Law Times

Page 18 October 21, 2013 Law Times • caselaw tion. Father never abandoned intention to have child return to Canada. Singh v. Saini (Jul. 10, 2013, Ont. S.C.J., K. van Rensburg J., File No. FS-13-77328-00) 230 A.C.W.S. (3d) 182. Contracts MISTAKE No evidence that non-conforming use could not be continued Parties entered into agreement of purchase and sale for dry cleaning business. Real estate broker prepared agreement and neither party represented by counsel. Agreement contained entire agreement clause and acknowledgement that broker advised parties to seek independent advice with respect to zoning but no other provisions about zoning. Two years prior to closing, zoning had changed from general commercial, which permitted dry cleaning facility, to mixed use commercial, which did not. Vendor testified it was unaware of change and continuously operated dry cleaning facility in premises since it acquired business. Parties admitted they never turned minds to possibility of zoning issue. On closing date, city advised that dry cleaning business not permitted use. Vendor's lawyer claimed that dry cleaning plant was legal nonconforming use but purchaser refused to close. Purchaser commenced action for rescission, damages and mandatory injunction for return of purchase price; vendor counterclaimed for damages for breach of contract. Motion judge granted purchaser's motion for summary judgment, finding that parties contracted on basis of shared erroneous assumption, which amounted to common mistake fundamental to agreement. She held that purchaser had not expressly or impliedly accepted risk this assumption might be untrue. Motion judge would also have granted relief on equitable grounds, finding it would not be just to force purchaser to proceed. Vendor's appeal allowed. Motion judge erred in finding that parties had common assumption that dry cleaning business was permitted use. Evidence did not support conclusion that both parties understood distinction between permitted use and legal non-conforming use. Motion judge erred by putting onus on vendor to demonstrate that business able to continue to operate as dry cleaning business. Onus should have been on purchaser to show it could not continue to operate as such. No evidence that non-conforming use could not be continued. Motion judge erred by reversing rule of caveat emptor which put risk of mistake on vendor. Purchaser did not make agreement conditional on zoning, implicitly assuming risk that zoning would not permit contemplated use. No scope for application of doctrine of equitable mistake as no common misapprehension of facts. Pur- chaser failed to take reasonable measures to protect himself and he, rather than vendor, should be visited with consequences. Motion for summary judgment dismissed. Lee v. 1435375 Ontario Ltd. (Aug. 15, 2013, Ont. C.A., S. Goudge J.A., Janet Simmons J.A., and G.R. Strathy J.A., File No. CA C56363) Decision at 227 A.C.W.S. (3d) 1195 was reversed. 230 A.C.W.S. (3d) 119. Family Law CUSTODY Religion had taken on toxic presence that was detrimental to interests of children This was to determine custody of children. Parties were married for six years and had two sons. Parties were married in Roman Catholic church. Mother was originally from Ukraine. Mother worked part-time as receptionist. Father worked as electrician. Mother claimed that father was abusive and controlling during marriage. Relationship deteriorated. Father maintained that separation sent him into deep depression. He lost his job and failed to see children on consistent basis. Mother currently lived with her mother and stepfather. Mother converted to Judaism. Mother took steps to convert children to Judaism, including having sons circumcised. Mother registered children in private Jewish school. Father obtained order that children be registered in public school. Mother was vehemently opposed to sending children to public school and wanted children to return to private Jewish school. Office of Children's Lawyer became involved and expressed concerns about mother marginalizing father from children. Application granted. Father was more credible than mother. Mother appeared to be unwilling or unable to comply with directions from court. She would do almost anything to remove children from public school. It was clear that mother would not make time sharing arrangement work that maximized contact with father and balanced her own religious views with needs of children and father. To give mother primary residence would inevitably result in marginalization of father. Father would adhere to court orders and would maximize contact between children and mother. Mother had not established that there was physical abuse during marriage. Mother confirmed she was not afraid of father. In this case religion had taken on toxic presence that was detrimental to best interests of children. Mother was unable to empathize with children's need to have both parents in lives. Children's best interests were not being met in care of mother. Children's best interests could only be met by placing them in custody of father. Joint custody was not appropriate, as parties could not communicate. Polak v. Polak (Jul. 12, 2013, Ont. S.C.J., McDermot J., File No. FC-09-032864-00) 230 A.C.W.S. (3d) 168. Insurance POLICY LIMITS Both insurers equally obligated to respond to plaintiffs' claims in full This was appeal of trial judge's decision awarding respondent judgment against appellant in amount of $1.086 million. Tragic fire occurred in 1995. Six people died and numerous others were seriously injured. Eight legal proceedings resulted. Among various defendants held liable were owner of building and property manager. They were jointly represented by one counsel at trial and liability was not apportioned between them. They were found liable as one defendant. There were three policies of insurance available to respond to liability: appellant primary policy with limits of $1 million insuring both defendants; appellant umbrella policy with limits of $9 million insuring both defendants; and respondent policy with limits of $5 million insuring only property manager. Extent of plaintiffs' claims exceeded limits of appellant primary policy. Respondent and appellant engaged in dispute over which insurer was responsible for excess losses. Respondent paid entire amount of excess claims to