Law Times

www.lawtimesnews.com Page 18 march 17/24, 2008 / Law Times CASELAW and treating obligation to pro- vide disclose as game or tactic. Applicant sought leave to appeal on ground that decision in C.S. v. M.S. which judge had inter- preted Rule 24 of Family Law Rules (Ont.), and determined that failing to provide prompt income disclosure without intent to deceive or conceal did not con- stitute bad faith. Application for leave granted. Decision in C.S. v M.S. was basis to conclude con- flict in decisions at first instance as to meaning of "bad faith" in Rule 24(8) of Family Law Rules. While there were many deci- sions at first instance there were no decisions at appellate level on relationship between Rule 24(5) and (11) of Family Law Rules and specifically reason- ableness as factor in entitlement and Rule 24(8). Leave to appeal granted under Rule 62.02(4) (a) of Rules of Civil Procedure (Ont.), on questions of what are principles which ought to guide exercise of judicial discretion in finding of bad faith under Rule 24(8) of Family Law Rules and was finding of bad faith conduct in court below result of proper exercise of judicial discretion based on such principles. Reisman v. Reisman (Dec. 10, 2007, Ont. Div. Ct., Kiteley J., File No. 00-FP-255349FIS) Handwritten endorsement. Order No. 007/361/025 (5 pp.). DOMESTIC CONTRACTS No meeting of minds as to spou- sal or child support Parties separated in 2006. In 2007 parties and their counsel held joint meeting to discuss child and spousal support. Husband alleged that verbal agreement was made at this meting that he would start making payments of $12,000 per month based on presumed income of $350,000 per year. Husband made num- ber of these payments which wife accepted. Letters exchanged between counsel indicated that there was no agreement on how much money was to be paid for spousal support or child sup- port. Wife alleged that she had told husband on three occa- sions that she did not agree that monthly payments being made were tax deductible. Husband sought to deduct amount he had paid as income tax deduc- tion. Wife contended that as no agreement had been made she was not required to declare any amounts for income tax pur- poses. No binding agreement was concluded between parties on how much money was being paid for spousal support or child support. Specifically there was never a meeting of minds as to essential elements of alleged interim agreement and no agree- ment as to how much was to be paid for child support, by Child Support Guidelines (Ont.), s. 7 expenses, spousal support nor husband's level of salary upon which payments were to be based. Despite absence of agree- ment on those issues husband agreed to pay monthly and wife agreed to accept $12,000 per month. Without agreement as to allocation of this amount husband knew that his ability to deduct for income tax purposes monthly spousal support was in doubt given exchange of corre- spondence between counsel. Jakubowski v. Kopacz-Jakubowski (Jan. 4, 2008, Ont.S.C.J., Kane J., File No. FS-07-164) Order No. 008/008/066 (8 pp.). Planning BUILDING PERMIT Section 9(1) of Building Code Act, 1992 (Ont.) did not grant discretion to defeat applications for evaluations under s. 4.1.1.4 Motion judge correctly ordered Chief Building Officer to issue building permits for three resi- dences and ordered that load test data submitted in support of building permit application by respondent Craft-Bilt be consid- ered on their merits with regard to load bearing requirements of Building Code. Section 9(1) of Building Code Act, 1992 (Ont.), gave discretion to Chief Building Officer to accept materials, sys- tems and designs that were not authorized in Building Code, but it did not grant discretion to defeat applications for evalua- tions under s. 4.1.1.4 of Code, such as had been submitted by Craft-Bilt. Craft-Bilt Materials Ltd. v. Toronto (City) (Jan. 10, 2008, Ont. Div. Ct., Cunningham A.C.J.S.C., Jennings and Swinton JJ., File No. 612/06) Appeal from 153 A.C.W.S. (3d) 221; 57 C.L.R. (3d) 203; 28 M.P.L.R. (4th) 274 dismissed. Order No. 008/015/059 (7 pp.). Torts NEGLIGENCE Defendant could not rely on limitation of liability in greens fee ticket Respondent was injured when golf cart in which he was pas- senger rolled over. Appellant could not rely upon limitation of liability in greens fee ticket. Respondent did not pay for ticket and his evidence was that he did not recall receiving it. Further, he had never read ticket on many prior occasions he had played at this golf course