Law Times

www.lawtimesnews.com Law Times / February 4, 2008 Page 17 Plaintiff was entitled to recover for unpaid work but liable for cost of incomplete work based on third party estimates. Miscione Homes Inc. v. Jones-Ott- away (Oct. 12, 2007, Ont.S.C.J., Tucker J., File No. 45503/03) Order No. 007/288/056 (16 pp.). Courts STAY OF PROCEEDINGS Application involving constitutionality of statutory provision stayed to avoid multiplicity of proceedings Applicant brought application for determination of rights that depended on interpretation of s. 12 of Bill 80 of Hydro One Inc. Directors and Officers Act, 2002 (Ont.). Application raised issues of whether s. 12(1) of act reduced credited service for pen- sion calculation purposes, in- cluding only after or both before and after January 1, 1999, and whether it offended Canadian Charter of Rights and Freedoms. Applicant sought to amend no- tice of application to raise issue of constitutionality of s. 12(1). Respondent brought motion to enforce minutes of settlement re- garding scope of application and of related action, and alternative- ly to dismiss or stay application. Application stayed to avoid mul- tiplicity of proceedings and risk of inconsistent findings. Clitheroe v. Hydro One Inc. (Oct. 2, 2007, Ont.S.C.J., Forestell J., File No. 06-CV-307811- PD1) Order No. 007/282/036 (9 pp.). Assessment EXEMPTIONS Floating ship used as restaurant was "structure" within meaning of Assessment Act (Ont.) Former cruise ship owned by ap- plicant 1518756 Ontario Inc. berthed in Lake Ontario used as floating restaurant. Ship oc- cupied berthing space in accor- dance with licence agreement with applicant, Toronto Port Authority, who owned lakebed beneath it. Respondent assessed both land and ship. Applicants sought declaration that ship and land exempt from assessment and taxation. Application dismissed. Weight of judicial authorities have given word "structure" con- notations of permanency and difficulty of movement. To be "structure" item does not have to be "permanently on a permanent foundation." Given meaning of "structures" within definition of "land" and "real property" in Assessment Act, ship is a struc- ture. Having regard to provisions of license agreement, applicant corporation was "tenant." It paid monthly sum similar to rent and had exclusive possession of prem- ises. Exemption of Assessment Act (Ont.), did not apply. 1518756 Ontario Inc. v. Mu- nicipal Property Assessment Corp. (Nov. 16, 2007, Ont. S.C.J., Pat- tillo J., File No. 05-CV-302728- PD2) Order No. 007/323/150 (22 pp.). Equity ESTOPPEL Claims related to issues decided upon in statutory process barred by issue estoppel Defendant brought motion to strike amended statement of claim in action involving pro- ceedings under Ontario New Home Warranties Plan Act (Ont.). Ontario New Home Warranties Plan Act designated corporation to establish and man- age a guarantee fund and created statutory warranties applicable to every agreement between a home builder and purchaser that allowed unhappy purchaser to apply for damages resulting from breach of a statutory warranty. Act imposed restrictions on right of purchaser to pursue a remedy against a builder and required that present or future differences be submitted to arbitration. Mo- tion allowed. Defendants were entitled to know if there were allegations of joint or several li- ability so they could consider cross-claims. Defects in state- ment of claim warranted strik- ing statement of claim. Claims related to issues decided upon in statutory process were barred by issue estoppel due to cumulative effect of factors including word- ing of Ontario New Home War- ranties Plan Act, purpose of leg- islation, availability of an appeal, safeguards to parties in statutory procedure, expertise of decision maker, circumstances giving rise to prior decisions, and lack of vulnerability and absence of pro- cedural injustice to plaintiff. Gomori v. Greenvilla Develop- ment Group Inc. (Oct. 1, 2007, Ont. S.C.J., Ferguson J., File No. 42452/06) Order No. 007/282/056 (19 pp.). Family Law SUPPORT Father-son alienation did not lessen father's child support obligation Applicant brought motion for order terminating his obligations to pay child support to respon- dent for child and order for re- imbursement for support paid to him for child from May 1, 2006 to present. Applicant conceded he owed arrears of base child support because his income had increased. Applicant argued he should not be obligated to pay for child's extraordinary educa- tional costs for which he was not consulted and which included an extra semester due to failure