. Fortier (2018), 2018 CarswellOnt 22184, 2018 ONCA 1086, Paul Rouleau J.A., K. van Rensburg J.A., and L.B. Roberts J.A. (Ont. C.A.); af- firmed (2017), 2017 CarswellOnt 20450, 2017 ONSC 7503, Mark Shelston J. (Ont. S.C.J.). Insurance AUTOMOBILE INSURANCE catastrophic impairment Trial judge's views about mootness of exercise and role of jury system were irrelevant and wrong in law Plaintiff was passenger in vehicle when it was struck from behind. Defendants admitted liability and issue of damages proceeded to trial. Jury awarded plaintiff $3,000 for pain and suffering, and nothing for past or future income loss, future care expens- es or housekeeping expenses. Section 267.5(15) of Insurance Act provided that, in absence of motion before judge, trial judge "shall" determine wheth- er plaintiff is entitled to claim non-pecuniary damages arising from motor vehicle accident. Trial judge found that issue was moot, given $3,000 award and $30,000 deductible. Trial judge stated that to find that plaintiff met threshold, trial judge would necessarily be disagreeing with jury's findings, i.e., to hold for plaintiff, trial judge would have to hold that plaintiff suffered at least most of injuries he claimed and that contact between cars was cause of those injuries. Plaintiff contended that trial judge erred when he declined to determine threshold issue of impairment in accordance with s. 267.5(15). Plaintiff appealed. Appeal dismissed. Mandatory language of s. 267.5(15) requires judge to decide threshold issue. It was not open to trial judge to declare threshold issue moot and to refuse to decide it. Trial judge's views about mootness of exercise and role of jury sys- tem were irrelevant and wrong in law. Despite error, it was not established that substantial wrong or miscarriage of justice occurred. Directing new trial or substituting increased verdict was not warranted. Mandel v. Fakhim (2018), 2018 CarswellOnt 21604, 2018 ONSC 7580, Morawetz R.S.J., C. Horkins J., and Matheson J. (Ont. Div. Ct.); affirmed (2016), 2016 CarswellOnt 16345, 2016 ONSC 6538, F.L. Myers J. (Ont. S.C.J.). Municipal Law MUNICIPAL LIABILITY practice and procedure There was no bad faith or misrepresentation to bring employee within category of litigant with unclean hands Plaintiff employee was Chief Building Official ("CBO") for defendant Municipality. Em- ployee's employment was ter- minated, effective immediately, without notice and without any pay in lieu of notice. There was signed employment contract in place at time which did not expire until June 2016, which contract contained six-month notice clause in event of termi- nation. Plaintiff brought action for wrongful dismissal. Action allowed. No just cause for ter- mination of employment. Dam- ages were assessed in favour of employee as follows: $70,860.05 for breach of contract, plus $100,000.00 in aggravated dam- ages, plus $200,000.00 for pu- nitive damages, plus interest and, presumably, costs. Having found that there was a conf lict of interest, but no deceit or fraud or breach of employee's alleged "duty of fidelity" owed to the Mu- nicipality, and having concluded that Municipality was estopped from relying upon conf lict of interest to justify dismissal, and there being no other ground for termination advanced that is capable of amounting to just cause for dismissal, it was held that termination of employment was wrongful. There was no bad faith or misrepresentation or anything else on part of employ- ee that might bring him within the category of litigant with un- clean hands. Johnston v. The Corpora- tion of the Municipality of Arran-Elderslie (2018), 2018 CarswellOnt 21602, 2018 ONSC 7616, Conlan J. (Ont. S.C.J.). Real Property SALE OF LAND option contracts Seller relieved of obligation to tender when purchaser clearly communicated decision not to proceed Seller subdivided large parcel of industrial land and sold two lots to purchaser. Agreement of purchase and sale including op- tion clause that purchaser was to build specified industrial build- ing within 30 months of closing, failing which seller would have option to buy back land. Pur- chaser was granted one-year ex- tension and following that, was advised that seller was exercising option and applied for specific performance. Application judge held of notice was outside rea- sonable notice period contem- plated by agreement and did not comply with "time is of the es- sence" clause, that seller was not ready, willing and able to close, and his failure to tender was fa- tal to claim for specific perfor- mance. Seller appealed. Appeal allowed. Application judge erred in concluding that option had expired, and that error f lowed from his misapprehension of nature of "time is of the essence" clause. "Time is of the essence" clause did not serve to impose time limit but dictated conse- quences that f lowed from failure to comply. Application judge erred in finding that "time is of the essence" clause was engaged where no time was stipulated in contract for exercising option, and in finding that there was non-compliance with "time is of the essence" clause. Where no time was specified for exercise of option, reasonable time limit was implied. Considering context, option had not expired at time seller gave notice, and notice was provided within reasonable time. Seller was relieved of obligation to tender when purchaser clearly communicated its decision not to proceed with