Law Times

Page 14 October 28, 2013 Law Times • under lease was both parties' professional corporations and neither party was prepared to allow other to deal with landlord separately. In any event, no notice of renewal had been given and landlord had advised lease would terminate on August 31, 2013. Applicant wanted to compel landlord to accept extension of lease, and defer to later date determination of which dentist would get sole occupancy. Applicant sought leave to appeal arbitrator's decision parties had not entered binding settlement agreement and extension decision, and sought relief from forfeiture. Application dismissed. Arbitrator found any binding settlement was terminated when applicant refused to withdraw proposal to shorten time for respondent to negotiate lease renewal. Whether parties concluded binding settlement was, at most, question of mixed fact and law, and issue of anticipatory repudiation was arbitrator's application of legal test to facts. There was no question of law with respect to settlement award, so threshold test for leave under s. 45(1) Arbitration Act, 1991 (Ont.), was not met. In extension decision, arbitrator found he had no jurisdiction over landlord and lease and could not order renewal by one party. Applicant's motion to amend notice of application to request leave to appeal extension decision was dated more than 30 days after decision was released, so was out of time. There was no explanation for delay, particularly since extension decision was released just one day after settlement award. Furthermore, applicant did not raise question of law, as application of test for injunctive relief was one of mixed fact and law. There was no basis to grant relief from forfeiture. Applicant's claim turned on nature of rights engaged under lease and neither dentist had right to exercise option to renew alone. Business deal entered into by parties could not now be rewritten. As applicant had no right to renew alone, there was no serious issue for trial. Dr. K. Ansarian Dentistry Professional Corp. v. Dr. A. Mohajeri Dentistry Professional Corp. (May. 9, 2013, Ont. S.C.J. [Commercial List], D.M. Brown J., File No. CV-13-10045-00CL, CV-13-10061-00CL) 230 A.C.W.S. (3d) 352. Civil Procedure SUMMARY JUDGMENT Contractual language allowing defendant to reduce benefits not sufficiently clear Defendant substantially reduced healthcare and life insurance benefits of former salaried and executive employees after employees retired. Plaintiff brought class action. Plaintiff brought motion for partial summary judgment as to whether defendant was contractually entitled to reduce post-retirement benefits after employees' retirement. Defendant brought crossmotion for partial summary judgment on common issues dealing with new hires and early retirees. Defendant was not contractually entitled to reduce healthcare and life insurance of salaried employees after they retired. Defendant was contractually entitled to reduce or eliminate benefits of executive retirees. Contractual language allowing defendant to reduce benefits was not sufficiently clear and unambiguous for salaried employees. Under reservation of rights clause defendant had right to reduce benefits while salaried employees were actively employed but had no right to do so after employee retired. It was reasonable expectation of salaried employees that salaried employees could rely on core of healthcare and life insurance post-retirement benefit that would continue unchanged for remainder of their lives. Benefits were provided as deferred compensation for services rendered and were not gratuitous. Interpretation was in line with duty of good faith favouring plaintiff 's claim that benefits could not be reduced after employee retired. In reducing or eliminating benefits after retirement, defendant breached contract with salaried employees. There was no good reason to treat new hires differently. Early retirement agreements did not release defendant from liability. Defendant was not in breach of contract in reducing benefits for executive retirees and their dependents. Reservation of rights clause in place for executive employees stated with more clarity exactly what might happen. Executive employees knew from outset that their retirement benefits were not guaranteed. Defendant was contractually entitled to reduce or terminate benefits of executive retirees. O'Neill v. General Motors of Canada Ltd. (Jul. 17, 2013, Ont. S.C.J., Edward P. Belobaba J., File No. CV-10-402515CP) 230 A.C.W.S. (3d) 413. Contempt of Court GROUNDS Custodial arrangements of children cannot be used as punishment for contempt Mother was found to have manipulated child into believing child could go on school trip on March break. Child refused to go to father's on March break. Mother was found in contempt of final order dealing with custody, access, support and all issues regarding parenting of children. Custody and decision-making authority for children were changed to father from joint custody until August. Appeal was allowed. Finding of contempt and remedy were set aside. Motion judge erred in finding contempt and in remedy. Notice of motion seeking contempt did not supply suffi- cient detail to allow mother to know case mother had to meet. Motion judge failed to consider all evidence and ignored one of mother's affidavits. Record did not support finding made. Affidavits were conflicting and no cross-examinations were held. It was unreasonable on record to find beyond reasonable doubt that it was solely mother's manipulation that led to child to want to go on school trip and to refuse to go with father. Remedy imposed was not available remedy under Rule 31(5) of Family Law Rules (Ont.). Custodial arrangements of children could not be used as punishment for contempt. There was no motion to vary final order for custody based on material change in circumstances. Chan v. Town (Jul. 5, 2013, Ont. C.A., K. Feldman J.A., J.M. Simmons J.A., and R. Juriansz J.A., File No. CA C56803) 230 A.C.W.S. (3d) 404. Debtor and Creditor GARNISHMENT Garnished funds type of welfare known as basic financial assistance This was garnishment hearing. Creditor was property management company and landlord of apartment formerly occupied by debtor as tenant. Debtor had account with bank. Creditor obtained