and it had never been brought to his attention on those earlier occasions. There was no other evidence, such as signage, that appellant brought exclusion of liability to respon- dent's attention on this particular occasion. Best v. Deal (Jan. 15, 2008, Ont. C.A., Winkler C.J.O., Rosenberg and Lang JJ.A., File No. C46300) Appeal from 152 A.C.W.S. (3d) 547 dismissed. Order No. 008/022/064 (2 pp.). Plaintiff did not establish negli- gence in repair of vehicle Plaintiff instructed defendant in April 2005 to repair transmission of 1981 Volkswagen van because car was vibrating. Defendant installed transmission of 1986 van because parts were not avail- able for 1981 model. Defendant did not remanufacture or hand make any parts in transmission including bracket and mount. Plaintiff returned in November 2005 complaining that car was vibrating. Defendant performed further repairs. Plaintiff returned in January 2006 alleging repair job was not properly done. Car was inspected by Volkswagen dealer whose mechanic docu- mented numerous concerns, primarily oil leak from trans- mission and concluded car was not safe to drive. Mechanic also gave personal opinion that were he not authorized Volkswagen crafts person he would have done exactly what defendant had done. Claim dismissed. Plaintiff had not established that defen- dant was negligent or had not performed required work in anything but professional way. Oil leak ascribed by Volkswagen mechanic to age of power train. No evidence leaks or vibrations related to defendant's installation of 1986 transmission. Teodorowych v. Bero Motors (1948) Ltd. (Dec. 6, 2007, Ont.S.C.J. Small Claims Court, Thomson J., File No. SC-07-0047116-0000) Order No. 007/301/001 (3 pp.). Defendant could not be vicariously liable for alleged negligence of chefs operating as independent contractors Claim by plaintiff for damages allegedly arising as result of food poisoning subsequent to inges- tion of scallops consumed at event organized by defendant. Plaintiff attended event orga- nized by defendant that involved preparation of appetizers by selected chefs from various res- taurants around city. Chefs were not employed by defendant but were independent contractors. Appetizers were to be paired with wine sold by defendant. Claim dismissed. Defendant could not be held vicariously liable for acts or omissions of independent contractors except for liability for negligence where work being delegated could be classified as inherently dangerous. Chefs were operating as independent con- tractors and cooking not inher- ently dangerous. Plaintiff failed to establish on balance of prob- abilities that defendant was neg- ligent in selection of participant chefs. Rideout v. Brown-Forman Corp. (Dec. 13, 2007, Ont.S.C.J. Small Claims Court, Bocci D.J., File No. SC-06-36311) Order No. 008/010/074 (8 pp.). FEDERAL COURT OF APPEAL Admiralty ARREST No error in finding Affidavit to Lead Warrant not deficient Chambers judge did not err in finding that Affidavit to Lead Warrant was not deficient. Rule 481(2)(b) of Federal Court Rules (Can.), did not require that affi- davit say anything with respect to either beneficial ownership of cargo or factual basis support- ing court's in rem jurisdiction under s. 43(3) of Federal Courts Act (Can.). It was sufficient for affidavit to set out legal basis on which P relied to invoke court's in rem jurisdiction. Further, statement of claim disclosed in personam claim against owners of cargo arrested on September 13, 2005, and as result, it was not plain and obvious that it could not succeed. Appeal dis- missed. Phoenix Bulk Carriers Ltd. v. Kremikovtzi Trade (Dec. 4, 2007, F.C.A., Linden, Nadon and Sharlow JJ.A., File No. A-409-05) Order No. 007/362/006 (26 pp.). Appeal GROUNDS Chief Military Judge ordered to assign military judge to preside at accused's court martial Appeal by the Director of Military Prosecutions from a decision which refused to compel the Chief Military Judge to assign a military judge and to require the Court Martial Administrator to issue an order to convene a court martial for the accused. Canadian Forces created a special operations unit whose function was to conduct counter-terrorism operations. Information regard- ing the identity of unit members as well as their movements or deployment was protected from public release for national secu- rity reasons. Accused was a mem- ber of the unit and was alleged to have committed offences against a subordinate member of the unit. Chief Military Judge refused to assign a military judge