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Page 14 April 28, 2014 • lAw Times www.lawtimesnews.com in granting of honour or mak- ing appointment. Agreement intervened and showed prom- ise of process. Agreement cre- ated legitimate expectation that procedures of province respect- ing appointments would be fol- lowed. Agreement did not prom- ise appointment of anyone in particular and did not reflect on rights of any individual. Crown might act in recognition of dec- laration, but it did not have to. Ontario First Nations (2008) Lim- ited Partnership v. Ontario (Min- ister of Aboriginal Affairs) (Dec. 13, 2013, Ont. S.C.J., Lederer J., File No. CV-13-471630, CV-13- 471633, CV-13-471638, CV-13- 471639) 236 A.C.W.S. (3d) 629. Agency REAL ESTATE AGENTS AND BROKERS Leaving pamphlet with defendant not sufficient to meet disclosure duties Agent contacted defendant sev- eral times to attempt to get list- ing for her home and asked if she could show it to purchasers. After showing, agent met with defendant to present offer, but refused to show offer until defen- dant agreed to listing agreement. Defendant entered listing agree- ment for one week and entered agreement of purchase and sale with purchasers, but refused to close. Listing agreement required payment of commission in event agreement of purchase and sale was entered during listing peri- od. Action by real estate broker for $17,788.75 commission on basis it was payable given trans- action did not close because of defendant's refusal. Defendant clamed plaintiff materially breached listing agreement by failing to disclose agent was also representing purchasers. Action dismissed. Agent did not review dual agency provision of agree- ment with defendant, nor did she inform her in writing of dual agency that was in existence prior to offer to purchase, as spe- cifically required by agreement. This requirement was a material term and the defendant testified she relied on the agent for advice, thinking she was acting only in her interests, and would not have entered listing agreement had she known about dual agency. Leaving agency pamphlet with defendant was not sufficient for agent to meet her disclosure duties under agreement. This non-disclosure was material breach that precluded plaintiff 's entitlement to commission. Partners Realty Ltd. v. Morrow (Jan. 9, 2014, Ont. S.C.J., Pol- lak J., File No. 04-CV-274335SR) 236 A.C.W.S. (3d) 537. Civil Procedure TRIAL Trial judge's charge to jury consistent with leading causation case Jury apportioned liability 53 per cent to defendants, 26 per cent to plaintiff D.S. and 21 per cent to non-party. Plaintiffs were awarded judgment of $1.1 million, and costs of $295,000. Defendants appealed. Appeal dismissed. Trial judge's charge to jury was consistent with lead- ing causation case. Even if there was error of law, no substantial miscarriage of justice occurred. Fact that worksite was secure did not exclude liability in circum- stances. Trial judge did not com- promise trial fairness by improp- erly interfering with defendants' cross-examination of witnesses. Trial judge's interventions were not inappropriate. Trial judge's charge to jury was adequate pre- sentation of evidence and posi- tions of both sides and there was no unfairness or imbalance in summary of evidence. Silvio v. 698743 Ontario Ltd. (Jan. 9, 2014, Ont. C.A., M. Rosen- berg J.A., J.C. MacPherson J.A., and H.S. LaForme J.A., File No. CA C56604) 236 A.C.W.S. (3d) 786. Conflict of Laws FOREIGN JUDGMENTS Exchange rate from time order was registered to be implemented Parties were divorced in Oregon in 1999, and court ordered hus- band to pay child support, which had now come to an end, and $35,000 annual spousal sup- port. Judgment was registered in Ontario, where husband moved in 2011. Prior to that, husband paid funds directly to wife in American currency. Motion by husband to change to require clerk to convert support amounts to Canadian funds at time order was registered, which would result in him paying $36,575 annually. Cross-motion by wife to dismiss husband's motion and use exchange rate from time order was made to require hus- band to pay $51,644.88 annu- ally and arrears of $52,345.74. Husband's motion allowed; wife's motion dismissed. Wife brought 14b motion, which was not cor- rect procedure, nor was it role of court to fix arrears. If exchange rate from 1999 was implement- ed, this would be material change as amount paid by husband, con- sidering current exchange rate, would be more than that which was ordered. Exchange rate from time order was registered to be implemented on nunc pro tunc basis, effective with enforce- ment of order. Each year, any overpayment or underpayment would be calculated to take into account rate fluctuations. Li v. Pan (Jan. 9, 2014, Ont. S.C.J., R. Kaufman J., File No. FC-13-043379) 236 A.C.W.S. (3d) 607. Constitutional Law CHARTER OF RIGHTS Lack of adequate or accessible housing not shared quality, characteristic or trait Governments of Canada and Ontario made decisions resulting in program changes, alleged by applicant individuals and pub- lic interest group to have eroded access to affordable housing. Individuals and group applied for declarations that failure of Canada and Ontario to imple- ment effective policies to reduce and eliminate homelessness and inadequate housing violated ss. 7 and 15 of Canadian Charter of Rights and Freedoms. Applicants sought mandatory orders requir- ing that such strategies be devel- oped and implemented in con- sultation with affected groups. Canada and Ontario brought motions to dismiss application. Motions granted. It was plain and obvious that application could not succeed. There was no basis upon which it could be found that applicants, as result of decisions, had not received equal benefit of law. Impugned changes affected programs directed only to those who required the assis- tance they provided and did not deny applicants a benefit given to others or impose a burden not placed on others. Alleged effect of changes did not involve com- parison to how programs treated other groups in society. By acting where there was no obligation to do so, government did not create right which obtained protection under Charter that would other- wise be unavailable. Application was based on incorrect prem- ise that Charter provides right to minimum standard of living. In any event, group encompass- ing those without homes, those without adequate or accessible housing and those who could not afford to pay for appropriate housing, was not group protect- ed