Law Times

www.lawtimesnews.com Law TiMes / March 10, 2008 Page 15 mon law conspiracy and inten- tional interference with economic relations in respect of allegation of price-fixing in private air cargo freight services business. Plaintiff proposed action be tried in London. Defendants brought motion to transfer action to Toronto. There was no allegation impugned activities occurred in London. Representative plaintiff carried on business in London and had counsel in London. Motion was dismissed. Defendants did not establish it was desirable in interests of justice to transfer pro- ceeding. Nutech Brands Inc. v. Air Canada (Dec. 12, 2007, Ont.S.C.J., Leitch R.S.J., File No. 50389CP) Order No. 008/008/022 (9 pp.). Contracts DAMAGES No error in law in assessing dam- ages solely based on contractual principles Liquidator of S. brought action against M. for damages for breach of contract, negligent misrepre- sentation, breach of trust and breach of fiduciary duty. Claims arose as result of certain mort- gage advances made by M. on behalf of S. to D. in relation to waterfront condominium devel- opment. At all times, relationship between S. and M. was governed by Mortgage Administration Agreement. Trial judge found M. was responsible for losses suffered by S. up to November 1988, when loan was taken over by W interest. Trial judge assessed losses at $203,000 and awarded judgment against M. in favour of S. in that amount plus interest. Trial judge did not err in law in assessing damages solely on basis of contractual principles. Standard Trust Co. (Liquidator of ) v. Metropolitan Trust Co. of Canada (Dec. 21, 2007, Ont. C.A., Laskin, MacFarland and Epstein JJ.A., File No. C44876) Appeal from 144 A.C.W.S. (3d) 1130; 21 E.T.R. (3d) 237; 40 R.P.R. (4th) 27 dismissed. Order No. 008/008/050 (11 pp.). Crown IMMUNITY Crown immunity applicable to action commenced against prov- ince in another jurisdiction Ontario company contracted with Alberta company to collect outstanding receivables in New Brunswick and retained lawyer to effect collection. Province of New Brunswick advised that nei- ther lawyer nor Ontario com- pany properly licensed pursu- ant to Collection Agencies Act (Ont. ). LSI commenced action in Superior Court of Justice in Ontario, claiming damages against Crown in right of New Brunswick, arguing it had been prohibited from carrying on business. Crown enjoyed Crown immunity and could not be impleaded in court of another province absent express consent. Crown immunity valid and applicable to action commenced against province in another juris- diction. Province not entering into commercial activity by regu- lating who could act as collection agency. Liability Solutions Inc. v. New Brunswick (Nov. 19, 2007, Ont.S.C.J., Ferguson J., File No. CV-07-082553-SR) Order No. 007/326/053 (10 pp.). Debtor And Creditor FRAUDULENT TRANSACTIONS Purchase of structured settlement could be considered conveyance of personal property made with intent to defeat or defraud creditors Plaintiff loaned money to defen- dants to prosecute negligence claim against H.H.. Defendants agreed to repay loan and 20% of any settlement. Action set- tled. H.H. purchased annu- ity with Standard Life as owner directing benefits to defendants. Defendants failed to repay loan to plaintiff. Plaintiff granted default judgment and served Notice of Garnishment on Standard Life. Standard Life took position that structured settlement protected from creditors. Plaintiff 's motion for order that purchase of struc- tured settlement be declared fraudulent conveyance dismissed. Purchase of structured settlement could be considered convey- ance of personal property made with intent to defeat or defraud creditors as described in s. 2 of Fraudulent Conveyances Act (Ont.), but no evidence Standard Life had culpable state of mind or that defendants had fraudulent intent. Salna v. Hie (Nov. 20, 2007, Ont.S.C.J., Perell J., File No. 03-260399CM2) Order No. 007/330/080 (9 pp.). Family Law PROPERTY Bankrupt spouse owed equalization payment Parties were married 18 years and had two children. Older child was no longer dependent and resided with father. Younger child resided with mother. Parties incomes were