Law Times

Law Times • June 24, 2013 any of defendants, although illadvised, were not so egregious or outrageous so as to warrant condemnation. No punitive damages were awarded. Middleton v. Highlands East (Municipality) (Feb. 1, 2013, Ont. S.C.J., James McNamara J., File No. Belleville CV-07-561) 226 A.C.W.S. (3d) 432. Family Law CHILD WELFARE No evidence child could outgrow maturity and intellect of parents Child was apprehended at birth. Parents had long history of child protection concerns that resulted in seven previous children being made Crown wards. Society sought to make child Crown ward with no access. Child was found to be in need of protection based on parents' past history of child protection concerns. Child was to be placed in care and custody of parents subject to supervision of society for 12 months. There was evidence parents were well supported by KFNC. There was evidence parents worked together to feed, diaper and comfort child appropriately. There was evidence parents were attuned to child's needs. There was no evidence to support society's contention that child could outgrow maturity and intellect of parents. There was evidence that parents had requisite mental capacity to parent child successfully. Parents were in common law relationship for ten years which was significant material change in circumstances. Family and Children's Services of Frontenac, Lennox and Addington v. L. (B.) (Jan. 25, 2013, Ont. S.C.J., Abrams J., File No. 333/11) 226 A.C.W.S. (3d) 439. SUPPORT Not open to motion judge to change substance of interim order Mother brought urgent motion for temporary order for payment of child and spousal support and continued payment of housing related expenses pending case conference. Wein J. denied father's adjournment request and granted interim, interim relief on without prejudice basis, essentially ordering father to resume paying amounts he had been paying since separation. Father did not appeal, but unsuccessfully applied to motion judge for order setting aside interim relief order. Father's appeal dismissed. Motion judge did not misapprehend evidence, make unsupported findings of fact, he did not give inadequate consideration to Child Support Guidelines and he applied applicable legal principles. Absent finding that Wein J.'s order obtained by fraud, not open to motion judge to change substance of interim order and unnecessary to consider Guidelines. Motion judge gave adequate reasons which permitted meaningful review. Test for court to exercise inherent jurisdiction to set aside or change order to prevent miscarriage of justice requires new facts; that was clearly not case. Page 15 caselaw Horner v. Benisasia (Mar. 6, 2013, Ont. C.A., Warren K. Winkler C.J.O., Robert P. Armstrong J.A., and Alexandra Hoy J.A, File No. CA C55960) 226 A.C.W.S. (3d) 567. Insurance POLICY LIMITS Not reasonable to have to determine purpose for which plant was planted Plaintiff insured contents of residence under policy with defendant. Plaintiff had licence to possess and cultivate marijuana pursuant to Marihuana Medical Access Regulations. When six marijuana plants were stolen, plaintiffs made claim under the policy and defendant paid $6,000. Plaintiff commenced action claiming $26,000 for value of stolen plants and $180,000 for breach of contract, mental stress and physical pain and breach of fiduciary duty. When five more plants were stolen, defendant paid $5,000 under policy and plaintiff commenced second seeking $19,000 for value of plants and additional $180,000. Plaintiff argued that policy limit of $1,000 for trees, shrubs and plants "being part of your landscaping on your premises" inapplicable because plants not part of landscaping. Plaintiff claimed plants fell under personal property coverage which included "personal property you own, wear or use while on your premises which is usual to the ownership or maintenance of a dwelling". Defendant moved for determination of question of law. Personal property coverage principally concerned with contents, not covering items contained in the dwelling. Provision for trees, shrubs and plants deals specifically with plants; "landscaping" does not necessarily exclude plants laid out for reasons other than aesthetics. Not reasonable to have to determine purpose for which plant was planted. Maximum recovery permitted by policy is $1,000 per plant. Stewart v. TD General Insurance Co. (Mar. 7, 2013, Ont. S.C.J., J.A. Ramsay J., File No. Hamilton 10-20819SR, 12-35817SR) 226 A.C.W.S. (3d) 563. Municipal Law BYLAWS Bylaw did not discriminate on impermissible basis 1972 bylaw limited number of taxicab owner's licences. Number of limousine licences was never capped. Subsequent 2004 bylaw required city clerk to review schedules setting out limousine and taxicab fares to ensure that limousine fare for trip was "at least 15% greater" than taxicab fare for same trip. City staff discovered that 15% differential was not being maintained and in fact, at times fare charged was less than that of taxicab. New 2012 bylaw eliminated required review ensure 15% rate differential, but imposed higher limousine fares, which was intended to maintain 15% differential. 2012 bylaw did not prohibit street hailing and contained no restriction on limousine licences, thereby preserving status quo as it existed in earlier bylaw. Applicant, which represented interests of those individuals who held licences to operate and drive taxicabs, submitted that bylaw was illegal because it was passed in bad faith and because it discriminated without any rational basis. Application dismissed. 2012 bylaw was not passed in bad faith nor did it discriminate on some impermissible basis. Municipal Act, 2001 (Ont.), permitted city to differentiate between taxicabs and limousines on any basis it considered appropriate as matter of policy. City had done so since time of 2004 bylaw, if not earlier. It was significant that matters such as street hails, use of taxi stands and absence of restriction on limousine licences were same under both new and old bylaws. City had rationale for this treatment. Council considered that imposition of cap would create market for limousine plates as it had in taxicab industry, which would potentially detract from service quality. Further, there was evidence of long and extensive public consultation and investigation. Industry players, including applicant, had notice of proposed fare structure. City staff conducted review of taxicab and limousine tariffs to ascertain whether 15% fare differential was being observed. Even if there was defect in methodology used, it was not fatal nor did it demonstrate bad faith. Civic Administration