order from landlord and tenant board awarding it $3,500 against debtor, mainly for unpaid rent. Garnishment notice was served on bank. Bank owed debtor contents of account of $267. Bank paid amount into court and amount was paid to creditor. Debtor alleged that garnished funds were not eligible to be garnished. Creditor refused to return funds. Application granted. Garnished funds were protected from garnishment. Funds were type of welfare known as basic financial assistance. Bank did not err in way that would make it responsible and permit creditor to retain money. Bank did not make mistake in remitting funds to court. Creditor was ordered to remit funds to court. M.F. Arnsby Property Management Ltd. v. Racz-Ellis (Jun. 27, 2013, Ont. S.C.J., J.D. Searle D.J., File No. Woodstock 47/13) 230 A.C.W.S. (3d) 436. Motor Vehicles ACCIDENT CLAIMS FUND Driver able to meet 51% of financial needs so not dependent on family Appeal from arbitration award finding that driver was not, on date of his motor vehicle accident, financially dependent on his parents for purposes of payment of statutory accident benefits. Therefore, driver had no claim under his father's automobile insurance policy with respondent insurer. Arbitrator determined that appellant Motor Vehicle Claims Fund should pay statutory accident benefits to driver. Driver was seriously www.lawtimesnews.com injured in single vehicle accident while driving his uninsured motorcycle. At time of accident, driver was working fulltime as security guard. Driver was living with his parents and his two siblings in two-bedroom apartment. Fund alleged he was planning return to college. Appeal dismissed. Arbitrator correctly selected 12 months immediately prior to accident as appropriate timeframe within which to measure driver's possible dependency. Appropriate test was whether driver was able to meet at least 51% of his financial needs with his earnings over relevant time period. Arbitrator was correct in calculating driver's annual financial needs as $8,170 and his annual income at over $16,000. There was no error in arbitrator's calculation that driver met at least 51% of his financial needs. Dominion of Canada General Insurance Co. v. Ontario (Jul. 17, 2013, Ont. S.C.J., Stinson J., File No. CV-11-429236) 230 A.C.W.S. (3d) 580. Municipal Law COUNCILLORS Company had no financial interest in development charges by-law adopted Mayor's son was owner of company which agreed to purchase land for purpose of constructing hotel, conference centre and condominium towers. Applicant argued mayor knew son had financial interest in company and Municipal Conflict of Interests Act (Ont.), deemed mayor to have same financial interest as son for conflict purposes. Mayor cast votes relating to increased development charges but transitional provisions provided for eligibility to pay lower rate. Company was eligible to pay lower rate under transitional provisions. Applicant sought to have Mayor of City removed from office for violating Act. Application was dismissed. Son would benefit if development went ahead. At time of votes mayor knew son had ownership interest in company. According to s. 3 of Act, mayor had deemed financial interest in company. Company did not file site plan application that was complete within meaning of transitional provisions and company could not qualify under transitional provisions. Company had no financial interest in development charges by-law adopted. Hazineh v. McCallion (Jun. 14, 2013, Ont. S.C.J., Sproat J., File No. CV-12-1130-00) 230 A.C.W.S. (3d) 582. Professions BARRISTERS AND SOLICITORS Lawyer not disqualified from acting for individual respondents Applicants brought motion to remove respondents' counsel and law firm from record. Applicant and family trust, shareholders in respondent corpora- tions, commenced oppression action against co-shareholders and their family trusts seeking variety of relief. Main issue in dispute involved sale of applicant's shares in companies. Applicant took position that his fellow shareholders were required to buy him out. Other shareholders denied that obligation but supported sale of applicant's shares to third party. Applicants claimed that respondents' lawyer formerly acted for applicant and applicant company and might be called as witness in proceeding. Motion granted in part. Evidence did not disclose that lawyer previously acted for applicant personally or for family trust. No prior retainer or relationship in which confidential information was disclosed existed between lawyer and applicant and family trust. Lawyer had acted for applicant company in action but past retainer was not sufficiently related to present legal complaints advanced by applicant and family trust so as to give rise to conflict of interest on part of lawyer in representing respondents. In present proceeding applicants sought relief against both individual and corporate respondents and there were significant differences in relief claimed. Interests of respondent shareholders was not identical to interests of corporate respondents. In circumstances, lawyer could not represent both shareholders and corporate respondents, as conflict existed between their respective legal interests. Lawyer and law firm were disqualified from acting as lawyers of record for corporate respondents. There was no basis to conclude that lawyer would likely be called to provide material evidence as witness. He was not disqualified from acting as lawyer of record for individual respondents. Hames v. Greenberg (Jul. 24, 2013, Ont. S.C.J. [Commercial List], D.M. Brown J., File No. CV-12-462508) 230 A.C.W.S. (3d) 588. ONTARIO CRIMINAL DECISIONS Appeal GENERAL Hearsay conversation relied on by Crown was ambiguous at best Crown appealed accused's acquittal on nine drug-related charges, including conspiracy to traffic cannabis and marijuana and possession of cannabis and marijuana for purpose of trafficking. Police executed surreptitious search of apartment and installed probe to intercept communications. Inside apartment, police found significant amounts of what they suspected to be cocaine. Police intercepted conversation between individual and accused in apartment, while at same time they saw second individual walk over to ac-

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