and participation in optional international student program in Australia. Applicant argued his bad relationship with child should affect his payment obliga- tions. Motion dismissed. Child's lack of relationship with father was not res judicata but father- son alienation should not be used to lessen father's payment obligation. Child's educational expenses were not unreasonable or beyond financial capability of family. Applicant ordered to pay child support arrears including extraordinary educational ex- penses. Casademont v. Casademont (Oct. 9, 2007, Ont. S.C.J., Linhares de Sousa J., File No. 00-FL-1856C) Order No. 007/284/013 (10 pp.). Judgments And Orders SETTING ASIDE Ex parte orders set aside where applicant not candid with court Defendant brought motion to set aside five ex parte orders issued against her and for leave to deliver a statement of defence and counterclaim 30 days from date of order in motion. Defen- dant argued plaintiff failed to meet requisite standard to obtain ex parte injunction by failing to make full and frank disclosure of all material facts and expected positions of defendant. Defen- dant argued plaintiff frustrated cross-examination and admitted to being dishonest about his as- sets. Motion granted. Plaintiff was less than candid with court when he sought injunction and failed to present pertinent infor- mation including material facts. Chang v. Colligan (Oct. 10, 2007, Ont.S.C.J., Allen J., File No. 07-CV-327018PD1) Order No. 007/288/045 (7 pp.). Personal Property Security CONDITIONAL SALES Third party claim did not prevent assignee from enforcing claim under conditional sales contract Plaintiff brought motion for summary judgment on condi- tional sales contract that was assigned to plaintiff, relating to defendant's purchase of trailer. Trailer was traded in and dealer undertook to discharge loan to plaintiff. Dealer failed to dis- charge loan and went bankrupt. Plaintiff sued on original loan. Defendant argued it would be unfair to enforce original loan agreement when he was an inno- cent third party. Motion granted. Defendant did not raise genuine issue for trial. Any dealings that defendant had with dealer or third party did not involve plain- tiff. Even if plaintiff knew that defendant had traded in trailer it was defendant's obligation as between himself and plaintiff to ensure that loan was discharged. No reason existed to delay en- forcement of plaintiff 's claim. Third party claim had nothing to do with plaintiff or plaintiff 's claim. Defendant relied on some- one else to discharge loan but fact that loan was not discharged was not fault of plaintiff. Laurentian Bank of Canada v. Campbell (Oct. 10, 2007, Ont. S.C.J., Gray J., File No. 4067/07) Order No. 007/284/011 (8 pp.). Torts LIBEL AND SLANDER Public interest responsible journalism defence was adopted by Court of Appeal Plaintiff was OPP constable who, by his own initiative, went to New York to participate in search and rescue operations after Sept. 11, 2001 attack on World Trade Center. Defendants published articles that cast plaintiff in negative light. Plaintiff brought defamation action against defen- dants. Defendants raised defence of qualified privilege. Trial judge found that two of articles did not attract qualified privilege. Jury awarded plaintiff damages. Ap- peal dismissed. Qualified privi- lege in traditional form should not be extended to all media re- ports on matters of public inter- est, as that would represent dra- matic and unwarranted shift in law that would unduly minimize protection of important value of individual reputation. It was ap- propriate to adopt public interest responsible journalism defence. This defence represented natural extension of law as it had been developing. Public interest re- sponsible journalism defence gave appropriate recognition and weight to Charter values of freedom of expression and free- dom of media without unduly minimizing value of protecting individual reputation. Defen- dants here were not entitled to benefit of public interest journal- ism defence, as issue of whether defendants followed standard of responsible journalism was not litigated. Cusson v. Quan (Nov. 13, 2007, Ont. C.A., Weiler, Sharpe and Blair JJ.A., File No. C45365) Order No. 007/318/078 (36 pp.). NEGLIGENCE Triable issue existed regarding standard of care under Occupier's Liability Act (Ont.) Defendant brought motion for summary judgment of plain- tiff 's action. Plaintiff alleged he tripped and fell on pathway op- erated by respondent. Defendant argued there was no genuine issue for trial because pathway was for recreational activity