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Page 14 interim sole custody to mother and supervised access to father. Father ordered to pay child support of $300 per month, less than Guideline amount in recognition of increased costs of access. Father's requests that mother be restricted from moving child out of region or disposing of assets dismissed. Father prohibited from filing any further motion or amending pleadings before paying costs previously ordered. Father also ordered to pay further costs of $4,330. Contrary to order, father amended application to claim compensation for unjust enrichment. Father did not pay costs and did not exercise supervised access. 50 per cent of father's earnings garnished to pay support for two children from previous relationship. Family Responsibility Office began to deduct child support, but mother had not yet received any amount. Motion granted. Father's failure to pay costs constituted failure to obey court order. Inability to pay costs irrelevant. Ability to pay relevant only when order for costs made. Considering history of proceeding, particularly father's conduct, no exceptional circumstances warranted exercise of court's discretion in father's favour. Appropriate to strike out father's pleadings and permit mother to proceed on uncontested basis. Quinn v. Nicholson (Jan. 10, 2013, Ont. S.C.J., D.A. Broad J., File No. FS-117-11) 224 A.C.W.S. (3d) 138. SUPPORT Husband not entitled to support simply because wife had greater income Claim by husband for spousal support. Parties separated in December 2009 after 13 years of marriage. Following separation, two children, born 2004 and 2006, resided primarily with wife. Husband paid no child support until December 2011, then commenced paying $641 per month. Order for division of assets resulted in wife taking on all debt and making equalization payment of $12,800 to husband in order to retain family home. Husband, aged 45, had worked part-time as commercial pilot, and at other jobs in off season, before obtaining full-time position as sterilizing technician in 2003. Wife, aged 41, worked fulltime as teacher and then viceprincipal beginning in 2008. Husband claimed support on both compensatory and noncompensatory grounds, claiming to have sacrificed goal of becoming airline pilot so that wife could pursue career. Wife stated parties never discussed giving either career priority, and that husband left flying career for unrelated reasons. Husband currently earned $3,516 per month against expenses of $3,693 and had net worth of $46,779. Wife currently earned $9,095 per month against expenses of $11,028 and had net worth of $17,890. Claim dismissed. Evidence did not establish husband in different career April 29, 2013 Law Times • CASELAW or financial situation because of wife's career. Wife's career advancement not at expense of husband. Husband had not suffered any diminished earning capacity or economic disadvantage as result of marriage. Husband economically self-sufficient and not entitled to support simply because wife had greater income. Compton v. Compton (Dec. 31, 2012, Ont. S.C.J., T.A. Platana J., File No. Kenora FS-11-5040) 224 A.C.W.S. (3d) 161. Guarantee and Suretyship GENERAL Credibility of individual defendant damaged by inconsistencies Motion by plaintiff for summary judgment. Individual defendant, sole director and president of defendant company, approached plaintiff company about possibility of supplying jewellery to defendant company. Plaintiff 's representative agreed, stressing necessity for timely payment of invoices as plaintiff 's business financed by bank which charged 15 per cent on outstanding amounts. According to plaintiff 's representative, individual defendant agreed to be personally responsible in event defendant company failed to make payment. However, individual defendant denied any discussion about finance charges of 15 per cent and denied giving any personal guarantee. Defendant company did, in fact, fail to make timely payments and owed some $300,000 on outstanding invoices when plaintiff demanded return of inventory. Plaintiff gave credit for returned inventory at original prices which left some $107,500 outstanding. Individual defendant later sent e-mail assuring plaintiff amount would be paid after sale of residence. No further amount paid and plaintiff commenced within action. Defendant company claimed entitlement to greater credit for returned inventory, submitting credit should have been based on fair market value at date of return rather than original prices. Also, as stated, individual defendant denied giving any personal guarantee. Motion granted. Court in position to develop full appreciation of evidence and issues without trial. Credibility of individual defendant damaged by inconsistencies and unsubstantiated claims in affidavit with result court could place no reliance on evidence. Evidence of plaintiff 's representative preferred. Evidence made sense in context of parties' business relationship and consistent with documents. Evidence did not establish any arrangement to give greater credit for returned inventory. Evidence did, however, establish individual defendant agreed to be personally responsible for payment. Absence of written document not relevant since Statute of Frauds (Ont.), not pleaded. Plaintiff entitled to judgment for $107,500 with interest on outstanding accounts calculated at 15 per cent. Noble Jewelery and Merchandising Co. v. Epic International Fine Jewellery Inc. (Dec. 31, 2012, Ont. S.C.J., Stinson J., File No. CV11-436104) 224 A.C.W.S. (3d) 170. Injunctions INTERLOCUTORY RELIEF Duty of good faith could not create new rights or obligations Motion by plaintiffs for interim injunction. In December 2009, parties entered into agreement pursuant to which defendant company granted licence to plaintiff company and plaintiff pharmacist to operate retail drug store. Agreement for term of one year commencing December 31st with two one-year renewal terms. Agreement provided defendant entitled to assume absolute control over management and supervision of business in last 60 days of agreement. On December 5, 2012, defendant advised plaintiffs agreement would not be renewed any further and assumed control of business, excluding pharmacist from premises. Plaintiffs commenced action and sought order removing defendant's representatives from premises and reinstating plaintiffs for 60 days. Plaintiffs asserted defendant breached duty of good faith contained in s. 3 of Arthur Wishart Act (Franchise Disclosure), 2000 (Ont.), and claimed entitlement