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March 4, 2019

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LAW TIMES COVERING ONTARIO'S LEGAL SCENE | MARCH 4, 2019 15 Appeal allowed; cross-appeal dis- missed. Application judge's order was varied to provide that all in- terest payable under loan agree- ment, promissory notes and for- bearance agreement was due and owing. Application judge did not err as to whether administrative and discount fees were interest. Application judge erred by find- ing that discount fee contravened Act and by holding that all in- terest payable under loan agree- ments should be limited to five per cent. Mathematical formula provided in loan agreement pro- vided "rate" for purpose of s. 4 of Act. Section 4 of Act did not limit all interest payable under loan documents to five per cent. Case involved commercial transaction between parties of equal bargain- ing power who inadvertently and only marginally ran afoul of s. 4. Solar Power Network Inc. v. ClearFlow Energy Finance Corp. (2018), 2018 CarswellOnt 14442, 2018 ONCA 727, Robert J. Sharpe J.A., David Brown J.A., and G.T. Trotter J.A. (Ont. C.A.); varied (2018), 2018 CarswellOnt 222, 2018 ONSC 7286, T. McE- wen J. (Ont. S.C.J.). Judges and Courts JURISDICTION sUperior coUrts Section 137.1(3) of Courts of Justice Act not applying to administrative tribunal proceedings Applicant resigned from her position of police officer with respondent pursuant to resigna- tion agreement. During course of events leading up to resignation agreement, applicant brought application against respondent to Human Rights Tribunal and respondent commenced investi- gation into potential misconduct of applicant. Preamble to agree- ment indicated parties wished to resolve all matter between them, including human rights application and misconduct in- vestigation, and parties signed mutual release and agreed to not commence further proceedings. Disputes arose as to whether parties had respected confiden- tiality provision of resignation agreement, which led to appli- cant commencing court action for damages and respondent ap- plying to human rights tribunal to enforce agreement. Applicant also brought application to hu- man rights tribunal, claiming respondent breached resignation agreement and raising same is- sues in court action. Applicant brought application for order dismissing respondent's applica- tion to Human Rights Tribunal. Application dismissed. Court lacked jurisdiction over applica- tion. Section 137.1(3) of Courts of Justice Act applied only to civil proceedings, and did not apply to administrative tribunal pro- ceedings. Donovan v. (Waterloo) Po- lice Services Board (2019), 2019 CarswellOnt 1430, 2019 ONSC 818, Favreau J. (Ont. S.C.J.). Real Property LANDLORD AND TENANT forfeitUre and re-entry Landlord not proceeding to enforce right of re-entry or forfeiture Landlord entered into head lease with 244 Inc.. 244 Inc. subleased premises to applicant. 244 Inc. ex- ecuted assignment of head lease to applicant. 244 Inc. subsequent- ly purported to abandon head lease, and landlord took position that applicant was occupant on month-to-month basis. Land- lord provided applicant with no- tice of termination. Application for declaration that assignment was binding, and for relief from forfeiture, was dismissed. Appli- cant appealed. Appeal allowed; applicant entitled to possession until end of sublease. Application judge erred by accepting land- lord's submission that surrender of head lease resulted in termina- tion of sublease; as matter of law, it did not. Where tenant surren- ders head lease to landlord, sub- leases created by surrendering tenant survive until end of their stated terms. Application judge erred in finding that applicant was not subtenant when landlord gave its notice of termination. Applicant was entitled to remain on premises on terms and con- ditions contained in its sublease, but not on same terms and condi- tions as head lease. Applicant was not entitled to relief under s. 21 of Commercial Tenancies Act be- cause landlord was not proceed- ing to enforce right of re-entry or forfeiture under any covenant, proviso or stipulation in head lease, which 244 Inc. had surren- dered. Nor was this case for relief under s. 98 of Courts of Justice Act as landlord was not trying to enforce right