Law Times

Page 14 January 6, 2014 Law Times • caselaw and this amount was accruing interest. Plaintiff did not want his settlement to be structured. Motion granted on terms. Settlement amount and proposed distribution of funds was approved. Plaintiff was to benefit from structured settlement established with $366,881.93 plus accrued interest. Plaintiff was to receive additional $15,000 through his guardian of property. Plaintiff 's solicitors were to receive total of $356,900. Ontario Health Insurance Plan was to receive $11,218.07. Structured settlement best protected plaintiff 's interests. There was no evidence that guardian of plaintiff 's property had expertise to manage settlement moneys. Crown and jail would be covering costs of structuring settlement. Structured settlement would allow for continuation of provincial disability benefits. Solicitors' fees were reasonable having regard to usual factors. Solicitors had actually agreed to significant reduction of their fees. Melvin (Litigation guardian of) v. Onario (Minister of Correctional Services) (Aug. 23, 2013, Ont. S.C.J., D.C. Shaw J., File No. Thunder Bay CV-07-0535) 232 A.C.W.S. (3d) 353. Contracts INTERPRETATION No ambiguity in contract term that included phrase "for greater clarity" Parties entered agreement of purchase and sale in 2006 for $1.6 million. Respondent paid $800,000 cash with $800,000 vendor take-back mortgage. Mortgage contained clause that respondent would notify applicant prior to November 15, 2011, if approval necessary for golf course zoning was not obtained and whether it wished to pay out mortgage in full. If respondent chose not to pay out mortgage in full, clause stated applicant would have option to purchase property for $1.2 million. Respondent did not obtain zoning approvals and notified applicant in September 2009 that it would not be paying out mortgage in full. Applicant had exercised option to purchase but parties disputed price and brought cross-applications for determinate of net price to be paid. Applicant argued net price was $400,000, as the $800,000 mortgage had to be deducted from the $1.2 million stated price; respondent argued net price was $1.2 million as stated. Application dismissed; respondent's cross-application allowed. There was no ambiguity in contract term. Clause even stated that "for greater clarity" applicant would pay $1.2 million and respondent would then be declared to have satisfied mortgage in full. Document had to be construed as it stood. Declaration made that applicant could only exercise option to purchase upon payment of $1.2 million without any deduction. 457351 Ontario Inc. v. GolfNorth Properties Inc. (Aug. 29, 2013, Ont. S.C.J., G.D. Lemon J., File No. 171/12) 232 A.C.W.S. (3d) 511. Corporations RECEIVERS Appropriate to appoint receiver where parties disagreed about how property should be marketed Applicant applied for appointment of receiver over assets of respondents. Respondents owned and operated inn. Inn experienced financial difficulties over years. Applicant had lent respondent over $3.3 million in two loans secured by first mortgages against bulk of properties that formed inn's premises. Applicant held additional security through general security agreements granted by respondents over all assets. Respondents failed to make scheduled payments that were due and were in default under loan agreements and mortgages. In August 2011, applicant demanded payment of outstanding arrears, but respondents failed to pay. In October 2011, applicant demanded payment of outstanding balances of loan. Parties worked toward forbearance agreement. They did not reach agreement, but respondents paid arrears under loans until January 2012. Respondents were required to make large principal payment in July 2012 but did not. Applicant issued demand for payment of loan arrears. Application granted. Respondents were in default under mortgages and general security agreements. Parties agreed that inn must be sold but disagreed on how sale should be accomplished. Where there was disagreement among stakeholders about how property should be marketed, as there was here, it was appropriate to appoint receiver. Applicant had right to appoint receiver under general security agreements and mortgages. Receivership would benefit second mortgagee, as it would not be put to immediate expense of paying arrears and other costs under mortgages. Receivership was best way to protect interests of all stakeholders with view to maximizing value for all. Business