Law Times

Page 18 April 14, 2014 • lAw Times www.lawtimesnews.com nated. Plaintiff sent defendant term sheet in form of offer that set out terms of transition loan. Defendant later entered into agency agreement with plaintiff and schedule to agreement con- tained more detailed terms for transition loan. Agency agree- ment provided defendant was to be repay transition loan on event of default. IIROC refused defendant's application as su- pervisor and approved defen- dant's application as registered representative subject to condi- tions, including strict supervi- sion. Plaintiff terminated agency agreement because it was not able to provide requisite level of supervision and it was impos- sible for defendant to be regis- tered. Plaintiff brought action for repayment of loan. Defen- dant counterclaimed that plain- tiff failed to accommodate re- strictions and acted in bad faith. Claim allowed. Counterclaim dismissed. Terms of transition loan were governed by sched- ule and agency agreement and not term sheet sent to defendant previously. Agency agreement contained entire agreement clause indicating it superseded any former agreement. Plaintiff had ample cause to terminate agreement and to demand re- payment of loan. Agreement clearly provided for immediate termination for cause and no notice was required. ere was no bad faith on part of plaintiff with respect to manner of termi- nation, reasons for it or any of its dealings with defendant. De- fendant was not entitled to com- missions generated from former book of business subsequent to termination of agreement. Canaccord Genuity Corp. v. Beck (Dec. 23, 2013, Ont. S.C.J., Chapnik J., File No. CV-11- 417827) 236 A.C.W.S. (3d) 393. Courts JURISDICTION Tenant not required to give notice given board terminated tenancy Tenant stopped paying rent in response to landlord's failure to act on his complaint about mouse infestation. Board or- dered termination of tenancy subject to tenant receiving abatement of rent for infesta- tion and owing $1,209.65 in- cluding costs, plus per diem rent of $52.60. Landlord in- spected unit and claimed to have discovered property dam- age. Tenant vacated unit. Ac- tion by landlord for $7,991.62 for rental arrears and damage to unit. Action dismissed. Board had ex- clusive jurisdiction over both claims under s. 168(2) Residen- tial Tenancies Act, 2006 (Ont.). Furthermore, matter of rent ow- ing was res judicata and tenant was not required to give notice given board terminated tenancy. Even if landlord did not discover damage to unit aer board's or- der, it had statutory right of in- spection that could have been exercised prior to hearing. Grewal v. Behling (Dec. 23, 2013, Ont. S.C.J., J. Sebastian Winny D.J., File No. Kitchener 1502/13) 236 A.C.W.S. (3d) 494. Evidence ADMISSIBILIT Y Video could be used only to impeach plaintiff 's credibility Plaintiff was injured in mo- tor vehicle accident in which plaintiff was passenger. Plain- tiff 's injuries included burning pain to neck, shoulders, lower, middle and upper back with referred pain into arms, but- tocks and legs. Plaintiff 's pain was chronic. Plaintiff claimed she had difficulty maintain- ing prolonger positions; with repetitive tasks, with extended periods of standing or sitting and walking; and with bathing, self-care and housekeeping. Defendant admitted liability. Insurance company conducted video surveillance on plaintiff, which showed plaintiff per- forming tasks inconsistent with plaintiff 's evidence. Videotape surveillance evidence was ad- missible for limited purpose of impeaching plaintiff 's cred- ibility. Videotape evidence was relevant to plaintiff 's credibility in that it could undermine her testimony regarding her limi- tations. Probative value of vid- eos was not high, but was not trifling. Probative value out- weighed any prejudice. Plaintiff would have opportunity to ex- plain her actions on video and to call evidence. Risk of jury using videotape as direct evi- dence of plaintiff rather than as evidence to assist in assessment of her credibility existed when- ever evidence was proffered for impeachment purposes. Dur- ing charge to jury judge would instruct jury that videos could not be used as substantive evi- dence of plaintiff 's physical ca- pabilities, but could be used only to impeach her credibility. Adams v. Taylor (Nov. 21, 2013, Ont. S.C.J., Patrick Smith J., File No. CV-10-49592) 236 A.C.W.S. (3d) 402. Family Law CHILD WELFARE No amount of effort would overcome mother's cognitive limitations Society apprehended child at birth, as it was concerned with mother's living arrangements and post-birth drug test was pos- itive for Oxycontin use. Mother was not aware she was pregnant. Mother's older child was appre- hended at birth and was subse- quently adopted with mother's consent. Cognitive assessment indicated mother had extremely low IQ. Child was diagnosed with autism spectrum disorder and alcohol related neurological disorder, which resulted from in utero exposure to alcohol. Child required assistance of speech therapist, occupational therapist and ophthalmologist. Society was satisfied mother's past drug use was not concern. Mother found living accommodations and society no longer consid- ered transience to be problem, but mother failed to address problem of lack of lock on unit door. Society brought child pro- tection application seeking find- ing that child, now 30 months old, was in need of protection and making child Crown ward with no access. Society brought motion for summary judg- ment. Motion granted. Only realistic option was for child to be made Crown ward without access. ere were no other or less intrusive alternatives. Soci- ety established prima facie case and there was no genuine issue for trial. Child was in need of protection. Mother made some progress with respect to her own needs, but did not show ability to parent child, who was very vulnerable and had extraordi- nary needs. No amount of ef- fort would overcome mother's congenital cognitive limitations. Court could not provide level of supervision required. Mother lacked support outside of court with maternal grandmother having intellectual limitation and history of involvement with society as well. Children's Aid Society of Hamil- ton v. P. (R.) (Dec. 18, 2013, Ont. S.C.J., Parayeski J., File No. C 884/12) 236 A.C.W.S. (3d) 406. CUSTODY Father's refusal to consent to counseling for child was abrogation of parental responsibilities Parties were married 11 years and had two children. Father chose not to involve himself with childcare responsibilities