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Law Times • September 16, 2013 ventions were complete code of what claims were available in circumstances. Plaintiff could not rely on common law claim to advance claims for psychological injuries or punitive or exemplary damages. References to psychological and emotional injuries in statement of claim were struck out. O'Mara v. Air Canada (May. 21, 2013, Ont. S.C.J., Perell J., File No. 12-CV-453025-00 CP) 228 A.C.W.S. (3d) 664. Damages AGGRAVATED DAMAGES Defendant had purpose to extort and steal from plaintiff Plaintiff brought action for damages for malicious prosecution, theft and misappropriation of property. Parties met while on vacation in Jamaica. Plaintiff came from wealth. Plaintiff told defendant's mother that he would help her out because she wanted to visit Canada. Defendant visited Canada and then returned to Belgium. Defendant's mother told plaintiff defendant would be returning to Canada where she obtained work at store. Defendant's presence created problems with plaintiff 's wife. Plaintiff and wife separated. Plaintiff purchased condominium. Plaintiff shared condominium with defendant. They initially had separate bedrooms and bathrooms but then became couple. Problems arose in relationship. Plaintiff started to learn that defendant had been untruthful with him. Plaintiff asked defendant to leave and she returned to Belgium. Plaintiff gave her second chance. He sponsored her for permanent residence. Problems worsened after she returned. Plaintiff claimed that defendant falsely and maliciously initiated criminal charges against him. Plaintiff was arrested for criminal assault and uttering death threats to defendant. He was held in custody at detention centre overnight. Following release he was taken with police to condominium to retrieve belongings. Plaintiff found that defendant had stolen cash and valuables from condominium. Criminal charges were later withdrawn. Plaintiff found whole incident very humiliating. Judgment for plaintiff. Defendant made complaints to police that plaintiff committed criminal offence and she wished to lay charges. Criminal charges were resolved in favour of plaintiff. Defendant's allegations were false. Defendant had purpose to extort and steal from plaintiff. Plaintiff established case for malicious prosecution. Plaintiff was extremely embarrassed and humiliated by arrest and found detention to be horrible experience. His business suffered reduced profits. Based on embarrassment, humiliation and loss of reputation plaintiff experienced, he was entitled to damages for malicious prosecu- Page 19 CASELAW tion of $60,000. Plaintiff was entitled to damages of $50,000 for theft of property. Plaintiff was entitled to aggravated and punitive damages of $50,000. Campbell v. Lauwers (May. 8, 2013, Ont. S.C.J., Carole J. Brown J., File No. 07-CV337691) 228 A.C.W.S. (3d) 889. Environmental Law POLLUTION Plaintiff did not have trued intent to construct phantom project Plaintiff owned property. Defendant owned neighbouring property where defendant stored road salt. Environmental assessment indicated salt was contaminating water table under lands. Defendant admitted road salt inadvertently escaped and contaminated groundwater on plaintiff 's property and that defendant was liable for damages reasonably flowing from contamination. Defendant offered to purchase excess lands at fair market value established by plaintiff 's appraisers with no reduction for contamination. Plaintiff refused to accept offer. Defendant served notice of expropriation for excess land one business day before trial commenced. Claim was dismissed. Plaintiff did not make out case for damages. Plaintiff did not have true intent to construct phantom project. There was no real plan to build anything with underground parking that would penetrate water table. Plaintiff decided to push for hypothetical and inflated damages on basis of phantom project unsupported by factual foundation and based on heads of damages never pleaded or properly established by evidence. Contamination of groundwater would attenuate because of slope of underground water table and eventually contamination would flow away from plaintiff 's property. Defendant's improvements stopped further salt from entering plaintiff 's groundwater. Only potential damages shown by plaintiff on evidence amounted to $90,000 for concrete corrosion inhibitor to underground concrete structure, but plaintiff had no intention of constructing underground parking garage. Plaintiff made no attempt to mitigate damages. SEP Holdings Ltd. v. Cambridge (City) (May. 17, 2013, Ont. S.C.J., P.J. Flynn J., File No. C-304-04) 228 A.C.W.S. (3d) 849. Family Law CUSTODY Mother put relationship with boyfriend ahead of needs of children Father brought motion to vary custody order. Parties had one child. Child was living with mother. Father had access. Mother's boyfriend, who she had been living with, was arrested and charged with sexually assaulting ex-wife's daughter, aged 12. Mother did not disclose that fact to father. Mother's boyfriend was on bail with terms that prohibited from being in presence of children unless surety or parent was present. Mother's older children had been given counselling because of problems they had with mother's boyfriend. Motion granted. Mother was unwilling or unable to protect children from influences she brought into home. She did not put child first when she failed to tell father about boyfriend's arrest. Mother put relationship with boyfriend ahead of needs of children. It was not in child's best interest to remain in mother's care. Father was granted sole custody of child. Mother was to have access. Funnell v. Dunford (May. 15, 2013, Ont. S.C.J., J.A. Ramsay J., File No. Welland 4892/12) 228 A.C.W.S. (3d) 760. did not confirm disability to work at sedentary employment. Father brought motion for interim spousal support. Mother brought interim cross-motion for child support and s. 7 expenses. Mother's income was $89,043. Income of $21,000 per year was imputed to father. Father chose not to work while capable of earning income. Father was to pay child support of $320 per month on interim interim basis. Mother was to pay spousal support of $2,000 on or before