under s. 15(1). Lack of ade- quate or accessible housing was not shared quality, characteristic or trait. Homelessness and being without adequate housing were not analogous grounds under s. 15(1). Issues raised in application were not justiciable. Application was misconceived as it invited court to cross institutional boundaries into area that should be reserved for Legislature. Tanudjaja v. Canada (Attorney General) (Sep. 6, 2013, Ont. S.C.J., Lederer J., File No. CV- 10-403688) 236 A.C.W.S. (3d) 610. Penalty was bona fide administrative penalty not intended as "fine" Respondents carried on business as providers of cellular telephone services. Respondents caused certain advertisements to be published, which alleged that services provided by respon- dent company were technically superior to those provided by its competitors. Commissioner of Competition brought applica- tion for declaration that respon- dents had engaged in false or misleading anti-competitive representations, contrary to s. 74.01(1)(b) of act. Violations of s. 74.01(1)(b) of act could subject violators to $10 million admin- istrative monetary penalty, and commissioner sought maxi- mum monetary penalty in pres- ent case. Respondents defended application on basis that $10 million penalty required com- missioner to afford respondents rights as guaranteed by s. 11 of Charter. Act monetary penalty did not attract s. 11 of Charter. Penalty was bona fide adminis- trative penalty, not intended as "fine". Administrative penalty may be deemed punishment for Charter purposes where penalty is potentially grossly excessive. Given scope and value of cellular telephone service provision mar- ket in Canada, $10 million was not grossly excessive maximum penalty in circumstances, and accordingly commissioner was not required to respect respon- dents' s. 11 Charter rights. Canada (Commissioner of Com- petition) v. Chatr Wireless Inc. (Aug. 19, 2013, Ont. S.C.J., Marrocco J., File No. CV-10- 8993-00 CL) 236 A.C.W.S. (3d) 606. Consumer Protection INTEREST Interest rate of 28.8 per cent charged by plaintiff was high but not illegal In 1999, defendant applied for and received credit card from Home Depot. Card was admin- istered by predecessor to plain- tiff. In June 2003, plaintiff took over Home Depot credit cards and began to administer agree- ment. As early as 2004, defen- dant husband, by his own admis- sion, began to use credit card. It was disputed whether husband simply used defenant's card or whether he had his own card. Card had $40,000 limit, and was used up to that amount, and paid off up to and including 2005. However, by 2007, terms of agreement were breached. Some subsequent payments had been made, but eventually card was given to collections and was "charged off " on November 23, 2008. Plaintiff sued defendants for amount owing on card and interest. Defendant agreed that she owed purchase amounts, but argued that interest rate should be calculated on basis of rate in the Courts of Justice Act (Ont.). Husband denied liability, argu- ing that it had not been proven that he was either co-applicant, joint cardholder or other autho- rized purchaser. Action allowed. It was not disputed that defen- dant was liable for debt. There was evidence that husband was secondary cardholder on account. Defendants were jointly and severally liable for account. Absent exceptional circum- stances, creditor was entitled to recover both prejudgment and postjudgment interest at con- tract rate. Rate charged by plain- tiff was high at 28.8 per cent, but it was not illegal interest. Persons who contracted with credit card companies must know that irre- sponsible actions on their part, in making purchases for which they could not pay, would result in high rates of interest accru- ing. Judgment was given in contractual amount of 28.8 per cent, that was interest amount of $68,118.42 to and including November 28, 2013. Citi Cards Canada Inc. v. Ross (Jan. 7, 2014, Ont. S.C.J., Wein J., File No. Orangeville 726/08, 486/10) 236 A.C.W.S. (3d) 636. Contracts SPECIFIC ENFORCEMENT Nothing to suggest defendants could "cherry pick" specific location for exclusion Principals of plaintiff sold seven self-storage facilities to defen- dants. Plaintiff was incorporated to acquire building to be con- verted into self-storage facility. Defendants were to ultimately acquire building and oversee ret- rofit. Option agreement was exe- cuted, under which Put clauses would enable plaintiff to force defendants to buy out its interest. Defendants were assumed by US company in hostile takeover. US company refused to complete purchase. Plaintiff exercised Put, but US company contended that agreement was null and void because of improper appraisal and because of breach by plain- tiff of warranty as to fitness of building. Plaintiff brought action alleging that defendants breached option by failing to complete purchase. Action allowed. Plaintiff was entitled to specific performance of sale to defendants for price of $7.3 mil- lion. Defendants were not justi- fied in breaching option agree- ment. Appraisal was conducted properly and without manifest error. Plaintiffs were also entitled to agreed upon damages with respect to carrying charges on property, in sum of $728,080.05. To deny specific performance after plaintiff sold off its entire inventory to defendants would mean that subject site would stand alone. There was noth- ing to suggest that defendants or successor US company could "cherry pick" specific location for exclusion out of takeover by US company of defendants. There were two levels of uniqueness about facility. First, option agree- ment was created because of short-term financing issue con- cerning defendants, resulting in finished product which was not standard agreement of purchase and sale. Second, parties went to great lengths to ensure that joint- venture development of self- storage site came to fruition with its ultimate acquisition by defen- dants as sole owner and operator of facility. Parties undertook due diligence on building before pur- chase and defendants inspected roof and did not find it wanting. Matthew Brady Self Storage Corp. v. Instorage Limited Partnership (Aug. 30, 2013, Ont. S.C.J., Richard C. Gates J., File No. CV- 09-13941CM) 236 A.C.W.S. (3d) 620. Family Law DOMESTIC CONTRACTS Difficulty husband alleged with own lawyer not ground for setting aside agreement Husband and wife had exchanged disclosure and con- ducted examinations for discov- ery following separation. Parties caselaw

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