Law Times

Law Times • March 11, 2013 access. Mother sought child support. Temporary order granted mother custody and father access. Father had concerns about mother's care of children relating to physical wellbeing of children while in mother's care. Mother had concerns with father's care. Attitude and activity of both parents contributed to incidents of domestic verbal abuse resulting in police attendances with children present and involved. Society's involvement with mother was to improve mother's parenting skills in relation to child supervision for better child physical safety. Society's concern with respect to father was alcohol-use focused. Results of mother's engagement with services was minimal. Father's results showed actual change for better with reasonable likelihood of continuation. Children were subject to very different parenting regimes in each home. It was not in children's best interests for that to continue. Children responded better to regime in father's home. It was necessary for father to be primary parent so children could grow and develop in environment that was physically and socially positive and stable. Uncertainty of mother's plan was not helpful to children. Joint custody was not appropriate given history of intense animosity between parents. Father was to have sole custody with access to mother. Legere v. Raposeiro (Aug. 30, 2012, Ont. C.J., Thibideau J., File No. F89/11-E) 222 A.C.W.S. (3d) 709. Mother appeared to be easily willing to lie to obtain advantage Parties had one child. Mother sought temporary order granting mother custody with supervised access to father. Father sought to transfer matter to Peel. Father sought order granting father temporary custody and access to mother. Child spent weekends with mother and week days with father. Mother made allegations of child abuse against father and father's family. It was in child's best interest to be placed in temporary care of father. Status quo prior to application was that child was primarily residing with father. Mother did not prove any of allegations of abuse of child by father and father's family. There were many reasons to question reliability of mother's evidence. Mother appeared to be easily willing to lie to obtain advantage. Child thrived in care of father. Father presented plan that properly addressed child's care. Father was parent who was more willing to facilitate other parent's relationship with child. Joint custody was not viable option. Relationship between parties was highly contentious. Existing access regime was preserved. Case should have been started in Peel. Child ordinarily resided in Mississauga and Mississauga was court jurisdiction for Peel. B. (A.A.) v. J. (A.P.) (Aug. 30, 2012, Ont. C.J., Sherr J., File No. D56732/12) 222 A.C.W.S. (3d) 707. Page 15 CASELAW Landlord and Tenant RESIDENTIAL TENANCIES Tenant's improper conduct justified substantial indemnity costs of $13,072 Landlord applied to dismiss tenant's appeal. Board made order that finally permitted landlord to enforce eviction notice on tenant and co-tenants who had not paid any rent from start of term of lease on October 11, 2011 to present. Agreed to rent was $3,600 per month. At time of motion, tenants remained in occupation and were in arrears of rent of approximately $25,000. This was only investment property landlord owned and she was at risk of being ruined financially. Tenants had history of initiating frivolous appeals to obtain rent-free housing. Landlord maintained that it would cost her at least $6,000 to respond to appeal and tenants did not have assets and would not be able to pay costs. Appeal dismissed. Appeal raised no bona fide question of law and was totally devoid of merit. Appeal was vexatious and abuse of process. Tenant had not perfected appeal. Tenant's improper conduct justified award of costs on substantial indemnity basis. Landlord was awarded costs of $13,072. D'Amico v. Hitti (Aug. 2, 2012, Ont. S.C.J. (Div. Ct.), Matlow J., File No. 130/12) 222 A.C.W.S. (3d) 788. Municipal Law ACTIONS AGAINST MUNICIPALITY Defendant ought to have placed warning sign at intersection This was to determine liability for motor vehicle accident. Plaintiff was involved in single vehicle accident in defendant municipality. Plaintiff, aged 16 at time with G2 driver's licence. Plaintiff had more experience than average 16 year old driver, as he had been racer. Plaintiff was driving with passenger but neither had any memory of accident and there were no witnesses. Accident occurred in rural area at intersection and roads were gravel roads. Intersection had stop signs for southbound and northbound traffic. Plaintiff consumed between 1.7 to 2.3 bottles of beer prior to collision. Plaintiff pleaded guilty for failing to stop at stop sign. Plaintiff claimed that defendant failed to warn him of change in road alignment through intersection or concrete abutment on other side of intersection and caused risk of harm. Judgment for plaintiff. It was local practice in rural area for drivers to go through stop signs if they considered it safe. Most accurate manner to describe geometric design of intersection was offset. Plaintiff was not driving at excessive speed. He had never driven on road before. He was not aware that road alignment was about to change. Defendant was aware that ordinary rural drivers did not always stop at stop signs. Circumstances of intersection required more than ordinary stop sign to give ordinary rural motorists reasonable notice of poten- tially catastrophic hazard ahead. Defendant ought to have placed warning sign at intersection to warn motorists of impending change in road alignment. It was reasonable to infer that had plaintiff been aware of change of alignment in road, he would likely have reduced his speed. Intersection was not in reasonable repair and but for non-repair, crash would probably not have occurred and condition of non-repair was cause of plaintiff's injuries. Plaintiff was contributorily negligent. Accident was caused by both plaintiff's failure to stop at intersection and defendant's failure to warn of change in road alignment through intersection or concrete abutments on other side of intersection. There were no statutory defences pursuant to s. 44(3) of Municipal Act, 2001 (Ont.). Degree of fault was shared equally. Fordham v. Dutton-Dunwich (Municipality) (Nov. 27, 2012, Ont. S.C.J., Morissette J., File No. 55057; 57634A) 222 A.C.W.S. (3d) 800. Sale of Land DEFAULT Agreement clearly stated there were no collateral agreements Plaintiff brought motion for summary judgment. Defendants entered into agreement of purchase and sale