approximate- ly equal in range of $32,000 per year. Father was bankrupt. Entire burden of debts was left on mother. Father increased debt after separation. Father owed mother equalization payment of $6,965. Mother was entitled to $8,664 from proceeds of sale of matrimonial home. Mother was responsible for 33.3% of debt. Father was to pay spousal support of $500 per month to continue until father's responsibility for payment of portion of debt was repaid in full. Income of $37,000 was imputed to father because there was secondary income that father could generate. Father was to pay child support of $341 per month. Mother was not entitled to occupation rent. Mother owed father $5,360 for child support and father owed mother $1,101. Olah v. Olah (Jan. 4, 2008, Ont.S.C.J., Tucker J., File No. D19891/05) Order No. 008/008/023 (9 pp.). Human Rights Legislation DISCRIMINATION Section 10 of Coroners Act (Ont.) did not discriminate against mentally ill patients Ontario Human Rights Tribunal held that s. 10 of Coroners Act (Ont.), which provided for mandatory inquests for prison- ers who die in police custody but not for involuntary mental health patients who die in psy- chiatric facilities discriminatory. Differential treatment on basis of mental disability does not of itself necessarily mean discrimination. Tribunal erred in failing to con- duct analysis whether differential treatment found amounted to discrimination. Applying con- textual factors in Law, reason- able person would not find s. 10 of Coroners Act discriminatory. Distinction drawn by legislation reasonably corresponding to dif- ferent needs and circumstances of two groups and not showing lack of respect for or loss of dignity to mentally ill. Braithwaite v. Ontario (Attorney General) (Dec. 18, 2007, Ont.S.C.J., Jennings, Lederman and Swinton JJ., File No. 304/06) Appeal from 56 C.H.R.R. D/171 allowed. Order No. 007/361/016 (22 pp.). Insurance AUTOMOBILE INSURANCE Go-kart not automobile within scope of automobile insurance policy Plaintiff 's son injured after losing control of go-kart after collid- ing with go-kart driven by his father. Plaintiff 's mother com- menced action against owner and operator of co-kart track and her husband for damages related to plaintiff 's injuries. Plaintiff 's father had automobile insurance policy with third party. Motion judge erred in basing conclu- sion on possibility that go-kart could conceptually be driven on highway. Go-kart did not require motor vehicle insurance at time and in circumstances of accident because it was operated on pri- vate go-kart track. Go-kart not automobile within scope of auto- mobile insurance policy. Adams v. Pineland Amusements Ltd. (Dec. 5, 2007, Ont. C.A., Laskin, Juriansz and Lang JJ.A., File No. C46535) Appeal from 154 A.C.W.S. (3d) 192; [2007] I.L.R. ¶1-4570; 42 M.V.R. (5th) 198; 46 C.C.L.I. (4th) 47; 85 O.R. (3d) 147 allowed. Order No. 007/344/011 (5 pp.). Landlord And Tenant VALIDITY OF LEASE Lease amendment was valid Parties entered lease. Tenant sent letter to landlord indicat- ing partnership was purchased. Landlord was concerned about breach of lease because letter disclosed another tenant was operating business at premises without notice to or consent of landlord as required under lease. Landlord allowed additional ten- ant in lease amendment. Tenants had legal advise. Tenants failed to pay rent. Tenants vacated prem- ises. Landlord brought action for damages for breach of lease and indemnity agreement. Lease amendment was valid. Tenants were not in weak position in relation to landlord entering lease amendment. There was no evi- dence of duress when tenants signed. Defendants were person- ally liable under lease as amended as partners of partnership to pay damages of $148,141. There was no justification for defendants defaulting in paying rent and abandoning premises. Saltzman Family Holdings Ltd. v. Duncan-Cosburn (Dec. 14, 2007, Ont.S.C.J., Allen J., File No. 06-CV-314218SR) Order No. 008/008/089 (8 pp.). Mental Health INCOMPETENT PERSONS Board did not err in confirming assessment that person incapable of consent Appellant suffered schizoaffective disorder characterized by delu- sions. Board confirmed assess- ment