to this case because doing so in this case where the charge sheet and accompanying documenta- tion was classified would con- travene the Canadian Charter of Rights and Freedoms and the open court principle. Given this refusal the Court Martial Administrator could not issue a convening order since she could not identify the military judge whose name was to appear on the order. Director sought to allevi- ate concerns by having the court martial convened. Charge sheet would be sealed but at the hear- ing submissions could be made for the presiding judge to limit public access to the classified information to be disclosed dur- ing the trial. Chief Military Judge refused to accept this solution. Appeal allowed. Chief Military Judge was ordered to assign a military judge to preside at the court martial of the accused. Court Martial Administrator was to convene the court mar- tial forthwith. Director's pro- posed solution was necessary and legal. It allowed the charge to be brought before a military judge in circumstances where such judge would be able to decide the question of disclosure. Existing legislation allowed court martial to hold in camera hearings where public safety or defence concerns made this necessary. Once the court martial was convened the military judge would have the authority to address the issue of disclosure. Adequate public notice could be provided in this case for the charge sheet did not have to be included in the notice of hearing. Fact that the charge was sealed until the issue of its confidentiality was decided did not offend the open court principle. Order was granted as there was no effective alternative to the solution proposed by the Director. Canada (Director of Military Prosecutions) v. Canada (Court Martial Administrator) (Dec. 10, 2007, F.C.A., Noel, Sexton and Trudel JJ.A., File No. A-53-07) Appeal from 72 W.C.B. (2d) 318 allowed. Order No. 008/009/118 (50 pp.). FEDERAL COURT Environmental Law ENFORCEMENT Conclusion that project did not constitute "significant adverse environmental effect" was reasonable CEA decided that Laniel Dam Rehabilitation Project on Kipawa River was "not likely to cause significant adverse envi- ronmental effects". Applicant challenged decision, alleging that respondents did not take into consideration public right of navigation through dam, arguing that extinguishment of this common law naviga- tion right should be found to be "significant adverse environ- mental effect" under s. 20(1) of Canadian Environmental Assessment Act. Applicant had not demonstrated that through unrecognized use by kayakers and rafters who had used dam as launching gate into Kipawa River for little more than 25 days per year, for past 40 years, navi- gable common law right existed. Even if there was common law right to navigate through dam, evidence did not support propo- sition that authorities did not take this factor into consider- ation. Further, assuming that Project was cause that prohib- ited navigation through dam, decision concluding that Project did not constitute "significant adverse environmental effect" was reasonable. Lastly, applicant failed to demonstrate there was breach of procedural fairness. Judicial review dismissed. Amis de la Riviere Kipawa v. Canada (Attorney General) (Dec. 4, 2007, F.C., Noel J., File No. T-452-06) Order No. 007/362/023 (46 pp.). VISITORS Applicant not denied procedural fairness by absence of interview Applicant accepted to music school in Toronto. Visa denied. Officer found financial depos- its recent indicating short-term loan and family income mod- est. Officer found inadequate financial documentation and concluded applicant would not leave Canada at end of study period. Application for judi- cial review. Application denied. Applicant was not deprived of procedural fairness by absence of interview. Officer's concerns had rational basis and conclu- sions were open to officer. No requirement for officer to refer to study plan or receipt of funds where facts do not undermine basis of conclusion. Ye v. Canada (Minister of Citizenship and Immigration) (Dec. 7, 2007, F.C., Phelan J., File No. IMM-152-07) Order No. 008/009/089 (6 pp.). SELECTION AND ADMISSION Judge misdirected herself by focusing on future intentions Applicant permanent resident since 1970. Applicant present in Canada 831 days in four years preceding application for citizenship. Applicant scholar and professor and expert witness regarding China. Judge noted applicant travelled and husband

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