Law Times

Page 13 Law Times • April 29, 2013 caselaw CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. ONTARIO CIVIL CASES Agency REAL ESTATE AGENTS AND BROKERS No obligation on part of defendant to pay commission Defendant had home for sale and had it on MLS through Property Guys. Sales representative saw home on MLS system and sent it to clients. Clients did not respond to sales representative. Clients went to open house for home on own. Sales representative drafted offer to purchase and sent it to defendant which contained 2.5 per cent commission rate. Property sold on basis of agreement drawn up using materials from Property Guys. Clients submitted offer though Property Guys website. Effective agreement of purchase and sale did not provide for commission. Plaintiff sought to recover real estate commission owing on sale of defendant's home. Judge retired to consider decision. Judge realized she conducted judicial pre-trial of matter previously. Judge declared mistrial. Parties consented to Superior Court Judge giving judgment based on transcript evidence. Action was dismissed. There was no obligation on part of defendant to pay commission. Efforts expended to try to obtain contract for sale of property were insufficient to generate payment if no agreement for sale of property was ever reached. Sutton Group Innovative Reality Inc. v. Turner (Dec. 6, 2012, Ont. S.C.J., C.S. Glithero J., File No. SC-11-10715-00) 224 A.C.W.S. (3d) 2. Assessment TAXES Assessment arbitrary as licence agreement between parties not reviewed Applicant held non-exclusive licence from Greater Toronto Airport Authority ("GTAA") to common areas at airport under which applicant was authorized to install and maintain advertising displays. GTAA controlled all aspects of applicant's business. Applicant was never assessed as taxable. Municipal Property Assessment Corporation ("MPAC") unilaterally and retroactively assessed GTAA's advertising displays to applicant as part of overall assessment of airport. Applicant argued applicant was not tenant of Crown. Assessment was quashed. Applicant was not liable for taxable assessment. Applicant was not occupant or tenant or person in possession. Applicant was ser- vice provider for GTAA. GTAA maintained total control over premises all advertising was controlled by GTAA. Applicant paid no rent and GTAA received vast majority of gross revenues from advertising revenue. Applicant paid all of operating expenses out of remaining funds before applicant received any income. GTAA's business use of premises was paramount and applicant's use was subordinate. MPAC did not assess indoor signs anywhere else and MPAC's actions were discriminatory, unfair and unequal. Assessment was arbitrary on MPAC's part in that MPAC never reviewed licence agreement between parties before issuing taxation assessment. Clear Channel Outdoor Co. Canada v. Municipal Property Assessment Corp. (Dec. 10, 2012, Ont. S.C.J., Snowie J., File No. CV-115011-00) 224 A.C.W.S. (3d) 18. These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-387-5164. ARRANGEMENTS Plan provided fair and reasonable balance among stakeholders Applicant sought order sanctioning plan of compromise and reorganization. Funds opposed sanction order. 99 per cent in number and greater than 99 per cent in value of affected creditors voted favouring plan. Options and alternatives to plan were explored. Applicant carried out sales process and determined there were no qualified purchasers offering to acquire assets for qualified consideration. Motion was allowed. Plan was sanctioned. Plan provided fair and reasonable balance among applicant's stakeholders while providing ability for business to continue as going concern for benefit of all stakeholders. Plan adequately considered public interest. Releases were fair and reasonable and were rationally connected to overall purpose of plan. There was reasonable connection between claims being compromised and plan to warrant inclusion of release. There was strict compliance with all statutory requirements and adherence to previous court orders. Sino-Forest Corp., Re (Dec. 12, 2012, Ont. S.C.J. [Commercial List], Morawetz J., File No. CV12-9667-00CL) 224 A.C.W.S. (3d) 21. ten and eight, granted father alternate weekend and Wednesday overnight access and ordered father to pay $2,000 monthly child support and $16,000 arrears and $1,140 monthly spousal support based on $148,900 estimated income and $6,000 costs. Father was seeking joint custody and shared parenting plan and also wanted to set aside separation agreement and have child support determined on merits. 2011 separation agreement provided joint custody, shared parenting and required father to pay $2,000 monthly child support but did not provide for spousal support. Mother issued application in March 2012 and had it personally served on father. Father explained he was actively involved in defending charges of threatening mother, dealing with CAS and Revenue Canada inquiries and civil proceedings at time. Father's counsel wrote to mother's counsel on May 31, 2012 indicating he would file answer by July 2, 2012. Father's answer should have been filed by April 23, 2012. Mother sought uncontested trial without informing father, which was not technically required to do, given he was in default. When father was served with order, he immediately informed his lawyer, who made several unanswered calls to mother's lawyer and expressed disapproval in manner in which judgment was obtained. Motion allowed. There was troubling level of acrimony between parties' lawyers. Father made efforts to have default judgment set aside as soon as possible. While father was negligent in not responding sooner to service of application, he provided explanation for delay and did not ignore process. Mother knew father was seeking 30-day grace period with May 31st letter. Mother's decision