by respondent that H. was not capable of consent in respect of antipsychotic medication and electro-compulsive therapy treat- ment. Respondent was appellant's treating physician. Appeal was dismissed. Decision met reason- ableness standard. Board did not err in admitting and consider- ing evidence on appellant's prior treatment. H. (L.) (Re) (Dec. 24, 2007, Ont.S.C.J., Pattillo J., File No. 03-70/07) Order No. 008/008/030 (11 pp.). Motor Vehicles VICARIOUS LIABILITY Mere fact that someone operating vehicle without owner's consent not determinative of owner's liability Plaintiff driver of vehicle rent- ed by another. Plaintiff taking defendant C. on sales trip in rented vehicle. C. did not have driver's licence or car insurance. Plaintiff and C. went drinking. Plaintiff did not want to drive C. home. C. punched plaintiff and took keys. Plaintiff got into passenger side as truck moved. C. refused to stop and lost control. Plaintiff injured and sought dam- ages from C., rental car company and insurer. Summary judgment granted in favour of plaintiff on basis of application of s. 192(2) of Highway Traffic Act (Ont.). Mere fact that someone operat- ing vehicle without owner's con- sent not determinative of owner's liability under s. 192 of Highway Traffic Act. Although plaintiff physically in vehicle, that did not determine whether he was in possession. Asserting right to pos- session and possession not same thing. Motion judge erring in granting summary judgment in plaintiff 's favour when material facts in dispute. Henwood v. Coburn (Dec. 14, 2007, Ont. C.A., Rosenberg, Armstrong and Juriansz JJ.A., File No. C45931) Appeal from 150 A.C.W.S. (3d) 589; [2006] I.L.R. ¶1-4530; 37 M.V.R. (5th) 71; 82 O.R. (3d) 295 allowed. Order No. 007/351/149 (9 pp.). Real Property LAND TITLES Bank's charge defeasible in favour of true owner Applicant owned residential property on which respondent bank had charge. Fraudster act- ing pursuant to fictitious power of attorney purporting to sell property to respondent M.. M. borrowing most of purchase price based on security of charge. Bank through its solicitor dealing with fraudster through his solicitor. Bank's charge defeasible in favour of true owner. Review of power of attorney prior to closing would have led to questions about valid- ity. Bank could have avoided fraud. Reviczky v. Meleknia (Dec. 19, 2007, Ont.S.C.J., Macdonald J., File No. 07-CV-330124PD3) Order No. 007/361/041 (30 pp.). Your 24/7 connection to copies of original decisions caseimage.ca is an online database of both unreported and reported court and tribunal decisions — www.caseimage.ca $12.50* per case Single or multiple copies of the full text of any case digested in this issue can be supplied at the rates shown. Rush orders can be called in at: 1.800.263.3269 Fax orders can be sent to: 905.841.5085 Via Mail Via FAX Via Courier Cost per page $0.60* Minimum charge $10* Plus postage Cost per page $2.50* Minimum charge $10* Cost per page $0.60* Minimum charge $10* Plus courier charges *Add 13% PST & GST on all orders Via E-mail Cost per case $17.50* sales@canadalawbook.ca CaseLaw on Call • rates Obtain Copies of Judgments CaseLaw on Call • order form Attention: Photocopy Service: CaseLaw, 240 Edward St., Aurora, ON L4G 3S9 Please send the full text of the following judgments. Orders must provide the case name, case order number (9 digits) and number of pages. Please enclose payment unless you have a VISA, MasterCard, AMEX or Canada Law Book account number. Cheques are to be made payable to Canada Law Book Please send via: [ ] E-mail [ ] Mail [ ] Fax [ ] Courier Case Name Case Order Number No. of (9 digits) pages Attn.:_______________________________Firm: ________________________ Address: ________________________________________________________ City/Prov.: ________________________________Postal Code: ______________ Canada Law Book Account # __________________________________________ VISA/MasterCard/AMEX # ____________________________________________ Expiry Date: ___________________ Signature: __________________________ Print Name on Card: ________________________________________________ CASELAW LT *Page 1-16.indd 15 7/18/08 12:49:49 PM

• Cover