transaction. Ap- plication judge erred in finding that there was no evidence that seller had necessary funds to close, and seller demonstrated he was ready, willing and able to close. Land in question was suffi- ciently unique as there could not be substitute property in another location that would meet goals of seller's subdivision plan, and only specific performance was adequate remedy. Di Millo v. 2099232 Ontar- io Inc. (2018), 2018 CarswellOnt 21512, 2018 ONCA 1051, Paul Rouleau J.A., G. Pardu J.A., and M.L. Benotto J.A. (Ont. C.A.); re- versed (2018), 2018 CarswellOnt 1702, 2018 ONSC 816, Trimble J. (Ont. S.C.J.). Ontario Criminal Cases Criminal Law CHARTER OF RIGHTS AND FREEDOMS unreasonable search and seizure [s. 8] Trial judge erred in Charter analysis in not considering entire situation before constable Constable received dispatch about impaired driver and stopped accused's vehicle, notic- ing alcohol on accused's breath and his red eyes. Accused had difficulty finding his docu- ments and responded, "six near beers and two real beers" when asked if he had had anything to drink. Constable made demand that accused blow into approved roadside screening device (ASD) and ASD was administered 13 minutes after accused had been stopped. Accused was arrested for over 80 offence after register- ing fail. Trial judge concluded that constable had breached accused Canadian Charter of Rights and Freedoms rights un- der ss. 8 and 9 when he placed accused under arrest. Crown appealed acquittal. Appeal al- lowed. In determining whether objective component of requisite reasonable grounds had been satisfied, trial judge allowed himself to be diverted into iso- lating out and only considering effect of constable's admission that he had not considered possi- bility of residual mouth alcohol. Because officer did not turn his mind to possibility of residual mouth alcohol did not mean ob- jective component of reasonable grounds had not been met. There was no evidence before trial judge that constable doubted validity of ASD sample. Trial judge erred in his analysis of Charter issue in not considering entire situation before constable to determine whether objective component of reasonable grounds was satisfied. In obiter, trial judge's exclusion of accused's breathalyzer results under s. 24(2) resulting in his ac- quittal were discussed. R. v. Barr (2018), 2018 Car- swellOnt 6258, 2018 ONSC 2417, Lynn Ratushny J. (Ont. S.C.J.). JURY charGinG jury Omission of second and third branches of W.(D.) instruction constituted non-direction Motor vehicle driven by ac- cused overturned after accused failed to negotiate curve and left roadway, resulting in significant injuries to two passengers. Wit- ness overheard accused say "I don't know what happened, my car just lost control", and Crown adduced that statement as part of its case. While there was evi- dence accused was impaired, one of passengers testified that accused lost control after hit- ting gravel and accident recon- struction expert testified that prior damage to shock absorber could have caused accident. In charge to jury, judge stated that jury must find accused not guilty if they accepted accused made statement attributed to her by witness and accepted ac- cused's explanation that vehicle lost control and that loss of con- trol was caused entirely by me- chanical failure or if jury found loss of control was not entirely caused by mechanical failure, but evidence of mechanical fail- ure raised reasonable doubt or Crown failed to prove impair- ment was significant contribu- tory cause of loss of control. In recharge judge substituted re- quirement that jury find loss of control referred to in accused's statement "was not caused by her in any way" for his initial for- mulation "was caused entirely by mechanical failure". Accused was convicted of two counts each of impaired operation causing bodily harm, driving with exces- sive alcohol causing bodily harm and dangerous driving causing bodily harm. Accused appealed. Appeal allowed. Trial judge did not err in instruction on onus and reasonable doubt in initial charge to jury. In explaining how accused's statement could be interpreted as exculpatory, trial judge did not cause jury to give extra scrutiny to defence evidence, but rather emphasized interpretation of statement de- fence argued in address. Judge's instruction made it clear that even if accident were not entirely caused by mechanical failure ac- quittal was possible if evidence of mechanical failure raised rea- sonable doubt or if Crown failed to prove on basis of evidence they did accept that accused was guilty. Interpretation of exculpa- tory statement in recharge was more general, but was consistent with defence theory of case and based on evidence favourable to accused. However, as judge did not address second and third branches of W.(D.) in recharge, it would not have been clear to jury whether initial instruction on those branches was still ap- plicable. Omission of second and third branches of W.(D.) in- struction constituted non-direc- tion amounting to misdirection with respect to crucial aspect of defence and did not appropri- ately ref lect burden of proof on Crown with respect to pivotal element of causation. R. v. Bacci (2018), 2018 Car- swellOnt 20529, 2018 ONCA 928, Alexandra Hoy A.C.J.O., David Watt J.A., and Edward Then J. (ad hoc) (Ont. C.A.). CASE LAW

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