to ignore this letter, even though grace period sought was not exorbitant, and lead judge to believe father had not responded at all was troubling. Issues at hand should be properly litigated. Order set aside with exception of parenting arrangements and father had until January 14, 2013 to serve and file materials. Bargiel v. Mainville (Dec. 18, 2012, Ont. S.C.J., Robert Pelletier J., File No. 632-2011) 224 A.C.W.S. (3d) 45. Civil Procedure Family Law DEFAULT Mother's decision to lead judge to believe father had not responded was troubling Motion by father to set aside final default order. Default order granted divorce, set aside separation agreement, granted mother sole custody of children, aged WARDSHIP Mother had not addressed issues in parenting assessment and unable to do so Application by CAS for order of Crown wardship without access over children born in 2009 and 2011. Mother also had two older children who were in ma- Bankruptcy and Insolvency www.lawtimesnews.com ternal grandmother's custody. CAS became involved in 2005 because mother needed funding but continued its involvement because of transience, domestic violence and inability to care for children. Of these two children, older child was apprehended in 2010 and the younger days after birth in 2011. Parenting assessment showed mother and father of older child had mental health issues and cognitive delays. Father of younger child had supervised access once per week but there were also concerns with his mental health and he did not get involved in child's life for one and one-half years as mother misled everyone about paternity of child. Mother's access to both children had been sporadic. Application allowed. Given past conduct of both mother and father of older child, father's lack of access, mother's sporadic access and fact that older child had been in care for over 12 months, there was no genuine issue for trial. Mother had moved four times in 2012 alone, was still in abusive relationship and neither she nor father showed appreciation of harm caused to younger child by not having real father involved in her life for one and one-half years. Mother had not addressed issues raised in parenting assessment and was likely unable to do so. There was no evidence she had meaningful relationship with child and her access would impair adoption opportunities. While father of younger child had been attending access visits, child's primary attachment was to foster mother and sister. Father's care plan relied on involvement of common law partner with whom his relationship was not stable and CAS had opened protection file with respect to partner's child. There was no evidence relationship between father and younger child was meaningful and beneficial and child needed immediate placement. Children's Aid Society of the County of Simcoe v. J. (L.) (Dec. 21, 2012, Ont. S.C.J., Olah J., File No. FC-10-54-03) 224 A.C.W.S. (3d) 107. Father did not demonstrate understanding of children's needs Application by father for leave to review status of children, aged 14 and 10. Parties separated in 2003 and children lived with mother. In 2007, mother was stricken with brain cancer and she and children moved in with maternal grandparents, who had been children's primary caregivers since. Grandparents contacted CAS for support and temporary order was made in 2008, with children remaining in grandparents' care. In 2009, father contacted CAS about obtaining custody and was given goals to meet, which he failed to do. CAS was concerned about father's lack of supervision and lack of understanding of child development. Father agreed to wardship order granted in 2010 and kin placement with grandparents. Father had access alternate weekends and extended periods during school holidays. Mother died in 2012 and father brought this application, which CAS opposed and argued timing was evidence of father's poor judgment. Father now rented apartment in Ottawa and worked from home. Children did not want to live with father. Father claimed he did not understand legal consequences of agreeing to wardship. Application dismissed. It was clear children were enjoying real home life with grandparents, were active in sports and social activities, doing well in school and were healthy. Grandparents were loving, capable and supportive and clearly met children's best interests, which included supporting contact with father. Father did not provide any details about his long-term plan for children or demonstrate understanding of their needs. Father had opportunity to seek legal counsel and was presumed to understand legal consequences of previous proceedings. There was no basis to intrude into children's longterm kin placement and stability. Father had not demonstrated prima facie case. Children's Aid Society of the County of Lanark v. L. (P.) (Dec. 20, 2012, Ont. S.C.J., Gary W. Tranmer J., File No. Perth 458/09) 224 A.C.W.S. (3d) 108. GENERAL Father's failure to pay costs constituted failure to obey court order Motion by mother for order under Rules 1(8) and 14(23) of Family Law Rules (Ont.), striking out father's pleadings for failure to obey court orders. Parties cohabited for seven years before separating in August 2011. Parties had one child, born May 2005. Father commenced application for access, restraining order, child support, spousal support and various property claims. Mother responded by seeking custody, supervised access, restraining order and child support. In December 2011, father brought motion seeking various forms of relief without notice and prior to any case conference. Motion directed to be argued on notice and father ordered to pay costs of $1,250. Mother sold home in February 2012. Father brought motion seeking various forms of relief, again without notice. Motion adjourned to provide for notice. Court then granted

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