and deferred to mother and maternal grandmother to care for children. Parties separated aer incident of domestic vio- lence. Father was not permitted to live in matrimonial home or to have contact with mother or children. By temporary order father was granted access to children. Older child was sus- pended from school for mak- ing threats and father refused to consent to counseling for child although it was recommended by number of professionals. Fa- ther removed older child from school for access contrary to court order. Father failed to produce disclosure prior to trial. Father was acquitted of al- legations of domestic violence but father was found to be bul- ly. Father started own business of teaching karate and taught 7 hours per week for 39 weeks of year, but his bookkeeping was unconventional and he did not keep copy of receipts of pay- ment for records. Father did not file tax returns until he was compelled to do so for court proceeding. Father did not seek alternate of additional work. Mother worked in accounting position. Mother was granted sole custody of children and father was to have access as set out. Father's refusal to consent to counseling for older child was abrogation of his parental responsibilities. Father inter- preted court orders to achieve his own ends, which did not favour joint custody. ere was power imbalance between par- ties that would put mother at disadvantage in any regime re- quiring joint decision making. Mother was always primary parent. Father exhibited little or no insight into what was needed to meet children's best interests. Zouganelis-Fobert v. Fobert (Dec. 20, 2013, Ont. S.C.J., Brian W. Abrams J., File No. Belleville FS-10-0353-00) 236 A.C.W.S. (3d) 424. PROPERTY Transfer of property to father day before wedding was sham Parties were married 11 years and had two children. Husband purchased property before marriage. Wife testified that husband asserted he was sole owner of property until aer separation when he contended his father was sole owner of property. With date of marriage looming husband asserted fa- ther wished assurance that in event of breakdown of marriage he would not lose investment and father asked husband for title to be transferred to father's name. Day before wedding hus- band and father attended law- yer's office to affect transfer. In land transfer affidavit attached to transfer deed sole consider- ation shown was assumption of mortgage. On same day quit claim deed from father to hus- band was executed but was never registered on title. Land transfer tax affidavit attached to quit claim deed listed $2, natural love and affection as sole con- sideration. Husband claimed father paid for renovations on home. Husband planned to make assignment in bankrupt- cy. Husband owed wife equal- ization payment of $60,532.54 payable within 60 days. Charge order issued against matrimo- nial home to secure amounts owing by husband. Husband was legal owner of property on date of marriage. Property was matrimonial home for pur- poses of equalization at date of separation. Preponderance of evidence showed husband was owner of property. Transfer of title to property by husband to father day before wedding and contemporaneous transfer back to husband by unregistered quit claim deed was sham. Husband was not permitted to deduct amount owing to CRA at date of separation for ten years of ac- cumulated unpaid taxes. ere was no objective evidence to support purported debt ow- ing for husband's purchase of motorcycle and husband's posi- tion regarding purported debt to father for renovations on home was not accepted. Father conceded he did not expect to receive reimbursement from husband for any monies spent on renovations. Zouganelis-Fobert v. Fobert (Dec. 20, 2013, Ont. S.C.J., Brian W. Abrams J., File No. Belleville FS-10-0353-00) 236 A.C.W.S. (3d) 424. Injunctions NEGATIVE COVENANT Relief requested was no more intrusive than terms of agreement Parties entered into licence agree- ment for five-year term that was to expire in October 2013. Pur- pose of agreement was to allow defendant to rent mobile signs to customers in certain geographic territories. Agreement contained non-competition covenant. Par- ties were unsuccessful at nego- tiating renewal of agreement. Defendant delivered letter to plaintiff advising that agreement would not be renewed, but she at- tempted to dictate her own terms for terminating agreement. Plain- tiff brought motion for injunc- tion to prevent defendant from contacting plaintiff 's customers and barring her from operating or being involved in mobile sign company within 100 miles of location. Motion granted. Plain- tiff demonstrated strong prima facie case. Defendant acknowl- edged that restrictive covenants were reasonable. ere was clear evidence that defendant was at- tempting to lure plaintiff 's cus- tomers to continue to use her services. Relief requested was not more intrusive than terms of agreement. Agreement and non-competition covenant were not ambiguous. It was obvious that soliciting customers to di- vert business to competitor could have irreversible consequences for plaintiff 's business and was harm that restrictive covenants were intended to protect against. Balance of convenience favoured plaintiff to ensure defendant did not continue to interfere with plaintiff 's customers or use plain- tiff 's trade name. A Big Mobile Sign Co. v. Marshall (Jan. 2, 2014, Ont. S.C.J., Heal- ey J., File No. CV-13-1438-SR) 236 A.C.W.S. (3d) 477. Real Property CONDOMINIUMS Respondent did not act in bad faith when it changed pet free policy Applicants resided in building owned and operated by respon- dent. Respondent changed pro- visions of life lease occupancy agreement with applicants by removing no pets provision that was contained in agreement. Provision required third floor of building to be pet free. Female applicant had severe allergy to pets and factor taken into con- sideration when applicants chose unit was pet free status on third floor of building. Applicants ap- plied for declaration that remov- al of pet free designation was of no force and effect. Application dismissed. Agreement governed rights and obligations between parties and court should give effect to intention of parties as written in agreement. In agree- ment, respondent reserved right to amend rules and regulations or create new rules and regula- tions in future with input from residents' advisory association. However, respondent retained final decision-making authority caselaw

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