Law Times

Law TiMes • May 5, 2014 Page 15 www.lawtimesnews.com of judge's order. Development of law with respect to class ac- tions had implications that were broader than this case. Amyotrophic Lateral Sclerosis So- ciety of Essex (County) v. Wind- sor (City) (Oct. 30, 2013, Ont. S.C.J., Mary Jo M. Nolan J., File No. DC-13-52-ML, DC-13-53- ML) Leave to appeal from 224 A.C.W.S. (3d) 265 was allowed. 236 A.C.W.S. (3d) 827. Civil Procedure DISCOVERY Individual defendant might have access to material, but it was property of corporate defendant Individual defendant entered into employment contract with plaintiff in 2004, and entered into further agreement in 2009. Individual defendant resigned in 2012, and began working for corporate defendant. Plain- tiff claimed defendants were in breach of contractual obliga- tions to plaintiff. Plaintiff as- serted individual defendant used confidential information to plaintiff 's prejudice and so- licited business from plaintiff 's clients in violation of contract. Individual defendant refused to produce client profile reports contained in system used by corporate defendant. Individual defendant as employee of cor- porate defendant had access to system. Plaintiff brought motion to require individual defendant to re-attend at examination for discovery and answer questions refused at original examination for discovery. Motion dismissed. Individual defendant had right to refuse to produce client pro- file reports contained in system. Individual defendant might have had access to material in system, but it was property of corporate defendant. If material was otherwise relevant, it could be produced through principal of corporate defendant. Not- withstanding that party might be in possession of document or have access to document, if that document belonged to another party, production would not be compelled. Donaldson Travel Inc. v. Murphy (Jan. 14, 2014, Ont. S.C.J., R.D. Reilly J., File No. C-285-12) 236 A.C.W.S. (3d) 872. PLEADINGS Motion judge erred in striking out plaintiff 's claim against individual defendant Plaintiff sought damages against individual defendant for breach of contract, misrepresentation, quantum meruit and unjust enrichment. Plaintiff claimed that individual defendant was jointly and severally liable with other defendants under s. 131 of Business Corporations Act (Ont.) ("OBCA"), for accrued wages and expenses claimed by him and under s. 10 of Part- nerships Act (Ont.) ("PA"), for damages he claimed in general. On defendants' motion, motion judge struck out all plaintiff 's claims and dismissed action against individual defendant and struck out plaintiff 's unjust enrichment claim against all defendants. Plaintiff appealed. Appeal allowed. Defendants conceded that motion judge erred in striking out plaintiff 's claim against individual defen- dant under s. 131 of OBCA. Motion judge did not turn mind specifically to statutory claims advanced against individual defendant. Defendants did not seek to strike out claims under OBCA or PA and claims ought not to have been struck out. It was not plain and obvious that those claims could not succeed against individual defendant. Motion judge erred in hold- ing that plaintiff failed to plead material facts necessary to base proposed breach of contract claim against individual defen- dant. Allegations were sufficient to support breach of contract claim against individual de- fendant in personal capacity at pleading stage. It was plain and obvious that quantum meruit claim against individual defen- dant in personal capacity could not succeed, as plaintiff 's alleged services were not provided to individual defendant. Plaintiff 's misrepresentation claim against individual defendant should be allowed to proceed because if facts pleaded were proven then they arguably could establish misrepresentation. Omission of material facts in connection with individual defendant was fatal to claim of unjust enrich- ment against him personally. However, it was not plain and obvious that unjust enrichment claim would fail against other defendants, as claim potentially satisfied benefit requirement. Reeves v. Eddy (Feb. 3, 2014, Ont. C.A., Alexandra Hoy A.C.J.O., E.A. Cronk J.A., and Gloria Ep- stein J.A., File No. CA C57064) Decision at 227 A.C.W.S. (3d) 989 was reversed in part. 236 