Law Times

July 22, 2013

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Page 14 from estate of father pursuant to vesting order. Their ownership had been challenged on numerous occasions but consistently upheld. There was no reason to revisit vesting order. Individual plaintiff was declared vexatious litigant pursuant to s. 141(1) of the Courts of Justice Act (Ont.). He has persistently attempted to re-litigate issues already determined by court. He has initiated actions, motions and appeals that contained no legally recognizable claim and that did little more than oppress and harass his opponents with repetitions of prior claims. Burton v. Assaf (Apr. 12, 2013, Ont. S.C.J., Morgan J., File No. CV-11437021, CV-11-420827) 226 A.C.W.S. (3d) 1024. Environmental Law DAMAGES Plaintiff could not be entitled to double recovery arising from same legislation Plaintiff sought damages suffered for contamination of property. Plaintiff became owner of property in 2007. Defendants had used neighbouring property as storage site for petroleum hydrocarbon waste since 1973. Plaintiff alleged that contaminants had permeated soil and groundwater. Ministry of Environment ("MOE") had ordered defendants to investigate extent of contamination of plaintiff 's property and to remediate property. Plaintiff brought claims against defendants based on statutory remedy under Environmental Protection Act (Ont.), damages for nuisance and negligence and punitive damages. Action dismissed. MOE had ordered defendants to remediate plaintiff 's property. Act could not be interpreted in expansive manner that allowed damages contemplated by s. 99 to include damages for cost of remediation in circumstances where such remediation had already been ordered under Act. Plaintiff could not be entitled to double recovery arising from same legislation, which would result if property was remediated pursuant to MOE order and court concurrently awarded sum equivalent to plaintiff 's proposed remediation. Plaintiff did not introduce evidence of damage or loss pursuant to s. 99 of Act such as actual loss in property value or inability to use its property or operate its business on its property or business losses. There was no evidence that plaintiff acquired property that was not already damaged. Plaintiff could not establish that any chemical alteration in soil and groundwater had occurred on its property. Plaintiff had not proven damages in nuisance or negligence. Evidence did not support finding that defendants' conduct was malicious, oppressive or highhanded to justify award of punitive damages. Midwest Properties Ltd. v. Thordarson (Feb. 28, 2013, Ont. S.C.J., Pollak J., File No. CV-09382649) 226 A.C.W.S. (3d) 1039. July 22, 2013 Law Times • caselaw Family Law CUSTODY Mother refused to comply with order to address mental health issues Mother appealed decision ordering no access. Children were found in need of protection and were placed in care of father due to mother's lack of recognition of emotional harm her conduct had inflicted on children and her unwillingness to change her conduct. At status review hearing judge ordered status quo to be continued with children remaining with father. Access to mother was prohibited on basis that children were not emotionally well enough to have contact with mother and that her mental health issues and ongoing conduct were impediments to access. At subsequent status hearing it was confirmed that status quo should again be maintained without access to mother, as there had been no change in mother's condition and she had not taken steps to address mental issues that underlined access issue. Appeal dismissed. There was no error in decisions. Findings were supported by materials and affidavit evidence. There was no basis to interfere with discretionary decision to refuse adjournment. There was no substance to any procedural concerns. Mother refused to comply with terms of order that required her to address mental health issues. She had not done what she had to do in order to obtain decision that would set aside order prohibiting her from exercising access. S. (K.) v. Children's Aid Society of Waterloo (Regional Municipality) (Feb. 13, 2013, Ont. C.A., R.A. Blair J.A., J. MacFarland J.A., and Paul Rouleau J.A., File No. CA C56096) Decision at 220 A.C.W.S. (3d) 745 was affirmed. 226 A.C.W.S. (3d) 1068. Insurance AUTOMOBILE INSURANCE No privity of contract between defendant insurer and third party insurer Motion by defendant insurer for summary judgment against third party insurer. Plaintiff was involved in motor vehicle accident with individual defendants and commenced action. Third party insurer denied coverage to individual defendants because their automobile insurance policy had been cancelled. Defendant insurer was insurer of plaintiff. It was added as defendant under uninsured motorist coverage provisions of plaintiff 's policy. Defendant insurer now sought declaration that third party insurer was valid insurer of individual defendants at time of accident and was required to defend and indemnify them. Motion dismissed. There was no privity of contract between defendant insurer and third party insurer. Defendant insurer would have to obtain judgment against individual defendants or have assignment of their rights in order to recover damages from third party insurer. Kaddoura v. State Farm Mutual Automobile Insurance Co. (Jan. 22, 2013, Ont. S.C.J., J.N. Morissette J., File No. 64076/09 A1) 226 A.C.W.S. (3d) 1014. Landlord and Tenant RESIDENTIAL TENANCIES Remedies did not include damages for loss of future rent Landlord sought damages assessment against tenant. Landlord and Tenant Board had ordered termination of tenancy following application by landlord. Tenant paid amounts owed to landlord to date of vacating of unit. Landlord sought loss of rent during period from vacation of unit by tenant to date on which new tenant moved in, and damages for cost of cleaning unit and repairing damage to unit caused by tenant. Judgment granted in part. Residential Tenancies Act, 2006 (Ont.), comprised complete, exhaustive code of landlord remedies in event of early termination. Those remedies did not include damages for loss of future rent when tenancy was terminated by landlord. There was no room for election of remedies when tenancy was terminated by board. Boardwalk General Partnership v. Fraser (Jan. 25, 2013, Ont. S.C.J., James Marentette D.J., File No. Kitchener