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Page 14 without foundation. Fees and disbursements, including taxes, were fixed at $50,000 payable by respondent forthwith. 2156384 Ontario Inc. v. C & K Property Management Inc. (Aug. 30, 2012, Ont. S.C.J., Wilson J., File No. CV-12-453360) 222 A.C.W.S. (3d) 870. PLEADINGS Not clear that beliefs and opinions did not amount to creed Motion by defendant to strike out all references in plaintiff 's amended statement of claim relating to his human rights claim on grounds it failed to disclose cause of action, and to strike certain paragraphs as scandalous, frivolous, vexatious and/or may prejudice or delay fair trial of action. Plaintiff was defendant's former employee, who sued for wrongful dismissal. Amended statement of claim also alleged human rights violation. Plaintiff claimed his employment was terminated because of statements he made about armed conflict in Syria. Plaintiff was Syrian Muslim. Plaintiff 's employment was terminated less than two weeks after he gave radio interview in which he expressed opinions he held as person of Syrian origin and as person whose religious beliefs were opposed to extremism. Plaintiff claimed defendant perceived him to be Assad supporter and dismissed him as a result. Defendant argued that, even if plaintiff 's allegations were accepted, his employment was terminated for political opinion, which was out of scope of Human Rights Code (Ont.). Motion allowed in part. Court of Appeal had expressly left open whether political opinion could amount to creed. Having regard to plaintiff 's allegations, it was not clear his beliefs and opinions did not amount to creed and it was not plain and obvious discrimination under Code could not be established. Paragraphs 25, 26, 27, 30 and second and third sentences of paragraph five were struck out, however, as they contained superfluous allegations about other events that could not affect outcome of action and would prejudice or delay fair trial. Al-Dandachi v. SNC-Lavalin Inc. (Nov. 19, 2012, Ont. S.C.J., Stinson J., File No. CV-12454069) 222 A.C.W.S. (3d) 900. Consumer Protection STATUTORY WARRANTIES Hot water heater which leaked not reasonably fit Appeal by defendant from Divisional Court's dismissal of appeal from Small Claims Court holding defendant liable for property damage caused by leaking hot water heater. In April 2004, plaintiff purchased home containing hot water heater owned by defendant company and took over rental of heater from previous homeowner. In October 2005, defendant sent plaintiff copy of document March 18, 2013 Law Times • CASELAW entitled Water Heater Rental Agreement ("Terms and Conditions"), which stated defendant would not be liable for any loss, damage or injury, including as result of water leakage, caused or contributed to by use or operation of water heater. Parties agreed document not contract. In August 2006, defendant sent all customers warning to ensure proper drainage and safety of valuables in event of leak. On return from five-day vacation in December 2007, plaintiff discovered hot water heater leaking. Plaintiff brought subrogated claim on behalf of insurer, seeking compensation for property damage caused by leak. Trial judge found defendant liable for consequential damage caused by failure of hot water tank based on implied warranty of fitness and awarded plaintiff damages of $6,000. Defendant appealed to Divisional Court which found provisions regarding implied warranties in s. 9 of Consumer Protection Act, 2002 (Ont.) ("CPA"), applied to rental arrangement and dismissed appeal. Appeal dismissed. Under s. 9(2) of CPA, implied conditions and warranties applicable to sales of goods by virtue of Sale of Goods Act (Ont.) ("SGA"), applied to goods leased or supplied under consumer agreement. Hot water heater supplied pursuant to consumer agreement as defined in s. 1 of CPA. Applying provision to rental arrangement entered prior to enactment in 2005 permissible because application retrospective, not retroactive. Section 15.1 of SGA implied condition hot water heater reasonably fit for purpose of heating hot water in residence. Disingenuous, given nature of product and parties' respective roles, to suggest plaintiff failed to inform defendant of particular purpose for which hot water heater required. Hot water heater which leaked not reasonably fit. Szilvasy v. Reliance Home Comfort Limited Partnership (Nov. 27, 2012, Ont. C.A., Rosenberg, Gillese and Lang JJ.A., File No. C55214) 222 A.C.W.S. (3d) 921. Contracts GENERAL Trial judge misapprehended objective meaning of terms of contract Respondents entered contract with appellant for appellant to hold respondents' wedding reception. Respondent had to postpone wedding for health reasons. Appellant rejected respondents' proposal to re-schedule wedding and to add bridal shower and stag. Appellant's claim for damages for breach of contract was dismissed. Respondents' claim for return of $10,000 deposit with costs was allowed. Appeal was allowed. Appellant had judgment in amount of $17,175 and was entitled to retain deposit. Trial judge erred in law in failing to apply proper contractual principles of interpretation. Trial judge did not state in reasons what contractual principles of interpretation guided decision. Terms of contract were clear and specific. Trial judge failed to interpret contract as whole and in manner giving all terms meaning. Trial judge focused on specific words in isolation. Contract did not create right to rebook for customer. Trial judge misapprehended objective meaning of terms of contract. Trial judge failed to take into account parties agreed terms for cancellation were fair. Royalton Hospitality Inc. v. Competiello (Aug. 24, 2012, Ont. S.C.J., DiTomaso J., File No. DV-11-356-00) 222 A.C.W.S. (3d) 935. MISTAKE Plaintiff had plenty of opportunity to review and consider release Motion by defendant for summary judgment. In December 2007, defendant's vehicle slid out of control on icy driveway and struck rear passenger door of plaintiff 's vehicle. Plaintiff claimed to have suffered leg injury while jumping out of harm's way or as result of being struck by defendant's vehicle. Several days later, plaintiff advised defendant about cost of repairs to vehicle and lost time from work. Parties agreed to settle matter for $1,900 and defendant provided two cheques for $950, one to owner of vehicle and one to plaintiff. Parties then completed and signed standard form