A.C.W.S. (3d) 882. SUMMARY JUDGMENT Motion judge erred in granting summary judgment Collision occurred between bi- cycle and car on bridge. Plaintiffs alleged that at time of accident, number of streetlights were not illuminated along both sides of bridge and that reduced visibil- ity and caused or contributed to accident. Defendants were City of Toronto, its contractor, City of Mississauga and its contrac- tor and there were cross-claims between defendants. Bridge was part of boundary road located between cities and west side of bridge was located in Missis- sauga while east side was within Toronto. Issue was responsibil- ity for streetlights on west side of bridge. Motion judge granted summary judgment and action against Mississauga contractor was dismissed. Mississauga ap- pealed. Appeal allowed. Motion judge erred in granting sum- mary judgment. Streetlights on west side of bridge were physi- cally located within City of Mis- sissauga, but were energized by Toronto contractor. ere was conflicting evidence as to whether Mississauga or Missis- sauga contractor was responsi- ble for identifying all streetlights that fell under jurisdiction of Mississauga. ere was dispute as to which party would reach agreement with neighbouring municipalities and utilities re- specting lighting on boundary roads or bridges located within Mississauga, but energized by another utility. Motion judge did not address conflicting evi- dence and erred in concluding that common understanding of parties that streetlights in issue were not within Mississauga's ju- risdiction was determinative of issues between Mississauga and Mississauga contractor. Bannister v. Toronto (City) (Jan. 22, 2014, Ont. C.A., Paul Rou- leau J.A., K. van Rensburg J.A., and M.L. Benotto J.A., File No. CA C57192) Decision at 228 A.C.W.S. (3d) 984 was reversed. 236 A.C.W.S. (3d) 1027. Debtor and Creditor ENFORCEMENT Defendant and husband registered home in name of son to shield themselves from creditors Parties were long-time neigh- bours. Plaintiff alleged that fe- male defendant approached her indicating that oldest son need- ed money for short-term loan for his business. Plaintiff claimed that female defendant offered to stand behind loan and person- ally repay money within three months with interest at rate of 20%. Plaintiff was told that fe- male defendant and husband owned home. Plaintiff advanced loan of $30,000 and promissory note was executed by oldest son and husband. Loan was not re- paid on due date and plaintiff learned that female defendant and husband did not own home and home was in name of de- fendant youngest son. Some payments were subsequently made on loan. Plaintiff sought judgment respecting outstand- ing loan. Action allowed. It was inferred that female defendant and husband registered home in name of youngest son to shield themselves from creditors. Youngest son did not defend claim. Plaintiff was awarded judgment of $29,908.01 plus in- terest. Krakowski v. Petaroudas (Jan. 21, 2014, Ont. S.C.J., Carole J. Brown J., File No. CV-10- 415404) 236 A.C.W.S. (3d) 926. Evidence OPINION EVIDENCE Party filing report was responsible for arranging and paying for costs of attendance Psychologist saw plaintiff in connection with injuries sus- tained in accident. Both par- ties filed notices under s. 52 of Evidence Act (Ont.), with respect to assessments done by psychologist and they referred to his clinical notes and re- cords in notices. Plaintiffs did not intend to call psychologist, but they intended to file his re- port under s. 52 of Act. Plain- tiffs brought motion to deter- mine responsibility for costs of psychologist. Motion granted. Party filing report was respon- sible, in first instance, for ar- ranging and paying for costs of attendance and report, in effect, became that party's witness. If plaintiffs chose to tender psy- chologist's report as evidence and if defendants required him to attend for cross-examination then plaintiffs should be re- sponsible for arranging his at- tendance and, in first instance, in paying for costs of his attend- ing, subject to decision at end of trial as to who should ultimate- ly pay costs. Andreason v. under Bay (City) (Jan. 30, 2014, Ont. S.C.J., D.C. Shaw J., File No. under Bay CV-09-0044) 236 A.C.W.S. (3d) 846 Family Law SUPPORT Not fair to allow