SC-1709-12) 226 A.C.W.S. (3d) 1163. Negotiable Instruments CHEQUES Defendant knowingly engaged in cheque kiting Defendant wrote hundreds of cheques representing $4 million to $5 million over ATM network. Volume of cheques and amount of overdrafts were outside of lending parameters. Defendant continued relying on inter-account deposits to maintain businesses until promised financing was put in place. Plaintiff did not extend further credit to defendant and asked defendant to find alternative financing to cover full indebtedness to plaintiff including overdrafts. Defendant did not deny amounts were owing to plaintiff but denied any fraud or wrongdoing. Defendant argued plaintiff authorized overdrafts. Defendant claimed defendant told plaintiff defendant needed additional overdrafts to close deals since promised financing was delayed. Plaintiff brought motion for summary judgment. Motion was allowed. Plaintiff had judgment in sum of $6.37 million. Judgment was judgment in fraud within meaning of s. 178(1) of Bankruptcy and Insolvency Act (Can.). Plaintiff successfully made out claims with respect to cheque kiting. Plaintiff did not permit defendant to access additional funds beyond defendant's approved credit facilities. Plaintiff showed there was no need in interests of justice for trial. Defendant did not plead or show plaintiff breached forbearance agreements. Defendant did not provide evidence to show plaintiff improvidently liquidated assets. Plaintiff did not fail in obligation to produce documents relevant to defence. Evidence supported conclusion defendant knowingly engaged in cheque kiting by inter-account deposits and withdrawals through daily series of cheques. Defendant was deceitful. Royal Bank of Canada v. Hejna (Mar. 21, 2013, Ont. S.C.J., Healey J., File No. Newmarket CV-07-086210-00) 226 A.C.W.S. (3d) 1002. Pensions GENERAL Retention bonuses were not pensionable earnings Appellant appealed dismissal of application. Appellant applied for declaration that what parties referred to as three retention bonuses in employment contract with respondent OHA constituted pensionable earnings under s. 2.18 of respondent pension plan. Pension plan took position that retention bonuses were not pensionable earnings. Motion judge concluded that in context of plan and factual matrix in which it operated, three payments did not form part of regular part of appellant's remuneration because they were not paid as rule or usual or customary. Appeal dismissed. Motion judge considered plain meaning and dictionary definitions of word regular. Motion judge did not err in concluding that retention bonuses were not pensionable earnings because payments did not form regular part of members' remuneration. It was not necessary to resort to contra proferentum rule, as other tools of interpretation enabled him to reach conclusion. Absence of word bonuses in exclusions in s. 2.18 of plan was of no moment in view. Motion judge did not err in exercising discretion in refusing to award appellant costs out of plan. Shaw v. Healthcare of Ontario Pension Plan (Feb. 15, 2013, Ont. C.A., Blair J.A., MacFarland J.A., and Rouleau J.A., File No. CA C55834) Decision at 219 A.C.W.S. (3d) 213 and 221 A.C.W.S. (3d) 32 were affirmed. 226 A.C.W.S. (3d) 1175. Professions PHYSICIANS AND SURGEONS Circumstantial evidence permitted inference of negligence Defendant performed procedure on plaintiff for removal of varicose vein in ankle. During procedural strand of sural nerve was inadvertently removed. Plaintiff suffered significant pain on removal of sural nerve fascicle. Plaintiff continued to experience shooting pain, sensitivity and sensory loss in area of left ankle and lower foot, which would be permanent. Plaintiffs claimed defendant was negligent. Parties agreed on damages. Claim was allowed. Plaintiff was awarded $128,976. Plaintiffs did not prove defendant was negligent in recommending ambulatory phlebectomy. Defendant was not negligent because defendant used local anaesthetic rather than tumescent anaesthetic. Defendant did not lack training and experience necessary to do ambulatory phlebectomy at level of ankle. Defendant's execution of ambulatory phlebectomy did not meet standard of care required. Circumstantial evidence permitted inference of negligence which defendant did not negate. Hewitson v. Trusdale (Mar. 22, 2013, Ont. S.C.J., D.C. Shaw J., File No. Thunder Bay CV-100101) 226 A.C.W.S. (3d) 1182. Real Property CONDOMINIUMS Defendant had not embarked on program of substantial change to common elements Plaintiff brought action against defendant condominium corporation. Plaintiff owned and lived in condominium unit. Defendant was advised to take remedial action to correct building construction deficiencies that emerged over time. Plaintiff challenged ongoing work done on garage roof decks that were funded by special assessments levied against unit owners. Plaintiff alleged that defendant acted in oppressive manner in embarking on work he claimed was substantial change without requisite unit owner voting approval. Plaintiff sought damages, as well as orders requiring compliance with Condominium Act, 1998 (Ont.). Action dismissed. There was no adequate basis for plaintiff 's complaints. Defendant had legitimate perception of health and safety concerns that indicated real and substantial threat of further imminent harm to property and/or persons if left unchecked and justified its decision to take corrective action. There was nothing to warrant finding of bad faith on part of defendant. Well documented conduct and communications of defendant were extraordinarily open and candid. There was no evidence of any unfairly prejudicial conduct. All unit owners received equal treatment. Plaintiff 's views were not unfairly disregarded. Plaintiff was not entitled to punitive damages. Defendant's conduct was not harsh, vindictive, reprehensible or malicious. Remedial work fell within description set out in s. 97(1) of Act and could not constitute addition, alteration or improvement. Defendant had not embarked on program of substantial change to common elements. Defendant was entitled to embark on garage deck remedial work without need for unit owner notice or approval. Defendant was entitled to finance remedial work by appropriate and necessary special assessments that all unit owners, including plaintiff, were required to pay.

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