release defendant had printed off internet. Shortly thereafter, plaintiff commenced action for damages for personal injuries sustained in accident. Defendant brought within motion on basis action raised no genuine issue requiring trial since plaintiff 's claims already settled. Plaintiff claimed to have believed settlement and release applied only to damage to vehicle, not personal injuries. Plaintiff relied on doctrines of unilateral mistake, non est factum and unconscionability, and claimed equitable remedy of rectification. In cross-examination on affidavit, plaintiff admitted to not reading release and to not being certain if injuries discussed. Motion granted; action dismissed. Since defendant completely unaware plaintiff may have misapprehended release, release could not be set aside on basis of unilateral mistake. Non est factum had no application in absence of evidence plaintiff induced to sign release by fraudulent means. Release quite short and simple, not sort of complex standard form contract sometimes questioned by courts. Plaintiff had plenty of opportunity to review and consider release. No evidence but bare assertion plaintiff did not consent to terms. Marjadsingh v. Walia (Nov. 23, 2012, Ont. S.C.J., Allen J., File No. CV-09-393200) 222 A.C.W.S. (3d) 929. Corporations www.lawtimesnews.com DIRECTORS Respondents could not unilaterally revoke resignations by giving written notice Respondents resigned as directors of foundation. Notice of resignation indicated resignations were effective immediately. Respondents had independent legal advice. Respondents revoked resignations after board of directors of foundation accepted resignations. Declaration was granted stating names of directors of foundation. Declaration was granted confirming resignation. Respondents' resignations became effective on date resignations were irrevocably sent to foundation. Word "member" in article of bylaw meant member of foundation. Resignations did not have to be accepted by board to become effective. Foundation did not have to give respondents notice of meeting because respondents had no right to be present. Three of remaining five directors constituted quorum for subsequent meeting and validly accepted resignations. Respondents could not unilaterally revoke resignations by giving written notice after resignations were accepted by board. Respondents were no longer directors and had no authority to unilaterally revoke resignations after resignations were irrevocably sent to and accepted by board. Five remaining directors were members of board until replacement directors were elected. Respondents were not owners of foundation. Kandolo v. Kabelu (Sep. 7, 2012, Ont. S.C.J., Smith J., File No. 12-53721) 222 A.C.W.S. (3d) 937. Damages PERSONAL INJURIES Plaintiff 's lack of knowledge of notice period not reasonable excuse for delay Plaintiff 's motor vehicle hit pot hole and rolled over into ditch. Plaintiff sustained soft tissue injuries. Plaintiff brought action for damages. Defendant was not given notice of claim until almost two years after accident. Plaintiff 's excuse for delay was that plaintiff had no experience with lawsuits. Defendant brought motion for summary judgment arguing action was statute-barred. Plaintiff failed to provide written notice to Clerk of Municipality within ten days of accident providing notice of claim and injury complained of. There was no genuine issue requiring trial on issue of reasonable excuse. Plaintiff was physically and mentally able to notify defendant and consult with counsel. Two-year delay in providing notice was not reasonable. Plaintiff 's lack of knowledge of notice period was not reasonable excuse for delay. Discovery principle had no application in case. There was no genuine issue with respect to prejudice requiring trial. Defendant was prejudiced by delay in notification in its defence. Argue v. Tay (Township) (Aug. 10, 2012, Ont. S.C.J., DiTomaso J., File No. 09-0425) 222 A.C.W.S. (3d) 1064. Court unable to rely on plaintiff 's subjective reports of pain and limitations Motion by defendant for order dismissing action on basis plaintiff failed to meet threshold requirement of s. 267 of Insurance Act (Ont.). Plaintiff brought action for damages for personal injuries alleging permanent serious impairment as result of motor vehicle accident in April 2005. Plaintiff, aged 25 at time of accident, had one child and worked as collection officer. On advice of family doctor, plaintiff attended physiotherapy and chiropractor treatments, reporting 50 per cent improvement within two months of accident. Plaintiff returned to work five months after accident but worked for only 18 months before stopping, ostensibly on advice of family doctor, and did not seek further employment. Plaintiff married and had two more children. Plaintiff 's preaccident history showed significant medical issues including chronic tendonitis and anxiety, as well as tension headaches and knee, shoulder and back pain. Plaintiff acknowledged history but claimed to have been symptom-free and functioning well in work and daily activities prior to accident. Evidence indicated plaintiff failed to report complete pre-accident history or post-accident progress to several medical practitioners and experts, and stopped treatment of own accord. Defendant took position plaintiff suffered no permanent impairment as result of accident. Motion allowed; action dismissed. Under s. 267, defendant liable for non-pecuniary loss or health care expenses only if plaintiff suffered permanent serious impairment of important physical, mental or psychological function as result of accident. Prior to accident, plaintiff suffered significant medical issues that interfered with work and functioning, including chronic anxiety related to nature of work and son's health. Following accident, plaintiff experienced additional stress from other non-accident sources. As result of concerns with plaintiff 's credibility, court unable to rely on plaintiff 's subjective reports of pain and limitations. Court preferred defence experts' evidence concerning plaintiff 's level of functionality, and absence of any physical or neurological cause for impairment. Plaintiff did not meet criteria for permanent impairment under s. 4.2(1)3 of Regulations under Act. Jennings v. Latendresse (Dec. 12, 2012, Ont. S.C.J., Cavarzan J., File No. 06-23676) 222 A.C.W.S. (3d) 948. Debtor and Creditor

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