Development Bank of Canada v. Pine Tree Resorts Inc. (Apr. 2, 2013, Ont. S.C.J. [Commercial List], Mesbur J., File No. CV-13-9991-00CL) 232 A.C.W.S. (3d) 393 Crown IMMUNITY Appropriate to name Ontario as respondent as it was steward of public interest Preliminary objection by Crown to being named as respondent in council member's application for declaration deemed pecuniary interest was so remote or insignificant to provide exemption from s. 5(1) Municipal Conflict of Interest Act (Ont.). Objection dismissed. Case was of such practical importance court exercised jurisdiction to hear it under Rule 14.03 of Rules of Civil Procedure (Ont.). As issue was question of broad public interest, there were no specific respondents to be named and no one had stepped forward to be named as party. Appropriate to name Ontario as respondent as it was representative and steward of public interest. Crown entitled to advise court it took no position on application if it so chose. Craig v. Ontario (Ministry of Attorney General) (Aug. 16, 2013, Ont. S.C.J., D.A. Broad J., File No. C-427-13) 232 A.C.W.S. (3d) 516. Employment WRONGFUL DISMISSAL Clause did not take away from employee vested rights or benefits Plaintiff worked for defendant for 11 years. Plaintiff participated in defendant's long-term compensation plan when plaintiff was promoted to vice-president. Under plan if plaintiff resigned he would forfeit restricted share units granted to plaintiff previously under plan, but not yet matured and paid out. Plaintiff resigned from defendant to start own hedge fund. Plaintiff brought action for amount owing under clause in plan. Plaintiff argued clause was in nature of restrictive covenant, unreasonable and unenforceable. Action was dismissed. Clause in plan was valid, binding and enforceable term of contract of employment. There was no basis for claim plaintiff was constructively dismissed on plaintiff 's promotion to vice-president when plaintiff became eligible to participate in plan. Plaintiff 's contention that clause restrained or delayed plaintiff 's decision to leave defendant was not accepted. Clause did not work to restrain plaintiff from leaving defendant or restrain plaintiff 's choice of postresignation commercial activities. There were no concerns of unfair bargains or imposition of tilted or onerous terms. Clause did not tie entitlement to unmatured restricted share units to what employee did following resignation. Contingency on which entitlement depended was continuation of service which was for of loyalty incentive and not restraint of trade. Award of restrictive share units did not create vested rights for recipient. Award constituted allocation of future compensation which was contingent on existence of certain facts at time of maturity of restricted share unit in order for recipient to receive cash benefit of award. Clause did not take away from employee vested rights or benefits. Levinsky v. Toronto-Dominion Bank (Sep. 12, 2013, Ont. S.C.J. [Commercial List], D.M. Brown J., File No. CV-11-442786) 232 A.C.W.S. (3d) 368. BUILDING PERMIT Unreasonable to revoke building permit without providing opportunity to remedy violation Appeal by property owner from decision of Chief Building Officer revoking building permit. Owner was issued building permit for two-family dwelling. Permit referred to bylaw R3A(2). Owner complied with bylaw R3A(2), but this ended up being incorrect bylaw. Owner ended up being in contravention of applicable bylaw R1B(3)-153. Chief Building Officer issued stop work order and www.lawtimesnews.com revoked building permit. Appeal allowed in part. Revocation of building permit was temporarily stayed so that arrangements could be made for owner to comply with bylaw R1B(3)-153. Bylaw R1B(3)153 was indeed correct bylaw. Given owner's violation of bylaw R1B(3)-153, Chief Building Officer's decision would have been justified, but for fact that building permit had referred to incorrect bylaw. In circumstances of this case, Chief Building Officer had been unreasonable in revoking building permit without providing owner opportunity to remedy violations. Further proceedings apart from statutory appeal were required to determine issues of negligence and damages. While municipality had technically won appeal, it would have been grossly unfair and unreasonable to award costs against owner. Elbasiouni v. Brampton (City) (Aug. 15, 2013, Ont. S.C.J., Barnes J., File No. CV-13-1084) 232 A.C.W.S. (3d) 519. Professions NURSES No causal connection