Law Times

Page 14 ing to extend. Plaintiffs argued defendants breached agreement and August 3rd was never firm, parties waived time is of the essence requirement, and defendants were not even ready to close on August 3rd. Defendants argued key clause in agreement was that inventory be taken day before closing, and it was taken on August 2nd, establishing firm closing date of August 3rd. Motion allowed. There was no written agreement for August 3rd closing date, but parties were clearly working towards closing and took inventory on August 2nd, indicating they agreed on August 3rd closing. However, fifth amending agreement did not state time was of the essence as early agreements had, and proposed closing dates had already come and gone without parties treating agreement as terminated. Parties' conduct constituted waiver of time is of the essence and fact that inventory was taken on August 2nd did not change that; while agreement required inventory to be taken before closing, it did not state it was determinative step requiring closing the next day. Regardless, defendants were not in position to close on August 3rd, as they had not complied with condition tenant indicate position on right of first refusal, had not made proper tender or provided estoppel certificates. While defendants could have closed in escrow, they refused to even consider the possibility. There was no genuine issue for trial and partial summary judgment granted. Plaintiffs were in position to close on August 8th at the latest, property provided special opportunity and plaintiffs had put much effort into it, so would be unjust not to grant specific performance. 2329131 Ontario Inc. v. Carlyle Development Corp. (Aug. 21, 2013, Ont. S.C.J., Swinton J., File No. CV-12-462802) 232 A.C.W.S. (3d) 103. Constitutional Law DISTRIBUTION OF LEGISLATIVE AUTHORITY Regulation appellant sought to have interpreted was merely implementation of response This was appeal of two orders adjourning application and then dismissing it. Independent commission made recommendation respecting 2008 remuneration for Justices of the Peace. Respondent government accepted recommendation and passed Regulation implementing it. Regulation provided for increase in remuneration by amount of Statistics Canada index. Amount was not quantified. Respondent determined increase to be 2.7%. Dispute arose between parties as to correct percentage respondent should use. Respondent referred issue to commission who recommended 3.3% increase. Respondent was slow to accept recommendation so appellant brought application seeking interpretation of Regulation. December 9, 2013 Law Times • CASELAW Judge adjourned application and granted respondent six months to respond to commission. Respondent rejected commission's percentage and continued to use 2.7%. Appellant brought application back for interpretation of Regulation. Judge dismissed application. Appeals dismissed. Real dispute was about respondent's response to commission's recommendations. Regulation appellant sought to have interpreted was merely implementation of response. Appropriate course was to proceed by way of judicial review of response, on standard of rationality, and not by judicial interpretation of implementing Regulation. Assn. of Justices of the Peace of Ontario v. Ontario (Aug. 30, 2013, Ont. C.A., S.T. Goudge J.A., David Watt J.A., and S.E. Pepall J.A., File No. CA C55585) Decision at 226 A.C.W.S. (3d) 394 was affirmed. 232 A.C.W.S. (3d) 109. Employment DUTIES OF EMPLOYEE Plaintiff did not establish anything unique about its business operations Application by plaintiff for interlocutory injunction restraining defendants from solicitation of clients and employees and requiring them to return confidential and proprietary information. Plaintiff was consulting business that provided integrated software and defendants were former employees and consultants and the company they incorporated. Prior to defendant's incorporation, plaintiff was only technology company of its kind in Canada, but defendant was now competitor. Plaintiff alleged defendants were competing unfairly by appropriating confidential information and wrongfully soliciting clients and employees, contrary to employment agreements and in breach of fiduciary duty. Defendants conceded they provided software and other technology consulting services to clients, but denied any wrongdoing and argued alleged confidential information amounted to little more than generic marketing and business practices common in industry, and plaintiff 's clients and employees left on own volition. Application dismissed. Record contained no reliable evidence that defendants took any confidential information from plaintiff. Plaintiff 's marketing strategies, business approaches, training and Discovery Portfolio Assessment were highly generic. Plaintiff did not establish anything unique about its business operations and there was no evidence there was anything proprietary for defendants to appropriate. Some of the specific confidential information referred to by plaintiff was actually created by clients, who raised no issue with defendants' use. There was a lack of evidence on solicitation and restrictive covenants on solicitation of clients and employees were so vague that there were no clear breaches by defendants, nor was there any evidence of irreparable harm. No basis for any forensic audit at this stage. Plaza Consulting Inc. v. Grieve (Aug. 16, 2013, Ont. S.C.J., E.M. Morgan J., File No. CV-12468516) 232 A.C.W.S. (3d) 233. WRONGFUL DISMISSAL Only essential element of contract that was not changed was salary Defendant employed plaintiff for ten years and two months. Defendant informed plaintiff that he was being moved to newly created position of senior manager, VPP. Plaintiff saw move as demotion. There was never job description for new position. Plaintiff 's replacement was interviewed before plaintiff was told plaintiff was being transferred. Plaintiff lost private office and was relegated to cubicle out of way from main managerial offices. Plaintiff claimed he was constructively dismissed by defendant without prior notice. Defendant argued plaintiff resigned. Plaintiff obtained employment in another automobile company within reasonable time. Plaintiff was awarded $102,198. Plaintiff was constructively dismissed. Only essential element of contract that was not changed by defendant was plaintiff 's salary. There was nothing for plaintiff to manage and title was hollow term. Reasonable person in similar situation would have