Law Times

www.lawtimesnews.com Page 14 March 31, 2008 / Law TiMes ONTARIO CIVIL CASES Agency REAL ESTATE AGENTS AND BROKERS Tribunal's direction to revoke appellant's registration was upheld Tribunal directed registrar to carry out proposal to revoke appellant's registration as real estate salesper- son. Tribunal concluded appel- lant's conduct fell short of stan- dards expected under s. 10 of Real and Business Brokers Act, 2002 (Ont.). Appeal was dismissed. Tribunal's conclusions were rea- sonable given appellant's admis- sions, tribunal's findings of fact and pattern of conduct. Tribunal properly considered all matters before it. Baksh v. Ontario (Real Estate and Business Brokers Act, Registrar) (Dec. 11, 2007, Ont. Div. Ct., Cunningham A.C.J.S.C., Jennings and Swinton JJ., File No. 83/07) Order No. 008/022/066 (4 pp.). Civil Procedure CLASS ACTIONS Requirements for certification were met Class consisted of persons who were prescribed and ingested drug marketed and sold by defendants. Settlement agreement was negoti- ated between plaintiffs and BMA defendants. Settling parties request- ed certification solely for pur- pose of implementing settlement. Proceedings were certified against BMS defendant and settlement was approved. Statutory requirements for certification were met. Class proceedings was preferable method of resolving common issues and claims. There was no justification to withhold approval of settlement. Settlement fell within acceptable range of reasonableness. Ledyit v. Bristol Myers Squib Canada Inc. (Jan. 15, 2008, Ont.S.C.J., Cullity J., File No. 03-CV-259300CP) Order No. 008/017/048 (6 pp.). COSTS Defendant awarded costs thrown away due to adjournment Plaintiff stored items with defendant. Defendant disposed of items for non-payment of storage fees. Plaintiff claimed damages for items stored with defendant. Defendant received production from plaintiffs of which defendant was previously unaware. Plaintiff was notified of request for adjournment two minutes prior to start of trial. Defendant's motion for adjourn- ment was granted. Defendant was awarded costs thrown away because of adjournment. Defendant was blameless with respect to lateness of produc- tion. Plaintiff was ordered to pay defendant $1,035 for fees plus GST plus non-taxable dis- bursements of $22. Gervais v. Dawson Road Ministorage Inc. (Jan. 10, 2008, Ont.S.C.J., Shaw J., File No. CV-06-0121) Order No. 008/017/054 (6 pp.). PLEADINGS Applicant permitted to amend application to claim additional relief Applicant brought motion to amend application to include dec- laration that notice pursuant to s. 71 of Land Titles Act (Ont.), and claim for right of way were null and void. Applicant sought to amend application to include request for declaration for prescriptive ease- ment over part of respondent's lands. Applicant sought order that there be trial of issue. Request for amendments for additional relief was permitted so applicant claimed prescriptive easement over some of respondent's land. Requested amendments could be accommodated without insur- mountable prejudice. Respondent was permitted to file responding material to claim for prescriptive easement. It was not beneficial to split application and order trial of issue. Kimvar Enterprises Inc. v. Nextnine Ltd. (Jan. 11, 2008, Ont.S.C.J., Glass J., File No. 06-1110) Order No. 008/017/013 (3 pp.). SUMMARY JUDGMENT Factual and credibility issues required determination at trial Parties entered agency agreement whereby defendant would arrange to supply natural gas to plain- tiff. Plaintiff claimed it overpaid defendant for natural gas pur- chased. Plaintiff argued pricing guarantee in agreement applied throughout period in question. Plaintiff 's motion for summary judgment was dismissed. Defence put forward sufficient evidence requiring trial to determine mate- rial facts. There was ambiguity in contract on issue of pricing and term. Issues of credibility had to be determined at trial. Airboss of America Corp. v. 1202053 Ontario Ltd. (Jan. 11, 2008, Ont.S.C.J., Arrell J., File No. C-27-03) Order No. 008/015/036 (10 pp.). Conflict Of Laws SERVICE EX JURIS New York was forum conveniens for breach of settlement agreement action Action was for damages for breach of settlement agreement arising out of litigation in New York. Defendants brought motions to set aside service ex juris and to stay action on grounds that there was no real and substantial connec- tion between subject of