Law Times

Page 14 January 20, 2014 Law Times • caselaw Consumer Protection ENFORCEMENT Director had power to post charge for 27 months and conviction for further 21 to 27 months Applicant carried on business as home renovator. On April 9, 2009, applicant was charged with various offences under Consumer Protection Act, 2002 (Ont.). When charges were laid, director posted fact that applicant had been charged with offences on Government of Ontario website. Posting remained on website until July 9, 2011. On October 5, 2012, applicant was found guilty of the charges. On December 6, 2012, director posted on website fact that applicant had been convicted. That posting remained on website to date. Applicant sought declaration that information had been posted in excess of period prescribed by General Regulation 17/05 (Ont.). Application dismissed. Section 88 of Regulation provided that director was to post information with respect to person currently charged under Act, or who had been found guilty of such charge. Use of word "or" in s. 88 was inclusive. Director had power to post charge for 27 months and post conviction for further 21 to 27 months. Consumer's Choice Home Improvement Corp. v. Ontario (Oct. 9, 2013, Ont. S.C.J., Lemon J., File No. CV-13-2875-00) 233 A.C.W.S. (3d) 364. Damages BREACH OF FIDUCIARY DUTY Punitive damages of $50,000 awarded because of unpalatable, reprehensible and egregious conduct Plaintiff was retained by province to help administer government program. Plaintiff was responsible for implementing accounting system to deal with financial transactions for more than 2,000 different facilities involved in program. Defendants were accountants involved in administering program for various corporate bank accounts. Plaintiff commenced action alleging defendants defrauded it of amount of $2.17 million over course of several years. Defendants did not defend action and were noted in default. Plaintiff brought motion for judgment. Motion granted. Plaintiff pleaded sufficient facts to establish that defendants were liable for conversion, fraud, and breach of fiduciary duty. Plaintiff could identify on balance of probabilities that defendants fraudulently withdrew $1.96 million from plaintiff 's bank account for their personal benefit. Plaintiff was entitled to judgment in that amount. Plaintiff was awarded special damages in amount of Canadian dollars equivalent to US $272,099.50 for amounts expended for forensic investigation to discover fraud. Plaintiff was also awarded punitive damages of $50,000 because of defendants unpalatable, repre- hensible, and egregious conduct. Parsons Canada Ltd. v. Nathoo (Oct. 7, 2013, Ont. S.C.J., Chiappetta J., File No. CV-120469357) 233 A.C.W.S. (3d) 378. GENERAL Failure to bring evidence on damages rendered conflicting record moot Plaintiffs sought damages for intentional infliction of mental suffering and torture, but filed no evidence to support motion. Plaintiffs sought damages for negligence, breach of contract and total disregard of duties and obligations defendants owed to plaintiffs. Defendants brought motion for summary judgment. Motion granted. Plaintiffs' failure to file evidence was sufficient to award summary judgment dismissing motion for damages from intentional infliction of mental suffering and torture. Plaintiffs failed to file any evidence of right to damages if trier of fact found breach of contract. Paper record included genuine issues regarding negligence and breach of contract, but plaintiffs' failure to bring evidence on damages rendered conflicting record moot. Chaudhry v. Falconer Charney LLP (Oct. 9, 2013, Ont. S.C.J., Chiappetta J., File No. 12469146) 233 A.C.W.S. (3d) 522. Family Law SUPPORT Mother failed to provide sufficient evidence of entitlement to child support Parties had one child. Parties separated in 1999, and in 2003 mother moved to Georgia, United States. Child remained with father and then went to live with mother in Georgia in 2005. In 2008, court made final order that dealt with child support and was based on minutes of settlement. Child completed secondary school in June 2007, began post-secondary studies in Georgia in fall 2007 and completed degree in 2011. Child turned 18 years old in May 2007. Father continued to pay child support until December 2011. Mother requested s. 7 expenses she incurred on behalf of child since 2009 for medical, dental and post-secondary education expenses. Mother brought motion to change final order. Motion dismissed. Order made in 2008 was made pursuant to Divorce Act (Can.), not Family Law Act (Ont.). Mother failed to establish that material change in circumstances had occurred since 2008 order was made. At time order was made, parties anticipated that mother would incur special and extraordinary expenses on behalf of child, including university costs, as child was actively pursuing university studies. Mother had not complied with her obligations under order with respect to contributing to s. 7 expenses. Mother could not meet threshold change in circumstances by relying on parties' inability to resolve con- tribution to s. 7 expenses when breakdown was attributable primarily to mother's failure to comply with procedures and expectations set out in 2008 order. Mother's failure to comply with obligations set out in 2008 order was, in and of itself, sufficient basis to dismiss motion. Mother also failed to provide sufficient evidence of entitlement to child support, retroactive relief and to properly carry out analysis required under s. 3 of Guidelines. Durso v. Mascherin (Oct. 21, 2013, Ont. S.C.J., Deborah L. Chappel J., File No. F-1401/06) 233 A.C.W.S. (3d) 445. Husband obligated himself to support wife when he undertook her immigration sponsorship Parties were married in India and husband sponsored wife's entry into Canada as a permanent resident. Parties separated after seven months of marriage, only two months after wife arrived in Canada. Husband was employed as business technical support specialist. Wife was employed in India as marketing and sales analyst. After parties separated wife found employment as sales representative. Wife claimed that husband callously abandoned her after she had given up employment, security, friends and family in India to marry him. Husband claimed that wife married him