to one-year notice of termination or non-renewal. Motion denied. Party seeking mandatory injunction required to establish strong prima facie case. However, plaintiffs unable to establish even lower threshold of serious issue to be tried. Agreement clearly provided for no further renewal after expiry of two oneyear renewal terms. Agreement did not, as suggested by plaintiffs, create requirement to give 60 days' notice of any termination without reference to term or expiration of agreement. Duty of good faith could not create new, unbargained-for rights or obligations, certainly not rights contradicting terms of written agreement. Plaintiffs' claims of irreparable harm if injunction not granted without merit. Balance of convenience clearly favoured defendant who faced real risk of harm if disgruntled party permitted to operate business. Robert Moore Pharmacy Ltd. v. Shoppers Drug Mart Inc. (Dec. 27, 2012, Ont. S.C.J. [Commercial List], Newbould J., File No. CV12-9942-00CL) 224 A.C.W.S. (3d) 186. Insurance AUTOMOBILE INSURANCE Documents reflected one contract of indefinite duration Individual was sued over September 2002 collision. Individual was employed by production company. Individual was driving car leased to production company. Leasing company's insurer provided coverage if car leased for less than 30 days. Producwww.lawtimesnews.com tion company's insurer provided coverage if car leased for more than 30 days. At time of collision, car in individual's possession for more than 30 days. Leasing company's insurer applied for declaration that production company's insurer required to indemnify individual for claims arising under accident. At issue whether car leased for period of more than 30 days, or rented under successive contracts each less than 30 days long. No evidence from anyone involved in car rental arrangements. Respondent objected application barred by res judicata, where earlier application already adjudicated regarding same issue. In prior proceeding, judge held employer's insurer required to provide coverage. Only one rental agreement effected. On appeal, decision reversed on basis judge decided without evidence and on insufficient factual record. No better evidence or factual record available to court in instant application. Application not barred. Declaration granted. Documents reflected one contract of indefinite duration for same driver and vehicle. One purchase order and one account number. Term of agreement for more than 30 days as of date of loss. Production company's insurer required to indemnify individual. Coachman Insurance Co. v. Lombard Canada (Oct. 18, 2012, Ont. S.C.J., A.M. Mullins J., File No. CV-08-090207-00) 224 A.C.W.S. (3d) 188. Municipal Law BYLAWS Nothing to suggest shark finning in distant oceans affected ability of people in city to live together Bylaw provided that no person was to possess, sell or consume shark fin or shark fin food products within city. Applicants argued bylaw was ultra vires because it lacked proper purpose. Applicants argued bylaw was unconstitutionally invalid because province did not have authority to delegate to municipality authority to pass bylaws to protect natural resources that never came within provincial waters such as sharks. Applicants sought declaration bylaw was of no force and effect. Declaration was granted that bylaw was ultra vires and was without force or effect. Ban by itself would not have any identifiable benefit for city with respect to environmental well-being of city. There was nothing to suggest offensive practice of shark finning in distant oceans affected ability of people in city to live together as urban community. Bylaw could not be considered to relate to social well-being of people in city. There was no air of reality to potential adverse impact on health from shark fin consumption referred to in bylaw. Bylaw was not bylaw for municipal purpose respecting health of people in city. Eng v. Toronto (City) (Nov. 30, 2012, Ont. S.C.J., Spence J., File No. CV-12-459825) 224 A.C.W.S. (3d) 206. Professions PHYSICIANS AND SURGEONS Plaintiff 's consent to surgery was not informed Defendant doctor performed laparoscopy assisted vaginal hysterectomy ("LAVH"). Defendant transected plaintiff 's left ureter during operation and then misdiagnosed injury. Plaintiff claimed defendant operated on plaintiff without her informed consent. Plaintiff claimed defendant's work fell below standard of care. Plaintiff claimed defendant performed pelvic surgery without adequate training. Defendant had successful history of performing LAVHs. Plaintiff was awarded $100,000 for pain and suffering, $45,000 for loss of past income, $140 for loss of future income, and $63,065 for medical expenses on OHIP's subrogated claim. Plaintiff brought action for medical malpractice. Defendant was liable for damages for having performed operation without plaintiff 's informed consent. Plaintiff 's consent to surgery was not informed. Defendant did not provide plaintiff with information about risk of damage to ureters or about alternative courses of action. Defendant did not fail to meet standard of care by performing operation. Defendant did not appear to be in breach of requirements of statutory governing body and was given hospital privileges by appropriate authority. Defendant complied with standard practice. Defendant did not fall below standard of care in execution of operation. Defendant was liable in negligence in diagnosis and management of complication. Delay in diagnosing complication caused plaintiff to suffer more pain for longer and increased physical damage done by injury. Bollman v. Soenen (Dec. 13, 2012, Ont. S.C.J., J.A. Ramsay J., File No. CV-12-46) 224 A.C.W.S. (3d) 213. Statutes INTERPRETATION Fact that customer did not receive all losses did not mean it was disadvantaged Trustee asserted "net equity" was amount owed to customer as result of liquidation by sale or purchase at close of business on date of bankruptcy of all security positions in customer's account. Trustee argued its treatment of all securities equally was consistent with objectives of Bankruptcy and Insolvency Act (Can.), and customer's approach would significantly increase cost, uncertainty and delay. Customer argued trustee's position was contrary to plain language of Act and principles of fairness. Trustee's interpretation of "net equity", as defined in s. 253 of Act was accepted. Trustee's trade interpretation addressed timing issues applicable to all securities transactions and treated all

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