plaintiffs and then sought recovery from appellant. Trial judge awarded judgment to respondent. Appeal dismissed. Issues were properly resolved through application of notions of equitable contribution or some combination of equitable contribution and restitutionary principles of unjust enrichment. Principles operated to require appellant to contribute to respondent's payment of total loss. Payment of loss was in reality payment on behalf of both owner and property manager. Appellant insured both. Both insurers were equally obligated to respond to plaintiffs' claims in full. Appellant should contribute to total loss on 50/50 basis. Trial judge's decision that appellant was required to reimburse respondent for one-half of liability on unjust enrichment/ restitutionary grounds was upheld. Aviva Insurance Co. of Canada v. Lombard General Insurance Co. of Canada (Jun. 20, 2013, Ont. C.A., R.A. Blair J.A., M.H. Tulloch J.A., and P. Lauwers J.A., File No. CA C55661) Decision at 216 A.C.W.S. (3d) 1001 was affirmed. 230 A.C.W.S. (3d) 259. Limitations TORT Appellant entitled to determination that reassessment invalid before proceeding with claim This was appeal of motion judge's decision finding appellant's claims were statute-barred. Appellant was federal government employee. From 1992 to 1995, she was posted to Japan. www.lawtimesnews.com Under Income Tax Act (Can.), government employees posted abroad were deemed residents of Canada for tax purposes. Appellant's husband filed tax returns in Japan for years 1993 to 1995. In 1997, Revenue Canada reassessed husband as Canadian resident. Revenue Canada then reassessed appellant as factual resident of Canada. Appellant appealed income tax reassessment and was eventually successful. Minutes of settlement were signed and incorporated into order made on February 17, 2005. On February 16, 2007, appellant issued notice of action seeking damages for various torts. Respondent Attorney General brought summary judgment motion to dismiss action on ground that it was statute-barred. Motion judge found that appellant was aware of all material facts underlying claims by 1998 or 2001 at latest. Motion judge held that appellant's claims for abuse of process and misfeasance in public office were barred by Limitations Act, 2002 (Ont.). Appeal allowed. Appellant was entitled to seek determination that tax reassessment was invalid before proceeding with claim. Appellant took pragmatic and practical approach to claim. Action was not barred by limitation period. Gardner v. Canada (Attorney General) (Jun. 21, 2013, Ont. C.A., John Laskin J.A., J.C. MacPherson J.A., and E.E. Gillese J.A., File No. CA C55378) Decision at 216 A.C.W.S. (3d) 71 was reversed. 230 A.C.W.S. (3d) 273. ONTARIO CRIMINAL DECISIONS Appeal PLEA OF GUILTY Fact accused had imperfect understanding of law no basis for interfering with convictions Appeal by accused from his convictions and sentence. Accused pleaded guilty to two violations of Securities Act (Ont.) and he confirmed accuracy of agreed statement of facts tendered in support of pleas. After trial judge was satisfied that accused was prepared to admit his guilt he sentenced accused to 90 days of imprisonment, to be served intermittently, and 12-month term of probation, which required accused to perform 100 hours of community service. Accused claimed convictions were miscarriage of justice for his guilty pleas were not unequivocal, voluntary and informed. Sentence was cruel and unusual punishment. Appeal dismissed. Regarding convictions trial record showed that accused's pleas were unequivocal, voluntary and informed. There was no proper legal basis to interfere with convictions. Even though accused was not represented by counsel he was sophisticated litigant. He only elected to plead guilty after many meetings and judicial pre-trial conferences and after he signed agreed statement of facts, to be used in support of his anticipated guilty pleas. Judge correctly concluded that agreed statement of facts supported accused's admissions of guilt. Accused had meeting with prosecutor to resolve outstanding issues and he made it clear he wanted to unconditionally admit his guilt. Prosecutor wanted to have no part in proceeding where accused admitted his guilt and only did so for expedience. Judge then conducted his own detailed and comprehensive inquiry into admission of guilt to make sure it was valid. Accused claimed he pleaded guilty because he was misled by prosecution that he might be able to obtain conditional discharge. Such disposition was not available. There was no evidence that this legal misunderstanding was caused by prosecutor. Mere fact that accused had imperfect understanding of law was no basis for interfering with convictions based on guilty pleas that were otherwise valid. Sentence was upheld as it was fit and accused offered no persuasive reason which would justify appellate interference with sentence. R. v. Schwartz (Aug. 1, 2013, Ont. S.C.J., Kenneth L. Campbell J., File No. 46/12) 108 W.C.B. (2d) 301. Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Incursion on accused's right to privacy in home outweighed reliability of seized evidence Application by accused male and accused female to exclude all evidence obtained as result of male's arrest and execution of search warrant at his home. Police officer obtained telewarrant to search male's home after confidential informant told him that male possessed firearm and was involved in sale of marijuana. When male was arrested drugs and cash were found in his possession, as were keys for his home. Police entered home late at night by means of noknock dynamic entry and female and two children were found in home. Police found loaded firearm in which safety was in off position, bulletproof vest, ammunition, drugs, digital scale, firearms cleaning kit and identification documentation. Accused were charged with various firearm and drug offences that arose from their alleged possession of prohibited firearm and ammunition, and for possession of marijuana for purpose of trafficking. Basis of application was that accused claimed that their rights under ss. 8 and 9 of Canadian Charter of Rights and Freedoms were violated. Information to Obtain ("ITO") that was disclosed to accused was heavily redacted to protect identity of confidential informant. Crown conceded that edited ITO did

• Cover