fraudulently in order to secure her entry into Canada. Wife applied for interim spousal support. Application granted. This was short marriage but wife left successful career in India to marry husband. Wife became dependent on marriage. There was no evidence marriage was fraudulent. Wife should be given reasonable opportunity to find suitable employment for herself. Marriage resulted in economic disadvantage to wife and she suffered economic hardship from breakdown of marriage. Without financial support from husband, wife was not able to meet basic needs or maintain standard of living equivalent to that which parties enjoyed during marriage and which husband continued to enjoy. Husband caused wife to become financially dependent on him by giving up her employment in India in return for his sponsorship of her immigration to Canada. Wife was entitled to spousal support in order to pursue steps needed to secure accreditation in Canada. Husband legally obligated himself to support wife when he undertook her immigration sponsorship. Husband earned $45,900 per year and had means of providing support. Wife earned $21,120 per year and was not intentionally under-employed. Husband was ordered to pay interim spousal support of $400 per month. Singh v. Singh (Oct. 17, 2013, Ont. S.C.J., Price J., File No. Brampton FS-11-73672-00) 233 A.C.W.S. (3d) 452. www.lawtimesnews.com Insurance LIABILITY INSURANCE All of damage claim fell within pollution exclusion in policy Applicant was sued by landlord of premises at which applicant formerly operated business. Claim alleged spill of waste oil at leased premises resulting in clean-up and repair costs. Landlord claimed damage to property was caused by applicants' breach of contract and/ or negligence. Respondent denied applicant coverage relying on pollution exclusion. Applicant sought declaration that respondent owed duty to defend action. Application dismissed. Claim advanced by landlord was not covered by policy. Respondent was not required to defend action. It was unrealistically narrow interpretation of term "property damage" to read it as excluding physical injury to real property arising from spill of liquid pollutant such as waste oil and confined merely to physical injury to chattels. All of damage claim in action fell within pollution exclusion in policy. Insurer did not intend to obligate itself to indemnify insured in relation to any liabilities for compensatory damages arising out of spill of pollutant regardless of whether damages were payable on account of actual injury or economic loss. Mississauga Motors Mart Inc. v. Sovereign General Insurance Co. (Oct. 10, 2013, Ont. S.C.J., Stinson J., File No. CV-13-482624) 233 A.C.W.S. (3d) 463. Limitations TRUSTS AND TRUSTEES No fraudulent concealment by defendant of facts concerning cause of death On March 5, 2009, plaintiff 's son died at defendant's care facility. It was admitted that he received wrong medication. Coroner's report dated November 2, 2009 indicated that deceased died of acute congestive heart failure. Coroner found that taking of wrong medication did not cause or contribute to deceased's death. In subsequent letter to plaintiff 's solicitor dated January 2, 2011, coroner indicated that it could not be ascertained what effect ingestion of wrong medication had on deceased. On November 15, 2011, plaintiff issued statement of claim against defendant for loss of care, guidance, and companionship of deceased pursuant to s. 61 of Family Law Act (Ont.) ("FLA"). Defendant served and filed statement of defence that stated that plaintiff 's claim was statute-barred because plaintiff failed to commence an action within two years of date of death of deceased. Defendant brought motion for summary judgment to dismiss action. Defendant relied upon s. 38(3) of Trustee Act (Ont.) ("TA"). Motion granted and action dismissed. Plaintiff 's claim under FLA was derivative in nature and did not stand alone. Limitation period governing principal action was two-year limitation period in s. 38(3) of TA. Limitation period under s. 38(3) was not subject to discoverability exception. There was no evidence of incapacity on part of plaintiff to prevent her from instructing counsel or fraudulent concealment by defendant of facts concerning cause of death of deceased. Change of cause of death from natural to undetermined was made by coroner. Action was statute-barred. Reid v. Crest Support Services (Meadowcrest) Inc. (Oct. 8, 2013, Ont. S.C.J., A.W. Bryant J., File No. 183-2011) 233 A.C.W.S. (3d) 481. ONTARIO CRIMINAL DECISIONS Appeal NEW TRIAL Alleged prejudice given inordinate significance by judge Appeal by Crown from order made due to violation of s. 11(b) of Canadian Charter of Rights and Freedoms. Proceedings were stayed against accused because he was not tried within reasonable period of time. On January 31, 2012 accused was charged with impaired driving and driving with blood alcohol level above legal limit. He was released on promise to appear with first appearance date of March 13. On April 18, 2012 trial date was set for February 6, 2013. Order under review was made on January 16, 2013. Judge assessed total institutional and Crown delay in this case at 10 months and five days. Appeal allowed. Stay was set aside and new trial was ordered before different judge. New trial was necessary because judge made several errors. He inaccurately assessed both inherent time requirements as well as institutional and Crown delay. He erred in assessing prejudice to accused's security interests such that he found permissible time to trial was eight months rather than 10 months. Alleged prejudice was given inordinate significance by judge. There was no discernible prejudice to liberty or fair trial interests. Judge failed to consider societal interest in trial on merits. He failed to balance individual and state interests that s. 11(b) was designed to protect. Very substantial interest that society had in seeing alleged drinking and driving offences tried on their merits substantially outweighed interest of accused and society in prompt trial. R. v. Murphy (Oct. 25, 2013, Ont. S.C.J., B.P. O'Marra J., File No. CR130000001100AP) 109 W.C.B. (2d) 624. Charter of Rights RIGHT TO COUNSEL Accused had not been diligent in

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