felt demoted. Plaintiff was not obligated to stay on longer with defendant than what plaintiff did. Jodoin v. Nissan Canada Inc. (Aug. 30, 2013, Ont. S.C.J., Greer J., File No. 11-CV-422143) 232 A.C.W.S. (3d) 136. Professions BARRISTERS AND SOLICITORS Vendors not obligated in law or equity to disclose cost recovery clause Appellant law firm was retained to act as solicitors for respondent purchaser on purchase of vacant commercial land from respondent vendors. Following closing purchaser discovered that city was demanding it pay additional $443,467 before it could have road access to property. Additional payment, which was negotiated down to $240,000, was required to obtain release of 0.3 metres reserve in favour of city that bordered three sides of purchased property. Reserve was subject to costs recovery clause in agreement between city and vendors entered into several years earlier. Costs recovery clause related to city's cost of completing road project, which was intended to make land in area more suitable for development. Agreement between vendors and city, which included cost recovery clause, was not registered on title and was not disclosed by vendors to purchaser. Purchaser brought action. Trial judge found law firm liable for www.lawtimesnews.com negligence in its representation of purchaser during transaction. Purchaser was awarded damages of approximately $290,000. Law firm's cross-claim seeking contribution and indemnity from vendors was dismissed. Appeal dismissed. There was ample support for trial judge's conclusion that law firm was negligent. Lawyer failed to make any inquiries of city concerning its costs recovery requirements for lifting 0.3-metre reserve to ensure client's access to property. Lawyer failed to ensure that lines of responsibility between law firm and client regarding legal and development aspects of transaction were clear. Legal matters relating to title and ingress and egress were not normally matters that were delegated to client, at least not without clear delineation of responsibilities by lawyer and client's acceptance of responsibilities, which did not occur here. Trial judge's conclusion that presence of 0.3-metre reserve on title was sufficient to put purchaser on notice that inquiries needed to be made regarding reserve and implications for access was supported by evidence, as was finding that law firm failed to comply with duty of care owed to purchaser. Cost recovery clause was not encumbrance. It did not create right or interest in property that was held by third party. It did not create right or interest in property in favour of city. Vendors did not permit property to be encumbered. Vendors were not obligated in law or equity to disclose cost recovery clause. Doctrine of caveat emptor applied to agreement of purchase and sale. Exceptions did not apply. Cost recovery clause was known to vendors and it was reasonably discoverable by purchaser. Had purchaser's lawyer made necessary inquiries, which was incumbent on him to do, payment requirement would have been revealed. His failure to do so was not responsibility of vendors. Outaouais Synergest Inc. v. Keenan (Aug. 26, 2013, Ont. C.A., R.A. Blair J.A., Paul Rouleau J.A., and S.E. Pepall J.A., File No. CA C53648) Decision at 200 A.C.W.S. (3d) 1215 was affirmed. 232 A.C.W.S. (3d) 258. Torts NEGLIGENCE City continued to be occupier by virtue of obligation to public Plaintiff sought damages flowing from injury from trip and fall plaintiff alleged occurred at intersection. Plaintiff injured right shoulder. Intersection was under construction. Plaintiff claimed warning signs regarding ongoing construction had been removed. Plaintiff claimed she fell when her foot clipped leading edge of depressed curb at intersection after plaintiff had placed right foot up onto sidewalk. There wer no witnesses to fall. Plaintiff had mild cerebral palsy affecting left side of body. Plaintiff was awarded $65,000 for general damages. Plaintiff was awarded $151,239 for loss of future income and $23,195 for past loss of income. Plaintiff 's future care costs were assessed at $75,375 and special expenses were assessed at $19,373. Defendants were liable for plaintiff 's damages resulting from fall. Plaintiff was not contributorily negligent. Theories advanced by defendants of alternate route or that plaintiff was jaywalking were not accepted. Plaintiff fell in location plaintiff claimed to have fallen. Defendants were liable for condition of non-repair to intersection where plaintiff fell. There were no signs in immediate vicinity of intersection where plaintiff fell or other warnings about potential hazard. It was foreseeable that without temporary ramping in place and without some warning in immediate vicinity of depressed sidewalk to indicate roadway/sidewalk was incomplete, vertical gap of one and one-half inches at intersection was tripping hazard. Notwithstanding that primary control of site was in subcontractor's hands, city and contractor continued to be occupiers by virtue of their obligations to public and fact they retained some authority over management of site. Defendant subcontractor was liable for 50% and city and contractor were each responsible for 25% of damages. Significant portion of plaintiff 's incapacity and chronic pain was due to other medical issues pre-dating fall that worsened. Plaintiff was already suffering from stress and anxiety prior to fall. Botosh v. Ottawa (City) (Aug. 22, 2013, Ont. S.C.J., B.R. Warkentin J., File No. Ottawa 05-CV32721) 232 A.C.W.S. (3d) 273. ONTARIO CRIMINAL DECISIONS Appeal GROUNDS Since key was in ignition and engine running there was realistic risk of danger Appeal by accused from his conviction for having care and control of motor vehicle when his blood alcohol level was above legal limit. Accused claimed that there was miscarriage of justice. Police investigated noise complaint at house party. Accused, who was 18, sat in driver's seat of his car, which was properly parked on road. Girl, who was 15 and who was drunk on vodka, sat in front passenger seat. Two males sat in backseat and one of them was drunk and other was sober. They were sitting in car to avoid altercation. Accused testified that his engine was not running and he waited for police to arrive. He had key turned to accessory to listen to radio. Police officer saw that accused had red, glazed eyes and she detected alcohol on his breath. Accused was slow to respond to questions and it took him some time

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