to purchase plaintiff 's property for $4.785 million. Agreement was amended to provide for extended closing dates. Agreement did not require defendants to pay deposit. Two days prior to closing, defendants advised plaintiff that they had not been able to secure financing and were not able to close transaction. Plaintiff was able to sell property for $4.475 million. Plaintiff sought damages totalling $297,094, consisting of difference in sale price, realty taxes, carrying costs and difference in commission. Defendants claimed that there was oral agreement, collateral to written contract, that closing of transaction was conditional upon defendants obtaining necessary financing. Judgment for plaintiff. Case was amenable to summary judgment as defences had no merit. Based on evidence, defendants' claims had no chance of success. There was no collateral oral agreement, as any amendments were made in writing. If issue of agreement being contingent upon financing was crucial to defendants then they should not have agreed to amendment that appropriate banking arrangements had been made. Agreement clearly stated that there were no collateral agreements. Defendants breached contract. Damages claimed by plaintiff were fully supported by documentary evidence. Plaintiff was awarded judgment of $297,094. Defendants were ordered to pay costs of $8,500, all inclusive. Sunnydene Homes Inc. v. Shouldice (Nov. 5, 2012, Ont. S.C.J., Stevenson J., File No. CV-10400070) 222 A.C.W.S. (3d) 822. www.lawtimesnews.com Torts NEGLIGENCE Corporation negligent in duty to provide habitable home Mother of three resided in unit at co-operative home corporation. In September 1996, December 1996 and August, mother submitted maintenance deficiency reports and requests. Complaints included malfunctioning toilet, leaking window, and deteriorating bathroom floor. Mother concerned about presence of mould. Mother vacated unit in January 2003, never to return. Mother left belongings behind. Corporation hired contractor in February 2003. Consultant determined mould was present. Corporation's position mother obstructed access to unit for repairs. Mother refused corporation's May 2003 request for permission to store belongings. Corporation removed and stored belongings in community hall, then church. Mother never saw belongings again. Mother commenced action in negligence. Mother sought damages for loss of property, return of rents paid, general damages, punitive and aggravated damages. Action allowed. Corporation negligent in duty to provide habitable home. Mould concerns justified. Corporation's obligation to provide remedial work. Work not done in timely or appropriate fashion. Unit not again habitable until early 2004. By then, mother moved on with life. No justification for requiring mother's removal of all belongings. Corporation's obligation to ensure removal, storage and return. Insufficient evidence to justify general, punitive or aggravated damages. Corporation ordered to return rent from January to August 2003, and $850 member deposit. Claim for medication, mental and emotional suffering, and mental anguish denied. Mother awarded $12,000 for loss of property. Primeaux-Kostka v. Aventine Co-operative Homes Inc. (Oct. 4, 2012, Ont. S.C.J., Reilly J., File No. C-06-4231-SR) 222 A.C.W.S. (3d) 827. ONTARIO CRIMINAL CASES Appeal PROCEDURE No satisfactory explanation why accused missed peremptory scheduling appearance Accused sought to re-open his summary conviction appeal against conviction for threatening death by setting aside order dismissing his appeal as abandoned and reinstating appeal. Crown opposed application. Several extensions of time were given for accused's appeal and it was dismissed when nobody appeared on his behalf at peremptory date to set appeal hearing. Accused's Notice of Application stated that he was in custody at correctional center and was then inpatient in psychiatric facility for 15 months, he was then released from hospital but was dissuaded from pursuing his appeal by his father and then by psychiatrist and noted that he never admitted his guilt on threatening charge to anyone with exception of his lawyer. Proposed grounds of appeal were that surveillance video did not supply any evidence of death threat, complainant's criminal record and accused's lack of criminal record at time, that he was inadequately represented by his trial counsel and that he pleaded guilty to get out of jail because being in detention was becoming overbearing. Application dismissed. There was really no satisfactory explanation why accused missed peremptory scheduling appearance. Accused's trial counsel died earlier in year; if appeal were reinstated, it would have been very difficult, if not impossible, to assess whether counsel's representation was deficient. It was not appropriate to permit accused to make calculated decision to plead guilty and then try to reverse that decision over five years later. R. v. Tkach (Dec. 19, 2012, Ont. S.C.J., Durno J., File No. 2286/08) 104 W.C.B. (2d) 709. Arrest LEGALITY Officer failed to tell accused he was under arrest and used excessive force Application by accused to exclude evidence because his rights under Canadian Charter of Rights and Freedoms were violated. Accused was being tried for three drug offences, two counts of failing to comply with recognizance and charges of assaulting peace officer. Police officer saw vehicle making lane changes without signaling first and he stopped vehicle after he saw passenger, who was accused, not wearing seatbelt properly. When vehicle door was opened officer smelled unburnt marijuana coming from accused and accused resisted as officer tried to arrest him. Accused tried to run away but he was apprehended. Once accused was arrested marijuana was found in his jacket. Application allowed. Evidence was excluded. Accused was illegally detained and his subsequent arrest and warrantless search was unlawful and search violated accused's rights under s. 8 of Charter. Arrest was unlawful because officer did not have reasonable grounds to arrest him. Officer also failed to tell accused that he was under arrest and he used excessive and unreasonable force to arrest accused, which made arrest unlawful. Accused, therefore, did not resist lawful arrest. Evidence was excluded for officer did not respect accused's rights when he searched him and search was not performed for reasons of officer safety. To admit such evidence would bring administration of justice into disrepute. R. v. Thompson (Dec. 11, 2012, Ont. C.J., Zuker J.) 104 W.C.B. (2d) 721. LT

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