Law Times

Page 14 February 10, 2014 • Law Times www.lawtimesnews.com ONTARIO CIVIL DECISIONS Agency REAL ESTATE AGENTS AND BROKERS Listing agreement contemplated payment of commission upon presentation of offer Vendor executed listing agree- ment with realtor to list his prop- erty for sale. Realtor received full price offer from purchaser and took various steps to present of- fer to vendor but vendor was unresponsive. Vendor did not ac- cept offer. Realtor brought action for commission. Deputy judge found that listing agreement was sufficient to hold vendor liable to pay commission to realtor on basis of qualifying offer to pur- chase that was presented. Deputy judge awarded realtor damages of $8,995.50 plus GST. Vendor ap- pealed. Appeal dismissed. Offer was presented to vendor within prescribed timelines required by listing agreement. Vendor acted in bad faith and attempted to frustrate efforts of realtor in pre- senting final order. Realtor did not breach fiduciary duty to ven- dor in bringing offer for full ask- ing price. ere was no evidence that best possible price might have been greater than asking price. Listing agreement was binding contract. Acceptance of offer was not required, as listing agreement clearly contemplated payment of commission upon presentation of offer at full listing price. Terms of listing agreement were clear and unambiguous. Trial judge made no error in find- ings of fact. T.L. Willaert Realty Ltd. v. Fody (Dec. 12, 2013, Ont. S.C.J., M.A. Garson J., File No. CV-11-178) Decision at 207 A.C.W.S. (3d) 615 was affirmed. 234 A.C.W.S. (3d) 249. Bankruptcy and Insolvency CREDITORS Nothing supported assertion that receivership order would jeopardize ongoing business Creditor was financial institu- tion. Debtors were four related corporate debtors and two mar- ried individual debtors. Two cor- porate debtors opened corporate operating accounts with creditor. Accounts went into overdra in amount of approximately $2.15 million when certain electronic fund transfers were reversed. Creditor demanded repayment, but debtors were not able to re- pay. Creditor accepted various receivables and mortgage over in- dividual debtors' home as security. Debtors only paid $352,715.10 by deadline. Creditor brought motion for appointment of re- ceiver over corporate debtors' re- ceivables and individual debtors' home. Motion granted. Creditor satisfied just and convenient test for appointment of receiver un- der s. 243(1) of Bankruptcy and Insolvency Act (Can.), and s. 101 of Courts of Justice Act (Ont.). Debtors were involved in business dealings that were, to say the least, suspect. Nothing of substance supported debtors' assertion that receivership order would jeopar- dize their ongoing business activi- ties. Credibility of one individual debtor was seriously open to question. Balance of convenience clearly favoured creditor. Debtors failed to establish any triable is- sues. Caisse Desjardins des Bois-Francs v. River Rock Financial Canada Corp. (Oct. 31, 2013, Ont. S.C.J., J.R. McCarthy J., File No. CV-13- 0742) 234 A.C.W.S. (3d) 268. Civil Procedure COSTS Absent offer to settle, enhanced costs should only be awarded where reprehensible conduct Defendant operated refinery that allegedly contaminated environ- ment. Plaintiff, property owner, brought class action claiming that value of properties had been negatively affected by nickel emissions from defendant's refin- ery. Defendant was found liable in private nuisance and pursuant to doctrine in Rylands v. Fletcher and damages were assessed at $36 million. Defendant's appeal was allowed and trial judge was ordered to consider costs. Trial judge fixed defendant's costs at $1.766 million. Defendant ap- pealed. Appeal dismissed. Trial judge did not try to retroactively justify his previous trial deci- sion or do anything other than arrive at fair costs award. Trial judge did not err in finding that this case raised novel issues. Fact that claim was grounded in well- established cause of action did not remove possibility that claim raised novel point of law. Public interest element of case was not undermined by fact that class sought to vindicate their own private property interests. Court of Appeal had already found that case involved public interest. Court's acceptance that facts un- derlying case caused widespread concern among public supported determination that case involved some element of public interest. Trial judge's analysis of fees was methodical, logical and reason- able. Court would not recon- sider or reformulate law that held that absent formal offer to settle, enhanced costs should only be awarded where there was repre- hensible conduct. ere was no formal offer to settle or repre- hensible conduct here to warrant costs on substantial indemnity basis. Smith v. Inco Ltd. (Nov. 29, 2013, Ont. C.A., J.C. MacPherson J.A., David Watt J.A., and S.E. Pepall J.A., File No. CA C57026) Deci- sion at 219 A.C.W.S. (3d) 764 was affirmed. 234 A.C.W.S. (3d) 284. Family Law CUSTODY Father's anger management issues obstacle to normal relationship with children Parties had two children. Order was made for temporary super- vised access. Order was made re- quiring assessment under s. 30 of Children's Law Reform Act (Ont.). Mother was granted interim/ temporary sole custody on with- out prejudice basis. Supervision was removed in part. Father was directed to take course in anger management but failed to comply. Father was ordered to pay child support of $281 per month. ere were no longer outstanding crimi- nal charges against father which father claimed were instigated by mother. Father brought mo- tion for regular overnight access and summer access for one week pending completion of assess- ment under s. 30 of Act. Motion dismissed. Father was prohib- ited from taking any other step in proceeding until he provided certificate of completion of an- ger management program. Judge made no reference to when assess- ment would be completed. Fact that disclosure meeting would be held and report would be within few months aer that was not material change in circumstances. ere was evidence that current relationship with father was caus- ing considerable stress and anxiety to children. Evidence indicated fa- ther still had no insight into his be- haviour. Father took no responsi- bility for own conduct that might be impacting children. It was not in best interests of children to ex- pose them to longer contact with father. Father's anger management issues were obstacle to order that father have what father consid- ered to be normal relationship with children. Lemieux v. Mercer (Jun. 4, 2013, Ont. S.C.J., Kiteley J., File No. FS- 12-379374) 234 A.C.W.S. (3d) 502. Torts NEGLIGENCE Reference to prior overrun incidents on same runway viewed as facts going to forseeability Action arose out of aircra over- run incident at airport. Aircra was unable to decelerate and stop before end of runway in cir- cumstances where runway was wet. Transport Canada designed and constructed runway. Trans- port Canada owned airport when runway was constructed. Plaintiffs made allegations of negligence against Transport Canada as regulator of aeronau- tics industry in Canada. Defen- dant brought motion for deter- mination of question of law to effect that Transport Canada did not owe duty of care to plain- tiffs as regulator. Defendant sought order striking out para- graphs of amended amended statement of claim that made reference to duty of care owed to plaintiffs by Transport Can- ada. Motion was premature. Discretion was exercised not to strike out any part of amended amended statement of claim. It could not be said at this stage in action that it was plain and ob- vious that duty could not exist. Question was one which trial judge should be entitled to ad- dress on full factual record. It was not plain and obvious that it would not be open to trial judge to conclude that special circumstances existed giving rise to duty of care in respect of this runway at this airport in this overrun incident. Refer- ence to prior overrun incidents on same runway was viewed as pleading of material facts going to issue of foreseeability. Allianz Global Risks US Insurance Co. v. Canada (Attorney Gen- eral) (Nov. 18, 2013, Ont. S.C.J., Charles T. Hackland R.S.J., File No. 12-54674A2) 234 A.C.W.S. (3d) 303. casELaw CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. These cases may be found online in BestCase and other electronic resources from carswell.com. 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