husband to rely on consequences of alcoholism to reduce child support obligations Parties were married for 14 years, and had one child who was attending university. Hus- band was alcoholic and could not be relied on to meet obliga- tion to pay child support. Hus- band had agreed that $50,000 of his equalization payment would be placed into trust ac- count to be used as security for his ongoing child support ob- ligations. Trust fund was to be used to pay table amount and s. 7 amount. Trust fund had been reduced to $4,533.13. Husband was self-employed as architec- tural designer. Husband lived in common law relationship and partner had disability. Husband sought to reduce child support obligation based on undue hardship and obtain reimburse- ment from wife of $21,647 into trust fund. Husband brought motion to change. Motion granted in part. Wife used trust fund for purposes intended or according to agreements be- tween parties. Wife was entitled to retain balance in trust fund of $4,533.13 in satisfaction of arrears. Wife was not ordered to reimburse trust fund. Hus- band's income was determined to be $54,000 per year and wife's income was $23,000 per year. Husband did not provide evi- dence that partner was unable to obtain necessaries of life due to disability. Husband's duty to support son had priority over duty to support partner. It was not fair to wife or child to allow husband to rely on consequenc- es of alcoholism at this stage of his recovery to reduce his child support obligations. Husband was not entitled to adjustment based on undue hardship. Hus- band was ordered to pay child support of $163 per month and s. 7 expenses of $1,233 per month. Phelan v. Verni (May. 17, 2013, Ont. S.C.J., Kiteley J., File No. 06-FD-316869FIS) 236 A.C.W.S. (3d) 973. UNJUST ENRICHMENT Husband was evasive, unnecessarily combative, and generally not credible Husband and wife started co- habiting in 2009. Parties helped wife's mother find property for investment purposes. Wife and mother purchased property in April 2010 for $675,000. Wife held 99% interest as bare trustee for mother. Trust agreement provided mother was responsi- ble for all costs relating to prop- erty. Wife oversaw renovations to investment property and made various payments using funds provided by mother. Par- ties married by February 2011, and separated in November 2011. Investment property was sold in March 2012 at loss. Hus- band claimed he had contrib- uted over $62,000 to investment property. Husband brought application for restitution. Ap- plication dismissed. Husband's evidence regarding investment property was rejected. Husband was evasive, unnecessarily com- bative, at times inconsistent, and generally not credible. ere was no reasonable basis for con- cluding husband had spent over $62,000 on renovations. Hus- band's employment and finan- cial history made it very unlikely that he could have accumulated that much money. Wife's father indicated he had paid husband for work performed. Trust agreement was not sham. Parties had never occupied investment property as their matrimonial home. Razavi v. Ghiasian (Jan. 2, 2014, Ont. S.C.J., J. McNamara J., File No. FC-12-859) 236 A.C.W.S. (3d) 981. Landlord and Tenant CONSTRUCTION OF LEASE Installation of ATM did not mean tenant was offering banking services Parties entered into commer- cial lease for tenant to oper- ated fast food restaurant. Under lease tenant covenanted to use premises only for purpose set out. Tenant had ATM installed almost immediately aer mov- ing into premises. Landlord took issue with installation about one year later asserting that ATM was not permitted use. Tenant asserted ATM was to facilitate his business because it was convenient for customers and lowered his costs of do- ing business, avoiding costs of debit purchases. Application dismissed. Tenant's use of ATM was to appropriate business reasons to assist him in keep- ing costs low and clients happy. Installation of ATM did not mean tenant was offering bank- ing services. ere was no sug- gestion tenant was regulated by Bank Act (Can.), or that he was breaching Act or its regulations. Installation of ATM did not change purpose of premises. 2249778 Ontario Inc. v. Smith (Jan. 7, 2014, Ont. S.C.J., James W. Sloan J., File No. C-978-13) 236 A.C.W.S. (3d) 1018 LT CASELAW

• Cover