action and jurisdiction. None of defendants had registered office or place of business in Ontario or Canada. Motions were allowed. Evidence indicated agreement was made in New York. Evidence did not sup- port assertion that breach occurred in Ontario. There was no real and substantial connection between subject matter and Ontario. Fact of patent registrations in Canada was not sufficient to constitute substantial connection between Ontario and foreign defendants in absence of conduct in juris- diction on part of defendants. Factors pointed to New York was forum conveniens. Ontario was not shown to be more appropriate forum than New York. Apotex v. Sanofi-Aventis (Jan. 14, 2008, Ont.S.C.J., Low J., File No. 07-CV-331399PD2) Order No. 008/017/021 (9 pp.). Contracts FORMATION Basic elements of contracts not established Plaintiff claimed defendant entered into two contracts with plaintiff to buy bean culls over time periods at specified prices. Plaintiff brought action for breach of contract. Defendant argued no contract was made. There was no signed contract. Action was dismissed. Plaintiff failed to establish basic elements of contracts. Defendant did not agree to buy specified ton- nage of bean culls from plaintiff for certain price. Parrish & Heimbecker, Ltd. v. B.M.T. Farms Ltd. (Jan. 11, 2008, Ont.S.C.J., Flynn J., File No. 06-4170-SR) Order No. 008/017/045 (9 pp.). Debtor And Creditor ENFORCEMENT Debtor paid third party at its peril First defendant engaged second defendant to have goods shipped. Second defendant engaged plaintiff to make delivery. Plaintiff picked up goods and completed delivery. First defendant paid second defen- dant. Plaintiff was not paid. Claim was allowed. First defendant was aware second defendant was only agent or broker for first defendant and had no shipping facilities. Second defendant that engaged plaintiff was agent for first defen- dant. When debtor chose to pay third party, it did so at its peril. Day & Ross Inc. v. Hanway Restaurant Equipment Contracting (Nov. 22, 2007, Ont.S.C.J. Small Claims Court, Godfrey J., File No. TO 19571/05) Order No. 008/010/069 (3 pp.). Employment LABOUR RELATIONS Arbitrator did not err in upholding grievances respecting appointment of non-bargaining unit members Association filed two griev- ances respecting appointment of non-bargaining unit mem- bers. Dispute centred on wheth- er positions were "principal" and "vice-principal" positions within meaning of Education Act (Ont.). Arbitrator upheld grievances. Decision was ren- dered almost two and half years after completion of evidence. Applicant sought to set aside decision. Application for judi- cial review was dismissed. Award gave collective agreements and provisions in Act meaning that language could reasonably bear. Award was reasonable. Arbitrator correctly identified legal and fac- tual issues and supported conclu- sions with appropriate reference to similar arbitral decisions. Dufferin-Peel Catholic District School Board v. Ontario English Catholic Teachers' Assn. (Jan. 8, 2008, Ont. Div. Ct., Lane, Gans and Swinton JJ., File No. D.C. 168/07) Order No. 008/017/017 (6 pp.). Family Law PROPERTY Husband and wife equally liable for debt Husband and wife signed loan agreement. Husband and wife separated. Wife wrote on wage assignment that plaintiff agreed to attempt collection from husband before wife. Plaintiff received non- sufficient funds cheques. Plaintiff sought outstanding balance pursu- ant to loan agreement. Debt was incurred substantially for benefit of family. Clear and unequivocal evi- dence was not adduced to indicate plaintiff agreed to show forbear- ance in favour of wife. Loan agree- ment did not distinguish between husband and wife. Husband and wife were equally liable. Husband paid $8,030 and wife paid $1,370. Husband was entitled to receive equalization payment from wife of $3,329. Parties were to continue to be equally indebted for balance of debt, interests and costs. Fire Department Employees Credit Union Ltd. v. Vazquez (Dec. 4, 2007, Ont.S.C.J. Small Claims Court, Reznick D.J., File No. Case Law CaseLaw CaseLaw CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. COURT DECISIONS When the entire firm has the same goal, success comes naturally. Une équipe avec un objectif commun : le succès dans la poche! SMSS.COM CHARLOTTETOWN ST. JOHN'S HALIFAX MONCTON SAINT JOHN FREDERICTON Untitled-10 1 11/6/07 3:56:47 PM

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