of re-entry or for- feiture by reason of applicant's breach of sublease. Smiles First Corporation v. 2377087 Ontario Limited (In- ternational Union of Painters) (2018), 2018 CarswellOnt 9273, 2018 ONCA 524, Gloria Epstein J.A., K. van Rensburg J.A., and David Brown J.A. (Ont. C.A.); re- versed (2017), 2017 CarswellOnt 10871, 2017 ONSC 4306, Cava- nagh J. (Ont. S.C.J.). (Ont. C.A.); reversed (2017), 2017 Carswel- lOnt 13154, 2017 ONSC 5081, P.J. Cavanagh J. (Ont. S.C.J.). SALE OF LAND agreement of pUrchase and sale No evidence that proceeds from sale of house had been improperly used Fraud. Deceased left will nam- ing daughter and son as primary beneficiaries and estate trustees. Estate consisted of house, watch, ring and some other minor as- sets. Parties brought application for directions as they did not agree on what to do with pro- ceeds of house, whether investi- gation should be ordered into sale of house and what to do with jew- elry. Application granted. There was no real evidence that house was improperly or fraudulently sold. Payment of $15,000 plus interest was ordered to be paid from monies held in trust for es- tate. Connections that daughter sought to make between various parties in order to establish fraud would require speculation. There was no evidence that proceeds from sale of house had been im- properly used and it was bald as- sertion to state that proceeds may have been used to buy portion of development without any evi- dence. Any concerns that court might have had about daughter being pressured into improvi- dent agreement to sell house were obviated by fact that there were four separate bidders and parties accepted highest offer. Blanks v. Roberts (2018), 2018 CarswellOnt 21683, 2018 ONSC 7699, LeMay J. (Ont. S.C.J.). Remedies SPECIFIC PERFORMANCE availability in particUlar contracts Motion judge was entitled to prefer opinion of plaintiff 's expert Defendant was found to have breached its duty of good faith owed to plaintiff by refusing to al- low plaintiff to exercise irrevoca- ble stock options granted by de- fendant as part of purchase price for plaintiff 's company. Hearing was held to quantify loss. Plaintiff was entitled to specific perfor- mance of option agreement. Law of Quebec, not Ontario, applied. Party to contract was entitled to its execution in good faith. If there was breach, creditor had option of choosing remedy that would ensure execution of obligation breached, including requiring specific performance. Defendant appealed. Appeal dismissed. Based on pleadings and evidence before her, motion judge did not err by applying Quebec law and granting remedy appropri- ate in Quebec law. Motion judge was entitled to prefer opinion of plaintiff 's expert and provided adequate reasons for doing so. Option agreement stated that it was governed by Quebec law and all experts were of opinion that Quebec law applied. Colenbrander v. Savaria Corporation (2018), 2018 Car- swellOnt 21423, 2018 ONCA 1057, Juriansz J.A., Brown J.A., and Roberts J.A. (Ont. C.A.); af- firmed (2018), 2018 CarswellOnt 10751, 2018 ONSC 3829, J. Wil- son J. (Ont. S.C.J.). SPECIFIC PERFORMANCE relation to other remedies Specific performance was not appropriate remedy in relation to agreement to purchase investment property First purchaser was assignee of agreement to buy vendors' prop- erty. First purchaser intended to renovate and then resell property, though she allegedly intended to live there temporarily as well. Dis- pute arose regarding vacant pos- session, and transaction did not close, but vendors indicated they could provide vacant possession in 10 days. Vendors arranged to sell property to second purchasers if first purchaser failed to close, and vendors ultimately com- pleted sale to second purchasers. First purchaser commenced ac- tion against vendors and second purchaser for certain declarations and specific performance. Ven- dors brought motion for partial summary judgment dismissing first purchaser's claim for specific performance, and second pur- chasers brought motion for sum- mary judgment dismissing first purchaser's claim against them. Motions granted. Even if there was breach of agreement with first purchaser, specific performance would not be appropriate rem- edy. Property might have some degree of uniqueness because of its location, but that