and no fee was paid to enter it. Defendant invoked Occupier's Liability Act (Ont.), and argued standard of care was reckless disregard. Plain- tiff argued pathway was not used solely for recreational purposes and was a sidewalk through a park. Plaintiff argued that geog- raphy of area, uses at either end of pathway, direct nature of route it followed, and ambiguity of sig- nage indicated pathway had pur- poses other than recreational that warranted reasonable care stan- dard of care. Motion dismissed. Triable issue existed in whether standard of care required by Oc- cupier's Liability Act was met. Diner v. Toronto (City) (Oct. 5, 2007, Ont. S.C.J., Lederer J., File No. 06-CV-310298- PD1) Order No. 007/283/115 (6 pp.). ONTARIO CRIMINAL CASES Evidence ADMISSIBILITY Documents relating to credit cards deemed admissible in fraud trial Application by the Crown to ad- mit certain documents against the accused. Accused presented an airline ticket agent with in- formation to show that her ticket was purchased online on the in- ternet. Ticket was investigated and was found to have been pur- chased using a credit card that belonged to another person. Ac- cused was charged with fraud un- der $5,000. Crown called a fraud investigator from the credit card company. Investigator prepared a spreadsheet using original cli- ent records. Crown also sought to introduce an affidavit from the authorized users of the credit card that was used to purchase the ticket. Application allowed. Affidavit was the type of docu- ment that was contemplated by s. 657.1 of the Criminal Code. Affiants were the lawful holders of the card and the card transac- tions referred to in the affidavit showed that they were deprived of property by fraudulent means. Card transactions that they at- tested were not theirs and were fraudulent were matters that were within their personal knowledge. Spreadsheet was admissible as a business record pursuant to s. 30(1) of the Canada Evidence Act. Accused could apply for production of the source docu- ments that were examined by the investigator. Such records would be edited to protect the privacy of the account holders. R. v. Agyei (Oct. 9, 2007, Ont. C.J., Cowan J., File No. 06- 11810 Brampton) Order No. 007/290/001 (10 pp.). Extradition And Fugitive Offenders COMMITTAL FOR SURRENDER OR RETURN Respondent sought to face charges of fraud against employer committed for extradition to China Application by Republic of Chi- na for committal of respondent for extradition. Respondent worked in a Hong Kong bank in its credit department. He and an- other individual were responsible for the bank's credit accounts with two companies. Companies obtained loans for $138.4 mil- lion Canadian through 258 let- ters of credit. Record of the case established that the respondent used his position in the bank to help the two companies defraud his employer and he was given two Rolex watches and $34,000 Canadian by the companies. At issue was whether the evidence established that the accused com- mitted the extradition crimes of secret commissions and frauds. Application allowed. Function of the extradition judge was to de- termine whether there was some evidence available for trial that was not manifestly unreliable on every essential element of the parallel Canadian crimes upon which a properly instructed jury could convict the respondent. Respondent was the person who was being sought. Regarding the secret commission offences the respondent acted as agent for his principal, which was the bank. He knowingly took a benefit in consideration for acting in rela- tion to the bank's affairs. He also knowingly failed to make ade- quate and timely disclosure of the source, amount and nature of the benefit. There was evidence that was not manifestly unreliable to support the existence of these elements. Regarding the fraud counts there was substantial evidence that the bank suffered significant financial deprivation caused by perpetrators who ob- tained its letters of credit in re- spect of non-existent commercial transactions. Evidence also estab- lished that the respondent sug- gested that the two companies implement the letter of credit scheme. Respondent was fully aware of the falsehood involved in the scheme and that such false- hoods would result in the bank being deprived of moneys to the value of the letters of credit in is- sue. Even though the respondent claimed he did not personally seek the credit, did not prepare or present any of the false docu- mentation and did not act for CASELAW *Pages 1-20.indd 17 1/31/08 6:56:27 PM

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