Law Times

Law Times • April 22, 2013 of switchblade and breach of recognizance. On same day he appeared before JP for bail hearing and Crown opposed his release. Bail hearing was scheduled for April 12 and justice set one hour for it. Neither party informed justice that hearing would require more than one hour. Hearing commenced on April 12 but it was put over to April 20 because it would take more than three hours to complete it. On April 20 bail hearing was not completed and on April 21 it was scheduled to continue on May 11, 2011. Accused brought unsuccessful application for habeas corpus on May 4, and based upon comments of presiding judge, bail hearing was advanced to May 9 and accused was granted bail on that date. Accused claimed that adjournment to May 11 violated s. 516 of Criminal Code because it was for more than three days and accused did not consent to it. Application dismissed. Section 516 was not violated on April 21 for accused, through counsel, gave valid consent to adjournment of longer than three days. April 21 adjournment was not illegal and Charter was not violated. Crown and justice did not willfully breach accused's Charter rights. Record did not show that Crown acted improperly or unprofessionally for she constantly notified accused's counsel of her availability. Justice's conduct was also proper for justice did what he could to set date for continuation of bail hearing for as soon as possible. It was unacceptable that it took 32 days to complete bail hearing but justice did not breach accused's rights under ss. 7, 9 and 11(e) of Charter. Delay in bail hearing would not affect fairness of trial. Stay was not appropriate for broader interest in having case decided on merits outweighed granting stay. R. v. Maric (Jan. 22, 2013, Ont. S.C.J., Bryant J., File No. 11059) 104 W.C.B. (2d) 1255. ONTARIO CIVIL CASES Contracts IMPLIED TERMS Judge erred by implying and then enforcing term of contract Appeal from order dismissing action to collect amount outstanding under renovation contract. Respondent homeowners retained appellant to design and oversee home renovations. Appellant agreed in writing to purchase supplies and obtain services of subcontractors to carry out work, and specifically did not warrant products or work. Appellant incurred expenses of $32,077 and charged $7,635 for professional services. Respondents paid $16,985 prior to completion of work then refused to pay anything further claiming dissatisfaction with various aspects of work. Appellant filed lien and commenced action to collect outstanding $22,727. Respondents counterclaimed, Page 15 CASELAW seeking $50,000 for repairs and $15,000 for punitive damages. Trial judge found appellant breached contract by failing to provide existing warranties and information that would have allowed respondents to pursue remedies directly against suppliers and sub-contractors in timely fashion. Judge found claims offset each other and neither party entitled to any amount. Appeal allowed. Trial judge erred by failing to enforce terms of contract, specifically term excluding any warranty for products or work. Judge also erred by implying and then enforcing term requiring appellant to provide existing warranties and information. Term not part of contract and not pleaded. Judge also erred by finding respondents entitled to claim breach of warranty for products or work not paid for. Appeal should be allowed and judgment below set aside. Making order that should have been made, appellant entitled to judgment for $22,727 plus interest and counterclaim dismissed. Zimon v. Turnbull (Dec. 19, 2012, Ont. S.C.J. (Div. Ct.), Swinton, Matlow and Aston JJ., File No. DC-10-241) 223 A.C.W.S. (3d) 953. Employment OCCUPATIONAL HEALTH AND SAFETY Just because accident occurred where worker may be, it does not become workplace accident Applicant operated resort that comprised ski runs, inn and recreational facilities. Guest at applicant's premises drowned in unsupervised swimming pool. Applicant did not notify inspector of occurrence pursuant to s. 51(1) of Occupational Health and Safety Act (Ont.), since person who drowned was not worker. Respondent, in capacity as inspector, made order pursuant to s. 51(1) of Act. Ontario Labour Relations Board upheld inspector's order, concluding "person" not synonymous with "worker" and finding that area where employees performed work functions was "workplace" and fact employee not physically present did not mean that particular section not part of workplace. Board found that drowning of guest triggered reporting obligation under s. 51(1), as it involved "person" who was killed from any cause at "workplace". Application for judicial review dismissed but appeal allowed and order to report set aside. While language "where a person is . . . critically injured from any cause at a workplace" in s. 51(1) undoubtedly intended to capture wide range of injury-related occurrences affecting safety and wellbeing of workers and public welfare legislation to be interpreted liberally, limitless interpretation not appropriate. Interpretation given by board and Divisional Court to language of s. 51(1) extended reach of legislation far beyond what was intended or needed to give effect to purposes of legisla- tion. Just because accident occurred at place where worker may be at some point in time, accident does not become workplace accident. Broad language may be given restrictive interpretation in order to avoid absurdity. Board's conclusion, founded on what was, in effect, entirely location-based analysis, did not fall within range of possible, acceptable outcomes. Intrusive effect of s. 51(2), which requires injury site to be preserved until released by inspector, combined with overly broad interpretation of reporting requirements of s. 51(1), has potential to give Ministry and inspectors significantly intrusive powers beyond what is reasonably required to accomplish purpose of preserving and promoting worker safety. Section 51(1) not engaged unless some reasonable nexus between hazard giving rise to injury and realistic risk to worker safety at site of incident. Workplace is where worker carrying out employment duties at time incident occurs or might reasonably be expected to be carrying out such duties in ordinary course. No evidence guest's death in pool caused by any hazard that could affect safety of worker. Blue Mountain Resorts Ltd. v. Bok (Feb. 7, 2013, Ont. C.A., Blair, MacPherson and Armstrong JJ.A., File No. C54427) Decision at 335 D.L.R. (4th) 483, 202 A.C.W.S. (3d) 303 was reversed. 