uniqueness was important only because of its relationship to first purchaser's potential return on her invest- ment. There was significant body of caselaw holding that specific performance was not appropriate remedy in relation to agreement to purchase investment property. Evidence that three other prop- erties in area came on market recently was complete answer to purchaser's argument, as unique- ness required evidence that there was no readily available substi- tute. First purchaser's claim that she intended to live on property was not credible, and any loss suf- fered by first purchaser was pecu- niary and measurable. Saeed v. Gunarajah (2018), 2018 CarswellOnt 12409, 2018 ONSC 4590, Schreck J. (Ont. S.C.J.). Torts DEFAMATION fair comment Reasons for ordering costs were consistent with rationale for costs provisions in s. 137.1 Plaintiffs commenced action against defendant for defama- tion, intentional inf liction of mental distress and intrusion upon seclusion related to posts on defendant's Facebook page. Defendant brought motion for order dismissing action which was dismissed. Defendant ap- pealed dismissal and sought leave to appeal award of costs to plain- tiff. Appeal dismissed and leave granted but costs appeal also dis- missed. Motion judge did not fail consider whole of posts. Section 137.1(3) of Courts of Justice Act makes clear that the expression at issue is the expression that gives rise to action. Isolated passages that defendant claimed showed public interest had nothing to do with expression giving rise to ac- tion. Motion judge did not inter- pret public interest too narrowly. Comments were attempt to create new narrative about accident with defendant as victim rather than cause of accident. No error in his finding that defendant's attempt to shift blame for accident to de- ceased and her family did not constitute expression on a mat- ter relating to the public interest. Costs provisions in s. 137.1 quite different from generally appli- cable costs provisions and had not been considered by court. Motion judge's reasons for ordering costs in favour of plaintiffs were consis- tent with rationale for costs provi- sions in s. 137.1. Purpose under- lying costs provisions in s. 137.1 disappear when lawsuit has none of characteristics of a SLAPP, and impugned expression is unrelated to matter of public interest. Costs order denying successful respon- dent its costs on a s. 137.1 motion, even though lawsuit not brought for improper motive and claim did not relate to matter of public interest, could be seen as encour- aging defendants to bring merit- less s. 137.1 motions. Veneruzzo v. Storey (2018), 2018 CarswellOnt 14127, 2018 ONCA 688, Doherty J.A., D.M. Brown J.A., and Grant Huscroft J.A. (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 1872, 2017 ONSC 683, D.C. Shaw R.S.J. (Ont. S.C.J.). (Ont. C.A.); af- firmed (2017), 2017 CarswellOnt 7378, 2017 ONSC 2532, D.C. Shaw J. (Ont. S.C.J.). Ontario Criminal Cases Criminal Law SENTENCING BY OFFENCE offences against the person and repUtation Accused's youthfulness, lack of criminal record, and pro-social conduct had to be taken into account On two occasions, accused pulled his tanker truck out into oncoming lane, without check- ing, to pass vehicles moving slowly due to whiteouts and icy road surfaces. While in oncom- ing lane, accused struck tractor- trailer and caused death of driver. Accused was 31 years old and had no criminal or driving record. Accused was convicted of dan- gerous driving causing death. Accused sentenced to three years' imprisonment and five-year driving prohibition. Reasonable person in circumstances would have foreseen risk of passing at- tempt and would have avoided it. Accused's attempt to pass repre- sented almost wanton and reck- less disregard for lives and safety of those around him. Primary sentencing goals were denun- ciation and deterrence, especially given that offence was committed in tractor-trailer. Accused did not genuinely accept his part in death of deceased, but his youthfulness, lack of criminal record, and pro- social conduct had to be taken into account. Weapons prohibi- tion for ten years and DNA order were imposed. R. v. Singh (2018), 2018 Car- swellOnt 12408, 2018 ONSC 4598, A.D. Kurke J. (Ont. S.C.J.). CASE LAW

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