had recommended that street hails be prohibited and that limousines not be permitted to park in taxi stands. City Council was guided by recommendations of staff but was not obliged to accept them. There was no evidence that City Council was motivated by improper considerations in deciding as it did. City acted with candour and frankness in process, engaged in lengthy public consultative process with stakeholders, received submissions and exercised due diligence in arriving at its decision, all hallmarks of a good faith exercise of its powers. London Taxicab Owners' and Drivers' Group Inc. v. London (City) (Mar. 8, 2013, Ont. S.C.J., H.A. Rady J., File No. 7123/12) 226 A.C.W.S. (3d) 575. Bylaw must be sufficiently specific 7382460 Ontario Ltd. leased premises owned by 2312460 Ontario Ltd. in order to operate "Aren't We Naughty" ("AWN"), a chain of stores selling lingerie, books, lotions, condoms and devices including vibrators. AWN sought confirmation of the permitted uses from the City's Building Department. Zoning Examiner issued notice indicating that sale of adult videos and "novelties" prohibited, but sale of clothing and lingerie permitted. In response to AWN's application for "preliminary project review", municipality determined that proposed use not permitted www.lawtimesnews.com because bylaw prohibits "adult entertainment establishments". AWN's application for minor variance refused by Committee of Adjustment and appeal to Ontario Municipal Board dismissed. AWN opened store but not selling adult video tapes; municipality charged AWN with operating adult entertainment establishment contrary to zoning bylaw by selling goods "designed to appeal to erotic or sexual appetites or inclinations". AWN and owner of property brought application seeking declaration that relevant portion of bylaw vague and void for uncertainty, discriminatory in their application and that retail use of property by AWN may operate without contravening bylaw. Bylaw must be sufficiently specific to enable proposed licensee to perceive his obligations in advance. Impugned provisions vague and void for uncertainty. "Goods" not defined and what person considers erotic or appealing to sexual appetites or inclinations can vary widely. Impossible to tell whether item meets definition of "erotic" and no guidance on term "designed to appeal". 2312460 Ontario Ltd. v. Toronto (City) (Feb. 28, 2013, Ont. S.C.J., Himel J., File No. CV-12-451200, CV-12-452975) 226 A.C.W.S. (3d) 576. Real Property CONDOMINIUMS Respondents breached order willfully and deliberately Board advised owners it would demolish landscape to repair garage. Board intended to reinstate significantly different landscape. Applicants argued modifications were substantial change to common elements requiring approval of 66.66% of owners. Injunction was granted stopping respondents from holding owners meeting and from making alterations. Minutes of settlement were reached and owners meeting was permitted to proceed subject to question of new design being submitted to 66.66% of vote. New design did not obtain required support. Respondent argued there was no agreement and sought to continue with application and to maintain new design on simple majority vote. Applicants were successful in motion to enforce minutes of settlement. Respondents reconstructed landscape. Applicants sought order settling terms of previous order and order finding respondents in contempt. Applicants sought order enjoining respondent to comply with order and order enjoining respondent to return courtyard landscape to configuration and appearance in place prior to repairs garage. Respondents were found in contempt of order. Respondents were ordered to return courtyard and podium landscape to configuration and appearance in place prior to demolition. Individual respondents were to personally bear additional costs. Respondents breached order wilfully and deliberately. Parties obligations pursuant to decision were clear and unequivocal. Moving party did not need to prove alleged contemnor intended to specifically disobey order. Evidence of breach was strong and admitted by respondents. Respondents did not act honestly, in good faith or as reasonably prudent person. Boily v. Carleton Condominium Corp. 145 (Mar. 8, 2013, Ont. S.C.J., Robert N. Beaudoin J., File No. Ottawa 11-51640) 226 A.C.W.S. (3d) 395. Torts LIBEL AND SLANDER University's agreement to fund litigation did not constitute champerty Defendant was former professor at university. Plaintiff was assistant law professor at university. Defendant referred to plaintiff as "house negro" of university president on blog. Defendant sought order dismissing or staying action for defamation. Defendant argued action was abuse of process. Defendant argued university's agreement to pay plaintiff 's legal costs constituted champerty and maintenance. Motion was dismissed. Defendant's affidavits were inadmissible on champerty motion. Evidence sought to be filed in defendant's affidavits was irrelevant and inadmissible. Defendant was estopped from relitigating same issues raised in affidavits in champerty motion. Judge already ruled that evidence sought to be introduced in defendant's affidavits was irrelevant to issues involved in champerty motion. Leave to appeal decision was denied and decision was final and binding on parties. Leave to adduce further affidavits by defendant after defendant completed cross-examinations did not meet tests. Trial was issues raised in motion would not be ordered. There was no evidence produced showing university had improper motive for funding employee's defamation action. There was no conflict in evidence related to motive of president. To order trial of issue after extensive cross-examinations were conducted would be inconsistent with principles of Rule 1.04 of Rules of Civil Procedure (Ont.). University's agreement to fund litigation did not constitute champerty because there was no agreement university would share in proceeds of action. University's agreement to pay for plaintiff 's legal costs of defamation action did not constitute officious intermeddling in litigation as plaintiff decided to sue defendant before university agreed to fund plaintiff 's legal fees. University had legitimate reason for assisting plaintiff and there was no evidence university agreed to fund action for improper purpose or based on improper motive. Agreement to fund action did not constitute trafficking in litigation because there was no purchase or sale of rights to libel action by university. St. Lewis v. Rancourt (Mar. 13, 2013, Ont. S.C.J., Robert J. Smith J., File No. 11-51657) 226 A.C.W.S. (3d) 592. LT

• Cover