223 A.C.W.S. (3d) 967. Family Law SUPPORT Receipt of public assistance does not necessarily amount to change of circumstances Father's application to vary child support for disabled adult child, on ground son began to receive public assistance dismissed. Parties agreed child continued to be child of marriage since, despite being 23 years of age, he was unable to withdraw from parents' charge or to obtain necessities of life because he suffers from schizophrenia. Father paying pre-Federal Child Support Guidelines (Can.), support but argued amount should be varied to deduct Ontario Disability Support Plan Act 1997 ("ODSP"), payments child was receiving. Motion judge dismissed father's motion and awarded Guidelines Table amount. Father's appeal dismissed. Receipt of public assistance does not necessarily amount to change of circumstances but parties proceeded upon assumption there had been change of circumstances. Guidelines establish that Table amount is presumptive rule for child over age of majority unless court considers that approach "inappropriate". Motion judge did not err in concluding father failed to demonstrate that Table approach inappropriate. Purpose of Act to provide income and employment support to eligible persons with disabilities while recognizing that government, communities, families www.lawtimesnews.com and individuals share responsibility for providing such supports. Eligibility depends upon disabled person's budgetary requirements exceeding income. If child support payments used for adult child's benefit, for nonexempt purposes, they potentially become relevant to assessment of adult child's budgetary requirements. However, in this case, no evidence of exempt expenditures for disability to which support payments dedicated. No basis to conclude A.'s needs necessarily less than total of support payments and current ODSP payment, no analysis of expenses attributable to adult child nor any evidence of mother's earning capacity. Father did not justify departure from Table approach. Senos v. Karcz (Jan. 25, 2013, Ont. S.C.J. (Div. Ct.), Pardu, Grace and Kiteley JJ., File No. 466/12) Decision at 213 A.C.W.S. (3d) 981 was affirmed. 223 A.C.W.S. (3d) 995. Insurance AUTOMOBILE INSURANCE No finding of principle/agency relationship between insurer and broker Motion by defendant insurer for summary judgment. During course of employment as commercial truck driver, plaintiff suffered serious personal injuries in motor vehicle accident in United States. Other driver had little or no insurance coverage. Truck driven by plaintiff insured under fleet policy issued to plaintiff 's employer by defendant insurer through defendant broker. Policy did not include uninsured or underinsured motorist coverage. Plaintiff brought action alleging broker breached contractual and tort duties of care to employer and to him to advise about need for and to obtain such coverage. Plaintiff alleged insurer liable for broker's faults on principle of agency. Plaintiff also alleged insurer negligent by itself for failing to require broker to inform and advise employer and him about coverage. Plaintiff sought declaration insurer should indemnify him for any damages not covered by other driver's insurance. Evidence indicated employer contacted broker for insurance, broker submitted information regarding plaintiff 's business and scope of coverage required to insurer, insurer conducted own risk assessment, provided quote, which employer accepted, and issued policy. Insurer sought order dismissing action on basis it owed no duty of care to plaintiff and had no principal/agency relationship with broker. Motion granted. While insurance brokers owed duty to provide customers not only with information about available coverage, but also with information about what sort of coverage client should have, duty did not extend to insurer in absence of evidence customer had looked to and relied on insurer for such advice. No evidence employer had looked to insurer for advice here. Insurer's preparation and provision of risk assessment reports did not change that. Risk assessment reports contained express disclaimer in any event. Finding made sense from public policy perspective. Evidence did not support finding of principle/ agency relationship between insurer and broker. Action should be dismissed as against insurer. Ostenda v. Bahena Miranda (Dec. 24, 2012, Ont. S.C.J., Stinson J., File No. CV-10-00412893) 223 A.C.W.S. (3d) 1031. Municipal Law ACTIONS BY MUNICIPALITY Mere passage of bylaw inadequate to establish road Meaford found bylaw 11, passed in 1854, in basement. Bylaw 11 established lake shore road purportedly covering approximately 6,000 feet, spanning Lots 22, 23 and 24 but largely lost to Georgian Bay in 1986 storm. Following discovery of bylaw 11, Meaford retained surveyor to prepare report on 600-foot stretch of purported road, passed bylaw 80 which accepted purported road as determined by survey and directed solicitor to take legal steps to confirm its ownership. Meaford registered bylaw 11 on title and commenced action against respondents owning cottage properties occupying aforementioned 600-foot stretch of road, applying for declaration that road is public highway and that respondents trespassing upon it. Respondents granted summary judgment, successfully arguing no genuine issues requiring trial, and Meaford's action dismissed. Meaford's appeal dismissed. Vast preponderance of evidence supported conclusion that no road established by dedication and acceptance. In addition to scant recognition by landowners and surveyors, Meaford and predecessor township consistently acted as if no road. Mere passage of bylaw probably inadequate to establish road but, in any event, certainty of description necessary. Motions judge alive to imprecise boundaries. 1837 Crown survey did not include purported road and bylaw 11 lands not surveyed again until after discovery of bylaw 11. No experts able to identify where boundaries of purported road located originally or would be located today. Lack of precision and certainty meant enforceable public highway not established. Actual notice required for ownership interest to prevail over subsequent registered transfer. Respondents and predecessors in title had no actual notice; no registration of bylaw 11 and no road. Meaford (Municipality) v. Grist (Feb. 27, 2013, Ont. C.A., Winkler C.J.O., Pepall J.A. and Smith J. (ad hoc), File No. C54475) Decision at 207 A.C.W.S. (3d) 536 was affirmed. 223 A.C.W.S. (3d) 1044. LT

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