specified date and was to pay spousal support of $320 per month. Monthly spousal support was to be deemed paid by father by way of setoff of mother's obligations of monthly spousal support. Warren v. Coade-Warren (May. 30, 2013, Ont. S.C.J., Robert J. Nightingale J., File No. 1145188) 228 A.C.W.S. (3d) 780. PROPERTY Applicant and deceased did not have intention to separate or cease being married Applicant and deceased were married in 1990. Applicant and deceased resided in property deceased owned since 1953. Applicant's name was not added to title. Applicant moved to assisted care facility as result of medical condition after residing with deceased for 21 years. Applicant and deceased continued relationship. Home was sold after death of deceased. Children of deceased sought determination of question of law of whether value of home owned by deceased at date of death could be deducted from equalization payment owed to applicant. Value of home owned by deceased on date of death could not be deducted in equalization calculation. There was no separation of applicant and deceased that would have triggered valuation date. Applicant and deceased did not have intention to separate or to cease being married. Deceased's death was event that triggered s. 13 of Family Law Act (Ont.). To interpret ss. 4(1) and 18(1) as requiring applicant to have been physically residing in home at valuation date was inequitable and contrary to objectives of Act. Brash v. Zyma (May. 14, 2013, Ont. S.C.J., L.L. Gauthier J., File No. E-6705/12) 228 A.C.W.S. (3d) 774. Industrial and Intellectual Property SUPPORT Medical evidence did not confirm father's disability to work at sedentary employment Parties were never married and had two children. Children remained in custody of mother since separation. Mother and children resided in matrimonial home. Father was in receipt of Ontario Works benefits. Father had two years after extensive WSIB retraining to find employment with WSIB assistance. Father refused to look for work in fields father was specifically trained for. Medical evidence www.lawtimesnews.com COPYRIGHT Defendant gave her students unfair advantage over other applicants to federal jobs Motion by plaintiff for summary judgment damages for breach of confidence and copyright infringement. Plaintiff, Attorney General of Canada, brought current claim in relation to Second Language Evaluation ("SLE") reading and writing tests, developed and scored by Public Service Commission ("PSC"), and administered to over 20,000 individuals each year to assess their second language proficiency according to government standards. Motion granted. Plaintiff established that defendant had surreptitiously obtained and used confidential SLE test content without the PSC's consent. Defendant admitted that she compiled practice test questions from her students' recollection of official tests after they took them. Defendant also obtained, copied, and distributed exact photocopies of certain SLE tests. In doing so, defendant gave her students unfair advantage over other applicants to federal jobs, undermined PSC's ability to fulfill its mandate and caused it to incur expense of creating new SLEs to replace versions she compromised. Damages were to be determined at later date. Canada (Attorney General) v. Rundle (May. 14, 2013, Ont. S.C.J., Robert Beaudoin J., File No. Ottawa 09-46989) 228 A.C.W.S. (3d) 823. Personal Property SALE Respondent disposed of property for unreasonable sum Respondent sold applicants' vessel for $2,000 which was amount owing on storage account. Applicants sought declaration that seizure and sale of applicants' vessel and its contents was conducted contrary to Repair and Storage Liens Act (Ont.). Applicants sought compensation for wrongful sale of property. Respondent argued respondent followed Act and provided notice to only address respondent had for applicants. Respondents received no response from applicants and sale was completed to cover outstanding charges. Applicants argued applicants provided change of address verbally and respondent did not record it. Respondent argued applicants grossly overstated value of vessel. Applicants were awarded damages of $46,750 for vessel; $10,000 for personal property; $1,113 for appraisal of vessel; and $3,000 for flooring of vessel. Sale was improper pursuant to Act. Respondent did not sell for commercially reasonable sum of money. Respondent disposed of property for unreasonable sum. Value of vessel was $46,750. Buyer was not stranger to respondent. Notice was not given to both owners of vessel. If notice was sent if was sent to wrong address as result of respondent's negligence. Notice was insufficient under Act in that it was not given to both owners, and included interest claims along with failing to provide method to calculate accrual of account to time of sale. Applicants did not have evidence to say purchaser did not buy in good faith, therefore buyer was to keep vessel. Landry v. Peter Ayling and Associates Ltd. (May. 27, 2013, Ont. S.C.J., B.A. Glass J., File No. 77126/12) 228 A.C.W.S. (3d) 852. Professions BARRISTERS AND SOLICITORS Letters did not provide solicitor with adequate notice Solicitor drafted and served statement of defence but never filed statement of defence with court. Defendants were noted in default and plaintiff obtained default judgment. Plaintiff brought motion for contempt of court and defendants brought motion to set aside default judgment. Costs were made against solicitor. Solicitor argued order was made without putting solicitor on notice of request for costs against solicitor. Solicitor brought motion to set aside order of costs made against solicitor. Award of costs against solicitor was set aside. Same amount of $10,191 inclusive of disbursements and HST was to be paid by defendant to plaintiff as costs. Letters did not provide solicitor with adequate notice. Solicitor did not know of motion in which costs were sought against solicitor. Solicitor's conduct was not so egregious as to attract costs personally against solicitor. Bank of Nova Scotia v. Technoplast Packaging Inc. (May. 17, 2013, Ont. S.C.J., E.M. Morgan J., File No. CV-11-00438655-0000) 228 A.C.W.S. (3d) 639. LT

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