between breaches and deceased's death Deceased died while in hospital at Trillium. Plaintiffs sued defendants for negligence. Plaintiffs claimed deceased died from complications after aspirating fluids deceased had vomited. Plaintiffs argued that timely insertion of nasogastric tube ("NG tube") would have prevented death. Claims were dismissed. Defendants did not breach respective duties of care. Plaintiffs failed to prove that Doctor's conduct regarding hernia surgery and deceased's blood condition fell below standard of care. Plaintiffs did not prove Doctor's conduct with respect to handling of discharge fell below standard of care. Plaintiffs failed to prove Doctor's conduct fell below standard of care by doctor's failure to assess deceased and to provide admission orders within 30 minutes of deceased's arrival at Trillium. Plaintiffs did not prove Doctor's conduct fell below standard of care by not contacting other doctor to convey deceased's medical history. Doctor's conduct did not fall below standard of care in ordering clear fluid diet. Plaintiffs failed to prove other doctor's conduct fell below standard of care by not ordering investigation following assessment. Plaintiffs did not prove other doctor's conduct in failing to order placement of NG tube fell below standard of care. Nurse's conduct did not fall below standard of care with respect to allegation of failure to inform physician of worsening condition. There was no evidence deceased was suffering from worsening abdominal pain. Nurse exercised nursing judgment in not reporting change in oxygen saturation and conduct did not fall below standard of care. Plaintiffs failed to prove second nurse's conduct and Nurse's conduct fell below standard of care by not stating fluid balance chart. Plaintiffs did not prove that Nurse's conduct fell below standard of care by failing to report and chart episode of vomiting or by not considering risk of aspiration. If there were breach of duty of care, there was no causal connection between any of alleged breaches and deceased's death. Spirito Estate v. Trillium Health Centre (Sep. 12, 2013, Ont. S.C.J., D.L. Edwards J., File No. CV-04-012458-00) 232 A.C.W.S. (3d) 528. Sale of Land CONDITIONS PRECEDENT Plaintiffs relied on representations made by home inspector to waive condition Plaintiffs purchased property. Plaintiffs claimed after purchase and occupation plaintiffs discovered foundation wall was sinking and had been sinking for some time. Plaintiffs claimed damages from home inspector, including costs of repair which was estimated at $250,000. Inspection agreement was one page. Standards of Practice of Ontario Association of Home Inspectors were referred to as being applicable standards referenced in inspection agreement. Standards provided that inspectors were not required to provide any engineering or architectural service or offer opinion as to adequacy of any structural system. Standards provided inspections performed in accordance with Standards would not identify concealed conditions or latent defects. Standards provided inspectors were not required to enter under-floor crawlspaces which were not readily accessible. Plaintiffs were awarded damages of $18,645 inclusive of HST. Nature and scope of inspection carried out was general in nature, was based on visual inspection of readily accessible features, and obligation to report was limited to major problems that might affect value or sale price of property discoverable on visual inspection. It was not established that risk of additional differential settlement reached level of likelihood to support finding that soil condition on south side of dwelling constituted significant deficiency within meaning of Standards. Conditions with respect to crack in concrete floor in crawlspace and downward direction of slab did not constitute significant deficiency. Downward slope of kitchen floor constituted significant deficiency. Evidence did not establish that crack and deflection of slab on grade concrete floor in crawlspace was associated with substandard soil conditions found. All that was shown was that concrete flooring in crawlspace cracked and deflected downwards but did not result in water ingress and did not affect functionality of space for storage. Plaintiffs relied on representations made by home inspector respecting condition of dwelling in decision to waive condition in agreement of purchase and sale respecting satisfaction with home inspection. Rimmer v. Lahey (Sep. 9, 2013,

• Cover